The Nigeria Broadcasting Commission (NBC) has drawn an angry mob for slamming a five million naira fine on a Lagos based radio station, Nigeria Info 99.3Fm, for alleged professional misconduct. A disconsolate public accuses the NBC of acting as the accuser, the prosecutor and a judge in the matter. They argue that the 1999 constitution (as amended) is unequivocal as to the institution vested with judicial powers. Agreeably, section 6(1) of the constitution provides: “The judicial powers of the federation shall be vested in the courts to which this section relates, being courts established for the federation.”
For our purpose, what constitute judicial powers was adumbrated in Section 6(6)(b) of the constitution. It provides: “The judicial powers vested in accordance with the foregoing provisions of this section – shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to civil rights and obligations of that person.” Of course, the Black’s Law Dictionary defines a person to include: “An entity (such as a corporation) that is recognised by law as having the rights and duties of a human being.”
The NBC is the federal government agency imbued with the powers to regulate the broadcast industry, as a medium for expression. Interestingly, the right of freedom of expression and the press is a fundamental right, enshrined in section 39 of the constitution. Section 39(2) provides: “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.”
Of significance is the regulatory powers, in the proviso, to section 39 (2), to wit: “Provided that no person, other than the government of the federation or a state or other person or body authorised by the president on the fulfilment of conditions laid down by an act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for any purpose or whatsoever.” From the foregoing, the regulatory power of the NBC can only be derived from an Act made by the National Assembly.
So, can and did the National Assembly’s powers to make regulatory laws under section 39(2) of the constitution, extend to imbuing the NBC with powers to regulate the fines, determine the guilt and impose such fines on those licenced by it, to operate a broadcasting corporation, for alleged infractions of the controversial broadcasting code? First, is whether the National Assembly has the power to grant to a body created by it, what amounts to administrative, sub-legislative and quasi-judicial powers? Yes.
The powers of the National Assembly is succinctly provided for, in the 1999 constitution. With regards to the issue at hand, section 4(8) provides: “Save as otherwise provided by this constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.” So, if any person is aggrieved about the extent of power granted by the National Assembly, the recourse is the courts.
But can the National Assembly delegate the power to make a subsidiary legislation on broadcasting rights to the NBC? Yes, it can. In his book on Administrative Law, Ese Malami, quoted the finding of the British Committee on Ministers Powers, on the need for such delegation thus: “The truth is that if parliament were not willing to delegate law making power, parliament would be unable to pass the kind and quality of legislation which modern public opinion requires.”
The power of the NBC, is provided by Act No. 38 of 1992, as amended by Act No. 55 of 1999. The Act gives the NBC expansive powers, which include: “Regulating and controlling the broadcast industry; determining and applying sanctions, including revocation of licenses of defaulting station which do not operate in accordance with the broadcast code and in the public interest; and intervening and arbitrating in conflicts in the broadcast industry.”
Clearly from the foregoing, the NBC, through its organs has powers to regulate the broadcast industry. The two main organs of the NBC, are the Board of the Commission and the Board of the Management. While the Board of the Commission is vested with the authority to make policies, the Board of Management has the power to implement such polices and run the commission. Could the management determine a new broadcast code, without the approval by the board, as claimed by the board? I doubt.
Significantly, the chairman of the NBC Board, Ikra Bilbis, has vehemently disagreed with the Acting Director General, Armstrong Aduku Idachaba, on the propriety of the new broadcast code, and the heavy sanction imposed on Nigeria Info 99.3Fm. The chairman said that due process was not followed, and warned against making the broadcast code a disincentive to private investment in the broadcast industry. He also claimed that the Minister of Information and Culture, Lai Mohammed, is obtrusively intervening in the running of NBC. Of note, the role of the minister, in the law establishing the commission is very minimal, and he cannot lawfully take over the functions of the board, as alleged.
The critics of the fine imposed on Nigeria Info 99.3 consider the fine as draconic, and this column agrees with that. But also important, is whether the statement by Obadiah Mailafa amounts to a criminal defamation, and whether the channel can be punished without the author being convicted by a court of competent jurisdiction? Further challenge is to determine what constitutes a hate speech. For instance, can a factual statement be a hate speech? No doubt, the fine imposed by the NBC would be subjected to judicial review, to determine whether NBC’s administrative adjudication followed due process.
In summary, the Nigerian court will be expected to observe the dictum of Lord Greene, in the English case of Caltona Ltd vs Commissioner of Works & ors, (1943) 2 All ER 560 at p.564, to wit: “All the courts do is to see that the power which is claimed to be exercised is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, policy, the sense or any other aspect of the transaction.”