UPDATED: PDP Reps sue Mohammed, AGF, NBC over broadcasting code

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The PDP caucus in the House of Representatives has dragged the Minister of Information, Lai Mohammed and the National Broadcasting Commission (NBC) before the Federal High Court in Abuja seeking to invalidate the controversial 6th broadcasting code.

A copy of the originating summon sighted by The Nation in Abuja shows that the Attorney General of the Federation and Minister of Justice, Abubakar Malami is joined as defendant in the suit.

Plaintiffs in the suit are caucus leader, Rep. Kingsley Chinda, his Deputy, Rep. Chukwuma Onyema, Caucus Deputy Whip, Rep. Ajibola Muraina, Rep, Mark Gbillah, Rep. Tyough Robert, Rep. Bulus Solomon, Rep. Rimamnde Shawulu Kwewum, Rep Yusuf Ayo Tajudeen and Onyeman Chukwuma.

Chinda and others are instituting the case on behalf of “themselves, individually and as representatives of the PDP caucus in the House of Representatives”.

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In the suit filed on their behalf by Barrister Segun Fiki and Barrister Johnmary Chukwuasi Jideobi, the lawmakers wants the court to determine whether by the provisions of Section 36 (12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Amended 6th Nigerian Broadcasting Code enacted/issued by the 1st Defendant which created the purported offences of “hate speech” and “fake news” and correspondingly purported to have imposed penalties is not unconstitutional, null and void.

They are also asking the court to determine whether or not, having regard to the extant provisions of Sections 6 and 23 of the National Broadcasting Commission Act Cap. N11 LFN 2004, the 1st Defendant has the statutory power to issue Broadcasting Code and whether the 6th Nigerian Broadcasting Code purportedly issued is not a nullity and therefore void?

They are also asking the court to determine “whether, having regard to the extant provisions of Sections 4 (1), (2), (3) & (4), 47 & 58(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Order 14 of the Standing Rules of the House of Representatives (Procedure on Subsidiary Legislation), the 1st and 2nd Defendants have the power or vires to enact, issue and give effect to or enforce the Amended 6th Nigerian Broadcasting Code without prior ratification by the House of Representatives of the National Assembly, and if not, whether the 1st Defendant’s enactment/issuance and application of the said Amended 6th Nigerian Broadcasting Code is not an usurpation of the legislative powers expressly conferred on the legislature by the 1999 Constitution of the Federal Republic of Nigeria (as amended)?

They prayed the court to declare that the Amended 6th Nigerian Broadcasting Code unconstitutional, null and void especially since the said offences and penalties set out in the code have not been defined and/or prescribed in any written law by the National Assembly of Nigeria?

They are also asking the court to declare that the 2nd Defendant (NBC) is the sole authority statutorily empowered in Nigeria to enact and/or issue Broadcasting Codes throughout the Federation, to the exclusion of the 1st Defendant and that the 1st Defendant’s enactment of the 6th Amended Nigerian Broadcasting Code is ultra vires, unlawful, null, void and of no effect whatsoever.

They also seek the court’s declaration that having regard to the extant provisions of Sections 6 and 23 of the National Broadcasting Commission Act Cap. N11 LFN 2004, the 1st Defendant is bereft of any statutory power to issue Broadcasting Code and that the Amended 6th Nigerian Broadcasting Code purportedly issued by the 1st Defendant on or around the 13th August, 2020 is lacking in statutorily foundation and therefore void.

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The lawmakers are also asking the court to make an order nullifying, invalidating and quashing the 6th Amended Nigerian Broadcasting Code enacted/issued by the 1st Defendant on or around the 4th August 2020 in its entirety, same being arbitrary, unlawful, unconstitutional, null and void.

They are also seeking an order of the court restraining the 1st and 2nd Defendants, whether by themselves or through their officers, agents, assigns, privies or servants howsoever described from further relying on, applying or enforcing or otherwise acting howsoever and in any manner on the said 6th Amended Nigerian Broadcasting Code enacted by the 1st Defendant on or around the 13th August 2020 and compel the third defendant (Attorney General) to enforce the judgment of this Court in this suit forthwith and unconditionally.

They also want an order of the court perpetually restraining the 1st Defendant from further enacting, issuing or enforcing any National Broadcasting Code.

The suit which has not been assigned to any court is supported by a 15 paragraphed affidavit deposed to by one Francis U. Obalim and a written address dated 9th September, 2020

In their written address, Counsel to the lawmakers argued that the Amended 6th National Broadcasting Code enacted/issued by the 1st Defendant is in “flagrant breach of the 1999 Constitution of the Federal Republic of Nigeria (as amended), particularly as it seeks to surreptitiously and unlawfully create the offences of “hate speech” and “fake news” and to prescribe penalties therefore, whereas the said offences are not prescribed by any written law in force, as well as sundry provisions of the National Broadcasting Commission (NBC) Act Cap N11. LFN 2004.

They stressed that undoubtedly, the characterization of the terms “hate speech” and “fake news” by the 1st and 2nd Defendants connote that the said terms are of a criminal nature because the purported offences are inexorably linked to the incitement of violence and the procurement of the breakdown of law and order- both of which are squarely criminal matters.

The Plaintiff maintained that “by virtue of the provisions of Section 36(12) of the 1999 Constitution (as amended), no person can be guilty of an offence of a criminal nature unless such an offence be prescribed in a written law. Section 36(12) further defines “written law” to include an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.

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“It is crystal clear from the tenor of Section 36(12) of the Constitution that the intendment of the lawgivers was to ensure that no citizen of the Federal Republic of Nigeria is allowed to undergo punishment for any offence not stipulated by law. Furthermore, by the inclusion of the words “under the provisions of a law”, the Constitution has evidently prescribed that any subsidiary legislation or instrument seeking to prescribe a criminal offence must do so under the provisions of a law. In the instant case, no law exists creating the offences of hate speech or fake news, nor is there any written law prescribing any penalties for the purported offences.”

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