Election coverage: SERAP wants court to stop Buhari, others from shutting down broadcast stations

Socio-Economic Rights and Accountability Project (SERAP) has filed a lawsuit against President Muhammadu Buhari and the National Broadcasting Commission (NBC) for “the arbitrary use of the NBC Act and broadcasting code to sanction and threaten to revoke the licences of broadcast stations in the country and shut them down over their legitimate coverage of the 2023 general elections.”

Joined in the suit as Defendant is Mr Lai Mohammed, Minister of Information and Culture.

The NBC had last week reportedly sanctioned 25 broadcast stations and issued ‘final warnings’ to 16 others for allegedly violating provisions of the Nigeria Broadcasting Code during the February 25, 2023 Presidential and National Assembly elections.

But in the suit number FHC/L/CS/469/2023 filed last Friday at the Federal High Court, Lagos, SERAP is asking the court to determine “whether the broadcasting code used by the NBC to sanction some broadcast stations and threaten to shut down others is not in inconsistent and incompatible with freedom of expression, access to information and media freedom.”

SERAP is asking the court for “a declaration that the sanctioning of some broadcast stations and threat by the NBC to revoke the licences and shut down other stations for their lawful coverage of the general elections is unconstitutional and unlawful, as it violates freedom of expression, access to information and media freedom.”

SERAP is seeking “an order of interim injunction restraining President Buhari, the NBC and Mr Mohammed from threatening and sanctioning broadcast stations in the country simply for carrying out their constitutional duties, pending the hearing and determination of the motion on notice filed contemporaneously in this suit.”

In the suit, SERAP is arguing that, “It is a travesty of justice to punish and threaten broadcast stations seeking to promote election integrity and citizens’ engagement and participation, while allowing perpetrators of electoral violence and grave human rights violations escape accountability for their alleged crimes.”

According to SERAP, “Rather than promptly investigating allegations of election-related violence and other infractions of the Electoral Act and the Nigerian Constitution, and going after suspected perpetrators, the Nigerian government is scapegoating the media by targeting and punishing broadcast stations.”

SERAP is also arguing that, “the use of NBC Act and Code in this case would open the door to arbitrariness and fundamentally restrict freedom of expression that is an integral part of the public order protected by the Nigerian Constitution and human rights treaties to which Nigeria is a state party.”

The suit filed on behalf of SERAP by its lawyers Kolawole Oluwadare, Ms Adelanke Aremo, and Ms Valentina Adegoke, read in part, “The media plays an essential role as a vehicle or instrument for the exercise of freedom of expression and information in a democratic society.”

“The NBC legislation and codes do not confer unfettered discretion for the restriction of freedom of expression and media freedom on those charged with their implementation.

“The sanctioning of some broadcast stations and threat by the NBC to revoke the licences of others and shut them down is neither necessary nor proportionate, as it would unduly intrude upon Nigerians’ right to freedom of expression, access to information, and media freedom.

“The use of vague and undefined phrases such as ‘unpatriotic individuals’ ‘subversive, hateful, and inciting utterances, particularly post-election,’ as grounds to sanction and threaten to broadcast stations is inconsistent and incompatible with human rights requirements.

“The Nigerian Constitution and human rights treaties impose legal obligations on the Nigerian government to refrain from imposing restrictions which are not consistent with human rights requirements, including on discussion of political and election-related issues.

“It is also inconsistent with constitutional and international human rights requirements to sanction and threaten broadcast stations solely for their coverage of the issues around the general elections on the basis of vague phrases such as ‘unguarded statements,’ and ‘negative conversations’ used by the NBC.

“The sanction and threat also represent a serious hindrance to the exercise of journalism, media diversity and independence, media freedom, and participation.

“Media coverage of the general elections and post-election matters, and media freedom are closely connected, as access to information is an essential requirement for the realization of the rights to freedom of expression and participation.

“Similarly, the phrases used by the NBC lack sufficient clarity and can be arbitrarily or discriminatorily applied and enforced.

“The sanction, ‘last warning’ and threat by the NBC would seem not to meet the strict requirements of the Nigerian Constitution and the country’s international human rights obligations.  In particular, it is unclear the scope or object of what these wordings seek to prohibit.

“Under the constitutional and international requirement of legality, it is not enough that restrictions on freedom of expression, access to information and media freedom are formally stated in press releases and regulations.

“The requirement of legality also serves to define the scope of legal discretion conferred on implementing authorities in order to provide adequate protection against arbitrary implementation.”

SERAP is therefore asking the court for the following reliefs:

• A DECLARATION that the use of the NBC broadcasting code to sanction some broadcast stations and threaten to revoke the licences of others and shut them down for covering the general elections is a violation of the rights to freedom of expression, access to information and media freedom.
• A DECLARATION that the sanction of some broadcast stations and threat to revoke the licences of others and shut them down for simply carrying out their legitimate duties of covering the general elections is a violation of the right to fair hearing as provided for under the Nigerian Constitution 1999 (as amended) and human rights treaties which Nigeria has ratified.
• A DECLARATION that the arbitrary action by NBC to sanction some broadcast stations and threaten to revoke the licences of others and shut them down for covering the general elections is a violation of section 39 of the Nigerian Constitution 1999 [as amended], and Article 9 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
• AN ORDER compelling President Buhari to direct the NBC and Mr Mohammed to withdraw the sanction and threat against broadcast stations and to comply with the provisions of section 39 of the Nigerian Constitution, and Article 9 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
• AN ORDER OF PERPETUAL INJUNCTION restraining President Buhari, the NBC, and Mr Muhammed whether jointly or severally or any other authority, person or group of persons from unilaterally sanctioning and threatening to revoke the licences of any broadcast stations and shutting down the stations on the grounds of covering the 2023 general elections.

No date has been fixed for the hearing of the suit.