Hate speech and fake news are not offences in Nigeria

By Nimi Walson-Jack

Following the presentation of the Reviewed version of the 6th Edition of the National Broadcasting Code, the media has been awash with the news of increase in the penalty for hate speech and or fake news from five hundred thousand Naira to five million Naira only. It is interesting that no media practitioner or lawyer has taken the time to ask a pertinent question, is there any offence in the Laws of Nigeria known as hate speech or fake news?

There are no offences or crimes in Nigeria known as, called, or referred to as either hate speech, and fake news. The Nigerian Broadcasting Commission (NBC) cannot create either the offence or crime of fake news or hate speech.

The combined reading of the powers of Commission in Section 2 of the Nigerian Broadcasting Commission Act, to regulate and control the broadcasting industry, establish and disseminate a national broadcasting code and set standards with regard to the contents and quality of materials for broadcast; monitoring broadcasting for harmful emission, interference, and illegal broadcasting; and determining and applying sanctions including revocation of license of defaulting stations which do not operate in accordance with the broadcast code and in the public interest, still does not give it any statutory power or authority to create an Offence through the Broadcasting Code.

There is no provision for payment of financial penalties in the Act. The power to impose a financial penalty can only be given to the NBC by the Law. The NBC cannot give itself the power to create offences and penalties. That power must be specifically conferred on the NBC, which the NBC Act has not. The NBC, therefore, has no power to make subordinate or subsidiary legislation. What the NBC has done in the Code is a usurpation of legislative powers of the National Assembly.

The non-inclusion of fines and penalties as sources of income or revenue for the Commission is evidence that the Act did not mean to impose financial penalties. The identified sources of funding of the Commission are (a) such percentage of fees and levy to be charged by the Commission on the annual income of licensed broadcasting stations owned, established or operated by private individual(s), Federal State or local government; (b) such moneys as may, from time to time, be lent or granted to the Commission by the Government of the Federation or of a State; (c) all moneys raised for the purposes of the Commission by way of gifts, loans, grants-in-aid, testamentary disposition or otherwise; (d) all other assets that may, from time to time, accrue to the Commission. Nowhere in the Act does penalties from fines paid by licensees and Broadcast Stations constitute a source of revenue for the Commission. It appears that the only mention of financial penalties in the Act is in the power of the NBC to prescribe an appropriate fee payable for licenses.

The NBC Act states clearly that the NBC has no power to institute and carry on criminal proceedings for any offence, whether relating to a matter in relation to which they have functions.

In the absence of any provision in the NBC Act, the NBC cannot make subsidiary legislation. The NBC cannot create an offence in the Broadcasting Code, wherein it is the accuser, prosecutor, judge, and executor. If the NBC’s Broadcast Code turned “Penal Code” is allowed to stand, then we would have a Law that discriminates to the extent that what is hate speech and fake news on Radio and Television is not an offence in the print media world of newspapers and magazines.

The attempt by NBC to create a non-existing offence of hate speech to strangulate free speech and free media is the exercise of impunity in the extreme. Our Constitution states in unequivocal words that “ … a person shall not be convicted of a criminal offence unless that offence is defined and the penalty, therefore, is prescribed in a written law …”