‘Hate Speech Bill as a National Embarrassment’- Pastor Adedeji Adeleye, Executive Director, Independent Advocacy Project(IAP)

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OneVOICE Freedom of Expression and the Combat of Hate Speech in Nigeria Venue: Lagos Travel Inn, 39 Toyin Street, Ikeja, Lagos. Thursday 12 April, 2018

Keynote Address on the ‘Hate Speech Bill as a National Embarrassment’

There is a growing national debate as to whether there should be a Hate Speech Law (carrying a maximum death sentence) to regulate, in part, freedom of speech or expression and information as well as any publication whether in print, broadcast and social media, that could incite mass protest, violence and carnage, in any form or guise. However, the other side of the debate presents two perspectives: the first is that such a law could be misused by politicians and political office holders in government to hunt down opposition, and critical civil society’s non-state actors. In other words, the debate is now over freedom of speech or expression, hate speech and hate speech law. Critics have argued that the term “hate speech” will eventually be used to silence critics. The second is that there exists sufficient Nigerian extant laws that could take care of hate speech in the country with little amendment here and there. Therefore, a hate speech law is unnecessary.

It seems to me that certain agencies (National Human Rights Commission, NHRC; Nigerian Communication Commission, NCC and National Broadcasting Commission, NBC) are working at cross purposes, not sharing information and data or comparing notes.
For instance, according to many Nigerian newspapers of March 2018, NHRC said it has received 783 petitions, so far, on hate speech and it is keeping them to its chest. Nobody (apart from NHRC) knows the content or the offenders’ identities.
The Nigerian Communications Commission (NCC) said that it is now working with the Office of the National Security Adviser (ONSA) to curb hate speeches in the social media.

The Executive Vice Chairman and Chief Executive Officer of the Commission, Engr. Umar Garba Danbatta, said this in Calabar while opening a two day workshop on Information and Communication Technology (ICT) Utilization and Sustainability for South-South zone last March, organized by the Universal Service Provision Fund (USPF), a unit under NCC.

It is to ensure that the cyber space was sanitized in order not to endanger the peace of the country. “There is a cybercrime law which is being operated between the NCC and the office of the national security adviser, and is being managed by the latter. According to Danbatta, “There are several things people want but if they are not in the law or in the Act, there is nothing one can do,” adding “We need to make sure that people get information and not restrict it but in doing that, people need self-regulation for social media activities. “People should be mindful of what they post; there should be no hate speech, and then they should take responsibilities for what they are putting on the net,” he said.

The NBC too continues to issue all kinds of guidelines and sanctions to broadcast organizations regarding what they can put in the public domain via telecast, airwaves and social media.

These three government agencies have not complimented one another, shared information and data or create the impression that they are working for the common good of civil society.

The Bill on Hate speech before the National Assembly is an embarrassment. Leaders in government seem to revel in taking decisions in moments of emotional flourishes and consequently often fail to soberly reflect on possible unintended consequences of their actions.

The first challenge the Hate Speech Bill will face is determining what constitutes hate speech. One definition of hate speech is that it is any speech that employs discriminatory epithets to insult and stigmatize others on the bases of their race, ethnicity, gender, sexual orientation or other forms of group membership. In other words, it could be a speech which attacks a person or group or ethnic people on the basis of race, religion, gender, or disability.

If it disparages, intimidates or incites violence against the above category of people, it is termed to be a hate speech. The problem here is that offensive speech is also similarly defined.

Another definition of hate speech is any speech, gesture, conduct, writing or display which could incite people to violence or prejudicial action. Here the key word is ‘Incite’. However defining hate speech in this manner creates its own problem because even the opinions we hold could be construed as an incitement. As Justice Holmes put it in a landmark case in the USA, (Gitlow v New York [1925]), “Every idea is an incitement… The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result.”
Several scholars have tried to more precisely delineate when offensive speech crosses that fine line and becomes hate speech. Susan Benesch, Director of the Dangerous Speech Project and a Faculty Associate of the Berkman Centre for Internet and Society at Harvard University identified five key variables for determining the ‘dangerousness’ of speech or when speech transmutes from offensive to hate speech: (1)The level of a speaker’s influence (2)the grievances or fears of the audience (3) whether or not the speech act is understood as a call to violence, (4) the social and historical context, and (5) the way in which the speech is disseminated.

Even Professor Benesch’s delineations are fraught with relatives. The point is that delineating hate speech from offensive speech is extremely difficult. The definition of ‘hate speech’ adopted by the Hate Speech Bill is not rigorous enough. And any plea of ‘Nigerian exceptionalism’ is unlikely to persuade the international community when the country tries to implement its provisions and runs into inevitable difficulties. Some people believe that the term ‘hate speech’ should only be used for extreme cases such as speeches that explicitly call for the physical injury or extermination of certain people. I will define hate speech as speech that has ‘clear and imminent danger’ of triggering violence.

Another challenge which the Hate Speech Bill faces is the effectiveness of using the law to curb hate speech. Hate speech is prohibited by law in several jurisdictions such as Canada, France, the United Kingdom and South Africa. In the United Kingdom, among the panoply of the country’s hate speech laws, is Section 5 of the Public Order Act (POA), which makes it a crime to use or display threatening, abusive, or insulting words “within the hearing or sight of a person likely to be caused harassment, alarm, or distress thereby.” Under this section of the POA, Harry Taylor, an atheist who placed drawings satirizing Christianity and Islam in an airport prayer room, was convicted in April 2010 and given a six-month prison sentence. In Nigeria under the Hate Speech Bill he would be condemned to death because of the volatile nature of religion or religious sentiments.

In The Netherlands, which is long considered a bastion for the freedom of thought and expression, Articles 137(c) and 137(d) of the country’s Criminal Code prohibits, making public, intentional insults, as well as engaging in verbal, written, or illustrated incitement to hatred, on account of one’s race, religion, sexual orientation, or personal convictions. Indeed, in The Netherlands, the most prominent hate speech case to date is that of politician Geert Wilders, who was indicted by the public prosecutor in 2009 for his public comments about Muslims and Islam, and his release of a short film documenting what he called ‘inflammatory passages’ in the Qur’an.

In France, Section 24 of the country’s Press Law of 1881 criminalizes incitement to racial discrimination, hatred, or violence on the basis of one’s origin or membership (or non-membership) in an ethic, national, racial, or religious group. In 2005, politician Jean Marie Le Pen, runner-up in the 2002 presidential election, was convicted of inciting racial hatred for comments made to Le Monde in 2003 about the consequences of Muslim immigration in France. In South Africa, Julius Malema, the former ANC’s Youth League leader was in 2011 convicted of hate speech for promoting the song, “Kill the Boer”.

In contrast to the above countries, laws prohibiting hate speech are unconstitutional in the United States as most often fail legal challenges based on the First Amendment of the Country’s Constitution which prohibits the restriction of free speech. In the US law courts, even ‘fighting words’ (those that pass the ‘clear and imminent danger’ test which are categorically excluded from the protection of the First Amendment) are not that easy to separate from hate speech, which is a protected speech.

An insight into how the American jurisprudence protects hate speech is in the way the law treats the Ku Klux Klan – one of the worst purveyors of racial hatred in that country. In a landmark case, Brandenburg v. Ohio (1969), the arrest of an Ohio Klansman named Clarence Brandenburg on criminal syndicalism charges, based on a KKK speech that recommended overthrowing the government, was overturned by the country’s Supreme Court. In a unanimous judgment, Justice William Brennan argued that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

If you look at the above citations all around the world, none carried a death penalty but various prison sentences. Then why should Nigeria be different. What should warrant a maximum death sentence in hate speech in Nigeria?

Today, within the confines of this conference, we have eminent scholars, communication experts, legal luminaries and versatile journalists who will do justice to the Hate Speech Bill before the National Assembly. Therefore, as CSO activists and media practitioners, we are going to learn the global meaning of hate speech across the world (in the western world, Africa, Asia, Latin America), content analysis, history around the world, theoretical framework etc.

Also, we will learn the content analysis of the Hate Speech Bill before the National Assembly; the roles of non-state actors against the proposed bill and what we must all do to mitigate this scourge towards the 2019 general elections.

Equally, we will learn about the Constitutional, legal and theoretical framework underpinning Hate speech; History of hate speech in Nigeria especially pertaining to regional politics of the 1960’s culminating into the 1964-65 western regional crisis of burning down of lives and properties, and the Civil war 1966-1970, and 1983 crises in Oyo, Ondo and Anambra states

Last, we will learn about the roles of both the media & CSOs in fanning embers of political, ethnic, religious and socio-cultural hatred in Nigeria through various hate speeches. How the media and CSOs can eschew hate speech, refrain from publishing/disseminating it and discourage its spread.

The way forward: unification instead of disintegration: Our conduct and pronouncement will determine which way

Enforcement
Hate law regulations can be divided into two types: those which are designed for public order and those which are designed to protect human dignity. Those designed to protect public order require a higher threshold to be violated, so they are not specifically enforced frequently. For example, in Northern Ireland, as of 1992 only one person was prosecuted for violating the regulation in twenty-one years. Those meant to protect human dignity have a much lower threshold to be violated, so those in Canada, Denmark, France, Germany and the Netherlands seem to be frequently enforced.
Enforcement of laws regarding hate speech in the USA can interfere with constitutional rights to freedom of speech. Court rulings often must be reexamined to ensure the U.S. Constitution is being upheld in the ruling on whether or not the words count as a violation.

Is hate speech less in countries that use the law to fight it?
This is arguable and debatable. What is clear is that laws can sometimes exacerbate the problem. A very good example of this is what happened in the Australian state of Victoria where a law banning incitement to religious hatred led to Christians and Muslims accusing each other of inciting hatred and bringing legal actions against each other which only served to further inflame community relations. Besides, even if the law is effective in curbing hate speech in countries where the basis of statehood has long been settled, we cannot assume that the same will apply here where the country is extremely polarized (along Christian-Muslim divide) and the basis of statehood remains largely contested. It is in fact tempting to speculate on what will happen if former President Olusegun Obasanjo, General T.Y Danjuma, Junaid Mohammed, Edwin Clark, Prof Ben Nwabueze, Gani Adams, Bishop Hassan Kukah, Pastor Tunde Bakare, Prof Ango Abdullahi, Asari Dokubo and others who hold strong views that are sometimes unacceptable to sections of the country are condemned to death for speeches they uttered? Will that promote amity or widen the social distance among the different sections of the country?

Combating hate speech.

How do we fight hate and offensive speeches?
The ‘No Hate Speech’ campaign sponsored by The Council of Europe vigorously raises awareness and sensitization about hate speech which helped to combat the problem. A growing awareness of the problem has now resulted in increasing teaching in school, of the issue, with enhanced reporting often occurring.
However in Nigeria, a starting point is to recognize that the line between offensive and hate speech could be blurred. While proper hate speeches – those that pass the ‘clear and imminent danger’ test should be criminalized (certainly not with death penalty), my opinion is that we should use non-legal instruments to deal with offensive speeches. There may for instance be a need to develop, in conjunction with critical organs of the society such as Labour unions, NBA, media owners and practitioners as well as CSOs, the taxonomy of what constitutes hate speech and offensive speeches. Media houses through their umbrella associations should incorporate these as part of good journalism practice and impose sanctions on erring members who publish or broadcast hate speeches.

Perhaps one of the most effective ways of combating hate speech is to ensure that purveyors of such speeches are marginalized. For instance in the UK, while the racist British National Party and the ideas it purveys are not banned, it will be political suicide for any politician to be seen to associate with the party’s members. In Nigeria offensive and hate speech mongers are hailed as regional and ethnic heroes. And it shouldn’t be so.

Nigerians should also learn to laugh at themselves. This is already happening in some ways with our comedians (Ali Baba, Charlie Boy, AY, Seyi Law, Basket Mouth and others) who dish out jokes based on ethnic and regional profiling. In fact it could be argued that since every region and ethnic group in the country is both a victim and a victimizer when it comes to hate speech, they countervail and cancel out one another.

Another way is to advocate self-regulatory system against hate speech
There is a compelling need to advocate self-regulatory system and intensify activities geared towards sensitizing the media community and civil society practitioners about ethical and moral standards to avoid high level of hate speech and partisanship in the coverage of 2019 elections. While there are concerns about the challenge that hate speech could pose to both the electoral process and public disclosure, the ‘Hate Speech Bill’ by the National Assembly which carries a death penalty clause is certainly not the right answer. NASS does not need to criminalise hate speech with death penalty.

I would like to suggest CSO-Media Code of election Coverage to set guidelines for monitoring of 2019 elections as well as guide against publishing and disseminating hate speech in any form or guise.

Lastly, as CSOs and media practitioners, we need to concertedly begin massive sensitization, enlightenment and awareness campaigns against hate speech, taking it to the doorstep of the National Assembly that we do not need a law but a moral suasion and self-regulatory system to combat hate speech.

I wish you all a happy and fruitful deliberation.

Pastor Adedeji Adeleye
Executive Director, IAP and Chair, OneVoice Media Committee

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