By Henry Ojelu
Reactions have continued to trail the review of the Nigerian Broadcasting Commission, NBC, code, with lawyers saying yesterday that the commission lacks the powers to institute criminal proceedings for any offence.
The review code last week, culminated in the N5 million imposed by the commission against Nigerian Info for offering its platform for former deputy governor of the Central Bank of Nigeria, CBN, Obadiah Mailafia, to make the comments that a northern governor was one of the commanders of Boko Haram.
Reacting yesterday, Nimi Walson-Jack, Former General Secretary Nigerian Bar Association, NBA, said: ‘’The NBC Act states clearly that the NBC has no power to institute and carry on criminal proceedings for any offence, whether relating to a matter in relation to which they have functions.
“In the absence of any provision in the NBC Act, the NBC cannot make subsidiary legislation. The NBC cannot create an offence in the Broadcasting Code, wherein it is the accuser, prosecutor, judge, and executor.
‘’If the NBC’s Broadcast Code turned “Penal Code” is allowed to stand, then we would have a law that discriminates to the extent that what is hate speech and fake news on Radio and Television is not an offence in the print media world of newspapers and magazines.
“The attempt by NBC to create a non-existing offence of hate speech to strangulate free speech and free media is the exercise of impunity in the extreme.
‘’Our Constitution states in unequivocal words that “ … a person shall not be convicted of a criminal offence unless that offence is defined and the penalty, therefore, is prescribed in a written law.”
Also reacting, Gbenga Ojo, Senior Lecturer, Faculty of Law, LASU, said: ‘’Nigeria runs constitutional democracy. The barometer for measuring the legality or otherwise of an act or omission is the Constitution, which is the grundnorm, the basic law which is supreme over any other laws in the country.
‘’It guarantees freedom of expression and the press. Who determines what a hate speech is? What are the parameters for holding that a speech is hate speech? Who determines the punishment or liability?
‘’The accuser is a Judge in his own court. This is a Decree 4 of 1984 dressed in a new garment. Nigeria is gradually sliding. There are enough laws in Nigeria to deal with “hate” speech.
‘’There are laws on defamation, both civil and criminal. So, it is difficult to understand the legislative policy of this law except to silence, anybody who is critical of the government.
‘’I think the radio station should proceed to the court to challenge the imposition of the outrageous fine. Government has to be tolerant. Those managing the information of this government are not doing enough.
‘’They can do better than this to polish the image of this government. In summary, it is unconstitutional. It violates the freedom of expression and the press guaranteed by section 39(1) of the Constitution.
In his reaction, Kunle Edun, National Publicity Secretary, NBA, said: ‘’This is an unconstitutional attempt at gagging the Press. The Press as the 4th Estate of the Realm plays the constitutional role of a watchdog of our democracy in the face of increasing impunity, seemingly official policy of disobedience of court orders, sheer exhibition of rascality by some of our security agencies and unbridled corruption in government. ‘’Gagging the press by imposition of fine or increasing the fine for hate speech by more than 900% is anti-people.
“The government should be more concerned about how to address the primary causes of hate speech like the pervading poverty in the country, the senseless killings in the country by bandits, abductions of passengers in broad day light on our roads and looting of public funds by government officials.
‘’It is the failure of these core responsibilities of government that cause disaffection in the society. Expression of citizens against government’s inactions or irresponsibility cannot be termed hate speech.
‘’Government should stop looking for cosmetic solutions which only exacerbate the problems. Moreso, it is only a court of law that has the power to impose a fine, as it is a judicial function.
‘’It is, therefore, an usurpation by the Executive arm of government of the constitutional functions of the judiciary.’’
Also reacting, Evans Ufeli, Executive Director Cadrell Advocacy, said: ‘’The broadcasting industry in Nigeria is facing a huge challenge under this anti-democratic administration.
‘’Section 22 of the 1999 Constitution, as amended, empowers the media to hold government accountable to the people. The affected media house was performing its constitutional role.
‘’The N5 million fine is from a policy of the ministry of information which the Federal Executive Council authorized during the build-up to the 2019 elections as temporary measure after several attempts by the National Assembly to pass the Hate Speech Bill failed and pending the amendment of the NBC Act.
‘’This policy is not an Act of Parliament and should not be enforced against any media house. The policy or guidelines of the ministry of information is not law except the extant law empowers the ministry to make such and in this case, there is none and even if there were, it does not lie in the ministry’s power to make a law, become the judge in its own case and pass judgment against alleged offenders.
‘’It’s intolerably repulsive to put a private investment under such rigorous and arbitrary penalty arising from a mere policy that does not have the force of law. This act of recklessness sends a very wrong signal to the international community and would-be investors and this shows our democracy is weak, unguarded and oppressive.
‘’The organization under law has no obligation to pay that fine because it’s illegal to do so.’’