Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Who needs the hate speech and social media bills? 09 Dec 2019

A view of the National Assembly complex in Abuja

The National Commission for the Prohibition of Hate Speeches Bill (Hate Speech Bill), sponsored by Senator Aliyu Sabi Abdullahi; and the Protection from Internet Falsehoods, Manipulations and Other Related Matters Bill (Social Media Bill), sponsored by Senator Mohammed Musa, have generated a lot of furore. As at the time of writing this column in late November, the Social Media Bill had passed second reading, while the Hate Speech Bill was awaiting second reading. The surprising speed with which the bills have been moving through the legislative process has raised concerns among Nigerians. Despite the outcry, it appears the bills might not be as easily quashed as similar ones were treated during the 8th National Assembly.  
There are growing concerns that the upper chamber of the National Assembly will not adequately act as a check to potential excesses of the executive arm of government. Senate President, Ahmed Lawan, reportedly said the Senate would honour any request from President Muhammadu Buhari. This statement and the two bills further damage public trust in the legislative house.
A lot of the arguments against the two bills have centered on the right to freedom of expression enshrined in Section 39 of Nigeria's constitution. Section 39 (1) provides: “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” Subsection (2) further entrenches the right to disseminate information by providing that, barring the establishment or operation of a television or wireless broadcasting station, which requires the authorization of the president on the fulfilment of conditions as laid down by an Act for that purpose, “every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions.”
It is the exercise of this right that has led to the rise of commercially-successful blogs as well as a new crop of celebrities known as 'social media influencers.' It is, therefore, safe to say Section 39 of the constitution has enabled the rise of a new industry and entrepreneurs, thereby reducing the number of unemployed youth in the country. It is this new industry our legislators seek to 'regulate.'
Fundamental rights are hardly absolute. This includes the most important of them all – the right to life. Furthermore, in the exercise of any of our rights, we must always be careful not to breach  the right(s) of others. I am fond of saying that where your right ends is where mine begins and vice versa. However, the conditions attached to any right are usually prescribed by the law, which created that right, in this case, the constitution. Section 39(3), thus, provides that the right to freedom of expression created under the section does not invalidate any law that is reasonably justifiable in a democratic society for preventing the disclosure of information received in confidence; maintaining the authority and independence of courts; regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; and imposing restrictions on government officials and members of the armed forces, the police and other security agencies.
Thus, unless a law is made for the purposes contained in Section 39(3), such a law would be void if it has the effect of restricting the right to freedom of expression. The constitution is the grundnorm from which all other laws derive their validity.
It is undeniable that the internet has important positive impacts on lives and societies. Hence, policymakers around the world are ordinarily careful about regulating it. However, the responsibilities of the different stakeholders in the social media space have been generating ongoing debate. Social media companies, especially Facebook, are in the crosshairs of government scrutiny in the United States and other countries. Facebook, particularly, has been used as a platform for spreading false and hateful information (including sponsored ads), which many people believe have contributed immensely to the new peaks of political polarization in the U.S.
There is no doubt that social media, and indeed the internet as a whole, provide cyber criminals the freedom to anonymously carry our nefarious acts. For this reason – and in order to protect vulnerable people – each society must decide its own rules of engagement on those platforms based on principles and values of that society.
Therefore, we must not, in a lazy attempt at regulating the internet, adapt the law of another country whose government, according to the Human Rights Watch (HRW), allegedly persists “in treating those who express critical views or reporting on them as criminals.” Our society is one in which the constitution affords every citizen the right to hold and share not just opinions, but also information.
Besides, Nigeria already has a legislation with which the government can begin oversight of online activities. The Cybercrimes (Prohibition, Prevention, etc.) Act 2015 provides a legal framework for demanding accountability from different stakeholders in the social media space. Rather than proliferating laws on the same subject, improvements in the form of amendments should be made to the existing law.
With respect to social media posts and online engagements, the cybercrimes law identifies as offences identity theft and impersonation; child pornography and related activities; cyber stalking; cyber-defamation; cybersquatting; racist and xenophobic activities. The law also provides adequate penalties for these offences. There are no statistics with respect to how the different provisions in this law have been applied. But as a practicing legal practitioner, I am on safe ground to assert that the law has been grossly underutilized in about four years of its existence.
Rather than create another commission, perhaps we should seek to determine the effectiveness of the Cybercrimes Advisory Council created under the Cybercrimes Act. The Act provides recommendations on issues relating to the prevention and the fight against cybercrimes and the promotion of cyber security in Nigeria. It advises on measures to prevent and combat computer-related offences, cybercrimes, threats to national cyberspace and other cyber security-related issues.
The Act also established a programme to award grants to higher education institutions, enabling them to establish cyber security research centres to support the development of new cyber security defence, techniques and processes in the real-world environment. The legislation also promotes graduate traineeships in cyber security and computer network security research and development.
The Cybercrimes Act apparently does not solve the problem many of our political elites want crushed – namely, criticisms and demand for accountability. Social media in Nigeria has served as platforms where the words and actions (sometimes done or uttered in secret) of our political figures are subjected to criticism, satire, and mockery by the citizens.
For a nation with political leaders who have a 'messianic-complex' and feel they are above reproach, they find such social media comments quite uncomfortable. Hence, they feel the need to introduce these bills, one of which penalizes “abusive or insulting words or behavior.” These are simply tools they would likely use to suppress any form of critique and deepen ethnic bias amongst the people.
Among its purported objectives, the Hate Speech Bill aims to “promote a harmonious peaceful co-existence within the people of all ethnic groups indigenous to Nigeria.” For a multi-ethnic country like Nigeria, and given our history of ethnic identities, mistrust and tensions, this is a dangerous and counter-productive way to achieve harmony. Nigeria is like a group of discontented siblings forced to co-habit by reason of familial birth. Therefore, penalizing every insult because it is construed as ethnic hatred can only build resentment, which would likely lead to more ethnic clashes.
Furthermore, the Buhari administration is one that is notorious for violating the rule of law including, refusing to obey court orders granting accused persons bail; arresting or threatening to arrest journalists who publish stories that expose some form of corruption or inefficiency in its ranks; selectively prosecuting individuals for corruption; and failing to reform the police force that harasses more than it protects. For an administration with this reputation, the two bills, therefore, read more like attempts to protect the political elites.
If our legislators were listening to the citizens, perhaps what we would have is a bill to amend the Cybercrimes Act. The law needs to also provide protection for victims of revenge porn and online intellectual property. The legislation should provide for a duty of care by social media  companies in respect of their users; as well as protect against discrimination based on online content and so on.
It is very unlikely that the applicable sanctions specified in the two bills would be enforceable on the social media juggernauts like Facebook and Twitter. Our local blogs and online media organisations would, however, become victims of many of the easily-compromised law enforcement officers in the event an individual finds the subject of a post displeasing.
Twenty years into the Fourth Republic, we shouldn't be seen as muzzling dissenting voices or repressing criticisms. The government should be advancing democracy and free speech.