In recent times, there have been debates about alleged abuse of power and the constitutionality or otherwise of powers of regulatory agencies to impose fines on suspected offenders.

Although imposition of fine is one of the enforcement tools provided for in the enabling laws of various regulatory agencies, there are concerns that such laws are inconsistent with the Constitution.

Some agencies of government impose fines on alleged cases of non-compliance, omission or failure to undertake an act within a stipulated period.

Agencies under this category include the Federal Road Safety Commission (FRSC), the National Broadcasting Commission (NBC), Traffic Management Authorities of various states, and many others.

This debate, no doubt, is heightened by NBC’s recent imposition of fines on broadcast stations over allegations of infringements.
According to Toluwani Adebiyi, a human rights lawyer, NBC is unlawfully ascribing powers belonging to various arms of government to itself.

“I have always insisted that NBC lacked the judicial powers to impose penalties on broadcasting stations,” he said.

He held that NBC, not being a court of law, has no power to impose sanction as punishment on broadcast stations.
His words: “The NBC code, which gives the Commission the power to impose sanctions, conflicts with Section 6 of the 1999 Constitution that vested judicial power in the court of law. The attitude of the NBC has been arbitrary imposition without recourse to the law.

“There was no compliance with the law when it sat as a complainant and, at the same time, the court and the judge on its own matter.
“The broadcasting code, being a subsidiary legislation that empowers an administrative body such as the NBC to enforce its provisions cannot confer judicial powers on the commission to impose criminal sanctions or penalties such as fines.
“The commission, not being Nigerian police, had no power to conduct criminal investigations that would lead to criminal trial and imposition of sanctions.”

This, he argued, is definitely against the doctrine of separation of powers, because such imposition of fines qualifies as excessiveness, as it had ascribed to itself the judicial and executive powers.

The lawyer held that NBC’s action was a violation of the rules of natural justice and, in deed, a crass violation of the right to fair hearing under Section 36 of the 1999 Constitution (as amended) and Articles 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act (Cap AQ) Laws of the Federation of Nigeria, 2004, because the code that created the alleged offence, which the broadcasting stations were accused was written and adopted by the NBC.

He added that the code also gives powers to the said commission to receive complaints of alleged breaches, investigate and adjudicate the complaints, impose sanctions, including fines, and ultimately collect the fines, which the commission uses for its own purposes.

“The totality of the NBC action is wrong and legally unsustainable. The same NBC is the accuser, a party, the court, the judge and the benefactor, all at the same time.
“It is in all sense against fair hearing. We are yet to have such a Banana Republic and so, the unconstitutional imposition shall never stand,” Adebiyi declared.

In agreement with this argument, a Federal High Court, Abuja has given an order of perpetual injunction restraining the NBC from imposing fines, henceforth, on broadcast stations in the country.

The Incorporated Trustees of Media Rights Agenda had, in an originating motions marked FHC/ABJ/CS/1386/2021, sued the NBC as sole respondent in the suit.

In the judgment, the court also set aside the N500, 000 fines imposed, on March 1, 2019 on each of the 45 broadcast stations sanctioned by the Commission for allegedly violating its code.

Justice James Omotosho held that the NBC, not being a court of law, had no power to impose sanctions as punishment on broadcast stations.
He further held that the NBC Code, which gives the Commission the power to impose sanctions, is in conflict with Section 6 of the Constitution that vested judicial power in the court of law.

He said the court would not sit idle and watch a body, imposing fine arbitrarily without recourse to the law.
He said that the Commission did not comply with the law when it sat as a complainant and, at the same time, the court and the judge on its own matter.

The judge agreed that the Nigeria Broadcasting Code, being a subsidiary legislation that empowers an administrative body such as the NBC to enforce its provisions, cannot confer judicial powers on the Commission to impose criminal sanctions or penalties such as fines.

He also agreed that the commission, not being Nigerian police, had no power to conduct criminal investigation that would lead to criminal trial and imposition of sanctions.

“This will go against the doctrine of separation of powers,” he said.
Omotosho held that what the doctrine sought to achieve was to prevent tyranny by concentrating too much powers in one organ.

“The action of the respondent qualifies as excessiveness as it had ascribed to itself the judicial and executive powers,” he declared.
For Godwin Ogboji, no body or authority is vested with the powers to be the complainant, the judge and impose sanctions without the courts, as it violates the principle of natural justice.

According to him, with the judgment, whereby the Federal High Court declared that imposing fines on broadcast stations is illegal has settled the issue of constitutionality or otherwise of the powers of such agencies.

Also toeing the same line of argument, Emmanuel Ekwe, a lawyer said the NBC lacks the power to impose fine on erring broadcast stations without recourse to the court.

The lawyer stated that the Court of Appeal in 2018 held in the case of NOSDRA v. EXXONMOBIL that imposition of fines is a judicial act and only the court of law under Section 6 of the Constitution can exercise such power.

“The NBC, being a regulatory body, is not empowered by law to act as the prosecutor and the judge; all at the same time – this violates the principle of fair hearing as enshrined in Section 36 of the 1999 Constitution,” he said.

He, therefore, stressed that it is a flagrant violation of Section 36 of the 1999 Constitution for the NBC or any other regulatory body to impose fines or penalties without recourse to the court.

Citing further decisions of the court, the lawyer said the Supreme Court in its wisdom held in MFA v. INONGHA (2014) 4 NWLR (Pt.1397) 343 at 375 that “fair hearing within the meaning of Section 36(1) of the Constitution of Nigeria, means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties.

According to him, it requires the observance of the twin pillars of the rules of natural justice, namely “audi alteram partem and nemo judex in causa sua” (hear the other party and no one can be a judge in his own case).

“If a regulatory body imposes any fine whatsoever without the intervention of the court, the principles of “nemo judex in causa sua” and “audi alteram partem”, is arbitrarily contravened.

“It is criminality and rascality in the highest order for the NBC to contemplate fine on erring broadcast stations, let alone fining them in reality,” he emphasised.

But the Director General, National Broadcasting Commission (NBC), Mallam Balarabe Shehu Ilelah, at a forum, recently, alleged that some politicians would collude with some broadcast stations to let out their incendiary messages.

He also noted that a regulator must be seen to be balance and fair at all times adding, that it is a difficult challenge to regulate the broadcast industry in Nigeria due to ownership and political inclinations.

On the allegation that NBC plays the role of the complainant, prosecutor and judge, Ilelah said the NBC only operates within the law of its establishment. He, however, said the Commission had never imposed a fine of more than N5 million on any offending broadcasting station adding that the Commission would appeal a recent court judgment preventing NBC from imposing fines.

To him, NBC plays a super role in ensuring compliance with laid down codes of conduct and practice by issuing licences to practising broadcasting firms and also goes as far as supervising their activities to avoid deviations.

The DG also pointed out that the NBC, while carrying out its regulatory activities, always put into consideration, at all times, the overall interest of the country, public good and the peculiarities of the nation’s environment.