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

With another judgment 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 has 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, the commission 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 the practice is an undemocratic behaviour only associated with military regimes and other dictatorships where only comments that glorify the regimes are considered acceptable. 

No doubt 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.

While Section 39(1) of the 1999 Constitution states that  “Every person shall be entitled to freedom of expression, including, freedom to hold opinions and to receive and impart ideas and information without interference,” Section 22 expressly states that “The press, radio television and other agencies of the mass media at all times be free to hold uphold the fundamental objectives contained in the this and uphold the responsibility and accountability of the government to the people.”

It was against this backdrop 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 it 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.

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 judgment in the case, Justice Rita Ofili-Ajumogobia upheld the prayers and 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.

Incidentally, judgment 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, among others, 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.

In his judgment, 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 and 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.

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.