In a landmark judgment, a Federal High Court in Abuja has issued an order of perpetual injunction restraining the National Broadcasting Commission (NBC) from further imposing fines on radio and televisions stations, following a legal challenge mounted by Media Rights Agenda (MRA) against the power of the broadcast regulatory authority to fine broadcasters.
The judgment arose from a public interest suit instituted by MRA through Abuja-based human rights lawyer, Mr. Noah Ajare, in response to a March 1, 2019 announcement by the then Director General of the NBC, Mallam Ishaq Kawu, that the Commission had imposed a fine of N500,000 each on 45 broadcast stations for alleged contraventions of the Nigeria Broadcasting Code.
However, by an originating motion filed on November 10, 2021 and brought pursuant to Order 2 Rules 1, 2, 3, 4, 5 of the Fundamental Rights (Enforcement Procedure) Rules, 2009; Sections 36 of the 1999 Constitution, as amended; and Articles 7 and 9 of the African Charter on Human and Peoples’ Rights, MRA challenged the NBC’s action on several grounds.
MRA contended, among other things, that the procedure adopted by the Commission in arriving at the sanctions breached the fundamental right to fair hearing guaranteed by the 1999 Constitution and the African Charter as the affected broadcast stations were not given any opportunity to defend themselves before the sanctions were handed down and that the NBC had no powers to impose fines as sanctions since the Commission is not a court of law.
Delivering judgment in the suit on May 10, 2023, the presiding judge, Justice James Omotosho, said: “Fundamental human rights as the name implies are a special kind of rights which is guaranteed every person by reason of being a human being. They are sacred rights which must be judiciously safeguarded by the Courts and government agencies as it relates to citizens of Nigeria.”
According to him, “The tenet of fair hearing is to the effect that both sides in a dispute must be heard, expressed in the Latin maxim Audi alterem partem and that a party cannot be a judge in its own case, expressed as Nemo judex in causa sua.”
The judge ruled that MRA had shown through its supporting affidavit that the NBC breached the right to fair hearing of the sanctioned broadcast stations by imposing fines on them without giving them the opportunity to address the allegations made against them, adding that the right to fair hearing of the sanctioned broadcast stations were obviously breached as they were never informed of the charges against them nor given the opportunity to defend themselves before sanctions were passed on them.
Referring to Section 36(2)(a) and (b) of the 1999 Constitution, as amended, he said the purport of the provision is that even where an administrative body is to make a decision concerning a person, such person must be given the opportunity to make representations to the administering authority before a decision is made, adding that the facts constituting the case showed without doubt that the NBC “was in grievous breach of this provision.”
On the issue raised by MRA that the NBC as an administrative body cannot impose fines as sanctions on a body, Justice Omotosho noted: “fines are a form of punishment for breaking a law. That is, fines are sanctions imposed on a person who has been found guilty of a criminal offence. Under the law in Nigeria, only Courts of law are empowered to impose sanctions for criminal offences.”
He stressed that “it is therefore an abnormality in law for an administrative body such as the Respondent to impose sanctions on broadcast stations when it is not vested with judicial powers to do so.”
Justice Omotosho held that the NBC “is neither a Court nor a judicial tribunal to make pronouncements on the guilt of broadcast stations notwithstanding what the NBC Code says. Every statute or subsidiary legislation must be in accordance with the Constitution and where there is any inconsistency will be declared void to the extent of its inconsistency. The NBC Code which gives the Respondent the powers to impose fines on erring broadcast stations is inconsistent with section 6 of the constitution that vests judicial powers in Courts of law. In consequence, the actions of the Respondent in imposing fines on the 45 broadcast stations without affording them fair hearing is a nullity without any legs to stand on.”
The judge said he was concerned by the impunity displayed by the NBC in imposing fines on broadcast stations in a democratic society such as Nigeria, noting that under our laws, the press is granted freedom as a pillar of democracy under section 22 of the Constitution, which he said, was also in line with section 39 of the same Constitution, which provides for the right to freedom of expression.
He said: “The press all over the world is seen as a beacon and defender of democracy. In the dark years of military rule, the press held firm and reported the gruesome happenings in the country. Sadly this led to the demise of journalists like Dele Giwa who dared the military hierarchy. This Court will not sit idly and watch as a government agency arbitrarily imposes fines on a broadcast station which is capable of curtailing the freedom of the press and media. The media must be free at all times and imposing fines on them without fair hearing will be met with stiff resistance by this Court.”
Explaining that he was not saying that broadcast stations and the media should not be regulated, Justice Omotosho insisted that the regulation must be within the confines of the law, stressing that “Judicial powers are exclusively vested in the Judiciary by virtue· of section 6 of the Constitution of the Federal Republic of Nigeria. By virtue of that power, only the Court can impose fines or punishment on any person or body accused of breaching a law.”
He held that the NBC did not conform with the Constitution when it sat in the position of complainant, judge and executioner in a matter which it is interested in, saying that it ought to have invited the erring broadcast stations to make their defence on the charges against them instead of imposing fines in breach of fair hearing of the broadcast stations.
The judge added that “Allowing this kind of arbitrary action of the Respondent (NBC) will defeat the doctrine of separation of powers operational in our democracy.”
The doctrine of separation of powers, according to him, is to prevent the arrogation of powers by one arm of government, which is in contrast to the military regime where powers were concentrated in one organ.
He said: “In a democracy such as ours, powers are separate and vested in different organs and to prevent one organ being tyrannical, the other organs check these tendencies through checks and balances. The Respondent (NBC) belongs to the Executive arm and the Courts as the judicial arm is vested with powers to check excesses of executive powers. The actions of the Respondent qualifies as excessiveness as it arrogated both executive and judicial powers to itself. This Court will not allow such to thrive in our democracy.”
Justice Omotosho therefore ruled that MRA’s suit was “meritorious” and that the actions of NBC in imposing fines of N500,000.00 on 45 broadcast stations on March 1, 2019, was “a gross violation of the right to fair hearing and the rules of fair hearing of the 45 broadcast stations.”
Consequently, he declared all actions taken by the NBC regarding the matter null and void and accordingly made the following declarations and orders:
· That the sanctions procedure applied by the NBC in imposing N500,000.00 fines on each of the 45 broadcast stations on Friday, March 1, 2019 is a violation of the rules of natural justice and 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 A9) Laws of the Federation of Nigeria, 2004 in that the Nigeria Broadcasting 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 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.
· That the NBC, not being a court of law, 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.
· 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.
· 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 the imposition of criminal sanctions and accordingly, that the investigation purportedly conducted by the Commission leading to the sanctioning of the 45 broadcast stations for alleged offences under the Nigeria Broadcasting Code is ultra vires, null and void.
· That the N500,000.00 fines purportedly imposed by the NBC on each of the 45 broadcast stations on Friday, March 1, 2019, as punishment or sanctions for the alleged commission of various offences by each of the broadcast stations is unconstitutional, ultra vires, null and void.
· An order setting aside the N500,000.00 fines purportedly imposed by the NBC on each of the 45 broadcast stations on Friday, March 1, 2019.
· An order of perpetual injunction restraining the NBC, its servants, agents, privies, representatives or anyone acting for or on its behalf, from imposing fines on any of the broadcast stations or any other broadcast station in Nigeria for any alleged offence committed under the Nigerian Broadcasting Code.