The Nigerian Press and Practice of Journalism Council Bill 2009 is too fundamentally flawed and cannot be rescued even with the most diligent effort and best will in the world. The problems are too many and the errors are too far reaching to be remedied.
These include: "Failure to recognize and protect the independence of journalists. Examples of this failing can be seen from the provision of Sections 9(1), 9(2), 9(3) and 9(4) of the Bill which mandates the Nigerian Union of Journalists (NUJ) to provide a code of professional and ethical conduct to guide the press and journalists in the performance of their duties and to also update it as it deems fit.
However this ethical code only becomes operational after it has been approved by the Nigerian Press and Practice of Journalism Council. The Journalism Council is also to enforce compliance and not the NUJ.
" Entrust journalism practice regulation to a statutory body set up by government and with dangerously wide discretionary powers.
Examples include the provisions of Sections 18, 19, 25, 26, 33, 34, and 75 dealing with registration of journalists, allowing for shutting down media houses within the terms of the Bill, stipulating acceptable minimum qualifications for journalism practice, regulating the process of appointing Editors and requiring the annual documentation of newspapers, magazines and journals, including in-house journals.
"Vague drafting and most of the concepts are undefined. Examples include the fact that the expression "documentation, registration and licensing" as provided in Sections 71, 74 and 75, are used interchangeably thus creating confusion in understanding how they each apply under the law.
Moreover there is no attempt to clearly define any of the three expressions in Section 79 which is the interpretation Section of the Bill.
Another example is Section 27(5) which provides for a Journalists Registration Board, whose composition; functions and processes are not stated under any Section of the Bill.
"Interferes with entrepreneurial and management decisions. Examples of these objectionable provisions include those of Sections 35 - 40 which attempt to fix by legislative fiat, the remuneration and benefits package in the media with utter disregard for the basic requirements of the contractual relationship existing between employees and employers in the media industry.
These provisions also criminalise any failure on the part of media employers, to faithfully implement this benefits package that is exclusively applicable to the media industry. Another example is the provision of Sections 33 & 34 dealing with appointment of Editors which being a preferment, is supposed to be the exclusive preserve of the management of any media establishment to determine and not that of a government agency.
"Gross violation of the fundamental rights guaranteed under the 1999 constitution. Examples include sections 18, 19, 71, 74 - 78, dealing with registration of journalists, licensing of print and electronic media houses, annual registration and documentation of newspapers and the requirement of submission of annual performance returns.
These provisions infringe on the constitutional guarantee of Freedom of Expression provided for under Section 39(2) of the 1999 constitution."Criminalises supposedly ethical infractions. Examples include the provision of Section 66 (1) (a) & (1) (b).
" Transfers to a statutory body set up by government, the primary responsibility for enforcing and maintaining journalistic ethics. This runs right through the Bill. However a few examples would suffice to illustrate this. These include the provision of Sections 3(a), 3(b), 3(e), 11, 16 and 17 of the Bill. "Conflates journalism, media proprietorship, printing and news vending for purposes of ethical regulation. Examples include the provision of Section 67 and 71 of the Bill.
" The Bill overreaches itself by attempting re-create and redefine express provisions of the constitution as contained in Section 39 of the constitution. Examples of such provisions in the Bill include those of Section 23 and the proviso to Section 66(1) of the Bill.
The Nigerian Press and Practice of Journalism Council Bill 2009 presently before the House of Representatives Committee on Information and National Orientation represents a renewed onslaught on the right to Freedom of Expression guaranteed under Section 39 of the 1999 constitution.
The Bill sponsored by a renowned erstwhile media practitioner and a ranking member of the House of Representatives representing Ikorodu Federal Constituency of Lagos State, who also doubles as the Chairperson of the House of Representatives Committee on the Diaspora, Mrs. Abike Dabiri Erewa.
It came up for second reading in the House of Representatives on Thursday, June 25, 2009 and was subsequently referred to the House Committee on Information and National Orientation, chaired by Hon. Mustapha Khabeeb, for further legislative work.
The House Committee conducted a public hearing on the Bill on Monday, October 16, 2009, which was attended by various interest groups and members of the public. These included elder statesman, first civilian Governor of Lagos State in the 2nd Republic and former Minister of Works and Housing, Alhaji Lateef Jakande, renowned former Minister of Information, Prince Tony Momoh, the current Minister of Information and Communication Prof. Dora Akunyili, the head of department of Mass Communication University of Lagos, Professor Ralph Akinfeleye, the President and Secretary General of the Nigerian Guild of Editors, Messrs Gbenga Adefaye and John Ndukauba, President of the Nigerian Union of Journalists, Comrade Mohammed Garuba, Executive Secretary of the Nigerian Press Council, Mr. Bayo Atoyebi, Immediate past Director General of the Nigerian Television Authority (NTA) Dr Tonie Iredia and Executive Secretary of the Newspapers Proprietors Association of Nigeria (NPAN), Mr. Feyi Smith, amongst others.
The House Committee, after listening to various presentations from several participants during the public hearing set up a technical committee chaired by Prince Tony Momoh and made up of the media stakeholders present at the hearing. The mandate of this technical committee is to review the content of the Bill and come up with a consensus document that would be submitted to the House Committee for their consideration, adoption and subsequent presentation to the House of Representatives for approval and passage into law.
It is hoped that the submission contained in this presentation which is being made by the team representing the Nigerian Guild of Editors (NGE) would be useful to the work of the technical committee as it embarks on its assigned task of critically reviewing the content of the Bill in question and removing all obnoxious provisions where they exist.
While we await the technical committee's report and the final decision of the House Committee on Information and National Orientation, we sincerely hope that they would err on the side of protecting the rights of Nigerians by defending the right to Freedom of Expression guaranteed by Section 39 of the Nigerian constitution, and do away with all the provisions in the Bill that constitute an affront to the protection of this constitutional right in Nigeria.
Analysis of the various typographical errors, mistakes, contentious and objectionable provisions contained in the Nigerian Press and Practice of Journalism Council Bill 2009. The Bill which, amongst other things seeks to repeal the existing Nigerian Press Council Act of 1992 contains several typographical errors and mistakes that sometimes prevent the reader from getting a clear understanding of some of its provisions.
Additionally the Bill contains a host of very contentious and obnoxious provisions that violate the constitutionally guaranteed right to Freedom of Expression and also breach Nigeria's existing obligation and commitment under international human rights laws. These would be the central focus of this part of our presentation while we would also highlight some of the various mistakes and typographical errors contained in the Bill in the latter part of this analysis.
a)As our take-off point in this analysis, it is important to highlight the fact that the Bill is in several respects a dull rehash of the provisions of the existing Nigerian Press Council Act, Cap N128, Laws of the Federation of Nigeria 2004, which is basically an amalgamation of the Nigerian Press Council Act, Cap 85, 1992 and the Nigerian Press Council (Amendment) Act, Cap 60, 1999. Consequently it would have been better off being tagged a further amendment to the existing Nigerian Press Council legislation rather than being presented as a brand new Bill as the proponent has done.
Being mostly a rehash of the existing legislation, it follows that it contains most of the controversial and intolerable provisions contained in the existing law, which have essentially hindered the effective take off of the Nigerian Press Council due to the very strong objections raised by members of the Nigerian Press Organisation (the umbrella group of the major stakeholders in the Nigerian media industry).
b) The Bill like its precursors highlighted above, is designed to muzzle the constitutionally guaranteed right of Freedom of Expression enshrined in Section 39 of the 1999 constitution, by the erroneous requirement in Sections 18 and 19 of the Bill which provides for the registration or accreditation of journalists and news agents under a framework that is to be supervised and approved by the proposed Nigerian Press and Practice of Journalism Council. The Executive Secretary of the Council is required to maintain a register of all duly accredited journalists and News Agents.
It is important to note that at the heart of what a journalist does is the exercise of the constitutionally guaranteed right to Freedom of Expression, which outside the framework allowed by the constitutional proviso to this right as stated in Section 39 (3a) & (3b), it cannot be curtailed either in the way being proposed by the proponents of this Bill or in any other way for that matter.
Consequently, these provisions are unconstitutional and as are previous attempts by the government to forcefully legislate this requirement of registration or accreditation of journalists and news agents into existence; it readily lends itself to litigation with guaranteed positive outcome by the courts, going by the decision of the Supreme Court in General Sani Abacha and others Vs. Chief Gani Fawehinmi (2000) 4 NILR 23 as well as the decision of the African Commission on Human and Peoples' Rights in Communication 297/2009 between the Independent Journalists Association of Zimbabwe, MISA_Zimbabwe and Zimbabwe Lawyers for Human Rights Vs. The Government of Zimbabwe.
c) Section 66 of the Bill provides punitive sanctions for any person not registered under Sections 18 & 19, who holds him or herself out as either a practicing journalist or a news agent. The offence attracts a fine of N5, 000 or 2 years imprisonment or both fine and imprisonment. The offender is also liable to an additional fine of N200 daily for the period for which he or she remains in violation of this provision. It should be noted that these sanctions apply where the case is decided by a High Court. When it is before a magistrate court, the punishment is N3, 000 and an additional fine of N100 for each day in which the offender remains in violation of the law.
Having established that forcefully registering journalists is a violation of the constitutionally guaranteed right to Freedom of Expression it goes without saying that these sanctions are also necessarily unconstitutional as they flow directly from the unlawful requirement of registration.
d) In Sections 71 and 74 _ 78, the Bill makes annual registration/licensing and documentation of newspapers, magazines and journals including in_house journals mandatory. This is reminiscent of the very draconian provisions of the then Newspapers Registration Board Decree No 43 of 1993 enacted by the administration of General Sani Abacha, subsequently struck down by the African Commission on Human and Peoples' Rights in Communications 105/93, 128/94, 130/94 and 152/96 between Media Rights Agenda and Constitutional Rights Project Vs. the Government of Nigeria (Supra) and thereafter repealed by the General Abdulsalami administration through the Newspapers Registration Board (Repeal) Decree No. 57 of 1999.
However due to its insincerity that same administration on the eve of its departure from office in 1999 surreptiously re_enacted these provisions as part of the Nigerian Press Council (Amendment) Act Cap 60 of 1999, which are now also rehashed in the current Nigerian Press and Practice of Journalism Council Bill, 2009.
Following the provisions of Sections 67, 68 & 71 failure to comply with this requirement of licensing, annual registration and submission of annual returns respectively attracts very strong punitive sanctions of not less than N500,000 or imprisonment for one year for both the owner and principal officers of the unlicensed news medium; N250,000 or imprisonment for three years or both fine and imprisonment for failure to register annually, and an additional fine of N5,000 for everyday that the news medium remains in breach of the annual registration requirement.
Also under the extant provisions failure to comply with the mandatory requirement of submitting annual performance returns not later than 60 days after the end of each year, attracts a penalty of N100,000 on conviction. Even where these annual returns are made, failure to deliver them is also a criminal offence that attracts a fine of N10,00 for every day that the offence subsists. To cap it all up, in relation to the applicable sanctions for unlicensed and unregistered newspapers, the Bill slams a fine of N50, 000 or a yearlong imprisonment or both, on any news agent who sells copies of un_registered newspapers, magazines and journals.
Viewed against the very clear provision of Section 39(2) of the 1999 constitution which expressly guarantees the right of every person to own, establish and operate any medium for the dissemination of information, ideas and opinions, the above stated provisions are clearly unconstitutional. This position is also reinforced by the decision of the African Commission in Communications 105/93, 128/94, 130/94 and 152/96 between Media Rights Agenda and Constitutional Rights Project Vs. the Government of Nigeria, to the effect that the provisions of the then Newspaper Registration Board Decree No. 43, which is on all fours with the current provisions of both this Bill and the Nigerian Press Council Act are a nullity for being in violation of Article 9 of the African Charter.
Moreover the Bill also clearly offends the legal principle of no double jeopardy for any individual or suspect held to have failed to comply with its provisions, in that under Section 71 it criminalises failure to comply with its mandatory licensing regime and also criminalises failure to comply with the annual registration and submission of annual returns requirement under Sections 66 & 67 respectively, which are virtually the same thing. The net effect is that for the same offence, the culprit is purnished thrice under various Sections of the Bill.
The Bill does not state the conditions or requirements for licensing and also places the determination on successful compliance with annual registration and annual returns requirement entirely at the discretion of the government through the Nigerian Press and Practice of Journalism Council Bill 2009. This clearly reinforces the suspicion of those who believe that the central objective of this Bill is to squarely place overall control of entry into the media industry and its operations under the stifling control of the government and failure to comply then attracts numerous and severe punitive sanctions.
What better way to achieve the objective of successive Nigerian governments to secure legal avenues for effectively muzzling the Nigerian media other than by bringing it under effective government control under the guise of regulation to address what it's proponent terms media excesses, inspite of the clear commitment of the media industry itself to setting up a public complaint process through its recently established media ombudsman.
e) Going by the provision of Section 2 of the Bill, with a membership of 19 people, the Journalism Council is too large, unwieldy and not evenly distributed amongst all media based interest groups and other stakeholders.
Moreover considering the wide discretionary powers of the Journalism Council, the overbearing influence and control by the President and the Minister of Information of the process of appointing members of the
Journalism Council severely undermines its independence and heightens the suspicion that it could readily become a willing tool in the hands of the government to muzzle the media.
The inequitable status of this process becomes when glaring with the provision of Section 72 (1) (a) & (1) (b) which stipulates that while government's contribution towards funding of the Journalism Council is discretionary, the contribution of members of the Nigerian Press Organisation towards the sustenance of the Journalism Council is mandatory and is to be determined by the Council itself.
Inspite of the fact that members of the NPO mandatorily contribute towards the sustenance of the Journalism Council, they are not privileged to receive the annual financial report of the Journalism Council as going by the provisions of Section 73 of the Bill, these are to be provided to the Minister of Information.
f) The Bill seeks to dabble into the realm of employer_employee relations by arbitrarily fixing by fiat the minimum wage that should be obtainable in the media industry irrespective of the operating environment for media businesses in Nigeria. Depending on the geographic spread of the news medium, this proposed benchmark wage is set at between 20% and 120% above the minimum wage applicable in either the Federal or State public service and the private sector.
It then contends that failure to pay the applicable wages determined in accordance with the provisions of the Bill is a criminal offence. This particular provision is clearly untenable and attracts too many unanswered questions. These include the fact that there is no clarity as to how this computation was arrived at?
The Bill does not provide a basis for defining what amounts to two thirds of the country with respect to determining minimum wage for certain classes of media houses, which it puts at 120% above what obtains at the Federal level. It also fails to take into cognizance the provisions of the labour laws existing in Nigeria, amongst others.
Comparative International Principles on Freedom of Expression and how they relate with the Nigerian Press and Practice of Journalism Council Bill, 2009.
Various international human rights instruments to which Nigeria is signatory and has ratified, expressly provide for the promotion and protection of the right to Freedom of Expression. These include Article 19 of the International Covenant on Civil and Political Rights which provides for the protection of the right to Freedom of Expression in the following words:
"1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
Article 19 the Universal Declaration of Human Rights similarly provides for the right to Freedom of Expression in the following terms:
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
Article 9 of the African Charter on Human and Peoples Rights, which Nigeria has ratified and domesticated as part of Nigerian law under Cap 10 Laws of the Federation of Nigeria 1990, also provides for the protection of the right to freedom of expression as follows:
"1 Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.
Pursuant to these provisions of the African Charter, the African Commission on Human and Peoples' Rights, at its 32nd Session held in Banjul, The Gambia from 17th _ 23rd October, 2002 adopted its Declaration of Principles on Freedom of Expression in Africa, which basically further espoused clear parameters required of all State parties to the Charter in so far as it relates to the promotion and protection of the right to Freedom of Expression in Africa. This Declaration of Principles, amongst other things, provides that;
"Reaffirming the fundamental importance of freedom of expression as an individual human right, as a cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms;
Reaffirming Article 9 of the African Charter on Human and Peoples Rights;
Desiring to promote the free flow of information and ideas and greater respect for freedom of expression;
Convinced that respect for freedom of expression, as well as the right of access to information held by public bodies and companies, will lead to greater public transparency and accountability, as well as to good governance and the strengthening of democracy;
Convinced that laws and customs that repress freedom of expression are a disservice to society;
Recalling that freedom of expression is a fundamental human right guaranteed by the African Charter on Human and Peoples Rights, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as well as other international documents and national constitutions;
Considering the key role of the media and other means of communication in ensuring full respect for freedom of expression, in promoting the free flow of information and ideas, in assisting people to make informed decisions and in facilitating and strengthening democracy;
Noting the important contribution that can be made to the realisation of the right to freedom of expression by new information and communication technologies;
Mindful of the evolving human rights and human development environment in Africa, especially in light of the adoption of the Protocol to the African Charter on Human and Peoples Rights on the establishment of an African Court on Human and Peoples Rights, the principles of the Constitutive Act of the African Union, 2000, as well as the significance of the human rights and good governance provisions in the New Partnership for Africa Development (NEPAD); and
Recognising the need to ensure the right to freedom of expression in Africa, the African Commission on Human and Peoples Rights declares that:
I. The Guarantee of Freedom of Expression
1. Freedom of expression and information, including the right to seek, receive and impart information and ideas, either orally, in writing or in print, in the form of art, or through any other form of communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy.
2. Everyone shall have an equal opportunity to exercise the right to freedom of expression and to access information without discrimination.
II Interference with Freedom of Expression
1. No one shall be subject to arbitrary interference with his or her freedom of expression.
2. Any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary and in a democratic society.
VIII Print Media
1. Any registration system for the print media shall not impose substantive restrictions on the right to freedom of expression.
1. A public complaints system for print or broadcasting should be available in accordance with the following principles:
" complaints shall be determined in accordance with established rules and codes of conduct agreed between all stakeholders; and
" the complaints system shall be widely accessible.
2. Any regulatory body established to hear complaints about media content, including media councils, shall be protected against political, economic or any other undue interference. Its powers shall be administrative in nature and it shall not seek to usurp the role of the courts.
3. Effective self_regulation is the best system for promoting high standards in the media.
X Promoting Professionalism
1. Media practitioners shall be free to organise themselves into unions and associations.
2. The right to express oneself through the media by practising journalism shall not be subject to undue legal restrictions.
XIII Criminal Measures
1. States shall review all criminal restrictions on content to ensure that they serve a legitimate interest in a democratic society.
2. Freedom of expression should not be restricted on public order or national security grounds unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression."
Various aspects of this Declaration of Principles on Freedom of Expression in Africa touch on several of the contentious provisions in the Nigerian Press and Practice of Journalism Council Bill, 2009 which needs to be reviewed to bring it in conformity with Nigeria's treaty obligations under the African Charter on Human and Peoples' Rights.
The importance of doing so was also restated by the Nigerian Supreme Court in the celebrated case of General Sani Abacha and Others vs. Chief Gani Fawehinmi (2000) 4 NILR 23, wherein the court stated that the African Charter as encapsulated in Cap 10 Laws of the Federation of Nigeria, 1990 being a statute with international flavour is superior to other municipal laws and would prevail in cases of conflict between its provisions and those of other municipal laws, for the simple reason that the legislature does not intend to breach Nigeria's international obligation. The Court concluded that the African Charter, as enshrined in Cap 10 of the Laws of the Federation 1990, possesses "a greater vigour and strength than any other domestic law."
As would be shown in our later analysis, a juxtaposition of the provisions of the Nigerian Press and Practice of Journalism Council Bill, 2009 against this decision of the Supreme court, taken alongside this declaration of principles clearly show that the provisions of this Bill fail to meet the minimum acceptable benchmarks for the protection of the right to Freedom of Expression, and at the minimum constitute a flagrant disregard cum violation of this right as protected by both the African Charter on Human and Peoples' Rights and other international human rights instruments as well as the provisions of Section 39 of the Nigerian constitution of 1999.
Consequently, it is our hope that the Parliamentarians would avert their minds to this decision of the Supreme Court and various provisions of the international human rights instruments referred to above, when considering the contents of the Nigerian Press and Practice of Journalism Council Bill, 2009, so as to ensure Nigeria's adherence to its international human rights obligations.
To further buttress the point of the incompatibility of the provisions of this Bill such as the requirement of the registration of journalists and media practitioners as well as the very essence of a statutory press council, with Nigeria's existing international human rights obligations under the African Charter on Human and Peoples' Rights, reference is made to decision of the African Commission in Communication 297/2009 between the Independent Journalists Association of Zimbabwe, MISA_Zimbabwe and Zimbabwe Lawyers for Human Rights Vs. The Government of Zimbabwe that such provisions existing in any municipal law violated the right to Freedom of Expression protected under Article 9 of the African Charter.
In the said Communication, the complainants challenged the provisions of Section 79 and 80 of the Access to Information and Protection of Privacy Act (AIPPA) 2002 dealing with the compulsory accreditation of journalists and the optional accreditation of part time or freelance journalists, issues of abuse of journalistic privileges in relation to publication of falsehoods and injurious statements and the Commission, held that these provisions violated the terms of the African Charter.
The complainants challenged the constitutionality of the requirements compelling journalists to be accredited, criminalisation of offences relating to abuse of journalistic privileges and statutory regulation of the profession through the now defunct Media and Information Commission and the complainants contended that these aspects of the Act were incompatible with the provisions of Article 9 of the African Charter.
In its defence, the Zimbabwean government argued that the provisions in question did not violate Article 9 of the Charter, as there was nothing prejudicial about the registration and accreditation of journalists. They also argued that the process of accreditation was not onerous, that the right to freedom of expression was not absolute, and that the practice of journalism did not place it beyond statutory regulation.
The Commission, however, ruled and recommended that:
Section 79 and 80 of AIPPA should be repealed
" The offence relating to accreditation and the practice of journalism should be decriminalised
" AIPPA should be reformed to conform with Article 9 of the African Charter and other international human rights instruments
" The government should adopt legislation that provides a framework for self _regulation by journalists
The Commission also held that compulsory accreditation of journalists is deemed at both national and international levels to be a hindrance to the effective enjoyment of the right to freedom of expression.
Compulsory licensing or accreditation also amounted to a restriction on the freedom to practice the journalistic profession and aims to control rather than regulate the profession. The Commission further observed that registration should be for the betterment of the welfare of journalists and that the provisions of AIPPA were inconsistent with this objective owing to the onerous requirements imposed.
The Commission made extensive reference to the provisions of other international instruments on Freedom of Expression. Reference was made to Article 10(2) of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights, as well as the Declaration of Principles on Freedom of Expression in Africa.
On that basis the ACHPR ruled that any restriction of Freedom of Expression should be provided for by law and must serve a legitimate interest and be necessary in a democratic society. The restrictions imposed by AIPPA did not fall within the realm of this basic spectrum.
The Commission noted that a regulatory body such as the now defunct Media Information Commission whose regulations were drawn up by government cannot be said to be self_ regulatory. "Any act of establishing a regulatory body by law brings the body under the control of the state, hence the need to have a legislative framework that provides for self_ regulation by journalists," observed the Commission.
Similarly the African Commission in Communications 105/93, 128/94, 130/94 and 152/96 between Media Rights Agenda and Constitutional Rights Project Vs. the Government of Nigeria, held inter alia that the Newspapers Registration Board Decree No. 43 of 1993 which is in tandem with certain provisions of the Nigerian Press and Practice of Journalism Council Bill 2009, relating to the registration/licensing and documentation of newspapers, magazines and journals including in-house journals (specifically Sections 71, 74 to 78) was a violation of the right to Freedom of Expression protected by Article 9 of the African Charter. The said Newspapers Registration Board Decree required the registration of newspapers and made failure to do so purnishable by a fine of N250,000 or 7 years imprisonment or both.
In its decision the Commission stated that considering the enormity of the powers of the Newspapers Registration Board, the provisions of the Decree N0 43 of 1993 was an invitation to censorship and seriously endangered the right to freedom of expression as protected by Article 9(1) of the Charter and requested the Nigerian government to take necessary steps towards bringing its laws into conformity with the provisions of the Charter.
It was on the basis of this decision that the then government of General Abdulsalami Abubakar repealed vide the Newspapers Registration Board (Repeal) Decree No. 57 of 1999 the Newspaper Registration Board Decree No. 43 of 1993.
However the insincerity of the administration came to the fore on the eve of its departure from office, when it smuggled the provisions of the Decree No. 43 back into Nigeria's legal regime, through the Nigerian Press Council (Amendment) Decree No 60 of 1999, the provisions of which remain part of the current Nigerian Press Council Act and the proposed Nigerian Press and Practice of Journalism Council Bill, 2009.
The Nigerian Constitution of 1999 and the Protection of Freedom of Expression.
Section 39 of the Nigerian constitution 1999 provides thus;
"(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:
Provided that no person, other than the Government of the Federation or of a State or any other person or body authorised by the President on the fulfillment 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 whatsoever.
(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society _
(a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or
(b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.
A review of the above clearly shows the far reaching breadth of the constitutional protection of the right to Freedom of Expression in Nigeria. It is therefore our contention that at the heart of the practice of journalism is the right to Freedom of Expression ably protected by the constitution, and with the Constitution being the supreme law of the land, this right cannot be derogated from or curtailed by any subsequent legislation as the substantive Nigerian Press Council Act, 1992 does and as the current Nigerian Press and Practice of Journalism Council Bill seeks to do in several of its provisions.
Moreover the wording of Section 39(2) on the right to own, establish and operate any medium for the dissemination of information, ideas and opinion, in so far as it relates to the print media is very clear and unambiguous, bringing into question the legal basis for the suggested provisions in the Nigerian Press and Practice of Journalism Bill, particularly when they do not even fall within any of the exemptions contemplated under Section 39 (3) (a) & (3) (b).
It is our suggestion that provisions of this Bill should be carefully weighed against the foregoing analysis and the various contentious provisions removed to bring it in line with the existing provisions of the constitution as well as Nigeria's international human rights obligations, otherwise the legislation would be dead on arrival and would suffer a fate worse than its precursors.