Nigeria Has Enough Laws To Curb Hate Speeches– Femi Falana SAN

A Lagos lawyer and human rights activist, Femi Falana SAN, has
thrown his weight on the call by the government of the country to
treat hate speeches as terrorism. He said there is no need to enact
new law for it, rather both the state and federal government should
collaborate with the police in order to enforce relevant laws which
criminalizes hate speeches.

According to him “top officials of the federal government and
the various state governments have continued to express concern
over the growing wave of hate speeches in the country. To curb the
menace, a new law is being proposed which will categorize hate
speech as ‘terrorism’. At the last meeting of the National Economic
Council it was agreed by the federal and state governments that a
special court be established for the arrest and prosecution of
purveyors of hate speeches, kidnapping and terrorist
acts.  Before further energies and resources are
dissipated by the government on the enactment of a new hate speech
law it is pertinent to point out that the country has enough laws
to deal with the menace. What is however lacking is the political
will to arrest and prosecute those who contravene the provisions of
the relevant laws”.

For instance,  the Kaduna state government has had
cause to drag a journalist to court for allegedly exaggerating the
number of people that were killed in Southern Kaduna by gunmen
during a recent civil disturbance. However, to ensure that public
officers do not use the machinery of the State to silence their
opponents or cover up corrupt practices and shield themselves from
public scrutiny the provisions of the Criminal Code on seditious
publications were declared illegal and unconstitutional by the
Court of Appeal in the case of Arthur Nwankwo V the State (1985) 4
N.C.L.R. 228. Furthermore, the Justices of the Court unanimously
advised public officers who feel disturbed by any publication to
sue for libel in a civil court in view of the freedom of expression
guaranteed by the Constitution.

Thus, apart from the right of public officers and private
citizens to seek redress in the law courts to protect their
reputation by suing media organizations and individuals who defame
them the penal laws in the country have taken care of the mischief
which may be caused by reckless publications. In particular,
offences which include criminal defamation, inciting statements,
breach of the peace, criminal intimidation, publication of
statement, rumour or report which may disturb public peace, false
publication etc attract penalties by imprisonment or payment
of fines include. See sections 59-60, 373-381 of the Criminal Code
(applicable in the southern states) and sections 391-40, 417-418 of
the Penal Code (applicable in the northern states).

Under section 95 of the Electoral Act 2010 as
amended it is provided
that no political campaign or slogan shall be tainted with abusive
language directly or indirectly likely to injure religious, ethnic,
tribal or sectional feelings. Accordingly, abusive, intemperate,
slanderous or base language or insinuations or innuendoes designed
or likely to provoke violent reaction or emotions shall not be
employed or used in political campaigns. A political party or persons who
contravenes the provision of this section is guilty of an offence
and shall be liable on conviction- (a) in the case of an
individual, to a maximum fine of N1,000,000 or imprisonment for the
term of 12 months; and  in the case of a political party,
to a fine of N2,000,000 in the first instance, and N1,000,000 for
any subsequent offence.

In enacting the Cyber Crime (Prohibition, Prevention ETC) Act,
2015 the National Assembly took cognizance of the public concern
over the use of social media to promote bigotry and hatred in the
society. Hence, the law has far reaching provisions to prohibit any
form of cyber squatting and prevent anti social individuals and
groups from subjecting the Nigerian people to racist and xenophobic
attacks in any part of the country.  It is sad to note
that the many public officers who have been threatening to deal
ruthlessly with the excesses of social media operators have not
familiarized themselves with the provisions of the 2-year old law.
However, it is high time the attention of Nigerians was drawn to
sections 24 and 26 of the Act which provide as follows:

“24. (1) 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.

 (2) Any person who knowingly or intentionally
transmits or causes the transmission of any communication through a
computer system or network –

(a) to bully, threaten or harass another person, where such
communication places another person in fear of death, violence or
bodily harm or to another person;

(b) containing any threat to kidnap any person or any threat
to harm the person of another, any demand or request for a ransom
for the release of any kidnapped person, to extort from any person,
firm, association or corporation, any money or other thing of
value; or

 (c) containing any threat to harm the property or
reputation of the addressee or of another or the reputation of a
deceased person or any threat to accuse the addressee or any other
person of a crime, to extort from any person, firm, association, or
corporation, any money or other thing of value: commits an offence
under this Act and shall be liable on conviction–‐

 (i) in the case of paragraphs (a) and (b) of this
subsection to imprisonment for a term of 10 years and/or a minimum
fine of N25,000,000.00; and

(ii) in the case of paragraph (c) and (d) of this
subsection, to imprisonment for a term of 5 years and/or a minimum
fine of N15,000,000.00.

(3) A court sentencing or otherwise dealing with a person
convicted of an offence under subsections (1) and (2) may also make
an order, which may, for the purpose of protecting the victim or
victims of the offence, or any other person mentioned in the order,
from further conduct which-

(a) amounts to harassment; or

(b) will cause fear of violence, death or bodily harm;
prohibit the defendant from doing anything described/specified in
the order.

 (4) A defendant who does anything which he is
prohibited from doing by an order under this section, commits an
offence and shall be liable on conviction to a fine of not more
than N10,000,000.00 or imprisonment for a term of not more than 3
years or to both such fine and imprisonment.

 (5) The order made under subsection (3) of this
section may have effect for a specified period or until further
order and the defendant or any other Person mentioned in the order
may apply to the court which made the order for it to be varied or
discharged by a further order.

 (6) Notwithstanding the powers of the court under
subsections (3) and (5), the court may make an interim order for
the protection of victim(s) from further exposure to the alleged
offences.

 RACIST AND XENOPHOBIC OFFENCES

26. (1) Any person who with intent–

(a) distributes or otherwise makes available, any racist or
xenophobic material to the public through a computer system or
network;

(b) threatens through a computer system or network
–

(i) persons for the reason that they belong to a group
distinguished by race, colour, descent, national or ethnic origin,
as well as, religion, if used as a pretext for any of these
factors; or

 (ii) a group of persons which is distinguished by any
of these characteristics;

 (c) insults publicly through a computer system or
network–

(i) persons for the reason that they belong to a group
distinguished by race, colour, descent or national or ethnic
origin, as well as religion, if used as a pretext for any of these
factors; or

(ii) a group of persons which is distinguished by any of
these characteristics; or

(d) distributes or otherwise makes available, through a
computer system or network, to the public, material which denies or
approves or justifies acts constituting genocide or crimes against
humanity, Commits an offence and shall be liable on conviction to
imprisonment for a term of not more than 5 years or to a fine of
not more than N10,000,000.00 or both such fine and
imprisonment.

(2) For the purpose of subsection (1) of this section, the
term “Crime against humanity” includes any of the following acts
committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack:
murders, extermination, enslavement, deportation or forcible
transfer of population, imprisonment, torture, rape, sexual
slavery, enforced prostitution, forced pregnancy, enforced
sterilization or any other form of sexual violence of comparable
gravity, persecution against an identifiable group on political,
racial, national, ethnic, cultural, religious or gender grounds,
enforced disappearance of persons, the crime of apartheid, other
inhumane acts of similar character intentionally causing great
suffering or serious bodily or mental injury.

 “Genocide” means any of the following acts committed
with intent to destroy in whole or in part, a national, ethnic,
racial or religious group as such: Killing members of the group,
deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another
group.

“racist or xenophobic material” means any written or printed
material, any image or any other representation of ideas or
theories, which advocates, promotes or incites hatred,
discrimination or violence, against any individual group of
individuals, based on race, color, descent or national or ethnic
origin, as well as religion if used as a pretext for any of these
factors.”

In view of the stringent provisions of the aforementioned
draconian  law, it is undoubtedly clear that the nation
does not need to enact a new law against hate speeches. What is
required is the political determination to deal with the crime,
without fear or favour. To that extent, the authorities of the
federal and state governments may wish to direct the
Attorney-General of the Federation and the Attorneys-General of the
various states to collaborate with the Police with a view to
enforcing the provisions of all the relevant laws which have
criminalized hate speeches including  offensive
statements published in the social media. Since majority of
Nigerian citizens including top government officials are not
familiar with the provisions of these laws the mass media should
draw attention to them.

However, while President Buhari was on medical vacation in the
United Kingdom for over 3 months his government successfully
negotiated with the Avengers for the restoration of peace in the
Niger Delta region. The deal has since led to increase in oil
production. The government equally negotiated with the satanic Boko
Haram sect and was able to secure the release of another batch of
82 Chibok girls. Notwithstanding such negotiations with groups that
have taken up arms against the State, President Buhari still
insisted in his broadcast last week, that the “unity of Nigeria is
not negotiable|.” While the federal government is entitled to
continue to defend the corporate existence of Nigeria the right of
any group to disagree with the official stand within the ambit of
the law should be respected. Therefore, the purported presidential
directive authorizing armed soldiers to arrest
civilians involved in ‘subversive activities’ should be
withdrawn. More so, that it cannot be justified under any law in
Nigeria.

Since it is the
constitutional responsibility of the police to maintain law and
order in our democratic society members of the armed forces should
not be permitted to arrest alleged purveyors of hate
speeches. For the
avoidance of doubt, section 4 of the Police Act
has empowered the Nigeria Police Force to arrest and prosecute
criminal suspects in the country. However, Section 47 (1) of the CyberCrimes (Prohibition,
Prevention ETC) Act
provides that law enforcement agencies shall have
power to prosecute
offences under this Act while section 58 thereof defines
law enforcement agencies to include “any agency for the time
being responsible for the implementation and enforcement of the
provisions of this Act.”  As
the Nigerian Army is not one of the law enforcement agencies
envisaged by the Act and other penal laws it should not be
permitted to enforce any of the laws against hate
speeches.

A Lagos lawyer and human rights activist, Femi Falana SAN, has
thrown his weight on the call by the government of the country to
treat hate speeches as terrorism. He said there is no need to enact
new law for it, rather both the state and federal government should
collaborate with the police in order to enforce relevant laws which
criminalizes hate speeches.

According to him “top officials of the federal government and
the various state governments have continued to express concern
over the growing wave of hate speeches in the country. To curb the
menace, a new law is being proposed which will categorize hate
speech as ‘terrorism’. At the last meeting of the National Economic
Council it was agreed by the federal and state governments that a
special court be established for the arrest and prosecution of
purveyors of hate speeches, kidnapping and terrorist
acts.  Before further energies and resources are
dissipated by the government on the enactment of a new hate speech
law it is pertinent to point out that the country has enough laws
to deal with the menace. What is however lacking is the political
will to arrest and prosecute those who contravene the provisions of
the relevant laws”.

For instance,  the Kaduna state government has had
cause to drag a journalist to court for allegedly exaggerating the
number of people that were killed in Southern Kaduna by gunmen
during a recent civil disturbance. However, to ensure that public
officers do not use the machinery of the State to silence their
opponents or cover up corrupt practices and shield themselves from
public scrutiny the provisions of the Criminal Code on seditious
publications were declared illegal and unconstitutional by the
Court of Appeal in the case of Arthur Nwankwo V the State (1985) 4
N.C.L.R. 228. Furthermore, the Justices of the Court unanimously
advised public officers who feel disturbed by any publication to
sue for libel in a civil court in view of the freedom of expression
guaranteed by the Constitution.

Thus, apart from the right of public officers and private
citizens to seek redress in the law courts to protect their
reputation by suing media organizations and individuals who defame
them the penal laws in the country have taken care of the mischief
which may be caused by reckless publications. In particular,
offences which include criminal defamation, inciting statements,
breach of the peace, criminal intimidation, publication of
statement, rumour or report which may disturb public peace, false
publication etc attract penalties by imprisonment or payment
of fines include. See sections 59-60, 373-381 of the Criminal Code
(applicable in the southern states) and sections 391-40, 417-418 of
the Penal Code (applicable in the northern states).

Under section 95 of the Electoral Act 2010 as
amended it is provided
that no political campaign or slogan shall be tainted with abusive
language directly or indirectly likely to injure religious, ethnic,
tribal or sectional feelings. Accordingly, abusive, intemperate,
slanderous or base language or insinuations or innuendoes designed
or likely to provoke violent reaction or emotions shall not be
employed or used in political campaigns. A political party or persons who
contravenes the provision of this section is guilty of an offence
and shall be liable on conviction- (a) in the case of an
individual, to a maximum fine of N1,000,000 or imprisonment for the
term of 12 months; and  in the case of a political party,
to a fine of N2,000,000 in the first instance, and N1,000,000 for
any subsequent offence.

In enacting the Cyber Crime (Prohibition, Prevention ETC) Act,
2015 the National Assembly took cognizance of the public concern
over the use of social media to promote bigotry and hatred in the
society. Hence, the law has far reaching provisions to prohibit any
form of cyber squatting and prevent anti social individuals and
groups from subjecting the Nigerian people to racist and xenophobic
attacks in any part of the country.  It is sad to note
that the many public officers who have been threatening to deal
ruthlessly with the excesses of social media operators have not
familiarized themselves with the provisions of the 2-year old law.
However, it is high time the attention of Nigerians was drawn to
sections 24 and 26 of the Act which provide as follows:

“24. (1) 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.

 (2) Any person who knowingly or intentionally
transmits or causes the transmission of any communication through a
computer system or network –

(a) to bully, threaten or harass another person, where such
communication places another person in fear of death, violence or
bodily harm or to another person;

(b) containing any threat to kidnap any person or any threat
to harm the person of another, any demand or request for a ransom
for the release of any kidnapped person, to extort from any person,
firm, association or corporation, any money or other thing of
value; or

 (c) containing any threat to harm the property or
reputation of the addressee or of another or the reputation of a
deceased person or any threat to accuse the addressee or any other
person of a crime, to extort from any person, firm, association, or
corporation, any money or other thing of value: commits an offence
under this Act and shall be liable on conviction–‐

 (i) in the case of paragraphs (a) and (b) of this
subsection to imprisonment for a term of 10 years and/or a minimum
fine of N25,000,000.00; and

(ii) in the case of paragraph (c) and (d) of this
subsection, to imprisonment for a term of 5 years and/or a minimum
fine of N15,000,000.00.

(3) A court sentencing or otherwise dealing with a person
convicted of an offence under subsections (1) and (2) may also make
an order, which may, for the purpose of protecting the victim or
victims of the offence, or any other person mentioned in the order,
from further conduct which-

(a) amounts to harassment; or

(b) will cause fear of violence, death or bodily harm;
prohibit the defendant from doing anything described/specified in
the order.

 (4) A defendant who does anything which he is
prohibited from doing by an order under this section, commits an
offence and shall be liable on conviction to a fine of not more
than N10,000,000.00 or imprisonment for a term of not more than 3
years or to both such fine and imprisonment.

 (5) The order made under subsection (3) of this
section may have effect for a specified period or until further
order and the defendant or any other Person mentioned in the order
may apply to the court which made the order for it to be varied or
discharged by a further order.

 (6) Notwithstanding the powers of the court under
subsections (3) and (5), the court may make an interim order for
the protection of victim(s) from further exposure to the alleged
offences.

 RACIST AND XENOPHOBIC OFFENCES

26. (1) Any person who with intent–

(a) distributes or otherwise makes available, any racist or
xenophobic material to the public through a computer system or
network;

(b) threatens through a computer system or network
–

(i) persons for the reason that they belong to a group
distinguished by race, colour, descent, national or ethnic origin,
as well as, religion, if used as a pretext for any of these
factors; or

 (ii) a group of persons which is distinguished by any
of these characteristics;

 (c) insults publicly through a computer system or
network–

(i) persons for the reason that they belong to a group
distinguished by race, colour, descent or national or ethnic
origin, as well as religion, if used as a pretext for any of these
factors; or

(ii) a group of persons which is distinguished by any of
these characteristics; or

(d) distributes or otherwise makes available, through a
computer system or network, to the public, material which denies or
approves or justifies acts constituting genocide or crimes against
humanity, Commits an offence and shall be liable on conviction to
imprisonment for a term of not more than 5 years or to a fine of
not more than N10,000,000.00 or both such fine and
imprisonment.

(2) For the purpose of subsection (1) of this section, the
term “Crime against humanity” includes any of the following acts
committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack:
murders, extermination, enslavement, deportation or forcible
transfer of population, imprisonment, torture, rape, sexual
slavery, enforced prostitution, forced pregnancy, enforced
sterilization or any other form of sexual violence of comparable
gravity, persecution against an identifiable group on political,
racial, national, ethnic, cultural, religious or gender grounds,
enforced disappearance of persons, the crime of apartheid, other
inhumane acts of similar character intentionally causing great
suffering or serious bodily or mental injury.

 “Genocide” means any of the following acts committed
with intent to destroy in whole or in part, a national, ethnic,
racial or religious group as such: Killing members of the group,
deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another
group.

“racist or xenophobic material” means any written or printed
material, any image or any other representation of ideas or
theories, which advocates, promotes or incites hatred,
discrimination or violence, against any individual group of
individuals, based on race, color, descent or national or ethnic
origin, as well as religion if used as a pretext for any of these
factors.”

In view of the stringent provisions of the aforementioned
draconian  law, it is undoubtedly clear that the nation
does not need to enact a new law against hate speeches. What is
required is the political determination to deal with the crime,
without fear or favour. To that extent, the authorities of the
federal and state governments may wish to direct the
Attorney-General of the Federation and the Attorneys-General of the
various states to collaborate with the Police with a view to
enforcing the provisions of all the relevant laws which have
criminalized hate speeches including  offensive
statements published in the social media. Since majority of
Nigerian citizens including top government officials are not
familiar with the provisions of these laws the mass media should
draw attention to them.

However, while President Buhari was on medical vacation in the
United Kingdom for over 3 months his government successfully
negotiated with the Avengers for the restoration of peace in the
Niger Delta region. The deal has since led to increase in oil
production. The government equally negotiated with the satanic Boko
Haram sect and was able to secure the release of another batch of
82 Chibok girls. Notwithstanding such negotiations with groups that
have taken up arms against the State, President Buhari still
insisted in his broadcast last week, that the “unity of Nigeria is
not negotiable|.” While the federal government is entitled to
continue to defend the corporate existence of Nigeria the right of
any group to disagree with the official stand within the ambit of
the law should be respected. Therefore, the purported presidential
directive authorizing armed soldiers to arrest
civilians involved in ‘subversive activities’ should be
withdrawn. More so, that it cannot be justified under any law in
Nigeria.

Since it is the
constitutional responsibility of the police to maintain law and
order in our democratic society members of the armed forces should
not be permitted to arrest alleged purveyors of hate
speeches. For the
avoidance of doubt, section 4 of the Police Act
has empowered the Nigeria Police Force to arrest and prosecute
criminal suspects in the country. However, Section 47 (1) of the CyberCrimes (Prohibition,
Prevention ETC) Act
provides that law enforcement agencies shall have
power to prosecute
offences under this Act while section 58 thereof defines
law enforcement agencies to include “any agency for the time
being responsible for the implementation and enforcement of the
provisions of this Act.”  As
the Nigerian Army is not one of the law enforcement agencies
envisaged by the Act and other penal laws it should not be
permitted to enforce any of the laws against hate
speeches.