Nigeria: Assaulting Press Freedom in the Name of Regulation

editorial

Our concern in this regard is that if allowed, the proposed amendments to the NBC, NPC and Electoral Acts would ... end up strangulating the media for a number of reasons.

Hon. Olusegun Odebunmi, the sponsor of the bills before the House of Representatives for the amendment of the National Broadcasting Act (2010), otherwise referred to as the NBC Act and the Nigerian Press Council Act (1992) has maintained that his actions are independent of any vested interest, with repeated claims that it is driven by the need to regulate what he considers an unregulated media.

Mr Odebunmi, who is the Chairman of the House Committee on Information, National Orientation, Ethics and Values, however belongs to the ruling All Progressives Congress (APC) and we should therefore situate his denial within the context of the message of a Yoruba proverb that should strike a chord here: "The water skater does not just dance on the surface of the water, there is something beneath the depth that drums for it."

PREMIUM TIMES is of the opinion that the under-sea drumbeat propelling the macabre dance around attempts at legislative curtailment of press freedom in Nigeria is the Buhari government's seeming genetic abhorrence of media independence and, certainly, high voltage intolerance of freedom of expression, especially of the critical and dissenting type.

It is difficult to hazard any other guess for the introduction of the two bills in question. The same can be said for the proposed amendment to section 95 of the Electoral Act Amendment bill, relating to sanctions against media institutions and journalists not giving equitable coverage to parties and candidates in elections, and the earlier bills on the establishment of a National Hate Speech Commission and Protection from Internet Falsehood (otherwise called the Social Media Bill).

Any doubt about the motive behind these legislations should have now been cleared, with the NBC's latest martial order restraining the broadcast media from reporting the activities of insurgents and terrorists, while specifically warning against the way and manner newspapers are reviewed on air.

NBC's latest barrack-bellow reminds us of the proverbial witch that cried a day before the child died. Nigerian newspapers had on Monday, July 13 collectively devoted their front pages to protesting the attack on press freedom and the right of the people to know, under the instructive banner - 'Information Black Out'. It is in the nature and character of this government to see such protest as an affront that deserves some 'punishment'. The aftermath is the attempt to stop newspaper reviews by the broadcast media, which is being pursued.

However, the newspapers are right. If we add the subsisting suspension of Twitter in Nigeria, then the battle at hand is to forestall the imposition of an information black out on the nation, since it would jeopardise the right of citizens to know and hamstring the media in the performance of its constitutional obligation to monitor governance and hold the government accountable to the people, as well spelt out in Section 22 of the 1999 Constitution.

The issue therefore is not, has never been, and can never be about whether the media should be regulated, but how it should be regulated without the regulation constituting an obstacle to its capacity to serve as the society's watchdog. Our concern in this regard is that if allowed, the proposed amendments to the NBC, NPC and Electoral Acts would constitute such obstacle and end up strangulating the media for a number of reasons.

The most glaring anomaly in the proposed amendments to the NBC and NPC Acts is that they preserve their lack of independence by not removing them from the apron strings of the Minister of Information and the President. This is so because the boards (which in the case of the NPC is described as merely advisory) shall continue to be appointed by the President on the recommendation of the Minister of Information, without confirmation by the Senate, as it obtains with other regulatory agencies like the Nigerian Communications Commission (NCC). This in itself represents an undermining of the constitutional oversight responsibility that the National Assembly is saddled with by virtue of section 88 of the Constitution.

But the reason for this lack of independence and the retention of boards that would be dominated by government nominees is obvious. It is to ensure that with the snap of executive fingers, they could take arbitrary measures against media outlets and journalists for alleged ethical infractions.

Thus, a new sub-section (n) in Section 2 (FUNCTIONS OF THE COMMISSION) of the National Broadcasting Act says the NBC can "determine and apply sanctions (including where justified in the public interest) revocation of licenses of defaulting stations following findings of repeatedly material non-compliance with this Act, their license condition, or applicable provisions of the NBC CODE, which do not operate in accordance with the broadcast code and in public interest." The reference to public interest here can only be a disguised government or executive interest; otherwise, if any institution is to define the public interest, it shouldn't be an unelected body. But more fundamental is the fact that a station might actually not commit an offence but still be sanctioned if the NBC deems it in the public interest.

Similarly, the NPC Act amendment bill in section 3 (d) states that the Council can "approve penalties and fines against violation of the Press Code by print media houses and media practitioners, including revocation of license", while 3 (e) says that it shall "receive, process, and consider applications for the establishment, ownership and operation of print media and other related media houses", in clear violation of section 39 of the Constitution, which guarantees the right to own the media as an extension of the right to freedom of expression.

The worst assault on freedom of the press is actually contained in 3 (c), which states that the Council shall "with the approval of the Minister in charge of Information establish and disseminate a national Press Code and standards to guide conduct of print media, related media houses and media practitioners." To add insult to the press freedom injury, Section 9 (Code of Conduct) further provides in 9 (1) that: "The Council shall establish a National Press and Ethical Code of conduct for media houses and media practitioners, which shall come into effect and be disseminated after the approval by the Minister."

It is indeed an amusing tragedy that the sponsor of this bill does not see anything wrong in turning the entire Nigerian print media into a department or unit in the office of the Minister of Information.

It is more tragic that the penalties for alleged infraction, as contained in the two amendment bills and section 95 of the Electoral Act Amendment bill, range from hefty fines (five million naira to ten million naira) to jail terms of up to three years, in a brazen attempt to criminalise journalism. As a matter of fact, these provisions clearly breach the legal principles established by the Court of Appeal in the case of NOSDRA (National Oil Spill Detection and Response Agency) and Mobil Producing Nigeria Unlimited (2018) LPELR-44210 (CA), where it held that "the imposition of fines by NOSDRA was contrary to its powers on the basis that penalties or fines are imposed as punishment for an offence or violation of the law and the power as well as competence to establish that an offence has been committed belongs to the courts and not a regulatory agency."

With these and many other objectionable provisions of the NBC and NPC Acts amendment bills, PREMIUM TIMES hereby calls for their total withdrawal and not their mere suspension, as Mr Odebunmi has announced, to pave the way for proper national dialogue on the best mechanisms to regulate the media, the necessity of which cannot be denied at a time when fake news and hate speech pose major threats to the dissemination of truthful information.

As leading media and human rights organisations submitted in their memorandum to the House Committee on Information at its public hearing on the two amendment bills on June 17, what the National Assembly should borrow from are international best practises that lean towards "peer regulation, constitutionally guaranteed freedom of the press, and the expunging from statute all laws that criminalise freedom of expression." According to the International Press Centre (IPC), the Media Rights Agenda (MRA), the Centre for Media Law and Advocacy (CMLA) and the Premium Times Centre for Investigative Journalism (PTCIJ), the above is the line that countries like Ghana, South Africa and Sierra Leone have toed.

PREMIUM TIMES endorses their position and charges the National Assembly to seize the opportunity of the ongoing constitutional amendment to provide for the constitutional guarantee of freedom of the press and constitutional stipulation of the responsibility of the media in Nigeria. Under the envisaged statute-bound framework, media regulatory bodies would be creations of the Constitution, with the composition of their boards subject to the confirmation of the National Assembly, to give citizens the opportunity to object to nominees who might have questionable antecedents. Apart from the representatives of media professional bodies, associations, support groups and training institutions, the boards should also comprise the nominees of the National Assembly, the Bar Association, women, youth and people living with disability groups, and the Minister of Information.

To further guarantee their independence, the funding of the regulatory bodies should come from the first line charge via appropriation by the National Assembly.

Without prejudice to all the above, we urge the Nigeria Union of Journalists, the Nigerian Guild of Editors, the Radio Television Theatre and Arts Workers Union of Nigeria, the Newspaper Proprietors Association of Nigeria, and the Broadcasting Organisations of Nigeria to reassess their self-regulatory mechanisms so that institutional codes such as the Code of Ethics of Journalists in Nigeria can be widely disseminated and enforced.

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