THE TEST NIGERIA ALREADY HAS: PROPORTIONALITY, JUDICIAL DISCIPLINE AND THE FREE SPEECH/HATE SPEECH LINE IN NIGERIAN LAW

Abstract

In 2026, a Nigerian publisher stood trial for calling the President a criminal online, prosecuted under a cyberstalking provision rewritten two years earlier to narrow its scope. That irony is this article’s starting point. Nigerian commentary on the free speech/hate speech boundary usually concludes that Nigeria lacks a workable legal test and must borrow one: the American imminent lawless action standard, the Canadian intent-and-effect model, or the European Convention’s proportionality formula. This article argues that diagnosis is wrong, though the underlying problem is real. Nigeria has, in section 45 of its Constitution and in the African Charter as given binding force by the Supreme Court, a standard functionally equivalent to other jurisdictions’ proportionality tests. What Nigeria lacks is not the test but the practice of applying it. Tracing six decades of case law culminating in the 2025-2026 prosecution of publisher Omoyele Sowore, the article shows courts consistently accepting a legitimate aim without independently testing necessity and proportionality. The 2024 amendment narrowing the cybercrime speech offence, though a genuine improvement, could not by itself correct that pattern, and did not. The article closes with proposals to the judiciary, prosecutors and the National Assembly premised on using, not replacing, the existing framework.