When Hate Speech Crosses The Borderline Of Freedom Of Expression

By Samuel Malik, Abuja

With less than three weeks to the 2015 elections, the political atmosphere is saturated with all forms of campaigns – vitriol, name calling and, sometimes, outright insult – from politicians seeking to outwit their competition.

In the last few weeks, some of the statements credited to politicians and their supporters have become a real source of worry for stakeholders who say such comments, if left unchecked, are capable of plunging the country into serious crises.

As a result, there have been several meetings and debates aimed at finding ways of ending inciting comments and hate speeches.

One of such forums was a roundtable on hate speech and the 2015 elections organised by the Kukah Centre with support from MacArthur Foundation, with participants drawn from the media, human rights organisations, civil societies and the international community.

What constitutes hate speech, why offenders are not being prosecuted, how hate speech differs from or contradicts freedom of expression, and legal instruments dealing with such comments formed the focus of discussion at the roundtable.

The overriding consensus at the end was that there should be no place whatsoever for speeches that incite others to violence in our politics.

The Executive Secretary of the National Human Rights Commission, Bem Angwe, said the commission would begin the compilation of a list of hate speeches and also name and shame those behind them, with a view to discouraging others from making such speeches.

Represented by Tony Ojukwu, a director in the commission, Angwe said, “We are going to name and shame them; we will publish them publicly and make sure that they are held accountable through the use of the law enforcement agencies.”

What Constitute Hates Speech and Inciting Comment?

Emmanuel Onwubiko, president of Human Rights Writers Association of Nigeria, HURIWAN, gave a definition of hate speech from the Committee of Ministers of the Council of Europe, which says: “The term hate speech shall be understood as covering all forms of expressions which spread, incite, promote of justify racial hatred, xenophobia, anti-Semitism, or other forms of hatred based on intolerance. As a result, it generates stigmas, stereotypes, prejudices and discriminatory practices against those who are constructed as being different.”

Jideofor Adibe, a political scientist and media commentator, said hate speech is a catalyst for violence and observed that with next month’s election predicted as the most contentious in the history of the country, Nigerians’ notoriety for unsavoury profiling and name-calling of one another needs to be checked.

“Obviously, we know that we Nigerians like to profile one another, pour invectives whenever we congregate in our in-groups, especially in this political season. People are becoming concerned about how hate speech is going to affect the political process, especially with respect to possibility of pre and post-election violence,” Adibe said.

He observed further: “Hate speech is often a precursor to discrimination, harassment and violence as well as a precursor to serious (and) harmful criminal acts. We believe that it is very doubtful if there will be hate-motivated violent attack anywhere without hate speech and the hatred that it purveys. “

Comments made by Ejike Mbaka, a catholic priest, and Ayo Fayose, governor of Ekiti state, were observed to be hate speech that either infringe on the law or are capable of inciting the public to violence.

Early this year, Mbaka urged his Adoration Ministry followers not to vote for President Goodluck Jonathan in next month’s election, while Fayose got tongues wagging when he took the front page of a national newspaper to suggest that All Progressives Congress, APC, presidential candidate, Muhammadu Buhari, would likely die in office if elected, reminding people that Murtala Muhammed, Sani Abacha and Umaru Yar’Adua, all former heads of state from the North west like Buhari, had died in office.

Angwe quoted from the Electoral Act to support his assertion that the comments by the two men qualify to be referred to as hate speech.

Section 95 (1), “no political campaign, slogan shall be tainted with abusive language directly or indirectly, likely to injure religious, ethnic, tribal or sectional feeling.”

Subsection 2 “Abusive, intemperate, slanderous or base language or insinuations or innuendos designed or likely to provoke violent reactions or emotions shall not be employed or used in political campaigns.”

Subsection 3 “Places designated for religious worship, police stations and public places shall not be used for political campaigns, rallies and processions or to promote, propagate or attack properties, candidates or their programmes or ideologies.”

Hate Speech, Inciting Comments and the Law

Discussion also focused on the position of the law concerning hate speeches and inciting comments as it relates to Nigeria and the world in general.

Angwe said the 2010 Electoral Act frowns upon hate speeches and inciting comments.

“Section 102 stipulates that, ‘Any candidate or person or association who engages in campaigning or broadcasting based on religious, tribal or sectional reason for the purpose of promoting, opposing a particular political party or the election of a particular candidate is guilty of an offense,” he said.

According to the Act, the punishment for this offence is a fine of not more than N1, 000, 000 or imprisonment for 12 months or both.

Speaking further, Angwe explained that internationally, hate speech and inciting comments are also discouraged.

A few international instruments have made categorical statements about hate speech. Leading among this is the International Covenant on Civil and Political Rights, he said.

“Article 20 specifically mentions that, ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law,’” he said, adding that “under ICCPR, you cannot make hateful statements. In fact, countries are enjoined to prohibit the making of such statements by law.”

Also, according to Angwe, the International Convention on Elimination All Forms of Racial Discrimination, CERD, condemns hate speech.

“Article 4 of CERD States that ‘Parties condemn all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin or which attempts to justify or promote racial hatred and discrimination in any form and undertake to adopt immediate and positive measures designed to eradicate all incitements or acts of such discrimination,’” Angwe said.

Hate Speech and Inciting Comments vs Freedom of Expression

Where do we draw the line between hate speech or inciting comment and the freedom of expression? The underlining factor, it appears, is Intention. It was said that for somebody to be convicted of the crime of hate speech or inciting comment, it must be established that there was an intention, which, according to Adibe, could provide a window of escape for a purveyor of such speech or comment.

According to Angwe, although hate speeches and incitement constitute impediment to freedom of expression, “the test as to whether law on hate speech and incitement qualifies as lawful restriction on freedom of expression will depend on whether some minimum standards have been satisfied.”

The ground on which one’s freedom of expression can be restricted, Angwe said, is dependent on three things: “protecting the reputation of others, national security and public order, health or morals.

Nevertheless, he continued, it must be proved that the person making a hate speech or inciting comment has the intention of breaching the above conditions.

“The test is, for instance, is there intention to hurt others, incite violence or to create hatred. So, you must be able to distinguish whether a statement is clearly set out to incite or in its clear terms advocates hatred or violence,” Angwe explained, saying this is necessary in order to avoid stifling one’s inalienable rights.

Role of the Media in Discouraging Hate Speech

Adibe was of the opinion that getting a conviction for hate speech or inciting comment in a court of law can be very difficult because of a lot of factors one of which is what he called countervailing narratives.

“Often it is the court that decides but it is extremely difficult in many jurisdictions even for the court. The fact that someone is saying what you do not want to hear does not mean they are not contributing to the political marketplace of ideas, but if it is an imminent threat to incitement, that is where the borderline lies,” Adibe observed.

“Otherwise, there is also what is called countervailing narratives; this man says something extreme, it triggers a countervailing narrative and proponents of free speech will tell you that it is in this noise that we have to pick out the real truth,” he posited.

Instead of censoring what people say, the alternative, according to Adibe, is to allow them air their views, even “idiotic” ones, with the belief that the majority viewpoint will “marginalise” them.

“You find out (that) societies that allow you to express even idiotic ideas, what people do is that they (those expressing the ideas) lose their glamour once they enter into the political market place. People out-compete your ideas and actually marginalize you,” Adibe contended.

For Onwubiko, hate speech and incitement are so dangerous that they can result to violent clashes and should be discouraged and even prevented from being made if possible.

“The use of hate speeches preparatory to the 2015 elections has become notorious to an extent that you would think that sooner rather than later Nigeria may witness genocidal killings similar to what occurred in Rwanda.”

As a way forwardit was agreed that the media has a key role to play, particularly with regards to whittling down the effect of hate speech and inciting comments, by way of not giving the publicity they require. This can be much more effective than the lengthy and sometimes cumbersome process of litigation, especially in Nigeria.

It is for this and other reasons that journalists came together and adopted a code of practice, The Nigerian Media Code of Election Coverage, which explicitly enjoines media practitioners not to give publicity to such speeches and comments.

According to the Code, “Hate speech and other forms of incitement could lead to violence and threaten the democratic fabric of a society. The social obligations of the media during election therefore include the prevention of hate speech.”



    Provisions of the code also include the following:

    “A media organisation shall not publish or air political adverts, advertorials and sponsored political news that seek to create hatred or incite violence.”

    “A media organisation shall reject any material intended for publication or airing by parties, candidates and other interests that contains hateful or inciting words and messages.”

    “A media organisation shall refrain from publishing or airing abusive editorial comments or opinions that denigrate individuals or groups on account of disability, race, ethnicity, tribe, gender or belief.”


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