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ECOWAS Court condemns NBC Code, says it violates free speech

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The ECOWAS Court of Justice has, on Monday, October 23, 2023, condemned the Nigerian Broadcasting Corporation (NBC) Code, saying it violates free speech, which is a fundamental human right.

This was contained in a Judgment of the ECOWAS Court in a landmark case: The Incorporated Trustees of Expression Now Human Rights Initiative, a Non-Governmental Organization, against the Federal Republic of Nigeria, conducted by Barrister Solomon Okedara, the Applicant’s Counsel.

The Court delivered a judgment in the with application no: ECW/CCJ/APP/35/40 before it alleging the violation of various human rights enshrined in fundamental human rights law, particularly the freedom of expression by the Federal Republic of Nigeria.

In the judgement, the regional court declared that the Nigerian government violated free speech with the NBC Code.

The court ordered the Nigerian government to amend the code to align with its obligations under the African Charter.

The court further ordered that until such an aligning amendment, the Nigerian government should cease from giving effect to the Code.

In a most remarkable way, the court ordered the Nigerian government to give a report of compliance to the court within 6 months of the notification of the judgment.

The Applicants, focused on protecting Nigerian citizens’ freedom of expression both offline and online, collaborates with bloggers and journalists.

The Incorporated Trustees of Expression Now Human Rights Initiative argued that the Nigeria Broadcasting Code, a federal law, restricts freedom of expression through specific provisions (Articles 3 (1) (1), 3 (1) (2), and Amendment Article 15 (5) (1)).

It alleged that these provisions infringe upon their freedom of expression rights, as well as those of their agents and collaborators, and seeks court declarations and orders.

The Respondent, the Federal Republic of Nigeria, denied violating the Applicant’s freedom of expression and emphasised its duty to protect citizens’ rights.

The Nigerian Government argued that the Code aims to promote local content, prevent monopolistic practices, and boost advertising revenue for local broadcasters and content producers.

The Respondent stated that the National Broadcasting Commission can penalise stations for broadcasting content that incites hate or public disorder.

It denied using the Code to stifle freedom of expression or harass the Applicant and seeks court declarations, including dismissing the suit for lack of merit.

By its judgment of 23 October 2023, after acknowledging its jurisdiction and declaring the application admissible, the Court ruled that 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) contravenes Article 9 (1) & (2) of the African Charter on human and Peoples’ Rights (ACHPR).

Consequently, it ordered the Respondent to align 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) with its international obligations.

In addition, it ordered that the Respondent ceases to give effect to 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) until it has aligned same as ordered.

The panel of judges who heard the case composed of Dupe Atoki, presiding, Sengu Mohamed Koroma, judge rapporteur, and Ricardo Cláudio Monteiro Gonçalves, member, dismissed all other claims by the Applicants.

The court, meanwhile, awarded costs against Nigerian government to be calculated by the Chief Registrar of the court. 

 Counsel to the Applicant in the suit, Solomon Okedara lauded the well-considered judgment and described it as marking the new dawn of media freedom in Nigeria and the rest of the ECOWAS region, particularly, at a time when media freedom is under severe attacks in most emerging democracies around the world.

Okedara stressed that journalists and media houses should be free to do their jobs without fear of sanctions including fines and revocation of broadcasting licenses. Read more.

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