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CHAPTER TWO

REVIEW OF RELATED LITERATURE

INTRODUCTION

Accurately labeling certain expression as ‘hate speech’ can play an important role in advancing the values of dignity and equality which underpin international human rights law. However, too readily identifying expression as ‘hate speech’ should also be avoided, as its use can also have negative consequences. The term is highly emotive, and can be abused to justify inappropriate restrictions on the right to freedom of expression, in particular in cases of marginalized and vulnerable groups.For these reasons, some advocate alternative, more narrowly-defined, concepts, such as “dangerous speech” or “fear speech,”that focuses more on the propensity of expression to cause widespread violence. In some contexts, such as in resolutions of the UN Human Rights Council, the term “hate speech” is avoided in favour of more elaborate formulations such as “intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence, and violence against persons based on religion or belief,” or “the spread of discrimination and prejudice,” or “incitement of hatred.” This perhaps demonstrates reluctance to normalize, or give legitimacy, use of the expression ‘hate speech’, given its status as a heavily contested term.

2.2 Theoretical Framework

The theory of the post-colonial state suffixes. At the point of decolonization, the predatory character of the Nigerian state had taken shape and the emerging elites conceived the nationalist struggle merely in terms of getting rid of alien rule and occupying the exalted positions of the Europeans in the civil-service and other vocations (Ikejiani-Clark, 1996). The nationalists who inherited political power from Britain did not have control of the economy and implicitly, there was no ruling class except political elites, who had attained political positions because they had championed the struggle for self-determination (Fadakinte, 2013). Consequently, Nigeria becomes a neo-patrimonial state where party politics and weak democratic institutions persist (Adesote&Abimbola, 2014). Importantly, this character of the state accounted for the collapse of the First, Second and the defunct Third Republics. 11 Despite that the nationalists were conscious of the necessity to fuse political power and economic power, the indigenous dominant class who had ethnic and religious cleavages could not agree among themselves on the modus operandi for the socio-economic and political processes in Nigeria. Ethnicity becomes the ideology for economy survival in the mist of scarce resources (Ake, 1981). The control of the state power by a particular ethnic group also means more wealth, more employment, more government establishments and more government appointments for members of that ethnic group at the expense of the others. Politics assumes a zero- sum nature, whereby gains and losses are fixed and absolute. The winner takes all at the expense of the complete loss of other actors and vice-versa (von Neumann & Morgenstern, 1944). Jega (2012) corroborated the above position and argued that elections in Nigeria have zero-sum character. This zero – sum character of elections leads to negative mobilization of communal (ethnic) feeling by politicians. This negative mobilization of the populace by political parties and politicians is based on the message that if the elections are free and fair then „our party‟ should win. The converse then is that if „our party‟ fails to win the election, then the elections were not free and fair. It is this negative mobilization and the hateful language with which it is done that leads to electoral violence in Nigeria. Collier (2010) rightly observed that anything that affects the prospects of power in Nigeria is contested bitterly, lawlessly and violently. Thus, the Nigerian political history between 1999 and 2015 becomes the history of electoral crises; after all, control of political power is the easiest avenue to wealth accumulation. Hence, strong individuals (ethnic nationalists and political leaders) and organizations (political party) block weak institutions such as the Independent National Electoral Commission (INEC) from implementing extant electoral laws including the laws that abhors the use of hate 12 speech. Although the legal frameworks guiding electoral campaigns and public speeches have outlawed hate speech, individuals and organizations that breached such laws are rarely prosecuted and punished. This is because the institutions of the state lack the capacity to check reckless/injurious utterances in Nigeria.

2.3 CONCEPT OF HATE SPEECH

‘Hate speech’ is an emotive concept, and there is no universally accepted definition of it in international human rights law. Many would claim they can identify ‘hate speech’ where they see it, but the criteria for doing so are often elusive or contradictory. International and regional human rights instruments imply varying standards for defining and limiting ‘hate speech’: these variations are reflected in differences in domestic legislation. In everyday settings, the use of the term and meanings attached to it vary – as do calls for regulating it. This could explain much of the confusion around the term, and what it means for human rights. Many proposed definitions of ‘hate speech’ have been formulated in response to specific and perniciously discriminatory social phenomena or incidents. Definitions have also been adapted over time to address new situations, and to accommodate shifts in language, shifting understandings of equality, and the harms of discrimination, or developments in technology

– Hate: the intense and irrational emotion of opprobrium, enmity and detestation towards an individual or group, targeted because of their having certain - actual or perceived – protected characteristics (recognized under international law). “Hate” is more than mere bias, and must be discriminatory. Hate is an indication of an emotional state or opinion, and therefore distinct from any manifested action.

 – Speech: any expression imparting opinions or ideas – bringing an internal opinion or idea to an external audience. It can take many forms: written, non-verbal, visual or artistic, and can be disseminated through any media, including internet, print, radio, or television. Put simply, ‘hate speech’ is any expression of discriminatory hate towards people: it does not necessarily entail a particular consequence. This lowest common denominator definition captures a very broad range of expression, including lawful expression. This definition, therefore, is too vague for use in identifying expression that may legitimately be restricted under international human rights law. Beyond these two basic elements, the meaning of ‘hate speech’ becomes more contested; some people argue that discriminatory hate by itself isn’t enough, and that more must be shown. Opinions on what constitutes ‘hate speech’, and when it can be prohibited, vary widely, but include disagreement on the following elements: – What constitutes a protected characteristic for identifying an individual or group that is the targets of ‘hate speech’; – The degree of focus given to the content and tone of the expression; – The degree of focus given to harm caused; whether the expression is considered to be harmful in itself for being degrading or dehumanizing or is considered to have a potential or actual harmful consequence, such as: -inciting a manifested action against the target by a third person or group of people, such as violence; -causing an emotional response in the target, such as insult or distress; or-negatively affecting societal attitudes, by “spreading” or “stirring up” hatred; – The need for causation to be proven between the expression and the specified harm; – The need for any harm to be likely or imminent. – The need to advocate harm, implying that the speaker has intent for harm to occur, and public dissemination of the expression. Understandings of what ‘hate speech’ means can therefore fall anywhere between the lowest common denominator definition and one incorporating varying combinations of the above factors. At the same time, definitions are often ambiguous regarding one or more of these details, allowing flexibility for identifying ‘hate speech’ in its various manifestations, creating uncertainty and disagreement over what constitutes ’hate speech.