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ECOWAS Court: NBC Code Infringes on Freedom of Expression

The Economic Community of West African States (ECOWAS) Court, based in Abuja, has recently issued a judgment declaring that the Nigerian Broadcasting Code, employed by the National Broadcasting Commission (NBC) to enforce sanctions and fines on broadcast stations, is in violation of freedom of expression. This landmark decision was announced on October 23 in response to a lawsuit filed by the Expression Now Human Rights Initiative, a non-governmental organization, against the Federal Republic of Nigeria.

In the ruling, the ECOWAS court emphasized that the Nigerian government has fallen short of aligning its domestic legislation with international obligations concerning freedom of expression. The applicant challenged the use of the NBC Code by the government, arguing that it allowed for arbitrary sanctions and fines against broadcast stations. Justice Dupe Atoki, presiding over the case, underscored the importance of member states aligning their laws with international guarantees and obligations, such as those outlined in the African Charter on Human and People’s Rights.

The specific articles contested by the applicant were Articles 3(1)(1), 3(1)(2), 15(2)(1) of the Nigeria Broadcasting Code (6th Edition), and Article 15(5)(1) of the Amendments to the Nigeria Broadcasting Code (6th Edition), which were claimed to contravene the principle of freedom of expression.

The court’s judgment highlighted that Article 3(1)(1) of the Code is overly broad, violating the provisions of Article 9(1) and (2) of the African Charter on Human and People’s Rights. Additionally, the court found that the language in Article 3(1)(2) of the Code is ambiguous and vague, potentially leading to the curtailment of the right to freedom of expression.

As a result of the ruling, the ECOWAS court has ordered the Nigerian government to align the specified articles of the Nigeria Broadcasting Code with its obligations under Article 1 of the African Charter on Human and People’s Rights. It further directed the government to cease implementing the contested provisions until alignment has been completed as per the court’s instructions.

It is noteworthy that in May 2023, the Nigerian Guild of Editors commended the Federal High Court in Abuja for issuing a perpetual injunction restraining the National Broadcasting Commission from imposing fines on broadcast stations. In that judgment, Justice James Omotosho asserted that the NBC, not being a court of law, lacked the authority to impose sanctions as punishment on broadcast stations.

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