Constitutionality of The proposed Hate Speech Law and its Consequences for the future of Democracy in Nigeria

The Senate has recently reintroduced the bill sponsored by the Deputy Chief whip Senator Aliyu Sabi Abdullahi seeking to criminalise hate speech and penalise persons found guilty of hate speech.
The Bill proposes amongst others that any person who uses, publishes, presents, produces and distributes any material written or visual which is threatening, abusive or insulting or involves use of threatening, abusive or insulting words or behaviour commits an offence if such 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 persons 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 results in the death of another, then the person shall be punished with death by hanging.
The Bill further provides that any person who knowingly utters words to incite feelings of contempt, hatred, hostility or discrimination against any person or group on the basis of ethnicity commits an offence and shall be liable on conviction to imprisonment for a term of not less than five years or a fine of not less than N10 million naira or both.
Whilst there may exist a genuine intention on the part of the sponsors and proponents of the proposed law to put an end to hate speech, ethnic hatred and discrimination, the constitutionality of the proposed law can be questioned in the light of a threatened repression of the constitutionally guaranteed right of freedom of expression.
One of the fundamental dividends of democracy is the freedom of expression. Openness and freedom of public discourse and opinions on any issue including matters of history and government policies is a precondition for a democratic society.
Open and robust public discourse without fear of prosecution serves as a fundamental check on governmental powers.
Freedom of expression is a very fundamental right that should not be tampered with. A law which unnecessarily restricts free speech and which can be adopted to repress dissenting voices in any nation, would always have far-reaching negative consequences for the growth of democracy.
Unfortunately, the proposed Hate speech law leaves so much open to conjecture as to what strictly constitutes hate speech, considering the fact that there may be other civil wrongs such as libel or slander that may construed as hate speech under the law. Further, mere statement of facts may also be adjudged as hate speech under the law, whether or not the speaker intends to stir up ethnic hatred since under the law such a person may be guilty of the offence if he 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 persons from such an ethnic group in Nigeria.
The Proposed Bill is dangerously restrictive of free speech, since the public may refrain from exercising their freedom of expression on important national issues for fear that their statements may be construed as stirring up ethnic hatred.
Instructively, Section 39(1) of the constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees the right to free speech and same admits of very limited restrictions to the guaranteed freedom of expression. The Section provides as follows:
39(1) Every person shall be entitled to freedom of expression. including freedom to hold opinions and to receive and impart ideas and information without interference.
(2) Without prejudice to the generality of subsection (I) of this section. every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:
Provided that no person, other than the Government of the Federation or of a State or any other person or body authorised by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own. establish or operate a television or wireless broadcasting station for any purpose whatsoever.
(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society-
(a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or
(b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.
Section 39(3) is exhaustive as to scope of laws that may be permitted to restrict right to free speech for certain justifiable purposes and the proposed Hate speech law does not fall within the constitutionally justifiable scope. Therefore, the Hate speech Bill to the extent that it has the effect of gagging the public from exercising their constitutionally guaranteed right of expression may not pass the constitutionality test as same is outrightly
It remains to add that the death penalty provided by the proposed law is retrogressive and unnecessary. At a time where there is a growing global advocacy for the world-wide abolition of the death penalty, it is just anachronistic that Nigeria is still seeking to create more offences punishable by death.
The proposed Hate Speech Bill is undemocratic and highly undesirable as whatever usefulness it may have in curbing hate speech, ethnic hatred and discrimination is outweighed by the overriding need to protect the sacrosanct freedom of expression which the proposed law may likely repress. If the law is passed, it may present a very gloomy future for democracy as same may be a ready tool that may easily be adopted to silence dissenting opinions and constructive criticisms that may encourage inclusiveness.
Ethnic hatred is essentially caused by lack of knowledge and the best way to curb it is by enlightenment and not by a legislation that infringes on right to free speech. It has been aptly stated that ‘instead of focusing on ways to censor hate speech, we must concentrate on answering such expression with more speech. The battle against intolerance cannot be won through government regulation or mere legislative action. Instead, it is a fight that will be won or lost in the competition of ideas’- The Media Freedom Internet Cookbook (Vienna: OSCE, 2004), pp. 21–22.
About the author 
Onuzulike Chimezie Esq is a legal practitioner, a human rights activist and seasoned legal author. He Writes from Lagos, Nigeria. 
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