With Two Court Verdicts, Can NBC  Let Broadcasting Stations Breathe?

With another judgement of the Federal High Court nullifying the Broadcasting Code that empowers the National Broadcasting Commission to impose fines on broadcast stations, Wale Igbintade writes that the commission should henceforth leave the broadcast stations to do their job

For the second time in less than a year, a Federal High Court in Abuja last week declared null and void the provisions of the Nigeria Broadcasting Code authorising the National Broadcasting Commission (NBC) to impose fines on broadcast stations for alleged breaches of its Code. It ruled that administrative and regulatory bodies could not exercise judicial powers.

In the last five years, NBC has fined many broadcast stations for flimsy reasons. This has made many observers to see its actions as attempts to gag and curb press freedom.

They believe that this is an undemocratic behaviour only associated with military regimes and other dictatorships where only comments that glorify the regimes are considered acceptable. 

To them, when stations get fined because of comments made by people, especially from the opposition parties, it sends a signal to other stations not to interview those whose views are opposed to the government in power. It then becomes a ploy to deny opposition figures opportunities for media exposure.That’s promoting the air of oppressive heat.

It was against this threat that a group, Media Rights Agenda (MRA) sued the commission when on August 3, 2022, it imposed a fine of N5million each on Multichoice Nigeria Limited, owners of DSTV; TelCom Satellite Limited (TSTV); Trust-TV Network Limited; and NTA Startimes Limited for broadcasting a documentary about the state of banditry and security in Zamfara State. It said the documentary undermined Nigeria’s national security.

MRA’s lawyer, Uche Amulu, who filed the suit, asked the court to hold NBC’s action of imposing a fine on each of the media platforms and the station for broadcasting a documentary about the state of banditry and security in Zamfara State, adding that it is unlawful and unconstitutional and has a chilling effect on the freedom of media to impart information and ideas.

The group contended that it would deter the platforms and station from reporting the true state of affairs regarding the security situation in Nigeria, and therefore constitutes a violation of the rights of MRA, its members, and other citizens of Nigeria to freedom of expression, particularly their rights to receive ideas and information without interference, as guaranteed by the Constitution and the African Charter on Human and People’s Rights.

It also sought a declaration that the procedure adopted by the NBC in imposing the fines is a flagrant violation of the rules of natural justice and the right to fair hearing under Section 36 of the Constitution and Article 7 of the African Charter as the Commission is the drafter of the Code, which provides for the alleged offences for which the media platforms and the station were punished, and which empowers the NBC to receive complaints, investigate and adjudicate on the complaints, impose fines and collect fines.

It contended that the NBC, not being a court of law and not having been constituted in a manner as to secure its independence and impartiality, has no power or competence to impose fines on broadcast stations as punishment or penalties for the commission of an offence as the competence to establish that an offence has been committed and to impose criminal sanctions or penalties belongs to the courts.

Besides, it claimed, the NBC, not being the Nigerian Police or a law enforcement agency, has no power to conduct a criminal investigation or an investigation that could lead to criminal charges against the affected media platforms and stations or the imposition of criminal penalties and accordingly, that the investigation purportedly conducted by the Commission, leading to the fines imposed on the media platforms and station for alleged offences under the Nigeria Broadcasting Code is ultra vires, null and void.

MRA also urged the court to declare that the Nigerian Broadcasting Code issued by the NBC, being a subsidiary legislation that empowers it as a regulatory and administrative body to enforce the provisions of the Code, cannot confer judicial powers or jurisdiction in criminal matters on the Commission to impose criminal sanctions or penalties such as fines, particularly as the Code was made by the NBC itself.

It urged the court to declare the fines unconstitutional, ultra vires, null and void, set them aside and issue an order of perpetual injunction restraining the NBC, its servants, agents, privies, representatives or anyone acting for or on its behalf, from further imposing any fine on any of the media platforms or station, or any other broadcast station in Nigeria for any alleged offence committed under the Nigeria Broadcasting Code.

Delivering judgement in the case, Justice Rita Ofili-Ajumogobia held that the NBC, not being a court of law, acted above its powers by imposing such fines, saying the regulator’s action was wrong and unjustifiable in a democratic society.

The judge commended MRA for its legal challenge of NBC’s action and issued an order of perpetual injunction restraining the commission or anyone acting on its behalf from further imposing any fine on any media platform or broadcast station in Nigeria for any alleged offence committed under the Nigeria Broadcasting Code.

The judgement is not the first time the court will stop NBC from imposing fines on broadcast stations. In May 2023, Justice James Omotosho of the same court had given an order of perpetual injunction restraining the commission from imposing fines on broadcast stations in the country.

Ironically, it was the same MRA that sued the commission. In its originating motions marked: FHC/ABJ/CS/1386/2021, and dated November 9, 2021, the group sought a declaration that the sanctions procedure applied by the NBC in imposing N500,000 fines on each of the 45 broadcast stations on March 1, 2019 was a violation of the rules of natural justice.

Its lawyer, Noah Ajare, argued that the fines were in violation of the right to fair hearing under Section 36 of the 1999 Constitution (as amended) and Articles 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act (Cap AQ) Laws of the Federation of Nigeria, 2004.

The group argued that this was so because the code, which created the alleged offences of which the broadcast stations were accused was written and adopted by the NBC, “and also gives powers to the said commission to receive complaints of alleged breaches, investigate and adjudicate the complaints, impose sanctions, including fines, and ultimately collect the fines, which the commission uses for its own purposes.”

In his judgement, Justice Omotosho set aside the N500,000 fines imposed on March 1, 2019, on each of 45 broadcast stations. He held that the NBC, not being a court of law, had no power to impose sanctions as punishment on broadcast stations.

The judge further held that the NBC Code, which gives the commission the power to impose sanction, is in conflict with Section 6 of the Constitution that vested judicial power in the court of law. He said the court would not sit idle and watch a body imposing fine arbitrarily without recourse to the law. He added that the commission did not comply with the law when it sat as a complainant and at the same time, the court and the judge on its own matter.

Justice Omotosho agreed that the Nigeria Broadcasting Code, being a subsidiary legislation that empowers an administrative body such as the NBC to enforce its provisions, cannot confer judicial powers on the commission to impose criminal sanctions or penalties such as fines. He also agreed that the commission, not being Nigerian police, had no power to conduct criminal investigation that would lead to criminal trial and imposition of sanctions.

The judge described the NBC’s act as being ultra vires. He held that the fines imposed by the NBC as punishment for commission of various offences under its code were contrary to the law and hereby declared as unconstitutional, null and void.

“The action of the respondent qualifies as excessiveness. This will go against the doctrine of separation of powers,” he said.

Justice Omotosho held that what the doctrine sought to achieve was to prevent tyranny by concentrating too many powers in one organ. He also made an order of perpetual injunction restraining the commission from further imposing fines on broadcast stations in the country.

After the verdict, the NBC hinted about its plan to appeal against it. It argued that the judgement conflicted with a previous court decision. Till date, nothing has been heard about the appeal

With the latest verdict, it is high time the NBC stopped working hard to become an undemocratic, anti-press freedom tool in Nigeria. It is not too late for NBC to retrace its steps.