The ECOWAS Court has reserved judgment for 27th of September 2023 in a case brought by a Non-Governmental Organization (NGO) alleging that aspects of the code released by Nigeria’s broadcast regulator, suppressed the right of citizens to freedom of expression.

The presiding judge in the suit, Justice Dupe Atoki announced the date during the last hearing of 8th of May, 2023 after both parties had addressed the Court.

In the suit, the Incorporated Trustees of Expression Now Human Rights Initiative, which is dedicated to the protection and promotion of the human right of Nigerians, particularly right to freedom of expression, alleged that the code encroached on the rights of a free media ‘devoid of undue interference.’
The NGO claimed that the regulator, the National Broadcasting Commission (NBC) arbitrarily issued letters of alleged violation of the Code on broadcasters, while also imposing sanctions, thereby acting as complainant and judge.
In its initiating application with suit number ECW/CCJ/APP/35/20 filed on 4th of September, 2020, the NGO through its lawyer Mr Solomon Okedara cited aspects of the code, specifically Articles 3.1.1, 3.1.2, 15.2.1 and 15.2.1 of its 6th Edition and Articles 11.5.1 of the amendments to the 6th Edition, suppressed its rights to freedom of expression as well as those of its associates and collaborators. The NGO added that this amounted to a violation of Article 9 and 19 of the African Charter on Human and Peoples Rights (ACHPR) and Article 19 of the International Convention on Civil and Political Rights (ICCPR).
Mr Okedara added that NBC’s Code and its amended version were alien in a democratic society, and that the Code’s definition of ‘hate speech’ and ‘offensive reference’ are vague and ambiguous, and described the sanctions for violations as disproportionate and excessive.
Furthermore, the organization contended that the NBC’s Code did not provide broadcasters any avenue/platform to be heard before the imposition of sanctions.
Among the reliefs sought by the applicant is for the Court to make a determination of the legality of the stated Articles of the Code, the amendments, and the powers of the NBC to impose sanctions especially exorbitant fines particularly in relation to the context of “offensive reference” and “hate speech.”
It is also asking the Court to declare that the stated provisions of the Code, its amendments and sanctions/fines, breached Nigeria’s obligation under international laws and treaties to which it is a signatory.
In a counter argument, the state counsel, Mr I.I. Hassan told the Court that the Nigerian government established the NBC to regulate the broadcast industry in line with its mandate so as to ensure standard broadcast content, adding that freedom of speech is itself incorporated/contained in the Nigerian Constitution.
He said that the right to freedom of speech is not absolute but could be curtailed as opposed to restricted, adding that a person or organization could not commit slander or libel under the pretext of exercising freedom of expression.
He urged the court to dismiss the case describing the allegations as unfounded and speculative as the NGO did not establish that it suffered from the alleged violation.
At the last hearing held on 2nd of May 2023, Justice Atoki informed both parties of a change in the panel of judges following the replacement of two judges whose tenure in the Court had ended. Though the matter had been adjourned for judgment before the exit of the two judges, both parties were given the option to either adopt their processes or make oral submissions. The case was eventually moved to 8th of May for continuation of hearing.
Also on the bench were Justices Sengu Mohamed Koroma and Ricardo Cláudio Monteiro Gonçalves.