OPINION: FEMI FALANA (SAN)
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, offenses 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.
Femi FalanaIn 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 provides 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 a 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.
www.sojworld.com © August 28, 2017.
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