ECOWAS Court Declares Nigerian Broadcasting Code Violates Freedom of Expression, Orders Government Alignment

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In a landmark decision on Monday, October 23, 2023, the ECOWAS Court ruled in favor of the Expression Now Human Rights Initiative, an NGO that had filed a suit against the Federal Republic of Nigeria. The court held that the Nigerian government had neglected its duty to align domestic legislation with international obligations, particularly under the African Charter on Human and People’s Rights (ACHPR) [p.31, para.65].

The case revolved around the challenge brought by the NGO against the Nigerian government’s use of the Broadcasting Code to impose arbitrary sanctions, including fines, on broadcast stations. The court emphasized that member states must consider aligning their laws with international guarantees, citing the ACHPR [p.22, para. 49]. The court specifically evaluated the Nigerian Broadcasting Code’s compliance with Article 9 of the ACHPR, which protects freedom of expression, referring to the Declaration on the Principles of Freedom of Expression and Access to Information in Africa.

In its judgment, the court criticized Article 3(1) (1) of the Code for its infinite scope, violating ACHPR provisions. Additionally, it found Article 3(1) (2) too ambiguous and vague, with the potential to curtail freedom of expression [p.24, para.51]. The court concluded that these provisions, along with Articles 15(2) (1) and Article 15 (5) (1) of the Amendments, which provide for penalties, were not enacted to promote or protect the right to freedom of expression, as they could result in arbitrary sanctions [p.24, para.52].

Ultimately, the court declared that the mentioned articles of the Nigeria Broadcasting Code contravene Article 9(1 & 2) of the ACHPR [p.32]. It also affirmed that fines imposed under Article 15(5)(1) of the Amendments violated Article 9 of the ACHPR [p.30, para.64].

As a remedy, the court ordered the Nigerian government to align the specified articles of the Nigeria Broadcasting Code with its obligations under Article 1 of the ACHPR and cease implementing the provisions until alignment is achieved [p.32]. To ensure compliance, the government is required to submit a report on the measures taken within six months of the judgment’s notification. The court also imposed costs on the Nigerian government, to be calculated by the Chief Registrar of the court.

Solomon Okedara, counsel to the Applicant, praised the judgment as a significant step toward media freedom in Nigeria and the ECOWAS region. He emphasized the importance of journalists and media houses being able to perform their duties without fear of sanctions, marking a new era for media freedom in the face of global challenges to press freedom in emerging democracies.

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