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STATUTORY BROADCAST MEDIA REGULATION: NOT A CRACKDOWN

by
Ejike-Ume Felix Ifeanyi
The media constitutes a veritable tool for disseminating information, educating and informing
people. They cut across radio, television, newspaper, internet and other information and
communication means.
They are also powerful tools that can be exploited in creating emotional feelings among
members of the public by exaggerating the happenings and giving sensational, inciting or
inflammatory account of events. This is the reason why the media should be properly
constituted by professionals who are well trained, experienced and possess the proper ethics
for practising the profession. This precaution helps to forestall the disintegration or
degeneration of societal order resulting in anarchy or a situation that Thomas Hobbes referred
to as "nasty, brutish and short".
The most notorious example of the consequences that emanates from the misuse of the media
comes from the Rwandan April 1994 genocide. The United Nations International Criminal
Tribunal for Rwanda (ICTR) found two journalists (Ferdinand Nahimana and Jean-Bosco
Barayagwiza) and a print journalist (Hassan Ngeze) guilty of inciting the genocide.
Another Rwandan journalist (Valerie Bemeriki) who encouraged Hutus to slaughter Tutsis
during the 1994 genocide was also jailed for life. During her trial, she admitted to inciting
violence. In one of her broadcasts, she told her listeners: "Do not kill those cockroaches with
a bullet - cut them to pieces with a machete." All these were long after the Nuremberg
conviction and execution of Julius Streicher for his dastard media role during the Second
World War.
Inflammatory broadcasts have highly contributed in provoking wars in the Balkans in the
1990s, also in the Democratic Republic of Congo and Burundi. Inflammatory broadcasts or
hate speech which is likely to incite people to violence is one of the most difficult and
sensitive issues about regulation of content.
Regulation of broadcast content becomes an uphill task or a bigger issue during election
periods which requires thorough monitoring of all election-related output of the broadcast
media. In some climes, this is done by an election administration; a statutory broadcast
regulator; a non-governmental organisation or academic institutions given the mandate to
perform such duties and responsibilities. This is strategically done with an effective
monitoring, complaints and enforcement mechanism to ensure a level playing field for all
political candidates and to promote fair access to all political parties.
There is no doubt that a completely unregulated broadcasting environment would be
disastrous no matter how advanced or developed a country might be. It is worse where a
country is a multi-ethnic and multi-religious society. In such climes, there are persistent fears
of dominance by one political party or one ethnic group or a particular religious group, which
can influence people or politicians into making inflammatory, defamatory or inciting
statements in order to achieve whatever nefarious objectives.
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The irresponsible use of the media poses a great danger during democratic transitions. They
are sometimes used to perpetrate violence through racist, increasingly negative rhetoric,
inflammatory and irresponsible statements on radio and television by politicians as election
approaches. This can lead to the desperate manipulation of an election by unscrupulous
politicians in order to heat up the polity, cause violence, terrorism, insurgency, insurrection
etc. This is similar to what happened during the Kenyan post-election violence in 2007.
Notwithstanding the foregoing analysis, the press remains instrumental in the entrenchment
and deepening of democracy, human rights, rule of law and good governance in most
countries of the world. However, there is still a gaping difference between freedom of the
press and freedom of the owners of the press.
The press may be adjudged or seen to be free but it is always tied to the apron strings of its
owners. As we know it, he who pays the piper calls the tune. Sometimes, certain political
matters are exacerbated by owners of the press in order to heat up the polity or incite
members of the public into violence or even to ultimately cause the take-over of a
democratically elected government through unconstitutional means. In that light, this does
not deepen democracy but merely destroys it.
In Nigeria, section 22 of the 1999 Constitution highlights the obligations of the mass media
as having freedom to uphold at all times the fundamental objectives contained in Chapter 2 of
the Constitution and the responsibility and accountability of the Government to the people.
However, this Chapter is widely known through legal precedents to be not justiciable. Thus,
you cannot institute a legal action against the Government for its failure to provide you with
the basic amenities or services contained in that Chapter 2 of the Constitution but you can use
such weapon against them when they campaign for re-election by not voting for them. In that
light, the press acts like the fourth arm of government or as a watchdog.
Again the 1999 Constitution in section 39 guarantees the right to freedom of expression and
the press. However, subsection (3) recognises the existence of certain laws in a democratic
society that regulates inter alia "...telephony, wireless broadcasting, television or the
exhibition of cinematograph films." This is an incorporative provision that recognises the
need to regulate certain sensitive sectors of the economy that pertain to or reasonably possess
the likelihood of affecting National Security, defence, public safety, public order, public
morality or public health and for the purpose of protecting the rights and freedom of other
persons.
Recently, a Nigerian drama film Half of a Yellow Sun was not granted approval by the
National Film and Video Censors Board (NFVCB) to premiere in Nigeria because its
background story was on the Nigerian Civil War and some contents considered inappropriate
for general public consumption. The country is in an election period that comes with its pre-
packaged shades and vile possibilities. It is currently facing some security challenges in terms
of religious fanaticism, political radicalism, militancy, insurgency and virulent terrorism
which have resulted in the deaths of thousands of innocent citizens whose right to life are also
guaranteed in the Constitution. The hue and cry from certain persons cannot deter an
authority from carrying out its duties in the interest of National security, public safety, public
order and the maintenance of National unity. The said movie has been cleared/approved by
the NFVCB as at the time of publishing this work.
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The 1999 Constitution may have guaranteed freedom of the press in its section 39 but such
right is not an absolute one. Section 45 of the 1999 Constitution derogates from such right
and provides the legal fulcrum upon which a law can be made in a democratic society to
regulate not the practise of the press profession but to ensure that a balance is maintained in
its activities "in the interest of defence, public safety, public order, public morality, public
health or for the purpose of protecting the rights and freedom of other persons."
In the same vein, the National Broadcasting Commission Act grants certain powers to the
Commission in Section 2 to inter alia exercise the responsibility of regulating and
controlling the broadcasting industry; upholding the principles of equity and fairness in
broadcasting; establishing and disseminating a national broadcasting code and setting
standards with regard to the contents and quality of materials for broadcast." The
Commission tries to maintain a balance through the Code by ensuring that defamatory,
inflammatory and other inappropriate content are not broadcast.
The Nigeria Broadcasting Code is an industry self-regulation document. The Code in its
Clause 1.5 grants the broadcaster an "absolute" responsibility in scheduling its programme
but must be done in accordance with its editorial standards taking into consideration the
diversity in faith, cultural and moral sensitivities of the audience. However, Clause 1.5.1 still
puts a responsibility on the same broadcaster to submit to the Commission its quarterly
programmes schedule and synopsis of new or repackaged programmes not less than one week
before the beginning of the quarter.
The question is, what happens when a broadcaster after complying with the provision in 1.5.1
decides to introduce some live interview programmes outside an already packaged schedule?
Does the broadcaster owe the Commission a corresponding duty and responsibility to be
notified about the change? Does it amount to arbitrariness for the Commission to demand for
such notification as provided for in the Code?
The submission of schedule to a regulator is standard practice in most developed countries. It
is neither an inhibition nor infringement of press freedom but a means of checks and
balances. Most international conventions and charters that provide for freedom of the press
also contain provisions that recognise the need for the protection of the rights of others. For
instance, Article 19(2) of the International Covenant on Civil and Political Rights grants
right to freedom of expression but provides in its Article 19(3) that "the exercise of the rights
provided for in paragraph 2 of this Article carries with it certain special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such
as provided by law and are necessary for respect of the rights or reputation of others and for
the protection of National Security or public order or of public health or morals."
Article 19 of the Universal Declaration of Human Rights states that "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 29(2) states that "In the exercise of these rights and
freedoms, everyone shall be subject only to such limitations as are determined by law solely
for the purpose of securing due recognition and respect for the rights and freedoms of others
and of meeting the just requirements of morality, public order and the general welfare in a
democratic society."
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The African Charter on Human and Peoples' Rights grants right to freedom of expression
in Article 9 as follows: "Every individual shall have the right to express and disseminate his
opinions within the law. However, Article 27 states that "The rights and freedoms of each
individual shall be exercised with due regard to the rights of others, collective security,
morality and common interest."

It is most disappointing that some advocates for press freedom seem to forget that such
freedom ends where the right to privacy and dignity of other individuals begins. There is no
doubt that the press is instrumental to the entrenchment of democracy, human rights, rule of
law and good governance in most countries. However, it is not an absolute right that must be
used as a weapon against other individuals whose rights are also guaranteed by the
Constitution.

It is more serious when it threatens National security. The Supreme Court of Nigeria held in
the case of Alhaji Mujahid Dokubo Asari v. Federal Republic of Nigeria that "...where
National security is threatened or there is real likelihood of its being threatened, human rights
or individual rights of those responsible take second place. Human right or individual rights
must be suspended until the National security can be protected or well taken care of. This is
not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and
indissoluble sovereign Nation is certainly greater than any citizen's liberty or right. Once the
security of this Nation is in jeopardy and it survives in pieces rather than in peace the
individual's liberty or right may not even exist..."

It has been held in some foreign jurisdictions that publications and broadcast content that
pose a threat to National Security such as the ones that advocate violence, genocide, or the
overthrow of government or has the potential of doing so, should be prohibited. The use of
regulations to forestall any unforeseen negative occurrence in the society through the use of
the broadcast media does not amount to an infringement on the freedom of the press.

"It does not also unconstitutionally undermine the rights of the media rather it merely
imposes an incidental burden in their mode of operation to ensure that the heights of
professionalism and order are maintained in the profession and the society respectively. The
press is expected to exercise restraint and responsibility in their reportage bearing in mind the
end-result and far reaching effects of the information or news that they are disseminating to
the members of public."

As we approach the elections, it behoves on our broadcasters to exercise restraint,
professionalism and sense of responsibility in all their activities taking into cognizance the
cultural and religious sensibilities of all Nigerians.

Felix Ejike-Ume is the Special Assistant to the Director General, National Broadcasting
Commission, Nigeria.