>By Sanmi Falobi<

In what can be termed as a landmark judgment, 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 the Code as it ruled that administrative and regulatory bodies could not exercise judicial powers.

Delivering judgment in a suit instituted by Media Rights Agenda (MRA) against the NBC following 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 by broadcasting documentaries on banditry in Nigeria, Justice Rita Ofili-Ajumogobia held that the NBC not being a court of law, acted above its powers by imposing such fines.

The demands of the suit:

The suit, which was filed by Abuja-based human rights lawyer, Mr. Uche Amulu, on behalf of MRA had asked the court to hold, among other things, that the action of NBC in 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 is unlawful and unconstitutional and has a chilling effect on the freedom of media to impart information and ideas. MRA 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.

According to a press statement by Idowu Adewale, MRA’s Communications Officer, the organisation, among other demands, 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.

Deciding the matter:

Delivering judgment at its sitting in Abuja on January 17, Justice Ofili-Ajumogobia 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 Startimes Limited for broadcasting a documentary about the state of banditry and security in Zamfara State, saying the regulator’s action was wrong and unjustifiable in a democratic society.

The judge also commended MRA for its legal challenge of the 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.

However, while Justice Ofili-Ajumogobia agreed with all MRA’s arguments and granted all the declarations and injunction sought by the organisation, she refused to grant the organisation’s claim for N700,000 as costs it incurred in litigating the action as well as 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”.

Earlier verdict, now re-affirmed:

It would be recalled that this is not the first time that the NBC would be barred from imposing fines on broadcast stations. It will also not be the first time that MRA would be challenging NBC in court over fines imposed on broadcast station.

In 2021, the Incorporated Trustees of Media Rights Agenda had, in an originating motion marked: FHC/ABJ/CS/1386/2021, sued the NBC as sole respondent in respect of NBC’s sanction against 45 broadcast station. The group had sought a declaration that the sanctions procedure applied by the NBC in imposing N500,00Q fines on each of the 45 broadcast stations on March 1, 2019 was a violation of the rules of natural justice. MRA 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 its ruling on the case on May 10, 2023, the Federal High Court Abuja gave an order of perpetual injunction restraining the NBC from imposing fines, henceforth, on broadcast stations in the country.

The judge, Justice James Omotosho, set aside the N500,000 fines imposed, on 1 March 2019, on each of 45 broadcast stations.

According to the ruling, NBC had no power to sanction broadcast organisations and while the NBC code grants the Commission the power to impose a sanction, it conflicted with the constitution, which conferred judicial power in the court of law. 

The judge also 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.

“The action of the respondent qualifies as excessiveness,” Justice Omotosho had said.

Considering the concordance and re-affirmation of Justices Omotosho’s ruling by Justice Justice Ofili-Ajumogobia, it may be safe to say that an end to the era of arbitrary fines by the NBC is here, however, time will tell.

A new NBC emerging?

Meanwhile, while many stakeholders have applauded the decision of the court, the NBC has kept mum and as not made any official statement on the matter. It would be recalled that the minister of Information and National Orientation, Mr. Mohammed Idris upon resumption in office, had publicly expressed his displeasure about the negative comments attributed to NBC, urging the Commission to engage stakeholders in its operations to check violations of the Broadcasting Code.

“I don’t believe that NBC is all about sanctions. Each time NBC is on the news, (it) is about a station committing one infraction or the other. But I think beyond that, we need to look from within. We need a lot of public enlightenment. On this, I think public communication in this regard is a bit low”, had said, during a working visit to the NBC headquarters in October 2023.

According to him, the NBC need to do more in the area of public enlightenment and communications.

“I think it is better for the NBC to step up its public engagement for the public to understand that the Commission is not all about sanctions but also about its capacity to help the industry grow and broadcasters to reach their potential’, he said.

“I know that you are doing well, but you need to do much more. It is only when you do that, that Nigerians will see you, not from that punitive side, but as partners in progress,” Mr. Idris added.

Responding then, the erstwhile NBC Director-General, Balarabe Ilelah had told the Minister that there were indeed infractions by some broadcast stations as revealed from the Commission’s task in monitoring over 777 stations.

“In 2023, a total of 1,238 warnings were given, while during the same year, 62 stations were penalised”, Ilelah said.

However, investigations by SDNonline revealed that the negative reputation about the NBC was a cumulation of events that have occurred under successive DGs of the NBC over the past years and not necessarily limited to the administration of Illelah who was appointed DG in June 2021. Checks on the NBC X (Twitter) page shows that the NBC on a daily basis publishes informative materials with excerpts from the NBC code in short infographics and public information messages. under its ‘Your Right to Know the Nigeria Broadcasting Code on General Programming Standard-Professional Rules’ and ‘What do we do at NBC?”

Meanwhile, with the replacement of Mr. Ilelah shortly thereafter and the appointment of Mr. Charles Ebuebu as the new DG for NBC by President Bola Tinubu, it is anticipated that the modus operandi of the NBC would be enhance and improved in positive light.

It is also expected that abiding with the Court judgment and transforming the Commission to play its regulatory role in such a way that the body would be held in high esteem, would be the hallmark of Mr. Ebuebu’s tenure as the DG of NBC.

However, these are assumptions that would be validated or otherwise as event would reveal in the coming days, weeks or months.

If NBC cannot impose fines, how should it deal with infractions?

Though the verdict from the suit by MRA has now addressed the arbitrariness in the imposition of fines by NBC, there is however reasonable concern about the abuse of the freedom of free speech, especially to curtail hate speech, and derogatory comments from live broadcast and related comments by both presenters and guests from broadcast stations that may infer violent actions or public reactions that that may bridge public peace.

“We do not dispute the fact that broadcast organisations may be in breach of professional ethics and standards from time to time, but that cannot provide justification for casting aside the rules of natural justice that are also entrenched in our constitution and judicial system”, Mr. Edetaen Ojo, Executive Director of MRA said, in an interview with SDNonline.

According to him, the crux of the matter is about fairness, equity and justice, noting that there are defects in the existing Code that needs to be amended and some expunged.

“… We know for a fact that under this system of regulation, the NBC has imposed punitive fines on broadcast stations that have committed no ethical breaches or violation of professional standards, but were merely punished for airing programmes critical of the government or portraying the government in negative light. That is neither right nor acceptable.  We should not forget that the NBC wrote the Nigeria Broadcasting Code creating the offences for which the stations were being sanctioned, meaning that it is the ‘lawmaker’.

“A system of regulation where in addition to being the lawmaker, the NBC is also the complainant in the allegations against stations, the investigator, the prosecutor, the judge, which finds the stations guilty of the offences it has alleged against them, sanctions them, collects the fines and utilizes the funds as part of its income is truly offensive to the idea of fairness, equity or justice. 

“We also need to be aware that in the vast majority of cases, the NBC has imposed these fines even without giving the stations any opportunity to defend themselves against the allegations against them or explaining their side of the story.  That is the true definition of a kangaroo court”, Mr. Ojo said.

According to him, “there are many options available to us on how the broadcast sector can be better regulated so that the roles of lawmaker, complainant, investigator, judge and executioner are exercised by different actors using procedures that are fair and just”.

Explaining further, Mr. Ojo noted the following the court judgement of both the May 10, 2023 and that of January 17, 2024, it is expected that the law has become binding on NBC.

“The rule of law makes everyone and every institution subject to the supremacy of the law and no one is above the law.  If the NBC fails to comply with the court orders or disregards the judgments in any way, we would pursue charges of contempt of court against the Commission.  We have already advised the NBC about the certainty of this. In addition, it is really in the interest of the Commission to comply with the decisions of the courts. As a regulatory body superintending over a sector, if it disobeys a valid and subsisting order of a court of law, it would be robbing itself of any moral authority to issue directives to those it regulates. It would itself be planting the seeds of anarchy in the country which would ultimately engulf it as that would be an invitation for its own orders and directives to be disregarded”, MRA Executive Director added.

Now that the Court has given judgement on the suit, what next?

“The NBC has the option of appealing the judgments” Mr. Ojo said, noting that the NBC had contested the earlier judgment and failed in that attempt.

” With respect to the May 10, 2023 decision, the NBC has previously asked the court to set aside its own judgment, making false claims of not being served with the originating process in that case and alleging that MRA abused the court process. It was quite honestly a bizarre move, in my opinion, based on the NBC’s realisation that it could not win an appeal against that judgment. Nonetheless, in its ruling on November 23, 2023, the court found unequivocally that the NBC’s claim was false and threw out the motion to set aside its own judgment.

“Our view is that the most appropriate next step would be for the Federal Government and the NBC to convene a series of meetings of relevant stakeholders to design a regulatory model that is consistent with democratic norms, accords with regional and international standards for the regulation of broadcasting, and is constitutional.

“We need to remember that both the original National Broadcasting Commission Act of 1992 and its amendment in 1999, both of which constitute the legal framework for the broadcast sector in Nigeria to date, were promulgated as military decrees by military governments without inputs from relevant stakeholders. There are regional and international guidance documents and many models from functioning democracies that we can learn from in designing a regulatory framework that is suited to the Nigerian context.  If the genuine intention of the government is to regulate the broadcast sector rather than controlling the information coming from broadcasters, then it really should explore this path” Mr. Edet Ojo added.

… The issues, the way forward

Meanwhile, stakeholders seem to be in accord as to the excesses of the NBC. For instance, the Nigerian Guild of Editors (NGE) commended Justice Ofili-Ajumogobia for declaring null and void some provisions of the Nigeria Broadcasting Code authorising the commission to impose fines on erring broadcast stations.

In a statement by the NGE President, Mr. Eze Anaba, and the General Secretary, Dr. Iyobosa Uwugiaren, said that Justice Ofili-Ajumogobia’s ruling had vindicated its position over the years that the NBC could not be the accuser, investigator and judge on matters relating to an alleged breach of the broadcast code.

 “Our position has always been that an independent body, institution, or competent court of law should be the one to examine any perceived infraction by the broadcast stations, which should be given the opportunity to defend themselves.

 “The court is right in its ruling, by saying that the NBC had arrogated judiciary power to itself by imposing fine arbitrarily without recourse to the law,” the NGE stated.

Dr. Abiodun Ogidan, Deputy Director Programmes Sports and Outside Broadcast, Federal Radio Corporation of Nigeria, Ibadan Zonal Station, is of the opinion that the NBC should strengthen its enforcement mechanism on ethics for broadcast stations, which will inform the quality of broadcast information being disseminated.

She lamented that due to the fact that there are many broadcast stations that are springing up, standard operational practices in terms of ethics and professionalism are being compromised.

She noted that beyond just monitoring stations for infractions, there is need for the NBC to deepen its public communication mechanism as advised by the Minister of Information and Orientation.

“I remember that the new Minister, Mohammed Idris in his first visit to NBC told them that the primary role of NBC should not be about sanctioning stations, but to promote media freedom in Nigeria. He also advised NBC to do more enlightenment advocacy for stations”, she said.

“NBC will have to focus more on public communication. This will help the broadcast industry to flourish and sustain acceptable norms.

“The attention of NBC should be on content, straightforward reportage with informed commentary. NBC should promote broadcast standards and professionalism by advocating media owners sustain basic ethics of broadcasting. We are in a dynamic world and the broadcast industry is not left out of the changing times; NBC is obliged to allow media outlets accommodate ideological leaning on integrity, identified goals and our cultural values. Any responsible professional will never compromise the ideal of broadcasting for mediocrity”, she added, noting that NBC should also focus on the expertise of those who are heading broadcast stations.

“At the point of registering broadcast stations, NBC should not only be interested in licensing fees but the quality of management staff and heads of those stations, so that those who are managing broadcast stations are experienced hands and trained minds. Such people know what is expected of them. NBC should go back to the Code and implement to the letter. The rules are already written in the Code so NBC should ensure thorough enforcement and follow the process of standard broadcasting”, she said.

Meanwhile ace broadcaster, Mrs. Moji Makanjuola (MFR), who is now Executive Director, International Society of media in Public Health + Development, is of the opinion that there is need to improve public support for the NBC, just as the NBC needs to deliberately engage industry practitioners as partners in progress towards upholding standards in the broadcast industry.

“There’s a need to improve standards; there are many new entrants in the industry so there is a need to regulate and in regulating, the standards should be the same” she said, speaking with SDNonline.

“There is a need for regulation so that there is a standard to conform to, because if there is no regulation, there would be chaos. The NBC however need to engage more with practitioners”, she added.

“We should support NBC to do its work and ensure that the industry is alive to its obligations so that they don’t err. People need to know about the regulation in place that is now in the Act. People must know and be aware of the provisions of the Code so that they do not err. NBC need to cascade the information to the professionals because some practitioners have not read the Code and they need to know about the provisions of the Code”, she said.

On the way forward, she noted that there was a need for the NBC under the administration of the present leadership to take stock, identify gaps and embark on capacity building and public engagement in areas to improve on the delivery of its functions and tasks as a regulatory agency.

“I would advise the new leadership of NBC to take stock of what has happened before and be able to assert themselves in getting the job down. There is need for more visibility and the need for capacity building, even with the management of the NBC so that they are able to better perform its role as a watchdog that will ensure standard. I am not sure many people know about NBC in terms of what they can do or what they are able to do, and what their functions and operations are. The NBC need to engage with practitioners more”, she said.

Sanmi Falobi, Project Manager, International Press Centre (IPC), serves SDNonline as Guest Writer/Executive Editor.