Freedom of Expression and the Hate Speech/Social Media Bills in Nigeria

 Sometimes in November of 2019, Daniel Penda Esq. and I were hosted on Radio Benue’s “You and the Law” programme, were we bared our thoughts on freedom of expression in Nigeria and the Hate Speech/Social Media bill. You can listen to the interview or discussion divided into 2 parts: part 1 and part 2

 

Below are some powerful quotes about freedom of expression and hate speech laws:

"Those who occupy sensitive posts must be prepared to face public criticisms in respect of their offices so as to ensure that they are accountable to the electorate. They should not be made to feel they live in an Ivory Tower and thereafter belong to a different class. They must develop thick skin and where possible plug their ears with cotton wool if they feel too sensitive or irascible. They are within their constitutional right to sue for defamation but they should not use the machinery of government to invoke criminal proceedings to gag their opponents, for if it is otherwise, the freedom of speech guaranteed by our Constitution will be meaningless”- Olatuwura JCA in Arthur Nwankwo v. The State

 

“Civil law exists to provide relief and restitution when one person harms or threatens to harm another’s private interests.  Criminal  law  exists  to  ensure  retribution  and  protection  of  the  public,  by  detaining offenders  and  deterring  others  from  offending.  For assault, imposing imprisonment or supervision  is essential to protect the victims and the public at large. For damaging speech, however, the civil law is as effective, if not more so, in providing the public with proportionate protection from offenders. Crucially,  freedom  of  expression  is  constitutionally  enshrined  and  encouraged,  as  the  lifeblood  of democracy. The freedom to wield fists and firearms enjoys no similar status in our supreme law. Thus the analogy  between  assault  and  defamation  breaks  down. It is an unreliable  guide  to  finding  an appropriate balance between the rights to dignity and free speech. It is also disputable that civil and criminal defamation impose equivalent limitations, and that the harsher consequences of criminal liability are  neatly  offset  by  the  heavier  burden  of  proof.  There are important  differences  in  practice  and  in principle.

 

First, a prosecution targets the journalist rather than the journal. A civil suit is aimed primarily at the defendant with the deepest pockets, Furthermore, while civil liability may be discharged within days, through payment or some other performance, criminal liability endures long after the sentence has been served, or even if the sentence has been suspended. Criminal liability is permanent and pervasive. It brands the accused with a mark so deep and indelible, it can be expunged only by presidential pardon. It stains every sphere of that person’s life. He becomes a criminal, and must disclose that every time he applies for a job, a visa or even a bank account.

 

Even if the state does not discharge its onerous burden of proof, the very existence of the crime creates the risk of wrongful accusation, investigation, prosecution and even conviction, with all the associated inconvenience  and  scandal.  These  ills  can  barely  be  corrected  on  appeal,  and  thus  the  crime  could easily  be  used  to  cow  courageous  journalists.  It  is  this  brand  of  public  disapproval  that  criminal  law rightly casts on murderers, rapists and thieves, precisely for its deterrent potency. The same objective could not and should not apply to injurious speech, the borders of which are elusive and essentially subjective.”

Vinayak Bhardwaj and Ben Winks 

“Prohibitions that censor offensive viewpoints or hate speech are often counter-productive to the aim of promoting equality, as they fail to address the underlying social roots of the kinds of prejudice that drive ‘hate speech’. In most instances, equality is better-promoted through positive measures which increase understanding and tolerance, rather than through censorship by way of anti-hate speech laws.”

Article 19