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#TheScoopLegal: “Wazobia FM may not be criminally liable but…” – Nana Nwachukwu on #WazobiaFM case


#TheScoopLegal: “Wazobia FM may not be criminally liable but…” – Nana Nwachukwu on #WazobiaFM case

by Nana Nwachukwu

The freedom of expression and press is guaranteed by the Constitution of the Federal Republic of Nigeria and enshrined in Section 39. It specifically states that

1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.

(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:

The above is the background against which media houses are granted licenses to operate.

It is true that it is a fundamental right. However, where one right ends is where another right begins.

Everyone has the right to live peacefully without fear of violence in any part of Nigeria. It is trite law that ‘de minimis non curat lex’ – the law does not concern itself with trifles – but both the Criminal Code and the Penal code set out trifles which could occur through an unrestrained expression of the rights enshrined in Section 39. The law certainly cares about such trifles.

These trifles include but are not limited to libel, defamation, sedition, treason and inciting violence.

The Penal Code Act (Northern States Provisions) Act states clearly that inciting violence against a class of people is criminal and punishable with imprisonment.

417. Exciting hatred between classes

Whoever, seeks to excite hatred or contempt against any class of persons in such a way as to endanger the public peace, shall be punished with imprisonment for a term which may extend to three years or with fine or with both.

418. Publication of false news with intent to cause offence against the public peace

Whoever circulates, publishes or reproduces any statement, rumour or report which he knows or has reason to believe to be false with intent to cause or which is likely to cause fear or alarm to the public whereby any person may be induced to commit an offence against the public peace, shall be punished with imprisonment which may extend to three years or with fine or with both.

It was alleged that certain employees of Wazobia FM made comments which suggested that the Medical officers sent to immunize kids in Kano against polio were conducting an exercise which was clearly against the tenets of their religion and that such exercise would ruin the lives of the children. I do not know how true this suggestion is yet. However, the employees were arrested and charged to Court.

Recently, it was learnt that NBC had withdrawn the license of Wazobia FM in Kano. It is clear that if the allegation made are indeed correct, then the employees had contravened Section 417 and 418 of the Penal Code Act.

READ: #TheScoopLegal: “They Merely Expressed An Opinion” – Rotimi Fawole On #WazobiaFM Case

A lot of people have wondered why NBC had to withdraw their license. Why not just deal with the employees?

Well, this is where we veer off a little to the law of Torts. An employer has a vicarious liability towards his employees. It is known in law as ‘respondeat superior’ and ‘qui facit per alium facit per se’ that is to say ‘he who acts through another acts for himself’.

However, the employer cannot be vicariously liable for criminal acts committed by the employee all the time except what the law calls a close connection test is conducted and evidence shows that the employer knew and approved of the conduct of the employee or that it was part of the employee’s duties as contained in his terms of contract[1].

In this case, Wazobia FM may not be criminally liable, rather they are liable for the torts breached by these employees. They owed their listeners a duty of care not to say or portray the wrong image of the genuine acts of help by the government or any other institution.

The station manager is in charge of monitoring what goes on air. It can be argued that it was a live program but then, it would have been cut off and apologies tendered by the station immediately. The radio station is invariably in charge of monitoring the activities of its employees while on duty.

The withdrawal of the license by NBC is a penalizing measure as stated in the Third Schedule to the National Broadcasting Act cap N11 LFN 2004. It states as follows;

“A licence may be revoked by the Commission in the following cases, that is—

10 …(d) where in the opinion of the Commission the station has been used in a manner  detrimental to national interest or where a complaint from the public has been upheld  after a public hearing instituted by the Commission and whose decision is upheld by a majority of members of the Commission…”

It is clear that such comments coming from a radio station is clearly detrimental to national interest as the fray purportedly claimed nine (9) lives.

I do hope I have tried a little to explain the circumstances surrounding this withdrawal.

Any different opinions? Cool, let us hear it @purehaire

[1] New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at [40]: per Gleeson CJ

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