Why social media, hate speech bills are not necessary – Prof Adekunle

The Protection from Internet Falsehood and Manipulation Bill, 2019 (known as the Social Media bill) and the National Commission for the Prohibition of Hate Speech bill (Hate Speech bill) are currently before the National Assembly and have set the public and media agenda with those for and against going for each other’s throat. In this […]

The Protection from Internet Falsehood and Manipulation Bill, 2019 (known as the Social Media bill) and the National Commission for the Prohibition of Hate Speech bill (Hate Speech bill) are currently before the National Assembly and have set the public and media agenda with those for and against going for each other’s throat. In this interview, Prof Adedeji Adekunle (SAN), immediate past D-G of the Nigerian Institute of Advanced Legal Studies (NIALS), speaks on why the bills are not necessary and what should be done by government instead, among other issues.

It is believed that Nigeria’s problem is not so much of inadequate legislation, but more of the implementation component. How can this be addressed?

That is a fair assessment considering the number of unused laws in our statute books. Usually laws suffer this fate on account of improper or non-assessment of the institutional and personnel cost of legislation. For example, some provisions on non-custodial punishment, criminal records case management and recording confessionals in the Administration of Criminal Justice Act (ACJA), 2015 require budgetary provision as well as manpower. This is why law making in a democracy requires the consent of the legislature and executive – the assent of the president should carry with it a will and capacity to resource the law if not immediately then in the next budget cycle.

Sometimes we even duplicate laws quite untidily causing inter-agency conflict and uncertainty in very important sectors of the economy. My advice is for the National Assembly to take up its oversight responsibilities more seriously and look at laws that are inefficiently implemented or not implemented at all.

 There has been outrage over the recent re-introduction of a bill on hate speech and the government’s resolve to regulate the social media. Looking at the grundnorm and other legislations, is this the right step, or what should be?

Let us be clear that some posts on the social media are false and can do harm to core values in society. Everyone should be concerned about the increasing rate of such posts which in my opinion go beyond the bounds of free speech enshrined in Section 39 of the Constitution. The constitution provides for derogations specifically under Section 39 in favour of regulating wireless communications, telephony and generally under Section 45 for the purpose of defence, public safety, order etc.  However, for a law to pass this test it must prescribe proportionate response and be necessary.

Neither the so-called “hate speech bill” nor the “social medial regulation bill” is the way to go. Recall that there are provisions which: 1) punish or redress such seditious or offensive publications in our  criminal laws (including the cyber-crimes act) and also under civil law; 2) enable the ICT and security sector regulators to engage with the various social media websites with a view to identifying or weeding out offensive posts. (NITDA Act; Cybercrimes Act and the Communications Act).

I therefore don’t understand why there is need to set up a hate speech commission. Is it to educate and advocate against such conduct? I thought between the Ministry of Information and the National Orientation Agency, they were having a good go at that. Is it to investigate and prosecute? What about the specialised cybercrimes unit and the police; other security agencies and the Federal Ministry of Justice? Do the police need more powers than those wielded by regulatory or security agencies under existing laws?

Enacting the law in any case will not suddenly invest in the commission with some superlative capacity that is lacking at the moment. What the government should do is equip the existing agencies to enable them engage more productively with the social media sites.

 The day-to-day trial provision of the ACJA was aimed at fast-tracking justice delivery. However, four years since its enactment, legal commentators say much has not been felt, especially in cases of Politically Exposed Persons (PEPs). What do you think is the problem and how can this be addressed?

I will rather think there has been marked improvement in the closure rate of criminal proceedings against PEPs. What you are probably observing is the lull between remand proceedings and arraignment. That often is not an issue for the court but it’s probably the prosecution and investigators trying to build the case file or the defence trying to negotiate a plea bargain. However, once trial is set in such cases, may be on account of the status of the defendant or nature of the offence, it proceeds quite expeditiously and costs slammed on defence or prosecuting counsel for tardiness.

But I concede your point regarding the bulk of criminal cases that involve the ordinary Nigerian. The increasing number of awaiting trial inmates  – particularly those who are detained beyond the maximum imprisonment terms prescribed by the penal provisions they are charged with – attest to the grinding pace of justice.

What can be done? Courts should apply the law evenly and resources should be provided to enable a judge sit at the appropriate time and efficiently. You have probably heard of court sessions interrupted for lack of electricity or on account of election petitions. I also look at human capacity and I don’t think we are using court registrars optimally. They can play a complementary role in the effective management of cases if properly trained and mandated by the law.

 Another issue in the justice delivery sector that has been on the front burner is the provision of trial-within-trial, which some legal commentators believe has further put a in prompt justice delivery. What do you think of this?

It is due process of law not a clog. The Evidence Act requires a court not to admit confession where it is obtained by oppression or on account of acts or words which make it unreliable to act on. The trial-within-trial process is therefore a procedural measure to allow the defence contest the mode of obtaining a confession without necessarily waiving the right not to be compelled to give evidence in his defence.

Now, if you are proceeding in Lagos State, for example, and you tender a confession that is not video recorded, it is dead on arrival. No need for trial-within-trial. However, with or without video recording, the defence is still at liberty to object to the admissibility of a confession.

The Evidence Act 2011, however, deliberately avoids language which requires the defence to give evidence. In fact, the court can without such an objection require the prosecution to satisfy it on the point beyond reasonable doubt. This will require calling evidence for and against the existence of oppression or factors rendering the confession unreliable and also an express determination of the issue cannot be put off or integrated with the trial. I am therefore not persuaded that it is unnecessary.

With the widespread impacts of information and communications technology in everyday dealings, lawyers and legal experts have called for more use of electronic evidence, but critics observe that the court system, which still operates in long-hand is not ready for this leap. What do you think?

They are two different things: first is reliance on electronic evidence which speaks to investigators and electronic court records which speak to court administration. Judges can appreciate and are acting on electronic evidence while electronic court recording however is bedevilled by manpower and infrastructure gaps.

Recent calls for the decentralization of the Supreme Court, as a means to reduce the workload at the centre, seem to be gathering momentum among lawyers, what is your opinion?

It is a dangerous momentum and it is throwing up much dust in its wake. I appreciate however the need for the Supreme Court to shave off some of its responsibilities. However I will rather suggest constitutional amendment to ensure certain appeals do not proceed to the Supreme Court or that electoral courts should be established to save the court system from haemorrhage because of election cases

Another rising legal issue has been revolving around rampant cases of intellectual property rights’ violations, including piracy, counterfeiting and cybercrime. What can Nigeria do to be on top of this situation?

There are enough laws. We should equip and task the agencies to enforce the laws. These and many other offences today involve extraterritorial components or parties. We therefore need robust legal agreements  e.g. extradition pacts, joint investigation exercises with other countries that are either originating, transit or destination territories.

Lastly, these are species of organised crime. As such, those who engage in them have partners in other climes as well as paid agents of state. So, one sure way of crippling the enterprise is to attack the finance through asset forfeiture provisions.