Examining NBC’s sanctions on ‘erring’ broadcast stations

IN this report, Law and Human Rights examines the instrument that established the National Broadcasting Commission, NBC, vis-à-vis the commission’s manner of implementation of its mandates when broadcasters violate their broadcasting code, harvests reactions of media stakeholders on some of the sanctions imposed on broadcasters in selected cases between 2019 and 2023 and concludes that though the intervention of NBC in regulating the operations of broadcast stations in the country is sine qua non to detoxification of the political cum security climate of the country, the NBC, nevertheless, should give fair hearing to erring broadcasters before imposing sanctions where necessary. 

BACKGROUND

In the First Quarter (Q1) of 

2019, the National Broadcasting Commission, NBC, wielded its big stick against 45 broadcast stations, including the Nigerian Television Authority, NTA, African Independent Television, AIT, Channels Television and TVC News over alleged unethical conduct in their coverage of the 2019 general election.

Director-General of the NBC then, Is’haq Modibbo Kawu, had announced the sanction at a news conference which held in Abuja on March 1, 2019.

According to Kawu, the erring stations located across the various geo-political zones of the country violated the provisions of the Nigerian Broadcasting Code, and were fined N500,000 each, the highest level of sanction under the broadcasting code.

The NBC boss had explained that all stations that allowed politicians to utter abusive, inciting and provocative statements during rallies, were sanctioned even as he warned that any of the stations that continued to broadcast hate and inflammatory comments capable of threatening the security of the country would be shut down.

Mr Kawu said the commission had set up a National Monitoring System involving all members of the Board of Management of NBC to monitor stations on 24 hours basis and that the commission was working in partnership with INEC, the EFCC and the Nigeria Financial Intelligence Unit, NFIU, on tracking campaign financing in the country.

Vanguard reports that the commission had also, on October 26, 2020, imposed N9 million fine on three television stations— Channels Television, AIT and ARISE Television—after accusing them of engaging in ‘unprofessional #EndSARS Broadcast.

The commission had said the conduct of the broadcast stations was an ‘outrageous violation of the constitution and basic principles of fair hearing’, which could not be allowed to stand, adding that the sanction would serve as deterrent to broadcasters who deliberately fail to verify stories before they broadcast. 

Although some of the broadcast stations could not be said to be operating within the limit of the broadcasting code, there have always been protests each time sanctions were imposed on the broadcast stations on the account that the NBC sanctioned without giving culprit stations fair hearing. 

For instance, the Managing Director of one of the affected stations in the EndSARS protest broadcast —Arise TV, Ijeoma Nwogwugwu, had, at the time, protested on behalf of other culprits, that apart from the NBC’s press statement, “we were served letters informing us of the fine and we also got another letter inviting us to a meeting — that is the three broadcast stations. All of us were invited for the meeting. We went there, only to be told that the meeting had been suspended. No reason was given for the suspension and no date was also given for another meeting.”

NBC AND ITS MANDATES

Vanguard reports that the National Broadcasting Commission is an agency of the Federal Government created by law to assist the President to perform his function under section 39(2) of the 1999 Constitution.

Section 39 (1) of the 1999 Constitution of the Federal Republic of Nigeria provides for freedom of expression while subsection 2 not only grants the freedom to own, establish and operate any mass media but it also stresses that ownership of electronic media, that is radio and television, shall be by a special licence from the President.

By implication, while one can establish a print medium like newspaper or magazine without going through Mr President for a special permit, no one can run an electronic medium without first obtaining the presidential permit.

In other words, the National Broadcasting Commission is the broadcast regulator of the Federal Republic of Nigeria. 

The commission was set up on August 24, 1992, by Decree 38 of 1992 later amended as an Act of the National Assembly by Act 55 of 1999 and now known as National Broadcasting Commission Laws of the Federation 2004, CAP N11 to among other responsibilities, regulate and control the broadcasting industry in Nigeria.

The commission, in its advisory capacity to the Federal Government, regularly adopts scientific research methods to gather data, analyse trends in line with the dynamism of the industry and advise government accordingly.

It is also the responsibility of the commission to receive, process and consider applications for the establishment, ownership or operation of radio and television stations including cable television service, direct satellite broadcast and any other medium of broadcasting; radio and television stations owned, established or operated by the federal, state and local governments; and stations run under private ownership.

The commission recommends these applications after due consideration, through the Minister of Information to the President, Commander-In-Chief of the Armed Forces, for the grant of radio and television licenses.

According to a university don, Prof. Innocent Okoye, he said a number of factors may be responsible for special licensing of electronic media before they can operate in the country.

According to him, the broadcast spectrum belongs to all Nigerians. “To operate a radio or television station, one requires to be allocated frequencies. Government controls and allocates frequencies on behalf of all Nigerians. If frequencies are not controlled and allocated by a central authority, there will be confusion in the atmosphere.”

He also said that government all over the world earn revenue from the allocation of broadcast frequencies and the frequencies used by other wireless technologies such as GSM, for the purpose of earning revenues to provide for social services.

Besides, he said government regulates public broadcasting to ensure that it is used responsibly in the interest of the people and to ensure that the media conform to the fundamental objectives of the state.

NBC AND THE IMPLEMENTATION OF ITS MANDATES

Vanguard reports that the NBC has not been failing in discharging its duties under the law to regulate public broadcasting to ensure that it is used responsibly in the interest of the people and to ensure that the media conform to the fundamental objectives of the state.

However, what remains a big challenge is that virtually each time the NBC attempted to monitor the activities of the broadcast stations in the country and imposed sanction against  erring broadcast stations, media stakeholders had kicked.

The stakeholders had always cited absence of fair hearing, equity and justice in the dealings of the NBC with affected broadcast stations.

For instance, in the latter case involving Channels Television, Africa Independent Television (AIT) and ARISE Television over the EndSARS protest broadcast, Media Rights Agenda (MRA) and the International Press Centre (IPC) had accused the NBC of turning itself into a ‘Kangaroo court’ most times when it imposed its sanctions.

MRA’s Executive Director, Mr. Edetaen Ojo, said: “A situation where the NBC, which is so glaringly lacking in independence and subject to the direct control of political authorities, wrote the Nigeria Broadcasting Code creating the offences for which the stations were sanctioned and was the complainant in the allegations against the stations, prosecuted them and sat in judgment on the matter without even giving the stations any opportunity to defend themselves against the charges while also imposing a fine of N3 million on each of them, which it intends to collect and pocket, is offensive to any notion of fair hearing, equity or justice.”

He vowed to take legal action to challenge the NBC’s action if not reversed. 

The Executive Director of IPC, Mr. Lanre Arogundade, on his part, said: “The NBC has, in this matter again, constituted itself into the accuser, the prosecutor and the judge, in its own case. It is indeed strange that the fines were arbitrarily imposed without giving the concerned media outlets the option of defending the allegations. This constitutes an affront to rule of law.”

In fact, the Socio-Economic Rights and Accountability Project (SERAP) with 261 concerned Nigerians, civil society and media groups, had filed a lawsuit against the NBC and the Minister of Information and Culture, Lai Mohammed, asking the court to “declare arbitrary, illegal, and unconstitutional the N9m fines imposed on Channels, AIT and Arise TV [N3m each] over their coverage of the #EndSARS protests, and to stop the NBC from collecting the money.”

The court is yet to pronounce on the matter.

After 2023 presidential poll, NBC threatens to revoke licences of some broadcast stations

In what appears a deliberate attempt to avert recurrence of what happened in 2019, an election year, NBC had towards the end of the Third Quarter (Q3) of 2022, at a conference in Lagos, sensitized broadcasters in the country on the need to strictly adhere to the NBC Code, the Electoral Act as well as other extant laws governing the coverage and reportage of the 2023 general polls.

The Director-General of the NBC, Balarabe Ilelah, at the event, specifically urged broadcasters to give all political parties and groups equal access to their facilities and desist from allowing politicians to use their medium to perpetrate hate speech and misinformation.

He charged broadcast stations on equity in airtime allocation and coverage of political parties’ activities particularly during prime times while live political rallies must be handled with care and due professionalism.

Mallam Ilelah who said broadcasters are not allowed to deny any group access to airtime however, reminded them not to allow any form of hate speech, fake news, derogatory or divisive remarks and any incendiary broadcast on their platforms.

According to him, if a political content is indecent and hateful, then a station is allowed to turn it down and give reasons why it would not be taken even as he added that broadcasters must ensure that every partisan political broadcast was recorded off transmission and preserved for 150 days after broadcast.

Not done, Ilelah said broadcasters were required to stop the broadcast of any partisan political program, 24 hours to the polling day while on election days, the broadcaster is to relay election results or winners only as announced by the authorised electoral officer.

Why we sanctioned the affected broadcast stations—NBC

Justifying its decision to sanction the broadcast stations, Ilelah explained that in the course of monitoring the media stations, the commission observed, with dismay, that some broadcast stations allowed their platforms to be used by some guests, callers, and analysts to score unhealthy political points inimical to the corporate existence of Nigeria.

“Ethnic and religious profiling became awfully rampant. Invectives and counterblasts were thrown freely by guests on the platform of broadcast stations at the detriment of the Nigerian people.

 “Subversive discussions and reckless comments, capable of tearing us apart as a people were broadcast freely without proper gatekeeping. Ethics and professionalism were thrown overboard.

“The commission wishes to remind you that we have one country. And if we pave way for anarchy, we will all be affected. We are only in business because we have peace. Our diversity should be our strength, our assets, our power. We must guard this jealously,” he added. 

History shows that all civil wars ever fought by people of the same race, started in the media.

“When those who should dish out information become biased and pitched camp with different groups, division is heightened,” he added.

He disclosed that broadcast stations have a duty to protect the nation’s unity and punctuate diversity as a distinctive mark of pride and promote sustainable democracy in Nigeria.

“We expect broadcast stations to exercise freedom of expression as agents of society, not for any personal or promote sectional rights, privileges and further their own or that of their proprietors, relatives, or supporters as highlighted in Section 3.1.3 of the Nigeria Broadcasting Code,” the commission said.

While the NBC has a valid point on its need to breathe down on the broadcast stations’ neck in the interest of the country, it is not in doubt that its refusal to dignify lawful request made to it by the MRA to disclose the identities of the affected media organisations is not good enough.

NBC which is a creation of statute cannot and should not  operate as a secret society which activities cannot be disclosed to the public.

SERAP sues NBC, others over threat to shut down some broadcast stations

Already, the Socio-Economic Rights and Accountability Project (SERAP) has approached a Federal High Court sitting in Lagos with a request to stop the Federal Government from revoking the licences of the affected broadcast stations in the country over what it called their legitimate coverage of the 2023 general elections.

Listed in the suit as defendants are President Muhammadu Buhari, the National Broadcasting Commission (NBC) and the Minister of Information and Culture, Mr Lai Mohammed.

In the suit number FHC/L/CS/469/2023 filed last Friday at the Federal High Court, Lagos, SERAP is asking the court to determine “whether the broadcasting code used by the NBC to sanction some broadcast stations and threaten to shut down others is not inconsistent and incompatible with the freedom of expression, access to information and media freedom.

SERAP is asking the court for a declaration that the sanctioning of some broadcast stations and threat by the NBC to revoke the licences and shut down other stations for their lawful coverage of the general elections is unconstitutional and unlawful, as it violates freedom of expression, access to information and media freedom.

SERAP is also seeking an order of interim injunction restraining President Buhari, the NBC and Mr Mohammed from threatening and sanctioning broadcast stations in the country simply for carrying out their constitutional duties, pending the hearing and determination of the motion on notice filed contemporaneously in this suit.

In the suit, SERAP is arguing that it amounts to a travesty of justice to punish and threaten broadcast stations seeking to promote election integrity and citizens’ engagement and participation, while allowing perpetrators of electoral violence and grave human rights violations escape accountability for their alleged crimes.”

According to SERAP, rather than promptly investigating allegations of election-related violence and other infractions of the Electoral Act and the Nigerian Constitution, and going after suspected perpetrators, the Nigerian government is scapegoating the media by targeting and punishing broadcast stations.”

SERAP is also arguing that, the use of NBC Act and Code in this case would open the door to arbitrariness and fundamentally restrict freedom of expression that is an integral part of the public order protected by the Nigerian Constitution and human rights treaties to which Nigeria is a state party.

The suit filed on behalf of SERAP by its lawyers Kolawole Oluwadare, Ms Adelanke Aremo, and Ms Valentina Adegoke, reads in part: “The media plays an essential role as a vehicle or instrument for the exercise of freedom of expression and information in a democratic society.

“The NBC legislation and codes do not confer unfettered discretion for the restriction of freedom of expression and media freedom on those charged with their implementation.

“The sanctioning of some broadcast stations and threat by the NBC to revoke the licences of others and shut them down is neither necessary nor proportionate, as it would unduly intrude upon Nigerians’ right to freedom of expression, access to information, and media freedom.

“The use of vague and undefined phrases such as ‘unpatriotic individuals’ ‘subversive, hateful, and inciting utterances, particularly post-election’, as grounds to sanction and threaten to broadcast stations is inconsistent and incompatible with human rights requirements.

“The Nigerian Constitution and human rights treaties impose legal obligations on the Nigerian government to refrain from imposing restrictions which are not consistent with human rights requirements, including on discussion of political and election-related issues.

“It is also inconsistent with constitutional and international human rights requirements to sanction and threaten broadcast stations solely for their coverage of the issues around the general elections on the basis of vague phrases such as ‘unguarded statements’, and ‘negative conversations’ used by the NBC.

“The sanction and threat also represent a serious hindrance to the exercise of journalism, media diversity and independence, media freedom, and participation.

“Media coverage of the general elections and post-election matters, and media freedom are closely connected, as access to information is an essential requirement for the realization of the rights to freedom of expression and participation.

“Similarly, the phrases used by the NBC lack sufficient clarity and can be arbitrarily or discriminatorily applied and enforced.

“The sanction, ‘last warning’ and threat by the NBC would seem not to meet the strict requirements of the Nigerian Constitution and the country’s international human rights obligations.  In particular, it is unclear the scope or object of what these wordings seek to prohibit.

“Under the constitutional and international requirement of legality, it is not enough that restrictions on freedom of expression, access to information and media freedom are formally stated in press releases and regulations.

“The requirement of legality also serves to define the scope of legal discretion conferred on implementing authorities in order to provide adequate protection against arbitrary implementation.

SERAP is therefore asking the court for the following reliefs:

A DECLARATION that the use of the NBC broadcasting code to sanction some broadcast stations and threaten to revoke the licences of others and shut them down for covering the general elections is a violation of the rights to freedom of expression, access to information and media freedom.

A DECLARATION that the sanction of some broadcast stations and threat to revoke the licences of others and shut them down for simply carrying out their legitimate duties of covering the general elections is a violation of the right to fair hearing as provided for under the Nigerian Constitution 1999 (as amended) and human rights treaties which Nigeria has ratified.

A DECLARATION that the arbitrary action by NBC to sanction some broadcast stations and threaten to revoke the licences of others and shut them down for covering the general elections is a violation of section 39 of the Nigerian Constitution 1999 [as amended], and Article 9 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.

AN ORDER compelling President Buhari to direct the NBC and Mr Mohammed to withdraw the sanction and threat against broadcast stations and to comply with the provisions of section 39 of the Nigerian Constitution, and Article 9 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.

AN ORDER OF PERPETUAL INJUNCTION restraining President Buhari, the NBC, and Mr Muhammed whether jointly or severally or any other authority, person or group of persons from unilaterally sanctioning and threatening to revoke the licences of any broadcast stations and shutting down the stations on the grounds of covering the 2023 general elections.

Although no date has been fixed for the hearing of the suit, the court is expected, in no time, to pronounce on the legality of the entire broadcast code and establish the limit on the powers of the NBC to impose sanction without following due process.