The National Broadcasting Commission (NBC) has fined Channels Television, AIT and Arise TV N3 million each over their “unprofessional coverage” of the historical EndSARS protests and the unfortunate carnage that followed suit.

The announcement was made in Abuja by the Acting Director-General of NBC, Prof Armstrong Idachaba who said the reportage of the protests by the stations was capable of leading to a breakdown of law and order but the option of fine will serve as a warning to the stations and others. Like many other Nigerians, the imposition of fine on the TV stations came a bit surprising and worrying to this writer. Hence, this legal intervention.

To start with, the NBC, being the highest regulatory body that oversees the operation of broadcast stations, is empowered by its enabling statute to create a code setting the standards of the contents and quality of materials for broadcast in Nigeria. Thus, Section 2(1)(h) of the National Broadcasting Commission Act, 1992 (as amended), empowers the Commission to establish and disseminate a national broadcasting code and set standards with regard to the contents and quality of materials for broadcast. Section 3(1) of the Act provides that the ‘Commission’ shall consist of: A Chairman, Director General and nine other members. The composition of the 11 makes up the NBC board.

In that wise, if any amendment is to be made to the NBC Code, same must be carried out by the Commission through its board. This point must be made clear in light of the accusation made a few months ago by the Acting Director-General of the NBC, Prof. Armstrong Idachaba which was to the effect that the Honourable Minister for Information and Culture, Alhaji Lai Mohammed singlehandedly made amendments to the sixth edition of the Nigeria Broadcasting Code which, among others, increased the fine for “hate speech” from N500,000 to N5 million.

This is clearly a violation of the law. The amended NBC Code, being unsanctioned by the board, is illegal, null and void and of no effect whatsoever. The Minister lacks the vire (power) under the Act to unilaterally amend or set out the NBC Code; it must be done by the NBC board.

Therefore, any sanction, penalty or fine that comes as a result of the defectively amended NBC Code will amount to zero at the centre of nothing and consequently be of no effect whatsoever. In worth, the paper upon which the amended NBC Code was written has more value than the code itself. Lord Denning, a former President of the Court of Appeal of England and Wales, aptly held in the celebrated case of MACFOY V. UNITED AFRICAN COMPANY LIMITED 1962 AC 153 that: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad… and every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” The amended NBC Code being a gross nullity cannot be a legally valid instrument to be used in imposing sanctions on ‘erring’ broadcast stations.

Let us even assume without conceding that the Code is valid and binding, does the NBC have the power to impose fine as sanction in case of breach? The simple answer to this question is: NO. It is a settled law that regulatory agencies do not have the power to impose fines without recourse to the courts. In ABDULLAHI V. KANO STATE (2015) LPELR-25928 (CA) the Court of Appeal per Abba Aji, JCA, defined fine as a payment of money ordered by a Court from a person who has been found guilty of violating law. Truly, a fine is a criminal sanction and only the court is empowered, by the Constitution, to impose same. Fine imposed by regulatory agencies without recourse to the courts is illegal, unconstitutional and offends the sacred principles of natural justice and fairness.

The issue whether an administrative or regulatory body has the power to impose fine was abundantly addressed in the popular case of NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY (NOSDRA) v. MOBIL PRODUCING NIGERIA UNLIMITED (EXXONMOBIL) (2018) LPELR-44210(CA). In the landmark judgment, the Court of Appeal held that NOSDRA has no powers to impose fines on EXXONMOBIL without recourse to the Courts whilst considering the powers conferred on NOSDRA by Sections 6(2) and (3) of the NOSDRA Act. The court made it clear that the imposition of fines by NOSDRA was contrary to its powers, on the basis that penalties or fines are imposed as punishment for an offence or violation of the law and the power as well as competence to establish that an offence has been committed belongs to the courts and not a regulatory agency.

Additionally, for an administrative or regulatory body to impose fines or penalties without recourse to the court is a naked violation of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, as amended. The Supreme Court in its wisdom held in MFA v. INONGHA (2014) 4 NWLR (Pt.1397) 343 at 375 that “fair hearing within the meaning of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observance of the twin pillars of the rules of natural justice, namely: audi alteram partem and nemo judex in causa sua”. If a regulatory body impose any fine whatsoever without the intervention of the court, the principles of “nemo judex in causa sua” which literally means one cannot be a judge in his own cause and “audi alteram partem” which literally means no one should be condemned unheard, is arbitrarily contravened.

From the foregoing, it will be safe to submit that NBC lacks the power to impose fine on the television stations without first making recourse to the court. As held in NOSDRA v. EXXONMOBIL (supra), imposing fine is a judicial act and only the court of law under Section 6 of the Constitution can exercise such a power. “Any law that would consign to anybody other than the Courts the power to award fine is unconstitutional”. The NBC, being a regulatory body, is not empowered by law to act as the prosecutor and the judge; all at the same time – this violates the principle of fair hearing enshrined under Section 36 of the 1999 Constitution.

For NBC to impose fine on the TV stations means it is unconstitutionally acting as a judge in his own case. The stations are still deemed innocent until proven otherwise by a court of competent jurisdiction under Section 36(5) of the Constitution. NBC is not and cannot be deemed a court; so, it lacks the power to declare any broadcast station guilty of contravening the Code.  As held by the eminent Justices of the Court of Appeal, the power to order or impose a fine is within the exclusive preserve of the Court and not the NBC, a regulatory authority. Therefore, the imposition of fine by the NBC on the stations, usurping the power of a properly constituted Court, shall be deemed illegal, unconstitutional, null and void and of no effect whatsoever.

Nigeria is a country with laws. Flagrantly abusing the law by the authorities to achieve desperate political gains cannot be tolerated. The rule of law ought to reign even when the government feels uncomfortable by it. Section 1(1) of the 1999 Constitution provides for the supremacy of the Constitution over all authorities and persons. The NBC, being a creation of law, cannot continue to act as though it is above the law.

In the final analysis, it should be made clear that the arbitrary fine imposed by the NBC on the broadcast stations merely doing their work is a threat to freedom of the press. Apart from the fact that freedom of expression and the press is guaranteed under Section 39 of the Constitution, Section 22 of makes it the ultimate duty of the press to “uphold the responsibility and accountability of the Government to the people”. The question that begs for an answer is: Why should the NBC choose to punish any media organization for adhering to its constitutional mandate?

There can be no democracy without a free press. The NBC should not continue to weaponize its regulatory powers against media freedom. Making critical reports and exposing the failures of the government should earn the broadcast stations some accolades, not illegal fines. The government must sit up to hear some uncomfortable truth at this important time of our national history. Any attempt to gag media freedom through indiscriminate fines and penalties would be resisted by the forces of law.

Festus Ogun is a legal analyst and human rights activist.

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