HATE SPEECH AND FREEDOM OF EXPRESSION: LEGAL BOUNDARIES IN NIGERIA

Authors

  • Ngozi Chisom Uzoka Lecturer, Faculty of Law, Nnamdi Azikiwe University, Awka, Anambra State

Keywords:

Hate Speech, Freedom of Expression, Fundamental Right, Free Speech, Nigeria

Abstract

Hate speech is a constantly evolving phenomenon, with new perpetrators, targets and tactics. Socially conscious journalists are aware of how rapidly hate-filled messages seep into, and often overwhelm comment on the Internet. Freedom of expression is one of the fundamental human rights enshrined in the constitution of Nigeria. However, there is need to strike a balance between the right to speak and the pursuit of racial, religious and communal justice and harmony. The discussions on the freedom of speech and hate speech often lose focus; definitions get fuzzy and legitimate concerns seen as unwarranted censorship. The purpose of this paper is to manifest the problem of definition of hate speech and vital distinctions between incitement to cause harm such as negative discrimination and violence and expressions that hurt a community’s feelings, including insulting beliefs. In this paper, the researcher adopted the doctrinal research method which is a legal research method. The paper found that there is conflicting definition of what hate speech means. There is also the problem of drawing a distinct line between the need to project the democratic tenet of freedom of expression and the abuse of same. The paper concludes by suggesting that there is need to establish boundary between hate and offensive speech and freedom of speech, so as to prevent violence.

Key Words: Hate Speech, Freedom of Expression, Fundamental Right, Free Speech, Nigeria.

Introduction

The popular catchphrase of free speech defenders is a quote attributed to Voltaire (1906) “I disapprove of what you say, but I will defend to the death your right to say it”. Civil libertarians often defend and support the notion that the right to freely express offensive opinions is the bedrock of human right that should not be abridged except under very narrow circumstances. The issues of what speech should or may be prohibited on the basis that it incites others to hatred, otherwise known as ‘hate speech’, is a matter of great dispute and argument globally. Although Section 39(1) of the Constitution of Nigeria provides that everyone has the right to freedom of expression. Many countries have laws that censor or limit certain types of expression or speech that incites violence and hatred. There is no skepticism that the boundary of freedom owned by a person cannot hinder the freedom of other people, because there are freedoms to do things; and there are freedoms from things. When our right to speak our mind encroaches on someone’s freedom from fear, then that freedom is expected not to stand unregulated in any nation that wishes to create a safe and respectful society for its members (Mohammed, 2019). Some free speech advocates prefer an open marketplace of ideas, where no expression is restricted. They consider that the best response to harmful speech is through debate that lets different ideas freely challenge it. Others argue that restrictions on hate speech are vital to the protection of minority communities from the harm that such speech causes (Minister of Justice, 1966). Different approaches to what is acceptable speech can be seen around the world. Some countries show a greater acceptance than others for probably certain forms of speech and even the expression of certain opinions. For instance, United States of America has traditionally been a country where the constitutional protection of free speech is vigorously defended. (Ruane, 2019) Yet, even there, many restrictions of free speech do exist, such as speech that incites against “imminent lawless action” and those that censor obscenity.

Even free speech advocates agree that hate speech requires special handling, especially when leveled against minorities too weak to counter it. It has real and devastating effect on people’s lives, health and safety. It is harmful and divisive for communities and hampers social progress in fighting discrimination. Hate speech can lead to war and genocide. Although the right to free speech is a fundamental right, it should not be allowed to outweigh the basic human rights of other people, especially their right to life.

This study attempts to provide answers to the following; what constitute hate speech, existing legal framework available to checkmate hate speech in Nigeria, what is the best approach to determination of what constitute hate speech and whether there should be a limit to freedom of expression in a democracy. This study also hopes to draw the boundary between hate speech and freedom of expression.

What Constitutes Hate Speech?

It could be said that there is no international legal definition of hate speech. The characterization of what is “hateful” is still controversial and disputed. Hate speech has been defined as speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which communication is likely to provoke violence (Garner, 2004) Hate speech has also been defined by the Committee of Ministers of the Council of Europe (1997) as “covering all forms of expression that spread, incite, promote or justify racial hatred, xenophobia, anti-semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and people of immigrant origin. Hate speech is a speech that attacks, threatens, or insults a person or group on the basis of national origin, ethnicity, color, religion, gender, sexual orientation or disability. Hate speech is a speech that vilifies, harasses, intimidates, or incites hatred toward an individual or group on the basis of a characteristic such as race, ethnicity, religion, gender or sexual orientation. The word “speech” here refers not only to verbal inscriptions and utterances, but also to pictorial representations and symbols.(Brison, 2013).

Hate speech has also been defined as any kind of communication in speech, writing or behavior that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.(Guterres, 2019) Hate speech puts people down based on their race or ethnic origin, religion, gender, age, physical condition, disability or sexual orientation (Cortese, 2006). Hate speech has been the subject of numerous objections. It has been described as devastating to liberty, disrespectful to autonomy, inability to self-realization, stifling the discovery of truth, unnecessary and responsible for chilling forms of valuable speech(Brown, 2015). Hate speech should not be tolerated in the name of free speech. It has real and devastating effects on people’s lives and risks their health and safety. (Arthur, 2012). On the other hand, freedom of speech should go further than curbing state power to censor speech, creating conditions of genuine equality. The technological breakthrough has, in recent times aided Nigerians to freely express their opinions on issues that affect or impact their lives directly or indirectly. In effect, the social media phenomenon has decentralized processes of hate speech dissemination thereby allowing audience the opportunity to partake in the creation and distribution of media contents.(Agbese, 2018) It is noteworthy that Nigeria, like most nations suffers from the difficulty of achieving a balance between the right of free speech and speech that is inimical to national harmony, unity and peace.

Hate Speech on the Internet

Communication is the essence of the Internet. Hate speech is particularly troublesome on the Internet because of the speaker’s ability to immediately disseminate the speech to numerous recipients all over the world. There are various methods of expression which include speech, pictorial representations and verbal inscriptions. However, the various methods of expression are referred to as “speech”. The Internet has introduced a new medium of communication as well as new form of speech, referred to as “electronic speech”. It is a speech that encompasses the traditional forms of speech, such as in the display of words or images on a computer. It also includes new forms of speech, such as Internet addresses, or domain names, and “code”, the machine-readable language of software programs.(Hiller & Cohen, 2002) It is pertinent to state that electronic speech differ from traditional forms of speech in that one person’s speech on a website can instantaneously be accessed by millions of users across the globe. Thus, the Internet raises significantly issues concerning the definition of “speech” in different countries of the world. In addition, any attempt to regulate the Internet must strike a constitutional balance between the need to maintain the free flow of information and the need to limit the availability of certain forms of speech.(Hiller & Cohen, 2002)The use of web pages and chat rooms to spread hatred of certain groups increased in the 1990s. According to Simon Weisenthal Center, in 1995 there was only one racist site and by 1999 that number had increased to 1,400 (Hiller & Cohen, 2002). Hate speech with respect to the Internet is particularly troublesome because of the speaker’s ability to immediately disseminate the speech to numerous recipients all over the world sometimes at the same time.

On May 31, 2016, Facebook, Google, Microsoft and Twitter, jointly agreed to a European Union Code of Conduct obligating them to review “the majority of valid notifications for removal of illegal/hate speech” posted on their services within 24 hours. This portrays the extent of concern the world has for hate communication.(Onanuga,2018)

Hate Speech and the 1999 Constitution.

In Nigeria, the Constitution is the ground norm and as such other laws draw from it. The 1999 constitution guarantees the right of every Nigerian to freedom of speech and expression. Section 39 (1) states that every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive; impart information without interference.Section 45 of the 1999 constitution, is to the effect that the freedoms listed in sections 38 to 44 are not absolute. It is in these rights not being absolute, that resides hate speech, slander, libel and other excesses of freedom of expression. In contradistinction, the United States of America in its Constitution protected the expression of ideas through the spoken and written word, artistic media, and expressive action against government control. It provides thus:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Like many other rights protected by the American Constitution, it is important to distinguish between regulation by the government, in the form of laws, administrative rulings and court actions, and private regulation, such as rules imposed by private companies on their employees or Internet service providers on their subscribers. The First Amendment addresses only the first category, mandating that the government does not abridge the free speech rights of the citizens in the United States; thus, it does not reach the actions of private entities. Hate speech, when it is the expression of an idea and not targeted to a specific individual, is protected by the United States Constitution. This is in contrast to hate speech in Nigeria, which is sought to be regulated by government. In the United States, speech that is commonly referred to as “hate speech” is protected by the First Amendment, while speech posing a “clear and present danger” is not. The difficulty arises at determining at what point the protected speech of general advocacy of hatred and violence crosses the line to the unprotected speech of incitement to specific is legal act. The policy of protecting speech, however offensive, as a fundamental right, is a strong one in the United States.

European countries, which do not have the same constitutional traditions as the United States, are taking a more restrictive approach to hate speech. For example, in Germany it is illegal to incite racism or hatred in any medium, including in the Internet. European governments are also seeking the cooperation of Internet Service Providers in shutting down websites that communicate hate.

In Nigeria, Section 24(1) of the Cyber Crime Prevention and Prohibition Act, 2015 provides that any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that:

a. is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent or

b. he knows to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent commits an offence under this Act and shall be liable on conviction to a fine of not more than N7, 000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.

Section 24 (2) of Cyber Crime PreventionActprovides thus, “Any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network ... commits an offence under this Act and shall be liable on conviction. The Electoral Act provides that no political campaign or slogan shall be tainted with abusive language directly or indirectly likely to injure religious, ethnic, tribal or sectional feelings. The above provision is the extant law on hate speech in Nigeria. However, this is not comprehensive and elaborate. Hate speech has been a great challenge in Nigeria. A hate speech bill was proposed at the 8th senate in 2019. The proposed bill in Nigeria prescribed death penalty by hanging for any person found guilty of any form of hate speech that results in the death of another person. The Bill seeks to eliminate hate speech and discourage harassment on the grounds of ethnicity, religion or race among others. It prescribes stiff penalties for offences such as “ethnic hatred”. Any person who uses, publishes, presents, produces, plays, provides, distributes and/or directs the performance of any material, written and / or visual, which is threatening abusive or insulting or involves the use of threatening, abusive or insulting words, commits an offence. The Bill seeks the establishment of an Independent National Commission for Hate Speeches. The Bill proposes thus;

any person who uses, publishes, presented, produces, plays, provides, distributes and or directs the performance of any material, written and or visual which is threatening, abusive or insulting words or behavior commits any offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or person from such an ethnic group in Nigeria.

According to the Bill, any person who commits this offence shall be liable to life imprisonment and where the act causes any loss of life, the person shall be punished with death by hanging.(Iroanusi, 2019)

The proposed Commission would enforce hate speech laws across the country and ensure the elimination of hate speech. The recent spate of incidents in Nigeria involving both verbal and nonverbal expression of hatred has left many in the country feeling attacked, divided and unsafe. Hate speech has contributed to increased tension in Nigeria along religious and ethnic divides(Adibe,2018). A major challenge in the proposed bill is that it is open to abuse. The question of who defines and determines what constitutes hate speech arises. Another concern of whether the regulation of hate speech should be tenable in a democratic setting. In a democracy, citizens ought to have avenues open to them to express legitimate interests and concerns about laws and ills going on in the society. It is this that hate speech laws or any law restricting the right to freedom of expression might inhibit, which in turn inhibits political participation.

Hate Speech and the Social Media

A mounting number of attacks or immigrants and other minorities have raised new concerns about the connection between inflammatory speech online and violent acts. Rumors and invectives disseminated online have contributed to violence ranging from lynching to ethnic extremism. The world now communicates on social media, with nearly a third of the world’s population active on Facebook alone.(Myers, 2019) As more and people have moved online, experts say, individuals inclined toward racism misogyny, or homophobia have found niches that can reinforce their views and goad them to violence. Social media platforms like, Facebook, Youtube, Instragram, Snap, Twitter and Skype also offer violent actors the opportunity to publicize their acts. (Myers, 2019).

It is on record that social media is ripe with hate speeches. In Nigeria today, despite the benefits that came with social media on one hand, on the other hand it is also promoting disunity, igniting crisis and triggers hatred among members of the society.(Luab, 2019) Countering hate speech begins by a realization that while freedom of expression is a fundamental right, the emergency of social media has created multiple platforms for the production, packaging and dissemination of hate speeches.

The advent of social media has amplified citizen journalism; everyone has become a reporter. The social media has established an ideal platform to adapt and spread hate speech speedily because of its decentralized, anonymous and interactive structure. With the creation of social media, the essence of journalism is arrested. This is because apart from undermining the ethics of journalism profession, hate speech is a major factor in causing disaffection among tribes, religions and political class. The activities of Nigerians on social media are now being monitored for hate speech, anti-government and anti-security information by the military.(Nwankwo, 2017)However, it becomes worrisome when the military decides to respond to anti-government commentaries. Many anti-government commentaries, especially by opposition parties in democracies, are not security threats nor does it constitute hate speech. In fact, they sweeten democracy. On the other hand, there is a legitimate fear that crackling down on hate speeches could be used as a ploy to clamp down on critics of government. It is pertinent to note that social media networks such as Facebook, Twitter, Whatsapp and some online news websites are where disparaging posts, fake news and distorted news are shared and published.

These social media platforms being known for their relative anonymity and wildfire reach, are used by hate groups to spread misinformation easily and disguising such as if they were generated from legitimate sources. Some unscrupulous users of the social media platforms manipulate known search engines to make their hate propaganda more accessible to a variety of audiences or receivers. Some have cloned websites to spread hate speeches.(Paquette, 2019). It has also been observed that, hateful content online diffuse father, wider and faster than those of non-hateful users.

Hate Speech and Ethno Religions Intolerance

Nigeria with over 165 million inhabitants and 250 ethnic groups is a very diverse country in terms of ethnic orientations, cultural practices and religious beliefs. Nigeria is a synthesis of more than 300 ethnic tribes and for some reasons;(Okoh, 2018) we have not found a way to co-exist peacefully, despite having lived together for decades. Tribalism reigns in Nigerian and it plays a great part in the country’s current quagmire. The country is polarized along ethnic, regional and religions lines and editors, reporters and owner of the news media belong to the various sides of the divide.

These differences have been a major source of tension right from colonial era under British rule. However, its current manifestation is rapidly dividing the country into pockets of religious and ethnic cleavages. (Joel,2018) One of the most popular online forums in Nigeria is Narialand, described by Forbes as the largest discussion forum in Africa. (Osewa, 2019) This is a site where all Nigerian ethnic groups are represented. Discussions on the site, often easily degenerates into ethnic-religious hate speech, characterized by threats and call for violet actions. Interactions on this platform provide a mind-blowing view of tensions that pervades ethnic and religious relationships across different sections of the country.

Religious extremists are also known to be behind a host of kidnapping including the nationals of other countries. The terrorists have also in times past made videos of their activities and uploaded same to the Internet. Thus, their goal of distablizing Nigeria is an expression of ethnic and religious intolerance that largely pervade social interaction in Nigeria. Ethno-religion and hate speech is so pervasive in Nigeria, that it is sometimes difficult to identify or classify.

Hate Speech and the International Instruments

At the international level, there is no general definition of what hate speech is. However, international law prohibits incitement to discrimination, hostility and violence, rather than prohibiting hate speech. Incitement is a very dangerous form of speech, because it explicitly and deliberately aims to trigger discrimination, hostility and violence, which may also lead to or include terrorism or atrocity crimes. International law contains a number of provisions which provide a framework for balancing freedom of expression against these other interests in the particular context of hate speech. The first International law treaty to deal directly with the issue of hate speech was the International Convention on the Elimination of all Forms of Racial Discrimination {CERD}, adopted by the UN General Assembly in 1965. Its provisions are not only the first to address hate speech, but also by far the most far-reaching.

It distinguished four different aspects of the hate speech obligations provided for in CERD, found in its Article 4(a). They include:

a. dissemination of ideas based on racial superiority

b. dissemination of ideas based on racial hatred;

c. incitement to racial discrimination; and

d. incitement to acts of racially motivated violence.

Hate speech that does not reach the threshold of incitement is not something that international law requires States to prohibit. The United Nations Declaration of Human Rights, features in its preamble, “that human beings shall enjoy freedom of speech and belief and freedom from fear and want. Article 19 re-emphasizes the point that everyone has the right to freedom of opinion and expression including the “freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”(Kampmark,2019)

Similarly, Article IX of the African Charter on Human and People Rightsprovides that “Every individual shall have the right to receive information and the right to express and disseminate his opinions within the law. Note that “within the law” provision in African Charter shows that freedom of expression is not absolute. It is kept in check by other rules for the good and orderliness of the society. The International Covenant on Civil and Political Rights (ICCPR) states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

It is important to note that the impact of hate speech cuts across numerous existing United Nations areas of operations, including: human rights protection; prevention of atrocity crime; preventing and countering terrorism and the underlying spread of violent extremism and counter-terrorism; preventing and addressing gender-based violence; enhancing protection of civilians; refugee protection; the fight against all forms of racism and discrimination; protection of minorities; sustaining peace ; and engaging women, children and youth. More broadly, hate speech undermines social cohesion, erodes shared values and can lay the foundation for violence, setting back the cause of peace, stability, sustainable development and the fulfillment of human rights for all. There is the need for a coordinated response that tackles the root causes and drivers of hate speech, as well as its impact on victims and societies more broadly.

Frank La Rue (2014), UN special rapporteur on the promotion of protection of freedom of opinion and expression noted that, “the right to freedom of expression implies that it should be possible to scruitinize, openly debate and criticize, even harshly and unreasonably, ideas, opinions, belief systems, and institutions, including religious ones, as long as this does not advocate hatred that incites hostility, discrimination or violence against an individual or a group of individuals”. Frank La Rue (2014). The above view draws the ultimate score line between hate speech and freedom of expression.

Conclusion and Recommendations

Hate speech exists both in Nigeria and other jurisdictions. On the other hand, freedom of expression is one of the basic fundamental human rights in the constitution of most nation states. Freedom of expression is widely accepted as being necessary in a democracy as it facilitates the exchange of diverse opinions. Democracy guarantees and protects civil and political rights. Freedom of expression is essential for vibrant, robust and rigorous debate, disagreement and contention. The right to free speech is not unlimited, while few consider this freedom to be absolute, most would require compelling reason before considering the abridgement of freedom of expression to be justified. From the foregoing, hate speech depicts any utterance whether verbal or virtual which can endanger public safety, unity and national security. Anything short of this deserves to be curtailed so as not to lead to anarchy and violence. It is pertinent to note that for speech to qualify as hate speech, it must have occurred in the public. (Mrabure, 2016)

With the expansion of the internet and the social media, new regulatory challenges more frequently arise because of the global reach of hate speech once transmitted.(Guiro & Park, 2017) From the foregoing it is pertinent that limitations should and must be placed on hate speech. However, caution must be exercised to ensure that the rights of citizens to express themselves are not suppressed.

Conclusively, as new channels for hate speech are reaching wider audiences, than ever before and at lightning speed both the government, educational institutions, technological companies, international community, academia; need to step up their responses. A holistic approach that aims at tackling the whole life cycle of hate speech, from its roots causes to its impact on societies should be adopted by all stakeholders. The following are hereby recommended:

a. Enactment of a new law where hate speech would be clearly defined in Nigeria and caution taken not to encroach into the realms of freedom of speech as guaranteed by the constitution.

b. Education on media ethics: this should focus on the rights and freedom of journalist and their role in creating and promoting peaceful societies.

c. Encourage conflict sensitive reporting and multicultural awareness campaigns: this should emphasize knowledge about and respect for the diversity of cultures and traditions.

d. End impunity against hate crimes: this can be tackled by establishing evaluation units in newsroom. These units will bring the attention of key institutions and the civil society groups to help in speaking against hate crimes.

e. Encourage victims and witnesses to report hate speech related crimes.

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2021-04-01

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Uzoka, N. C. . (2021). HATE SPEECH AND FREEDOM OF EXPRESSION: LEGAL BOUNDARIES IN NIGERIA. Library Research Journal, 4(1), 111–118. Retrieved from https://journals.unizik.edu.ng/index.php/lrj/article/view/556

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