Mr Femi Falana

By Femi Falana

The power of the national assembly to make laws for the peace, order and good government of the federation of any part thereof cannot be exercised at large. By virtue of section 4 of the Constitution the power of the national assembly to make laws is limited to matters in the Exclusive Legislative and Concurrent Legislative Lists. To the extent that hate speech is not covered by both Legislative Lists the national assembly cannot pass any hate speech bill.

Since we are operating a federal system of government the supreme court of Nigeria had declared in a number of cases that the national assembly lacks the constitutional powers to make laws outside its legislative competence, which are by implication residual matters meant for the houses of assembly of the states. Certainly, the hate speech bill is an attempt to encroach on the legislative autonomy of the state governments.

However, it is pertinent to point out that the Penal Code and Criminal Code applicable in the northern and southern states respectively have made provisions for hate speech because it is a state offence. Hence, the house of assembly of each of the state has enacted laws against incitement, false accusation, sedition and criminal defamation. However, sedition and seditious publications have been declared illegal and unconstitutional in the case of Arthor Nwanko v The State (1985) 6 NCLR 228. In that case Olatawura JCA (as he then was) held:

“We are no longer the illiterates or the mob society our colonial masters had mind when the law was promulgated…To retain S. 51 of the Criminal Code, in its present form, that is even if not inconsistent with the freedom of expression guaranteed by our Constitution will be a deadly weapon to be used at will by a corrupt government or a tyrant…Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose…

The decision of the founding fathers of this present constitution which guarantees freedom of speech which must include freedom to criticize should be praised and any attempt to derogate from it except as provided in the Constitution must be resisted. Those in public office should not be intolerant of criticism. Where a writer exceeds the bounds there should be a resort to the law of libel where the plaintiff must of necessity put his character and reputation in issue.”

Finally, while the leaders of the national assembly may want to advise the legislature in each of the states of the federation to review the applicable penal statutes to review the provisions on hate speech we are compelled to urge the few blood thirsty legislators in the national assembly to amend the anti graft laws to provide death penalty for grand corruption perpetrated by politically exposed persons to the detriment of development in the country.

Finally, even though the obnoxious bill is the initiative of a member of the House of Representatives the Buhari administration has adopted it hook, line and sinker. The constitutional validity of the Bill will certainly be challenged in the federal high court if it is passed by the national assembly and assented to by President Buhari.