Nigerian Court Overturns Provisions Enabling Regulator To Penalise Broadcasters

A Federal High Court in Abuja on Wednesday declared as null and void the provisions of the Nigeria Broadcasting Code authorizing the National Broadcasting Commission (NBC) to impose fines on broadcast stations which allegedly breach the code.

Justice Rita Ofili-Ajumogobia quashed the said regulation on the grounds that the NBC as an administrative and regulatory body could not exercise judicial powers.

She made the declaration while delivering judgment in the suit filed by the Media Rights Agenda (MRA) against the NBC.

The suit was sequel to the commission’s imposition of fines of N5 million each on a television station and three pay TV platforms in 2022 for allegedly undermining Nigeria’s national security through their broadcasting of documentaries on banditry in Nigeria.

The plaintiff’s in the suit filed on their behalf by their lawyer, Mr. Uche Amulu, asked the court to hold, among others, that the 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 was unlawful and unconstitutional and has a negative effect on the freedom of media to impart information and ideas.

The plaintiff further submitted that the action of the NBC would deter the platforms and station from reporting the true state of affairs regarding the security situation in the country.

He stated that it thereby violated 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.

Subsequently, the plaintiff urged the court to declare that the procedure adopted by the NBC in imposing the fines was 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.

The MRA stated that the commission was the drafter of the code, which provides for the alleged offences for which the media platforms and the stations 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 that 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.

 Accordingly, the court said 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 Nigeria 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 judgment in the suit, Ofili-Ajumogobia agreed with the plaintiff that the NBC, not being a court of law, acted above its powers by imposing such fines against the alleged offenders.

She subsequently made 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 court then went ahead to set aside the fines imposed by the NBC on August 3, 2022 on Multichoice Nigeria Limited, owners of DSTV; TelCom Satellite Limited (TSTV); Trust-TV Network Limited; and NTA Star times Limited for broadcasting a documentary about the state of banditry and security in Zamfara State.

It said the regulator’s action was wrong and unjustifiable in a democratic society.

The judge however, refused to grant the plaintiff’s claim for N700,000 being the costs of the suit.

 Ofili-Ajumogobia in addition declined another claim for N2 million as general damages for NBC’s infringement on its rights as well as a request for N1 million as punitive damages for the commission’s “outrageous conduct in abusing its powers and arbitrarily imposing fines on broadcasting stations”.

Alex Enumah

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