Nigeria's heterogenous nature often leads to its ethno-religious nerve points being triggered during national elections. This is usually accompanied by spates of fake news, ethnic slurs, obnoxious and pejorative statements targeted at religious and ethnic groups. In the just concluded polls, trending hashtags such as "#foolanis" and what could be described as "igbophobic" statements were circulated over social media as certain candidates were disapproved for belonging to a particular ethnic group. The British Broadcasting Corporation (BBC) reports instances of fake polling unit results circulated over social media, fake news of a former president's mobilisation of 1.5 million Chadians with Nigerian voter cards to vote his preferred candidate, photos and video clips showing alleged rigging by the electoral body which have now been disclaimed as videos from a voter sensitisation project.1
The huge impact of technology on the information ecosystem has led the bulk of these unguarded and uncensored expressions to find their way over social media leading to heightened tension, feelings of hatred, resentment and in some extreme cases, violence. Hate speech and fake news are almost a daily occurrence, but there is no doubt that they are amplified during elections. Social networking companies such as Facebook and Twitter have put policies in place to curb hateful conduct by users of their platforms, but little impact has been recorded through the taking down of hateful posts online or imposing "read-only" sanctions on a user to deter such conduct.
This article aims to revisit Nigeria's legal framework on hate speech and fake news vis-a-vis the 2023 general elections.
2. HATE SPEECH AND FAKE NEWS IN NIGERIA
In recent years, Nigeria has been grappling with the issue of hate speech and fake news, particularly in the context of elections. The use of certain "foul" and "hateful" language and strategic misinformation can be highly divisive and can fuel violence, leading to significant harm to individuals, communities, and the country as a whole. In considering attempts to regulate hate speech and fake news, it is worthy of mention that the Nigeria Broadcasting Code (NBC), 2016 prohibits the transmission of hate speech which is defined as "any programme, programme promotion, community service announcement or station identity, which is likely, in any circumstance, to provoke or perpetuate in a reasonable person, intense dislike, serious contempt or severe ridicule against a person or groups of people because of age, colour, gender, national or ethnic origin, disability, race, religion or political leanings."2 Similarly, political adverts, broadcasts,3 sponsored programmes4 that contain hate messages or speeches are prohibited.
Two Bills have sought to regulate both online hateful conduct and false news, the first being the Independent National Commission for the Prohibition of Speeches Bill also known as the 'Hate Speech Bill', which was shut down due to public outrage following its introduction to the floor of the Senate on 12th November 2019.5 The bill sought to create the offense of "Hate speech" by stipulating that: "a person who uses, publishes, presents, produces, plays, provides, distributes, and/or directs the performance of, any material, written and/or visual which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behaviour commits an offense if such person 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 person from such an ethnic group in Nigeria."6 The Bill also prescribes life imprisonment for persons guilty of hate speech and death by hanging where the act causes loss of life.7 In addition, the Bill prohibits harassment on the basis of ethnicity,8 offense of ethnic or racial contempt,9 and discrimination by way of victimisation.10 However, the Bill only passed the first reading before attracting criticism for the imposition of extreme sanctions and potentially adverse impact on freedom of expression. Thereafter, the sponsor of the Bill reported that the Bill would undergo some fine-tuning to reflect the views of Nigerians.11
Similar reactions followed the introduction of the Protection from Internet Falsehood and Manipulations Bill, 2019 ('Social Media Bill'). The Bill was introduced to suppress falsehoods and manipulations and counter the effects of such transmissions and to sanction offenders to encourage and enhance transparency by social media platforms. The Bill prohibits the transmission of false statements or statements that might affect the security of any part of Nigeria, affect public health, public safety or public finance, affect Nigeria's relationship with other countries, influence the outcome of an election to any office in a general election, cause enmity or hatred towards a person or group of persons.12 Under the Bill, offenders may be required to publish a 'correction notice'13 of the false declaration in a specified newspaper, online location or other printed publication of Nigeria.14 The Bill faced public scrutiny for its harsh prison sentences and the language which creates vague criminal offenses that may encourage the prosecution of peaceful criticism of the government. Despite the opposition to its passage, this Bill scaled the second reading15 and proceeded to the Senate Committee on Judiciary for scrutiny. This Committee was charged with advising the Senate based on opinions expressed by stakeholders at the public hearing subsequently conducted.16
Section 39 of the 1999 Constitution of the Federal Republic of Nigeria guarantees freedom of expression including freedom to hold opinions and to receive and impart ideas and information without interference. However, this freedom is limited by Section 39(3) which provides that:
Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society- 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.
Also, Section 45 of the Constitution provides that:
Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society- in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom or other persons.
It is on the strength of these constitutional provisions that the Supreme Court in Sowore v. Federal Republic of Nigeria17 held that freedom of expression is not without limit particularly where it is necessary to protect society from anarchy and in the interest of peace.
Like hate speech, fake news is equally disturbing and is no easy thing to define. Federica D'Alessandra, Vice Chair, IBA Human Rights Law Committee & Co-Chair, IBA War Crimes Committee defines fake news as "The intentional, strategic, deliberate use of not just necessarily misleading but straight up false information to influence dynamics or straight out change outcomes – that is what I define as fake news."18
Agreeably, baseless fabrications ought to be distinguished from miscalculated or wrong inferences drawn up from a set of facts, as it may be unrealistic to require persons to verify the truth of every piece of information due to several complexities surrounding the manipulation of information.19 Interestingly, this is the case with Section 59(2) of the Criminal Code Act20 which places a responsibility on persons to take reasonable measures to verify the accuracy of reports, rumours or statements,21 failing which they will be liable under Section 59(1) for publishing or reproducing any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that such statement, rumour or report is false. This offense is classified as a misdemeanour and punishable by imprisonment for three years.22
One law that attempts to address the issues of hate speech and fake news is the Cybercrime (Prohibition, Prevention, etc.) Act 2015.23 The Cybercrime Act, criminalises the use of computers and the internet to commit various offenses, including cyberstalking, and racist and xenophobic offences. It also provides for penalties, including fines and imprisonment, for those found guilty of such offenses. However, in the aftermath of the 2023 elections, it is pertinent to revisit the Electoral Act to assess its effectiveness and identify areas for improvement and bring it to par with the current realities. The Electoral Act prohibits the dissemination of fake news aimed at promoting or discrediting a candidate.
3. ELECTORAL ACT, 2022
As the key legal framework on elections in Nigeria, Section 97 of the Electoral Act,24 prohibits all forms of sectional campaigns or broadcasts including those on the basis of religion and tribe for the purpose of promoting or opposing a particular candidate. In addition, Section 123 of the Electoral Act addresses the dissemination of election-related fake news made about a candidate's withdrawal or otherwise and false news calculated to prejudice or promote the chances of a candidate's election, in the following terms:
Any person who (b) before or during an election, publishes any statement of the withdrawal of a candidate at such election knowing it to be false or reckless as to its truth or falsity; or (c) before or during an election publishes any statement as to the personal character or conduct of a candidate calculated to prejudice the chance of election of the candidate or to promote or procure the election of another candidate and such statement is false and was published without reasonable grounds for belief by the person publishing it that the statement is true, commits, an offence and is liable on conviction to a maximum fine of N100,000 or imprisonment for a term of six months or both.
There are, however, other possibilities not anticipated by this provision, such as the distribution of fake election results. Section 125 of the Act also makes it an offence for any person to act or incite others to act in a disorderly manner and this is punishable on conviction to a maximum fine of N500,000 or imprisonment for a term of 12 months or both. What would qualify as "inciteful" is left undefined. These provisions are a fair start but not so much has been done to enforce these penalties in a way that deters offenders.
4. CYBERCRIMES (PROHIBITION, PREVENTION, ETC.) ACT, 2015
As the bulk of news in the information ecosystem both from individuals and the mainstream media is transmitted in the digital space, it is apposite to consider the provisions of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015 which is replete with provisions that also regulate the information ecosystem over the web. Section 24 (1) (b) of the Act provides that:
Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that (b) he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent: commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.
This provision criminalises the spread of fake news through computer networks, made with a conscious intent to disinform the public and does not apply to persons who might transmit disinformation inadvertently or through non-electronic means. Furthermore, the Section provides no criteria for determining the knowingness and intent of the offender and how persons who knowingly fabricate fake news could be differentiated from those who inadvertently share fake news. Gaps in legislation such as this, could paralyse the enforcement of the provision and its attendant penalties.
Relatedly, Section 26 (d) provides:
Any person who with intent (a) distributes or otherwise makes available, any racist or xenophobic material to the public through a computer system or network; (b) threatens through a computer system or network – (i) persons for the reason that they belong to a group distinguished by race, colour, descent, national or ethnic origin, as well as, religion, if used as a pretext for any of these factors; or (ii) a group of persons which is distinguished by any of these characteristics; (c) insults publicly through a computer system or network– (i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or (ii) a group of persons which is distinguished by any of these characteristics; or (d) distributes or otherwise makes available, through a computer system or network, to the public, material which denies or approves or justifies acts constituting genocide or crimes against humanity, Commits an offence and shall be liable on conviction to imprisonment for a term of not more than 5 years or to a fine of not more than N10,000,000.00 or both such fine and imprisonment.
One key limitation of the Cybercrimes Act, 2015 is the vagueness. This lack of clarity can lead to ambiguity in the application of the law and raises concerns about the potential for abuse. Without employing the use of the term "hate speech", the Act attempts to address hateful conduct over electronic means. With a more hands-on approach in criminalising hate speech and inciteful comments, this provision criminalises insults against persons or people distinguished by colour, race, ethnicity, religion, descent, and nationalism. To ensure that the law is clear and specific, there should be a clear definition of what constitutes hate speech, which must not be too broad or narrow, in conformity with internationally recognized standards. Furthermore, the definition should be reviewed regularly to ensure that it remains relevant and effective in addressing new forms of hate speech.
No doubt, Nigeria's legal framework on hate speech and fake news is evolving, as is the rest of the world. However, not enough has been done to implement the existing laws and effectively combat hateful conduct, particularly over the internet. Despite the valid concerns that may accompany any attempt to regulate free speech, there is a need to manage online expression to reflect the limits put in place by existing laws.
What is paramount is that more attention needs to be paid to the implementation and execution of penalties under the law while ensuring that expressions designed to provoke thought on political, policy and legal issues, as well as the freedom to openly criticise the government and hold elected officials accountable, are not lost. In enforcing these laws, priority must be given to national unity, public good and public order and not the protection of officeholders. In so doing, Nigeria can strengthen its response to hate speech and fake news, promote greater social cohesion, and safeguard the rights and safety of its citizens.25
1. BBC World 28th February 2023 "Nigerian Elections 2023: False Claims and Viral Videos Debunked", available at https://www.bbc.com/news/world-africa-64797274 accessed 19th March 2023.
2. Section 188.8.131.52. of the Nigerian Broadcasting Code, 2016.
3. Section 7.6.5.
4. Section 8.1.6.
5. John Akudo, "Hate Speech, Social Media Bills Fail to get Support of Nigerians at Town-Hall Meeting" available at https://guardian.ng/news/hate-speech-social-media-bills-fail-to-get-support-of-nigerians-at-town-hall-meeting/ accessed 23rd March 2023.
6. Section 4(1) of the Independent National Commission for the Prohibition of Hate Speeches Bill, 2019.
7. Section 4(2).
8. Section 5.
9. Section 6.
10. Section 7.
11. Sunday Aborisade, "Hate Speech: Sponsor Bows to Pressure, Removes Death Penalty from Bill" available at https://punchng.com/hate-speech-sponsor-bows-to-pressure-removes-death-penalty-from-bill/ accessed 3rd April 2023.
12. Section 3(1) Protection from Internet Falsehood and Manipulations Bill, 2019 available at https://nass.gov.ng/documents/bill/10965 accessed 1st April 2023.
13. Section 7.
14. Section 7(3).
15. Deji Olumoye, "Anti-social Media Bill Passes Second Reading in Senate" available at https://www.thisdaylive.com/index.php/2019/11/20/anti-social-media-bill-passes-second-reading-at-senate/ accessed 1st April 2023.
16. Alexander Onukwue, "Nigeria's Social Media Bill Suffers its Biggest Defeat Yet" available at https://techcabal.com/2020/03/09/social-media-bill-public-hearing/ accessed 3rd April 2023.
17. (2022) LPELR-57439(CA).
18. Yola Verbruggen, "Fake News" available at https://www.ibanet.org/article/0adbdb24-c0c2-4cc8-bef8-e9b172dcf12a accessed 12th March 2023.
19. Claire Wardle, "6 Types of Misinformation Circulated this Election Season" available at https://www.cjr.org/tow_center/6_types_election_fake_news.php accessed 15th March 2023.
20. Cap C.38 LFN 2004.
21. Section 59(2).
22. Section 59(1).
23. 2015, available at https://www.cert.gov.ng/ngcert/resources/CyberCrime__Prohibition_Prevention_etc__Act__2015.pdf accessed on 17th April 2023.
24. 2022. Vol 109, pp A353-463 available at https://placng.org/i/wp-content/uploads/2022/02/Electoral-Act-2022.pdf accessed on 17th April 2023.
25. See, Sandra Eke, "Nigeria: A Review of the Hate Speech Bill" available at https://spaajibade.com/a-review-of-the-hate-speech-bill-sandra-eke/?utm_source=mondaq&utm_medium=syndication&utm_term=Government-Public-Sector&utm_content=articleoriginal&utm_campaign=article accessed 10th April 2023.
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