Sowore, the Presidential candidate of the African Action Congress (AAC) is known to have been arraigned before the Federal High Court in Abuja on a 7 (seven) Count charge, one of which included insulting the President. Many Nigerians were surprised, indeed alarmed, to learn that one of the charges preferred against him by the Federal Government of Nigeria accused him of insulting the President. “So, insulting the President is now an offence”, they ask sarcastically. What is the position of the law regarding insult? Should anyone concerned and is there a substance to this charge or it is just one of the manifestations of a repressive regime trying to gag the press and instill fear in the citizenry to stop them from speaking against its perceived anti-people policies, incompetence, and inability to steer the ship of the nation aright.
Many, would recall how an attempt to criminalize hate speech in 2018 was fiercely resisted by Nigerians. That bill reminded us of the travail of our nation in 1984, when the then Military Head of State, General Muhammadu Buhari promulgated the now-infamous Decree 4 (Public Officers Protection Against False Publications) under which two journalists, Nduka Irabor and Tunde Thompson, were jailed for refusing to disclose the source of a story, which was claimed to have embarrassed the then Head of State. Though the hate speech bill was eventually abandoned due to its unpopularity, the present ordeal of Sowore reminds us again of that repressive era in 1984.
The answer to the question cannot be a straightforward yes or no, as the same depends on so many factors. To answer the question, it would be helpful to examine the relevant provision of the Cybercrime Act. Section 24 (1b) of the Act under which Sowore has been charged provides as follows;
“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.
A close examination of the above provision would reveal that before a person can be convicted under the above provision, the following must be established,
- That the person sends an offensive message or other matter via a computer or a network,
- That he sends the message or other matter intentionally or knowingly,
- That he knows the message to be false, or causes such message to be sent,
- That he sends the message or other matter 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.
As reported by www.pulse.ng the charges against Sowore states in part that he committed the offence by “knowingly” sending “messages by means of press interview granted on Arise Television network which [he] knew to be false for the purpose of causing insult, enmity, hatred, and ill-will on the person of the President of the Federal Republic of Nigeria.” While there are other elements in this charge than just insult, we would restrict ourselves here to the issue of insult and whether the same can amount to a crime.
The first condition that needs to be met is that such insult must be an e-insult. Laughs. What is an e-insult, you ask? In our context, an e-insult is one sent over a computer or network. Please bear in mind that we are discussing the provisions of a Cybercrime Act and not merely criminal code law. This explains why the offense is tied to communication via a computer or a network. So merely insulting a fellow verbally or in writing cannot be brought under the Act. The same applies to the other activities listed in the above-quoted provision.
Secondly, the message conveying the insult must have been sent intentionally or knowingly. This means an e-insult sent unintentionally or unknowingly would not amount to a crime. However, what amounts to an intentional or unintentional sending of a message is a matter of evidence that would be decided on a case-by-case basis. In Sowore’s case, while I would not want to prejudice the case in court, it is doubtful whether he can be held liable for personally sending the “message” via a computer or network by merely granting an interview and since he is not the operator of the computer or network.
I am, however, not unmindful of the alternative provision which covers instances where the accused causes another person to send such a message. What amounts to causing the message to be sent is a matter of evidence also and it is for the court to decide on a case by case basis. I personally don’t see how granting an interview would amount to causing another person to send a message unless the interviewer or the person sending the message is subject to or under the control of the person being interviewed and that he actually instructs them to send the message.
Beyond the fact that the message which amounts to insult is sent over the computer and that it is sent intentionally, the other conditions that must be satisfied, which I consider to be more important are;
- The message or what is alleged by the message must be false and
- The falsity must be known to the person sending the message over the computer or network.
This implies that a message sent over the computer e.g social media calling another person a thief would not be a crime under the Cybercrime Act if the person is actually a thief or the person making the claim honestly believe that the person is a thief or is mistaken about the identity of the person he accuses to be a thief.
The other implication is that “mere e-insults” that are subjective and that make no categorical allegations as to character, reputation, or conduct would not constitute a crime under the Cybercrime Act. For example, expressions such as “you are mad”, “you are stupid”, “look at your big head like a big basin” would not be regarded as a criminal offense under the Act even though they qualify as e-insult if sent over a computer network or social media. In civil suits, the law is that vulgar words or abuse do not amount to slander.
But, if in a bid to insult another person, one intentionally makes a categorical statement via a computer network such as “you are a thief”, “you are a murderer”, “you are a serial killer”, “you are a fraudster” knowing fully well that the person in question is not such a person, then one would have brought himself within the ambit of the provisions of Section 24 of the Cybercrime Act, 2015 with regards to insult. Those are the kind of e-insults that are within the contemplation of the draftsman of the law and not political statements made in the course of granting an interview.
Finally, what amounts to insult under the Cybercrime Act? Interestingly, the Act did not define what amounts to an insult. Therefore, reference must be made to the ordinary meaning of insult in the English Language. The Cambridge English dictionary defines insult as an offensive remark or action i.e to say or do something to someone that he considers to be rude or offensive.
Clearly, the foregoing definition indicates that what amounts to an insult is essentially subjective. So, an insult is what a person considers to be rude or offensive. What one person considers offensive may be perfectly alright for another person. Like we say, one man’s food is another man’s poison. It would be dangerous and unjust to apply a subjective test in determining what constitutes an insult in any given case. The Court must therefore apply the objective reasonable man’s test in every case to determine what amounts to an insult. I can only hope that this is what would be done in Sowore’s case.
Personally, I believe that the word “insult” should not have been included in the provisions of Section 24 (1b) of the Cybercrime Act. It is laughable that we have a law that criminalises insult in the 21st century. The inclusion of insult in that provision of the law is a manifestation of what is referred to in legal parlance as inelegant drafting. The fact that our lawmakers passed the bill into law that way and the President gave accent without detecting or removing insult from that provision only helps to explain the quality of our legislative process. In conclusion, the answer to the question posed at the beginning is yes but subject to the conditions that it is an e-insult, sent intentionally over a computer network, which makes false categorical allegations, the falsity of which is known to the person making the allegation and that the message is sent for the purpose of insulting the person to whom it is directed.
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