On September 8, 2022, the Federal High Court in Lagos extended an earlier order stopping President Muhamadu Buhari and Nigeria’s media regulator, the National Broadcasting Commission (NBC), from revoking the licenses of 53 broadcast stations over the non-renewal of operating licenses.
In a ruling by Justice Daniel Emeka Osiagor, Mr. Buhari and the NBC were told that they could not close down the stations until a substantive motion on notice over the constitutionality of the NBC’s move to revoke the licenses is heard.
Justice Osiagor then adjourned the case to the 26th of October, 2022.
The story was widely reported in Nigeria and it passed as one of those random news items that made just a brief incursion into national discourse and then fizzled out. However, this story is far from random – hidden beneath the hood is a constitutional war in the offing.
Plaintiffs in the case are asking the court to declare that parts of the very Act establishing the NBC – specifically the part which clothes it with power to revoke licenses – is unconstitutional.
The unforeseen turn of events for the NBC is that for trying to put stations off air over licensure, it is now facing the possibility of losing its fangs and becoming a paper tiger.
The genesis
It would be recalled that the Nigerian Guild of Editors (NGE) and the Socio-Economic Rights and Accountability Project (SERAP) in August, filed a lawsuit against President Buhari and the NBC over their arbitrary use of the NBC Act and broadcasting code, to attack 53 broadcast stations over failure to renew their licenses.
This was after the NBC had revoked the licenses of the 53 broadcast stations and threatened to shut down their operations within 24 hours over N2.6 billion in debts.
The regulatory body had directed the stations, “to pay all outstanding license fees on or before August 23, 2022, or shut down by 12 am on August 24.”
But the NGE and SERAP had responded with the suit (FHC/L/CS/1582/2022) at the Federal High Court in Lagos asking the court to “determine whether section 10(a) of the Third Schedule of the National Broadcasting Act used by NBC to revoke the licenses of the 53 stations is not inconsistent and incompatible with freedom of expression and access to information as contained in the 1999 constitution as amended.”
In a statement by the General Secretary of the NGE, Iyobosa Uwugiaren and the Deputy Director of SERAP, Kolawole Oluwadare, the Honorable Minister of Information and Culture, Mr. Lai Mohammed, was joined in the suit as a Defendant
Battleline between Constitution and NBC Act
Plaintiffs have accused the NBC of acting ultra vires on the basis of the NBC Act and in doing so, encumbered the freedom of expression which is openly guaranteed by the constitution of the Federal Republic.
By attempting to close the stations down, the NBC is also attempting to exercise Judicial power which it does not have, the plaintiffs argue.
NGE and SERAP, therefore, asked the court to declare that, Section 10(a) of the NBC Act which it is trying to use to close down the stations contradicts the Nigerian constitution’s provision for the freedom of the press and therefore, null and void to the extent of its inconsistency and incompatibility.
That the arbitrary action by NBC to revoke the licenses and shut down the operations of the stations is directly in conflict with sections 6 and 39(1) of the Nigerian Constitution and human rights treaties ratified by Nigeria, and therefore null and void and ultra vires.
Laws in contention
Section 10 (a) of the NBC Act empowers it to revoke licences of broadcast stations on a number of grounds including non-renewal of license. Its first subsection reads; “A licence may be revoked by the Commission in the following cases, that is- (a) where the prescribed fee has not been paid on the due date.”
However, as pointed out by the NGE, it contradicts Section 39 of the constitution of Nigeria which guarantees the Right to the freedom of expression and the press.
First two subsections of Section 39 of the constitution read, “(1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to
receive and impart ideas and information without interference.
“(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions.”
The Plaintiffs also argue that Section 6 of the Federal Constitution vests all Judicial powers in the Judiciary and that by attempting to shut down the stations, the NBC was arrogating such judicial powers to itself.
Arguments
In the suit, NGE and SERAP argue that, “the provisions of the Nigerian Constitution and human rights treaties on freedom of expression indicate that this right (freedom of the press) can be exercised through any medium.”
“Effectively, these provisions recognize that every individual has the right to an equal opportunity to receive, seek and impart information through any communication medium without discrimination.”
Therefore, the Plaintiffs said that the use of NBC Act and the NBC Code as basis to close down the stations over non-renewal of license, if allowed, would instigate and culturalize arbitrary use of the law against media houses.
According to the Plaintiffs, per the Declaration of Principles on Freedom of Expression in Africa adopted by the African Commission on Human and Peoples’ Rights, licensing processes are supposed to promote diversity in broadcasting.
Other reliefs sought
The plaintiffs, therefore, asked the court to declare that the NBC’s move order to revoke the licenses is contrary to the public interest and the guiding principles of freedom of expression, and therefore should be nullified and set aside.
It also asked for an order to the President to direct NBC and the Minister to withdraw the revocation orders in compliance with the provisions of section 39 of the Nigerian Constitution, and Article 9 of the African Charter on Human and Peoples’ Rights.
And then, an order of perpetual injunction restraining President Buhari and NBC from unilaterally revoking the licenses of and shutting down the 53 broadcast stations.
Interim Injunction
Meanwhile, the court presided over by Justice Akintayo Aluko had, on August 29, 2022, granted an interim injunction restraining President Buhari from revoking the licenses of the stations and shutting down their operations pending the hearing of the motion on notice for interlocutory injunction.
Waterloo
As things stand now, it would appear that NBC’s move to close down the 53 stations over the non-renewal of licenses has boomeranged. From terrorizing the stations, NBC is now facing the possibility of losing its fangs.
If the case of NGE and SERAP is successful, then NBC will cease to have the power to revoke the licenses of broadcast stations which are unable to renew their licenses in future.
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