This paper is an addendum to one of my recent articles titled âCriminalising hate speech as offence in Nigeria: whether there is any legal basis under the Nigerian laws?â. This addendum to the article is necessitated as a result of a comment received by the writer of this paper on the above article upon publication of the article, which very appreciated with great delight by the writer of this paper, drawing the attention of the writer of this article to sections 14(2) and item 60(a) of the Constitution of the Federal Republic of Nigeria, 1999 (3rd alteration as amended)-herein after referred to as the Constitution, for consideration. After considering the comment, the writer of this article came to a suspicion that the comment must have been made as a result of the decision of the Supreme Court of Nigeria in the case of A.G. Ondo State v A.G. Federation and 36 others (2002) 9 NWLR (pt . 772) 222, (2002) 6 S.C. (Pt. 1) 1., hence the need to publish this addendum. Furthermore, upon a review of the above sited case, the writer of this article is of the following views, submissions and argument, without prejudice to the submissions already made in the already published article.
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First and foremost, it is submitted that the case of A.G. Ondo State v A.G. Federation (supra) is not the same with the current issue on hate speech. The writer of this paper further submits that: (i) the issue of hate speech is an offence; (ii) There are authorities already in place established pursuant to the item 60(a) of the Constitution (supra), e.g. the Nigeria Police Force, especially, which has the general power to prevent and detect crimes, etc. See: section 4 and 23 of the Police Force Act, made by the National Assembly; (iii) all criminal laws made by the government of either the State or that of the Federation are all for the security and welfare of the people; (iv) crimes generally are not within the Exclusive or Concurrent Legislative List. See the case of: A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC. and the case of Balewa v Doherty (1963) 1 WLR 949 at 961. (v) the Federal Government, State Government and Local Government as a government, has the power to primarily make laws in the interest of the security and welfare of the people. Section 318 of the constitution has defined ‘government’ to include the Government of the Federation, or of any State, or of a local government council or any person who exercises power or authority on its behalf’. (vi) The item 60(a) of the Exclusive Legislative List excluded ‘functions’ as what the National Assembly would make as law(s) for that purpose, exclusively. Had the item included ‘functions’, iIt would have included the power to make laws on crimes which is generally on the residual legislative lists of the House of Assembly of states.
The statutory interpretation is to exclude what the constitution has excluded. And section 318 (interpretation section) of the constitution has defined ‘function’ to include ‘power and duty’. So, the National Assembly cannot be conferred with the power it has not been conferred by the Constitution. Such would be unconstitutional. See: section 1(1) to (3) of the constitution; (vii) ‘Crime’ is a specific function which is on the Residual Legislative List of which only the House of Assembly of a State shall have the power exclusively, to make law upon, including criminalising âhate speechâ, except where the National Assembly make laws on crimes in respect of matters on the exclusive legislative lists and in respect of the FCT-Abuja. See the case of:  A.G. Federation v A.G. Lagos State(supra). So, âcrimeâ as a specific power, will be interpreted in a specific manner and not generally. (viii) Only the State House of Assembly of a State shall have the power to legislate exclusively on criminalising hate speech, except where the National Assembly legislates on such for FCT-Abuja. (ix) Criminalising hate speech is not incidental or supplementary to the legislative powers of the National Assembly in the exclusive or concurrent legislative lists rather, it is a specific and independent exclusive powers of the House of Assembly of a State. (x) The court of law can be resorted to in order to clarify any confusion on who has the power to criminalise hate speech and this will bring about development in our law especially Constitutional law. (xi) Criminalising hate speech is an issue of the constitution; (xii) for the National Assembly to legislate on hate speech, will amount to it usurping the Residual powers of the House of Assembly of a State to legislate and control crimes and corruption practices in the State; (xiii) hate speech law or the offence of hate speech should be applicable to: public, private, individual and corporate bodies, except those the Constitution or the law has exempted by immunity.
Furthermore, it is important to pass some few comments and criticism on the case of A.G. Ondo State v A.G. Federation (supra). After a diligent consideration and a review of the case, the writer of this paper disagrees with due respect to the Justices of the Supreme Court who sat on that case, especially the decision that: (i) the National Assembly has the power to legislate on the offence of corruption as an Act enforceable throughout Nigeria and in any State of the Federation; (ii) the Attorney-General of the Federation can institute the offence of corruption in any court across Nigeria, either the Court of a State or a Federal High Court, in respect of Corruption. And in reaching these decisions, the Court, among other provisions and considering submissions made by Counsel, especially some Counsel for some Defendants, (i) section 15(5), 14(2), Paragraph 2(a) of Part III, item 60(a) of the Constitution, among others. The writer of this paper took his time to read the whole decision of the Supreme Court and upon a careful review, came to an agreement with the submissions and arguments canvassed by Professor B.O. Nwabueze (SAN)-amici curiae-, Olisa Agbakoba (SAN) and Professor Yemi Osinbajo (the A.G. Lagos State and who was the 25th Defendant- now the current Vice-President of Nigeria, without the need to reproduce there submissions. The writer of this paper agrees absolutely only with the submissions and arguments made by Professor Nwabueze (SAN), especially. Nevertheless, it is submitted that this case cannot be a locus classicus for the holding and submission that the National Assembly shall have the power on criminalization of hate speech and cannot be a reference to that effect. It is then proper and suggested that for the purpose of clarity, the legal issue of whether it is the National Assembly or the State House of Assembly that has power to legislate on criminalizing hate speech should be tried in Court. The writer of this paper also agrees with the Chief Justice of Nigeria, Justice Uwais (as he then was) that âthere was a breach of the Principle of Federalism, which is occasioned by the Constitution itselfâ.
Finally, Â it is therefore suggested that there should be an amendment of the Constitution especially as it concerns the provisions of: sections 4(2) to (4), 13, 15(5), items 60(a), item 67 and 68, paragraph 2(a) of Part III of the Second Schedule of the Constitution, as well as a reference to what is Residual List and what it entails and or contains, so that there will be no room to argue about issues like crime of corruption or hate speech or any other issue of crime to occur in future, in the interest of public peace, unity and progress.
e-mail: hameed_ajibola@yahoo.com
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