Regulating state-owned radio and television stations
State-owned radio and television stations in Nigeria are beholden to the National Broadcasting Commission (NBC) by virtue of Sections 2(1)(b)(ii), 9(1)(a)&(6) and 14(2)(a) of the National Broadcasting Commission Act 1992, Cap. N.11, LFN 204. The said provisions of the Act (promulgated as a Military Decree in 1992, but now deemed to be an Act of the National Assembly) empower the NBC to exercise regulatory control over such stations.
A detailed review of the aforesaid provisions of the Act is as follows:
Section 2(1)(b)(ii): “The Commission shall have the responsibility to receiving, processing and considering applications for the establishment, ownership or operation of radio and television stations, including radio and television stations owned, established or operated by the Federal, State or Local Government”.
“No person shall operate or use any apparatus or premises for the transmission of sound or vision by cable television, radio, satellite or any other medium of broadcast from anywhere in Nigeria except under and in accordance with the provisions of this Act”.
The Commission shall, in the consideration of an application for a license under this Act, be satisfied that the applicant is a body corporate registered under the Companies and Allied Matters Act or a station owned, established or operated by the Federal, State or Local Government”.
“Any broadcast station transmitting from Nigeria before the commencement of this Act shall be deemed to have been licensed under this Act and accordingly shall be subjected to the provisions of this Act”.
“There shall be paid and credited to the fund established pursuant to subsection (1) of this section such percentage of fees and levies to be charged by the Commission on the annual income of licensed broadcasting stations owned, established or operated by private individuals, Federal, State or Local Government”.
Notwithstanding, the foregoing provisions of the Act, I believe that the Commission is incompetent to regulate state government-owned radio and television stations in Nigeria. This is because by virtue of Section 40(3) and Item 66 of the Exclusive Legislative List of the 1999 Constitution, the National Assembly itself lacks the power to enact any legislation which purports to regulate such stations. For ease of reference, Item 66 of the Exclusive List provides that the National Assembly may legislate in respect of “wireless, broadcasting and television other than broadcasting and television provided by the Government of a State, allocation of wavelengths for wireless broadcasting and television transmission”.
I submit that it is transparently clear from the foregoing that state government-owned radio and television stations are expressly excluded from the legislative powers of the National Assembly when it comes to regulating radio and television stations in Nigeria. I submit that by virtue of the said provisions of the Constitution, the
National Assembly is restricted to regulating only:
1. Wireless, broadcasting and television owned by individuals, corporate entities and the Federal Government; and
2. Allocation of wavelengths for wireless, broadcasting and television transmission, to all radio and televisions, including those owned by State Governments.
The anomaly in the said provisions of the NBC Act vis-à-vis that of Section 4(3) and Item 66 of the Exclusive Legislative List of the Constitution is understandable when placed in historical context. This is because the Act preceded the Constitution, given that it was enacted in 1992, seven years before the 1999 Constitution. That said, however, by virtue of Section 315(1)(a) of the Constitution, the NBC Act – which the Constitution classifies as an existing law – can only take effect as an Act of the National Assembly subject to two conditions: the first is that it’s subject matter is one in respect of which the National Assembly is empowered by the Constitution to make laws. Secondly, if there is any inconsistency between the Act and any provision of the Constitution, the Act needs to be modified by the appropriate authority (either the President or the National Law Reform Commission), in order to bring it into conformity with the Constitution.
This provision of the Constitution, i.e., Section 315(1), was construed by the Court of Appeal in TOGUN vs. OPUTA (2001)16 NWLR pt. 740 pg. 597, per Oguntade & Nzeako, JJCA, where the court held (in relation to the Tribunals of Inquiry Act, Cap. 447, Laws of the Federation, which, like the NBC Act, first came into force as a military decree), as follows:
Per Oguntade, JCA, page 645:
“Cap. 447 was promulgated as Decree No. 41 of 1966 by the Federal Military Government in 1966. Being an enactment of the FMG, it took effect on 28th May, 1999 as an existing law pursuant to Section 315 of the 1999 Constitution. As such existing law, it needed to be brought into conformity with the 1999 Constitution of Nigeria by the appropriate authority, who is Mr. President. The appropriate authority has failed and/or neglected to make textual modification in the said Cap. 447 as would bring it into conformity with the 1999 Constitution, as provided under Section 315 of the same Constitution”.
-Per Nzeako, JCA, @ page 668-669:
“Had the President exercised his powers under Section 315 of the Constitution to modify the statute, limiting it to matters and things within the legislative competence of the National Assembly, it could have been saved – for then, in the process, the offending expansive powers could have been removed, limiting the statute to the scope of the Legislative competence of the National Assembly. But, he did not. As it is now, not having been modified to bring it into conformity with those provisions of the Constitution, it stands invalidated, being inconsistent with the said Sections of the Constitution (4 and 5). See Governor of Kaduna State vs. Kagoma (1982)13 NSCC 166; (1982)3 NCLR 206 per Fatayi – Williams, CJN.”
The foregoing position is buttressed by the decision of the apex court in OSADEBAY vs. ATT-GEN. OF BENDEL STATE (1991)22 NSCC pt. 1 pg. 137 @ 170; (1991)1 NWLR pt. 169 pg. 525 @ 583, where it held, per Akpata, JSC as follows:
“In Uwaifo vs. Attorney-General of Bendel State (1982)13 NSCC 22, Idigbe, JSC, made it plain that even a Decree or an Edict which can be regarded as an existing law “cannot have effect as or be deemed to be a law of the National Assembly or a House of Assembly unless it can be modified in such a way as to bring it into conformity with the 1999 Constitution”.
Accordingly, I humbly submit that to the extent that the President (or the National Law Reform Commission) has not modified the said provisions of the NBC Act, 1992, to bring into conformity with Item 66 of the 1999 Constitution, they are ultra vires, invalid, null and void. It follows that, in my view, the NBC is incompetent to regulate state-owned radio and television stations. The necessary implication of this is that regulation of such stations is deemed to be in the Residual List of the Constitution in respect of which only State Houses of Assembly are competent to legislate.
Given the overwhelming preponderance of state-owned radio and television stations in Nigeria, where virtually all the 36 states of the Federation own at least one radio and television station each, the implications of the incompetence of the National Broadcasting Commission to regulate them are more real than imagined.
Sani is an Abuja-based lawyer