The Senate is considering a bill to regulate hate speech, in spite of existing legislations. The bill proposes death by hanging for offenders. But there are fears that it is draconian and a threat to free speech, writes ADEBISI ONANUGA
On August 22, the publisher of online news medium CrossRiverWatch, Agba Jalingo, was arrested by the Police Special Anti-robbery Squad (SARS) in Lagos and whisked to a detention facility in Calabar, Cross River State. He allegedly published on CrossRiverWatch, a report considered offensive against the Cross River State Governor, Benedict Ayade, and which also involved a micro-finance bank.
On August 30, Jalingo was charged with alleged disturbance of public peace and treason for his writing and social media posts about the governor. He is also facing a two-count charge of terrorism, alleged plans to work with Omoyele Sowore, cult membership and a plot to “commit acts of terrorism” to unseat Ayade.
The July 12 article reportedly identified Jalingo as the Cross River State chairman of the African Action Congress Party, founded by Omoyele Sowore.
Sowore, the convener of the August 3 #RevolutionNow protests, is also on trial for alleged treason.
If convicted of the offence, Jalingo could face up to three years in prison for the disturbance charge and life imprisonment for treason as stipulated in the Criminal Code.
Also on November 12, in Ilorin, the Editor of an Abuja-based online newspaper, NewsDigest, Mr. Gidado Yushau and award-winning campus journalist Alfred Olufemi were arraigned before a Magistrate Court.
Their arrest and arraignment were sequel to a petition from a company reportedly owned by the Special Adviser to the President on Finance and Economy, Sarah Alade, over an investigative report published on May 19, 2018 on hemp smoking on her farm.
The report titled: “Inside Kwara factory where Indian hemp smoking is “legalised,” was authored by Olufemi, a student journalist from one of the universities.
The company’s management has since refuted the claims in the publication.
Last Tuesday, Gidado and Alfred were charged with criminal conspiracy and defamation contrary to Sections 97 and 192 of the Penal Code.
The charge stated that the two defendants “criminally conspired to tarnish the name and image of Hillcrest Agro-Allied Industries”.
They pleaded not guilty and were granted bail. The case was adjourned till January 13.
A deluge of laws?
While Jalingo was charged for his online publication, under the Criminal Code, Gidado and Alfred were charged under the Penal Code.
Notwithstanding the provisions of the Criminal Code, Penal Code and the Cybercrime Act prohibiting offensive publications on news websites, the Senate is again considering a new law to combat hate speech.
The Bill, tagged The National Commission for the Prohibition of Hate Speeches (Estb., etc) Bill 2019’, is proposing death by hanging for anyone found guilty of any form of hate speech that damages the reputation or results in the death of another person.
The Bill sponsored by the Deputy Chief Whip, Senator Aliyu Sabi Abdullahi, representing Niger North, last Tuesday, passed the first reading in the Red Chamber of the ninth assembly.
The proposed hate speech bill has not got to the final stage as it must go through more readings, debate and participation of the members of the public and assent of the Executive before it can become a law, if not rejected.
Other provisions of the bill
The bill proposes punishment for other offences. For harassment on grounds of ethnicity or race, it recommends that the offender shall be sentenced to “not less than a five-year jail term or a fine of not less than N10 million or both.”
It also states that “A 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 or behaviour” commits an offence.
It states that the charge would be justified if such a person intends to stir up “ethnic hatred”.
Furthermore, “Any person who commits an offence under this section shall be liable to life imprisonment and where the act causes any loss of life, the person shall be punished with death by hanging.”
In other sections, the Bill states: “A person who uses, publishes, presents, produces, plays, provided, 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 or behaviour commits an 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.
“Any person who commits an offence under this section shall be liable to life imprisonment and where the act causes any loss of life, the person shall be punished with death by hanging.
“In this section, ethnic hatred means hatred against a group or persons from any ethnic group indigenous to Nigeria.”
On discrimination against persons, the bill states: “For the purpose of this act, a person discriminates against another person, if on ethnic grounds, the person without any lawful justification treats another Nigerian citizen less favourably than he treats or would treat other persons from his ethnic or another ethnic group and/or that on grounds of ethnicity a person puts another person at a particular disadvantage when compared with other persons from other nationality of Nigeria.
“A person also discriminates against another person if, in any circumstances relevant for the purposes referred to in subsection (1)(b), he applies to that person of any provision, criterion or practice which he applies or would apply equally to persons not of the same race, ethnic or national origins as that other.”
On harassment on the basis of ethnicity, the Bill provides thus: “A person (who) subjects another to harassment on the basis of ethnicity for the purposes of this section where on ethnic grounds, he justifiably engages in a conduct which has the purpose or effect of: (a) Violating that other person’s dignity or (b) Creating an intimidating, hostile, degrading, humiliating, or offensive environment for the person subjected to the harassment.
“Conduct shall be regarded as having the effect specified in subsection (1) (a) or (b) of this section if, having regard to all circumstances, including in particular the perception of that other person, it should resonably be considered as having that effect.
“A person who subjects another to harassment on the basis of ethnicity commits an offence and shall be liable on conviction to an imprisonment for a term not less than ten years, or to a fine of not less than ten million naira, or to both.”
Commission on Hate Speech
The objectives and functions of the proposed Commission on Hate Speech, according to the Bill, includes to facilitate and promote a harmonious, peaceful co-existence among people of all ethnic groups indigenous to Nigeria and, more importantly, to achieve this objective by ensuring the elimination of all forms of hate speeches in Nigeria, and to advise the Government of the Federal Republic of Nigeria on all aspects thereof.
Curiously, Senator Abdullahi sponsored the same Bill in the eighth assembly but failed as it was blocked by the then Senate President, Bukola Saraki.
It is also curious that the Bill, like it did in 2017, renewed its proposal for death penalty for any person found guilty of making or publishing hate speech.
Social Media Regulation Bill
Aside from the Hate Speech Bill, there is also the Social Media Regulation Bill which was introduced to the Senate two weeks ago. It seeks to regulate what goes on the social media and punish what it termed “abuse of social media”. The Bill proposed a three-year jail term or N150,000 fine or both for those found guilty
The Social Media Regulation Bill titled: “Protection from Internet falsehood and manipulations bill, 2019” is sponsored by Senator Mohammed Sani Musa (Niger East).
Support for social media regulation?
The Federal government has not been categorical on the bills. Minister of Information and Culture Alhaji Lai Mohammed, last Thursday at a meeting with the Guild of Corporate Online Publishers (GOCOP) in Abuja, said there were many options open to the government to regulate social media.
Mohammed said the government could leverage on technology, working with big tech firms like Facebook, Twitter, WhatsApp, Instagram to check the spread of fake news and hate speech.
According to him, “it is premature for anyone to say that there are enough laws already to deal with social media deviants”.
He said the process for social media regulation would not be unilateral because government would carry relevant stakeholders along. “Let me announce here that we have just kick-started the process. We have dispatched letters inviting representatives of the media, civil society, technology and security experts, online publishers, bloggers, relevant agencies of government, etc, for this purpose.
“It will involve all stakeholders coming together to chart the path forward. In essence, the committee we plan to set up will determine the best option for us to use,” he said.
Mohammed said from October 29, when he announced government’s plan to sanitise social media, there had been intense debate on the issue.
“This is a welcome development because the announcement has pushed the issue of social media to the front burner and we can only benefit from such debate.
“We have been monitoring the debate. Some analysts and commentators have supported our plan, while others have opposed it.
“An interesting part of the debate has been that even those who opposed the regulation have acknowledged the dangers inherent in the irresponsible use of the social media, especially by anarchists and non-patriots,” he said.
‘No plan to stifle free speech’
The minister explained that contrary to opposing sentiments, the planned regulation was not aimed at stifling free speech and muzzling the media.
“The fear of stifling free speech or muzzling the media is totally unfounded. We have no such plans.
“As we speak, people are on the social media criticising the Administration. We have no problem with that, because it is part of democracy.
“This is a democracy and there should be plurality of opinions.
“But our concern has to do with the abuse of social media by those who are bent on spreading fake news and hate speech, and the dangers inherent in that for our national peace and unity.
“We have no hidden agenda,” he said.
According to Mohammed, while the government welcomes a robust debate on the issue, the criticisms in certain quarters would not stop it from going ahead with sanitising the social media space.
He said Nigeria was not alone, countries including Germany, UK, Singapore, China, South Korea, Uganda, Tanzania, Kenya, Zambia are doing something about social media abuse.
Opposition in the Senate
Expectedly, the proposed bill has generated reactions.
The Peoples Democratic Party (PDP) caucus in the Senate has already stated its decision to oppose any proposed legislation that would infringe on the rights of Nigerians.
Minority Leader, Enyinnaya Abaribe, during a meeting with the Leadership and Accountability Initiative, said PDP senators would oppose the Social Media Regulation Bill if it threatened the fundamental rights of Nigerians guaranteed in Section 39 of the 1999 Constitution as amended.
Abaribe said there were already laws that deal with issues the proposed law seeks to regulate.
He urged Nigerians to ensure mutual respect while freely expressing their views.
“What I can assure you is that this Senate can’t be a party to removing the rights of Nigerians under any guise. Section 39 of the Constitution talks about our freedom as citizens. The 9th Senate will not abridge your rights.
“I don’t think Nigerians who fought and paid the supreme price to entrench this democracy will easily give it away and make us go back to the dark days”, he said.
Leader of the group, Nwaruruahu Shield, insisted that since there were already existing laws dealing with defamation, it is superfluous to introduce a fresh anti-social media Bill.
Lawyers oppose bill
Some other stakeholders also regard the Bill as an “over reach and over kill” against the back ground of the country’s existing laws. To them, on-line and social media publications are already over-regulated and existing laws are adequate to curb hate speech.
They are also curious as to why Senator Abdullahi would re-introduced a bill that was rejected and failed to sail through the eighth assembly, to the ninth assembly. To them, if the intention of the bill is in the public interest, it would have been debated and passed by the previous assembly.
Many of those who oppose the bill are Constitutional lawyers and activists, with some of them threatening legal action.
They include Chairman, Council of Legal Education Chief Emeka Ngige (SAN), former General Secretary Nigerian Bar Association (NBA) Dele Adesina SAN, activist-lawyer Femi Falana (SAN) and former President Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu.
Ngige expressed doubts on the possibility of the bill ever getting passed.
“I believe that that bill will never reach the stage of passage. When there is a public hearing, members of the public, NGOs will come and make their contributions and from which I believe the senate and members of the House of Representatives will remove the wheat from the chaff.
“But I must also tell you that there is no law or there is no man that doesn’t have responsibilities.
“Social media in Nigeria, the way it is, if we leave it and don’t control it, it can lead to the next civil war. There is a lot of statements that have caused a lot of confusion and a lot of disputes are on the rise. So, there must be restrictions but the restriction must not be by the way of killing people. There are ways that that could be done, it can be put in a way that it would not be abused. But the way I see it, the laws need some panel beating”, he said.
Adesina stated that apart from not knowing what hate speech is, he believes that the law of defamation is more than sufficient to take care of this situation.
“I can sue anybody over and over again if there is an infraction of your rights and you can claim damages for whatever injuries that have been done to you in that situation.
“So, that leads me to the problem to know whether we need a new law that will have the kind of heavy punishment that they are proposing, particularly in a political democracy. They thought we need it and if that law eventually passes, there would be a huge out-cry on the part of the public to determine the limit and scope of that law in view of provisions of the constitution”, he said.
Falana said he was “convinced beyond a shadow of any doubt” that members of the Senate have not familiarised themselves with the relevant provisions of the Penal code, the Criminal Code and the Cybercrime Act.
According to him, “the Cybercrime Act of 2015, particularly, sections 24 and 26 have very draconian provisions. Currently, the Buhari administration is using the provisions of the law to deal with journalists. One of the counts in the charge against Omowole Sowore is that he used the medium of Arise Television to insult President Muhammadu Buhari and that offence is known as cybercrime.
“Just yesterday (last Tuesday) a journalist was arraigned in Ilorin for alleging that some workers were smoking marijuana in the farm of a former Deputy Governor of Central Bank (CBN), Mrs Sarah Alade. So, there are other journalists who are being harassed for embarrassing government officials. In other words, anybody who can send any message through any network, be it computer, telephone, whatever, has been captured by the provisions of the Cybercrime Act”.
He advised that “instead of dragging Nigeria to the mud and exposing her to international odium by prescribing death penalty for alleged cases, our legislators should be advised to nip it in the bud and stop further debate on that primitive piece of legislation.
“If it is passed through any error or omission, we are going to challenge it. Such a law cannot stand in the light of Section 39 of the Constitution and Article 9 of the African Charter on Human and Peoples’ Rights”.
According to him, similar laws have been declared illegal in the ECOWAS Court of Justice and African Court on Human Rights.
“In other words, if the law is passed, we are going to challenge it before our municipal courts or outside the country.
“We are not going to allow the Senate to abrogate the rights that we have fought for and won. I am going to recommend this to the President of the Senate and the Speaker of the House of Representatives and draw their attention to the case of Authur Nwankwo V The state decided in 1983 by the Court of Appeal.
“The Court of Appeal made it clear in that case that having regards to Section 36 of the Constitution then, which is now Section 39 of the 1999 Constitution, no public officer shall be allowed to use the machinery of the government to harass his or her political opponent. In other words, if you are offended by any publication of any stable, you are required to go to court and sue in your private capacity if you have any reputation to protect.
“That is the position of the law. That law has not been altered. So we want to advise members of the National Assembly to stop further debate on this piece of legislation”, Falana said.
Ugwummadu claimed that “indicators of an emerging fascism in Nigeria are becoming clearer.”
He lamented that the “character and dimension of state intolerance to citizens’ participation in governance are now established and frightening.
According to him, the “relentless efforts to muzzle the press and free speech are also indicative of a hidden agenda by the ruling class and over which the government is no longer disposed to.”
While admitting that hate speeches, are condemnable and capable of disrupting social orders and equilibrium, he argued that the government “is certainly over reaching itself when it consistently devises legislative mechanisms to circumvent the freedom of Nigerians to expression.”
Ugwummadu recalled that attempts were made in the past “to stifle, muffle social media practitioners and platforms in the public space”, through this proposed hate speech bill.
“The concerns now are: how will this power not be susceptible to abuse? Who will superintend the affairs of the proposed commission? Whose discretionary judgment determines a hate speech? Of what relevance and conflict will other legislations on the issue including the Cybercrimes Act become with the promulgation of the proposed bill?
“What is the cost implications of establishing other bureaucracies including a Commission with a fresh work force and conflicting mandates. How farther are we moving away from the established sound principle of law”, he asked.
“If it is passed through any error or omission, we are going to challenge it. Such a law cannot stand in the light of Section 39 of the Constitution and Article 9 of the African Charter on
Human and Peoples’ Rights”