IP and the controversial “Hate Speech Bill” in Nigeria

Hate is such a strong emotion. And, so subjective…capable of being treated seriously or in a cavalier manner. Take these fictional examples. A parent tells a child to turn off the TV and go to bed and the child goes: “You never let me have any fun! You hate me!” The government pays salaries of soldiers involved in peacekeeping missions abroad and the army withholds it. The aggrieved soldiers protest and perhaps pen a newspaper article or blog suggesting that the looters within the army have impoverished other soldiers and deserve the hatred and contempt of the soldiers. Someone takes to social media to write how politicians ought to be disgraced for the way they have run the government. Should these persons in these fictional examples be jailed or fined for expressing hatred?

As some readers may be aware, many Nigerians are vehemently opposed to the National Commission for the Prohibition of Hate Speeches Bill, 2019 (SB. 154) (the “Hate Speech Bill”), which recently passed second reading in the Nigerian Senate. There have been complaints that the offences created under the Bill seek to silence criticism and free speech and that the establishment of a Commission to curb hate speech under the Bill is a waste of resources.

Source: The Brag

Part II of the Bill covers various offences and “discrimination to which the Act applies”. These include “ethnic discrimination” (section 3); “hate speech” (section 4); “harassment on the basis of ethnicity” (section 5); “ethnic or racial contempt” (section 6); “victimisation” (section 7) etc. “Hate speech”, in particular involves “using, publishing, presenting, producing, playing, providing, distributing and/or directing the performance of any material, written and or visual”, which may be threatening or abusive. To the extent that copyright protection may apply to written words (literary works), musical works, artistic works, cinematograph films, broadcasts etc., it is possible that some hate speech (as envisaged by the Bill) may be lurking somewhere in a copyright-protected work. It is also possible for a registered trademark or trade name or insignia to constitute hate speech on grounds of its being a visual material where it is threatening or abusive under the Bill. As opined here, it is possible to forfeit a trademark in Nigeria following criminal conviction for certain offences.

This post considers some aspects of the Hate Speech Bill that may affect holders and owners of IPRs.

Offences under the Bill
Ethnic discrimination (treating other Nigerian citizens less favourably than you treat other persons from your ethnic group or other ethnic groups, without any lawful justification; putting another person at a particular disadvantage because of his ethnicity) is not an offence. This is because section 36(12) of the Nigerian Constitution as amended stipulates that, “a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law”. Section 3 of the Bill does not make ethnic discrimination an offence nor is any penalty prescribed.

However, in this Kat’s opinion, section 3 of the Bill on ethnic discrimination is superfluous. Section 42 of the Nigerian Constitution already guarantees freedom from discrimination and explicitly frowns at discrimination on grounds of “particular community” and “ethnic group”. Aggrieved persons may seek redress before the High Court as stated in section 46 of the Constitution.

IPRs holders may be imprisoned for life or punished with death by hanging where they produce (see section 3 of the Bill for all the verbs) written or visual material that is threatening, abusive or insulting and intended to stir up ethnic hatred against any person or person from an ethnic group in Nigeria. [Death by hanging only applies to where the hate speech leads to the death of another person]. The Bill offers no guidance on how a court may determine what constitutes “threatening, abusive or insulting” material and/or how intention to stir up ethnic hatred may be determined. As opined here, proving the commission of a crime requires that the prosecution show that the accused person(s) is responsible for the actus reus (physical act) and had the mens rea (guilty mind or intention). Proving the intention to stir up ethnic hatred may not be so straightforward. Nigeria has over 250 ethnic groups: would/should the court be invited to consider history of inter-ethnic relations to decide subjects that would stir up ethnic hatred?

IPRs holders and owners may be fined N10 million ($28,000 approximately) and/or sentenced to 5 years imprisonment for creating a protected work intended to or having the effect of violating another person’s dignity or creating an offensive (see section 5 of the Bill for other applicable adjectives) environment for the person harassed. Similar punishment applies to persons who knowingly utter words to incite feelings of contempt, discrimination (and other feelings mentioned in section 6 of the Bill). One of the key factors to be considered in determining that a conduct has the offending effect is the “perception” of the person harassed. See section 5(2) of the Bill.

The Federal High Court of Nigeria has the exclusive jurisdiction to try offences under the Bill. See section 55 of the Bill.

There is a lot of subjectiveness involved in the offences under the Bill and there is huge reliance on the perception of an aggrieved person. This may be acceptable when the complaint is a tort. But, relying on the perception of an aggrieved person to ground a criminal conviction and constrain another person’s freedom seems unacceptable. Where these conduct must be crimes, there should be clear, objective factors for determining their commission and matters must not be left in the hands of the person who thinks himself or herself harassed or hated. Already, issues of discrimination and other fundamental rights are covered by the Nigerian Constitution and are not treated as crimes prima facie. There is also room to instead address the offences under the Bill as torts and civil wrongs, where aggrieved persons have statutory backing to file civil claims for damages.

The role of the Independent National Commission for the Prohibition of Hate Speeches
Part III of the Bill establishes and provides for the powers and functions of the Independent National Commission for the Prohibition of Hate Speeches (the Commission). The members of the Commission are to be appointed by the President (section 11) and qualification for appointment are for Nigerian citizens and persons of “high moral character and proven integrity” who have “knowledge and experience in matters relating to race, ethnic and human relations, public affairs, and human rights” (section 12). The Bill does not indicate how the character and experience criteria may be shown. However, these criteria may not require much to satisfy. 

In November 2019, the Nigerian Supreme Court considered President Buhari’s affidavit attesting to his having completed school up to the level required for presidential candidates under the Constitution. The Supreme Court took the view that given the contents of the affidavit which shows that the President possesses a primary school certificate and has worked in the public  service for a period not less than 10 years, and can read, write and communicate in the English language to the satisfaction of the electoral commission, the President was “eminently qualified” to contest the presidential election.

Generally, the objects, functions and powers of the Commission under the Bill are neither judicial nor prosecutorial. Instead, the Commission’s functions and powers appear (in this Kat’s opinion) to be more advocacy based and advisory in nature. In stipulating the objects and functions of the Commission, Section 19 of the Bill uses words such as “promote”, “advise”, “discourage”, “investigate”, “recommend” etc.

However, the powers of the Commission in the case of receiving contravention complaints may in some sense be quasi-judicial. Persons who are directly aggrieved or who claim that the Bill has been contravened may lodge a complaint with the Commission. See sections 37 and 38 of the Bill. The Commission may decline to entertain complaints that are frivolous or lacking in substance or, that may be more appropriately dealt with by the court. See section 39. Under section 45, the Commission must ensure that it attempts conciliation regarding complaints lodged with it. After hearing the representation of the parties to a complaint, the Commission may issue a compliance notice under section 50 of the Bill. Where parties fail to comply with the compliance notice, the Commission needs an order of the Magistrate’s court or other court to compel such compliance. See section 52 of the Bill. 

Given these circumstances, it may be apt to argue the establishment of the Commission is a waste of resources. By and large, the Hate Speech Bill is still going through the legislative process and nothing is cast in stone (yet). 

Readers should stay tuned…