SERAP IN THE NEWS

The Federal High Court sitting in Lagos has ordered the National Broadcasting Commission (NBC) to “stop using the NBC Act and the Nigeria Broadcasting Code to impose fines, threaten to impose sanctions, harass and intimidate the broadcast stations and other independent media houses in the country.”

The court declared that “the NBC and its agents lack the legal power and authority to impose penalty unlawfully and unilaterally, including fines, suspension, withdrawal of license or any form of punishment whatsoever on independent media houses for promoting access to diverse information on issues of public importance.”

The judgment was delivered in June by Hon. Justice Nicholas Oweibo following a lawsuit brought by the Socio-Economic Rights and Accountability Project (SERAP) and Centre for Journalism Innovation and Development (CJID). The certified true copy of the judgment was obtained last Friday.

The suit followed the decision by the NBC in 2022 to impose a fine of N5 million each on Trust TV, Multichoice Nigeria Limited, NTA-Startimes Limited and TelcCom Satellite Limited, over their documentaries on terrorism in the country.

The NBC claimed that the documentaries “glorify the activities of bandits, undermine national security in Nigeria, and contravene the provisions of the Nigeria Broadcasting Code.”

In his judgment, Justice Oweibo held that, “The issue of the locus standi of SERAP and CJID need to be resolved first being a threshold issue. It is trite that the Statement of Claim must disclose the Plaintiff’s interest sufficient to clothe him/her with the requisite capacity to sue.”

Justice Oweibo also stated that, “SERAP and CJID have been vested with locus standi. Looking at the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 and particularly the preambles to the Rules, the general requirement of locus standi has been done away with. SERAP and CJID are not meddlesome interlopers.”

According to Justice Oweibo, “I have looked at the affidavit in support of the suit, which in this case stands in place of a Statement of Claim. Considering the core mandates of SERAP and CJID and the affidavit in support of their suit, it is to be seen that this is a public interest case.”

Justice Oweibo dismissed the objections raised by the NBC’s counsel and upheld SERAP’s and CJID’s arguments. Consequently, the court entered judgment in favour of SERAP and CJID and against the NBC.

Justice Oweibo’s judgment, dated 13 June, 2024, read in part: “This is an action alleging breach of the fundamental rights of SERAP and CJID to freedom of expression, access to information and media freedom and fair hearing guaranteed under sections 22, 36 and 39 of the Nigerian Constitution 1999 [as amended].”

The court also granted the following reliefs:

1. A DECLARATION is hereby made that the act of the Defendants imposing a fine of Five Million Naira each on the independent media houses is unlawful, inconsistent with, and amounts to a breach of the principles of legality, necessity, proportionality and therefore a violation of the rights to freedom of expression, access to information, and media freedom;
2. A DECLARATION is hereby made that the use of the Broadcasting Code by the NBC to impose sanctions on the independent media houses for an alleged infractions without recourse to the court constitutes an infringement on the provisions of sections 6[1] & [6][b] and 36[1] of the Nigerian Constitution 1999 and Articles 1 and 7 of the African Charter on Human and Peoples’ Rights and Article 9 of the International Covenant on Civil and Political Rights to which Nigeria is a state party;
3. A DECLARATION is hereby made that the provisions of the National Broadcasting Commission Act and the Nigeria Broadcasting Code which are arbitrarily being used by the Defendants to sanction, harass, intimidate and restrict the independent media houses are inconsistent and incompatible with sections 36[1], 39 and 22 of the Nigerian Constitution, Article 9 of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights and are null and void to the extent of their inconsistency and incompatibility;
4. A DECLARATION is hereby made that the Defendants lack the legal power and authority to impose penalty unlawfully and unilaterally, including fines, suspension, withdrawal of license or any form of punishment whatsoever on the independent media houses for promoting access to diverse opinions and information on issues of public importance;
5. AN ORDER OF COURT is hereby made setting aside the fine of Five Million Naira imposed by the Defendants, through the 3rd Defendant, each on Trust TV, Multichoice Nigeria Limited, TelCom Satellite Limited (TSTV) and NTA-Startimes Limited for televising the documentary by the British Broadcasting Corporation “BBC Africa Eye” titled “Bandits Warlords of Zamfara”;
6. AN ORDER OF PERPETUAL INJUNCTION is hereby made restraining the Defendants or any other authority, persons or group of persons from unlawfully shutting down, imposing fine, suspension, withdrawal of license or doing anything whatsoever to harass and intimidate or impose criminal punishment on the independent media houses or any of Nigeria’s journalists and media houses for promoting access to diverse information on issues of public importance

SERAP deputy director, Kolawole Oluwadare said, “We urge the NBC to demonstrate its commitment to the rule of law by immediately obeying and respecting the judgment of the Court.”

“We also urge President Bola Tinubu to direct the Ministry of Information and Culture, the office of the Attorney General of the Federation and the NBC to immediately disclose the details of the Twitter agreement, as ordered by the court.”

“The immediate enforcement and implementation of the judgment will be a victory for the rule of law, freedom of expression and media freedom in Nigeria.”

SERAP and CJID had in August 2022 filed a lawsuit against former president Muhammadu Buhari, former minister of information and culture Mr Lai Mohammed and the NBC, asking the court for “a declaration that the imposition of fines on the media houses is unlawful and amounts to a breach of legality, necessity, proportionality principles.”

In the suit number FHC/L/CS/1486/2022, SERAP and CJID sought “an order setting aside the arbitrary and illegal fines of N5 million and any other penal sanction unilaterally imposed by the NBC on these media houses simply for carrying out their constitutional duties.”

The suit, read in part: “It is inconsistent and incompatible with the Nigerian Constitution 1999 [as amended] to invoke the grounds of ‘glorifying terrorism and banditry’ as justifications for suppressing access to information of legitimate public interest that does not harm national security.”

“The documentaries by the independent media houses are in the public interest, and punishing the media houses simply for raising public awareness about these issues would have a disproportionate and chilling effect on their work, and on the work of other journalists and Nigerians.”

“The action by the NBC and Mr Lai Mohammed is arbitrary, illegal, and unconstitutional, as it is contrary to section 39 of the Nigerian Constitution, and international human rights treaties including the African Charter on Human and Peoples’ Rights, which Nigeria has ratified.”

“A fine is a criminal sanction and only the court is empowered by the Constitution to impose it. Fine imposed by regulatory agencies like the NBC without recourse to the courts is unfair, illegal, and unconstitutional.”

“Imposing any fine whatsoever without due process of law is arbitrary, as it contravenes 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 means no one should be condemned unheard.”

“Article 19 (1) of the International Covenant on Civil and Political Rights establishes the right to freedom of opinion without interference. Article 19(2) establishes Nigeria’s obligations to respect ‘the right to freedom of expression,’ which includes the freedom to seek, receive and impart information, regardless of frontiers.”

“Under article 19(3), restrictions on the right to freedom of expression must be ‘provided by law’, and necessary ‘for respect of the rights or reputations of others’ or ‘for the protection of national security or of public order (ordre public), or of public health and morals’”

“Although article 19(3) recognizes ‘national security’ as a legitimate aim, the Human Rights Council, the body charged with monitoring implementation of the Covenant, has stressed ‘the need to ensure that the invocation of national security is not used unjustifiably or arbitrarily to restrict the right to freedom of opinion and expression.’”

“The requirement of necessity also implies an assessment of the proportionality of the grounds, with the aim of ensuring that the excuse of ‘glorifying terrorism and banditry’ and ‘national security’ are not used as a pretext to unduly intrude upon the rights to freedom of expression and access to information.”