By: Douglas Ogbankwa Esq.
The National Broadcasting Commission (NBC) – the regulatory body for all broadcasts in the Nigerian Media Space has been fining Radio and TV stations all across the country with reckless abandon. This treatise will determine the legality or otherwise of the actions of the Regulatory Agency, considering decided cases and the law on the subject matter.
The National Broadcasting Commission was created by the National Commission (Establishment ), Act, Cap N11, LFN 2004).
The Act creates the Board of the National Broadcasting Commission, which is imbued with the powers to make and amend the National Broadcasting Code, the Regulations that guide broadcasting in Nigeria.
The Section of the National Broadcasting Code that provides for fines for infractions is Section 7.6.5* which provide thus:
A Broadcaster shall ensure that a political advert/broadcast does not contain hate messages or speeches (jingles, campaigns and advertisements)
The next section of the Code Section 7.6.6. states that an offender who is liable at first instance pays a fine of five hundred thousand naira and when aggravated pays a fine of one million naira.
Now, Section 7.6.5. only talks about political advert/broadcast and qualified it in the bracket to include jingles, campaigns and advertisements and nothing more. The law is trite that the express mention of one thing is the express exclusion of another. In this light, the part of the National Broadcasting Code that relates to fines pertains to only political jingles, campaigns and advertisements and nothing more. The National Broadcasting Commission’s act of fining broadcast stations for Nigerians airing their minds is therefore illegal and it is even against section 39 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), by the 4th alteration which states as follows:
Every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference
This is a provision from the highest law of the land – the Constitution. A Regulation, that is the National Broadcasting Code, can not, therefore, obliterate the express provisions of the Constitution which are not qualified in any way.
In any case, the Code does not give the National Broadcasting Commission powers to impose fines, it only says that an offender is liable to pay a fine. The powers to impose fines have been found by the Courts to be the express duties of the Courts and not the regulators.
The Court of Appeal in the case of
ABDULLAHI V. KANO STATE (2015) LPELR-25928 (CA) 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 the law. Truly, a fine is a criminal sanction and only the court is empowered, by the Constitution, to impose the same. Fine imposed by regulatory agencies without recourse to the courts is illegal and null and void ab intio. By the NBC imposing fines on broadcast stations, NBC has become the complainant, the investigator, prosecutor and judge. This is against the principle of Nemo Judex in casua sua- No man can be Judge in his cause.
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 imposes any fine whatsoever without the intervention of the court, the principles of “nemo judex in causa sua” which means one cannot be a judge in his cause and “audi alteram partem” which means no one should be condemned unheard, is arbitrarily contravened.
The Court of Appeal in the popular case of *NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY (NOSDRA) v. MOBIL PRODUCING NIGERIA UNLIMITED (EXXONMOBIL) (2018) LPELR-44210(CA), held that :
NOSDRA has no powers to impose fines on EXONMOBIL without recourse to the Courts whilst considering the powers conferred on NOSDRA by Sections 6(2) and (3) of the NOSDRA Act, which is impari material with section 7.6. 5. and 7.6.6. of the National Broadcasting Code* The court unambiguously stated 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.
The issue also dovetails to whether the imposition of fines by the NBC, without allowing the Broadcast Station to defend itself in a Court or appropriate tribunal or forum is not a denial of the right to fair hearing as enshrined in Section 36 of the Constitution of the Federal of Nigeria, 1999 (As Amended), by the 4th alteration.
The Supreme Court in the case of MFA v. INONGHA (2014) 4 NWLR (Pt.1397) 343 at 375, answered the question in the affirmative when it held 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”
It does follow to reason that NBC imposing any fine whatsoever without the intervention of the court, contravenes the principles of “nemo judex in causa sua” which indicates that one cannot be a judge in his cause and “audi alteram partem” which indicates that before you decide on an issue, you must hear from the other side.
It is apposite to adumbrate that the imposition of a fine is a judicial act and only the Judex, under Section 6 of the Constitution of the Federal Republic of Nigeria,1999 (As Amended) by the 4th Alteration can exercise such a power.
It is my submission that all fines hitherto imposed by NBC is unconstitutional and ultra vires its powers and NBC must return those fines to the broadcast stations. NBC can not hide under the National Broadcasting Code which is mere regulation and not even an Act of Parliament to gag Nigerians.
The current National Broadcasting Code being used by the Commission was amended arbitrarily by the Minister of Information and not the Board of the NBC as statutorily provided for by the National Broadcasting Commission (establishment), Act, Cap N11, 2004. There is therefore no National Broadcasting Code in the force known to Law in Nigeria as we speak. What we have is a private document of the Minister of Information not known to any written law in force in Nigeria throughout the Federal Republic of Nigeria.
About the Author:
Douglas Ogbankwa Esq is a Benin Based Private Legal Practitioner and the Founder of the Vanguard for the Independence of the Judiciary (V4IJ).
