Quite unusually, there was a stiff battle for this headline mainly because of the determination to thumb the nose of National Broadcasting Commission (NBC) for closing down an obscure but licenced radio station based in Akure, Ondo State named Adaba FM. The competing headline was “LAWLESS OF NBC TO SHUT ADABA FM.”

The question then arose “What FM?” that exactly was the status of this radio station until the NBC unwisely, under the misguided impression of wielding its power, instead lavished a multimillion dollar international publicity for an otherwise unambitious radio station providing information and entertainment for the rural folks in Ondo and Ekiti states.

Since the clampdown, NBC has transformed Adaba FM radio into instant electronic celebrity with media all over the world carrying the news, clearly deservingly. To justify its unwise decision, NBC flaunted its power under the Nigerian broadcasting Code Section 5.2.10 stipulating that “A station or its staff shall not, at electioneering time, broadcast the collated sum of votes obtained at different polling stations or from exit polls, to project or speculate on the candidate who, at airtime, was leading or doing better or worse than his opponent.” That in itself is arguable when related to the promised so-called electoral reforms.
Before that, even if Adaba FM radio violated this code as alleged, it was still unlawful for the National Broadcasting Commission to take it on itself without due process of law to shut down the radio station, which is the net effect of withdrawing its licence to transmit.

As a legal media house, Adaba FM (like any other business entity) sums up to “citizen Adaba” fully entitled to all rights and privileges under his/her (Nigerian) constitution, one of which is right of fair hearing. In this matter, NBC is no more than the complainant or at the best, law enforcement agent.
For example, murder is a capital offence, and police have the authority to arrest any accused. The penalty for murder is death by hanging. But the police, on account of its power and authority to enforce the law(s) against murder would not just arrest, try, convict and then carry out the death sentence all on its own. The police, rather, would arraign the accused in a court of law for proper trial and sentence.

What is more, NBC, whatever its presumed power over electronic houses in the country, cannot exercise such power(s) outside the provisions of Nigerian constitution. Hence the first sentence of chapter one of Nigerian constitution, holding that “This (Nigerian) constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
In acting unilaterally instead of following the procedure, NBC denied “Citizen Adaba” right of fair hearing under section 36 (1) guaranteering that “In the determination of his civil rights and obligations, including any question and determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court of law or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

As if to contain overzealous authorities like the NBC, the same Nigerian constitution chapter one section 3 protectively upholds the rights of underdogs like “Citizen Adaba that” if any other law is inconsistent with provisions of this constitution, this constitution shall prevail and that other law shall, to the extent of the inconsistency, be void.”
Where then is the power NBC is flaunting in closing down broadcasting houses? Perhaps section 36, (2) (b) offering a dangerous loophole that “without prejudice to the provisions (on fundamental rights) a law shall not be invalidated by any reason only that it (b) contains no provision making the determination of the administering authority final and conclusive.”

The Supreme Court on several occasions has since rebuffed any authority, no matter how powerful, usurping the functions of law courts in final pronouncement of any crime or offence. The first of such monumental ruling was by late Justice Fatai-Williams. The latest ruling by the Supreme Court was in April 2007 in nullifying the disqualification of ex-vice President Atiku Abubakar by the Independent National Electoral Commission (INEC) from contesting the 2007 presidential elections.

As it is now for INEC without the authority to try or judge anybody for any crime or offence, so it is with the National Broadcasting Commission, which, based on that Supreme Court ruling, similarly has no power to exercise final authority without court order to close down any broadcasting house.
The issue is not whether Adaba FM breached the broadcasting code or not. Such a case should be established in a law court which will then give its verdict one way or the other.

For its origin and functions, the National Broadcasting Commission is an agency of the executive arm of government and must not allowed to operate as a separate and independent judiciary in all matters between the executive and ordinary Nigerians.
It is therefore very appropriate that Adaba FM has taken the necessary legal action to re-establish the Supreme Court ruling that only law courts have the final say in determining the constitutional rights of a citizen, including Citizen Adaba.

If another arm of government – National Assembly – could follow due process, what was the hurry or unwillingness for NBC to follow suit? The Senate probed the tenure of ex-Federal Capital Minister Nasir El-Rufai. The report recommended that Rufai should be banned from holding public office.
Whether El-Rufai abused his office was neither here nor there but it was critically argued in this column that the Senate has no power to ban anybody or that if we kept quiet because El-Rufai was the victim, any other Nigerian would be liable for such violation of constitutional rights. Instead, it was further argued in this column that as the probe found El-Rufai guilty, the report should be handed over to either the EFCC or the police for necessary prosecution in a court of law.

Today, EFCC is prosecuting El-Rufai because the Senate took the criticism in this column in good faith. We should wait for the court verdict.
On its part, the EFCC also enjoys some, indeed tremendous power even more than the National Broadcasting Commission. But despite volley of public criticisms, the EFCC has strictly adhered to legal and constitutional procedure. Lately, a high-ranking senator was picked up and detained by the EFCC for interrogations on an alleged budget scam.

With the interrogations still inconclusive, the EFCC, well aware that a suspect could not be detained for more than 48 hours, obtained a court order authorizing it (EFCC) to detain the suspect for the duration necessary for interrogation.
Yes, NBC might have a case against “Citizen Adaba” but why the hurry to show power? Why not take the pains to obtain a court order? As it happened, the NBC, in apparent “eyeservice” for its masters, ended up in self-humiliation. Only twenty-four hours after unwisely shutting down a radio station, the same NBC was ordered by a Federal High Court at Akure to re-open the station until the case is determined.

And if we must face facts, the NBC in shutting down Adaba FM station, only exercised a judgment of convenience. If the station has announced, in violation of broadcasting code, results from the pulling booths favourable to the PDP, would NBC have shut down the radio station?
What really is the big deal about violation of broadcasting code especially in reportedly transmitting votes obtained at different polling stations, etc? As already mentioned, Nigerian constitution is supreme over any other law in the country. Therefore despite the broadcasting code against announcement of results, Adaba FM radio station would still have acted legally.

For the average Nigerian, especially the journalist, section 39 of our constitution guarantees the right of “freedom of expression including the freedom to hold opinions and to RECEIVE AND IMPART IDEAS AND INFORMATION without interference.” The more reason the NBC should have gone to court to establish that its power on restriction of election results did not conflict with Nigerian constitution which Adaba radio duly and professionally exercised (Section 39).

If we can quote Olusegun Obasanjo, the situation on Ekiti election was a do or die affair and in such situations, if it was necessary to break NBC’s code to ensure survival through transmission of correct results to pre-empt falsified vote results, so be it. So far, has NBC disputed any of the results transmitted by Adaba FM? Were the results true or not? If they were true, what is the offence?

A critically ill patient is being conveyed to the hospital. Normally, the vehicle driver must obey the red sign at the traffic junction but without any risk of accident from traffic across the road, the driver can in such rare situation skip the red lights to save a life by getting the ill patient to the hospital in time.
There should be the positive side of Adaba FM’s reports on the Ekiti elections. We might not realize the public duty the station performed and what catastrophe we might have escaped in Nigeria. Did INEC’s Maurice Iwu not prepare our minds for 18,000 (eighteen thousand) votes in the by-election in Oye Ekiti? If INEC had gone ahead to announce such alarming figures which might have incenced Ekiti people, anything could have followed.
Instead, Adaba FM monitored the polling booths for the voters so strictly and unarmed that at the end, the correct figure of less than 300 (three thousand) votes emerged.

That was the radio station’s offence for which NBC is employing its unconstitutional power. In this controversy, the mentality of NBC authorities is not better than the mentality of other state outfits like INEC, police and SSS. Which is that they must ensure, protect and perhaps enhance the interests of a ruling party at federal and state levels. This is wrong. These outfits are sustained from our taxes and Commonwealth and are therefore the servants of all Nigerians of whatever religion, political thought or ethnic origin.
Poor Information Minister Dora Akunyili. For the second time in a fortnight, her efforts to re-brand Nigeria have been shattered by overzealous civil servants at NBC. Dora couldn’t have authorized the closing down of the radio station, while still trying her best to remove the stain of the Ekiti election’s damage to Nigeria’s image at home and abroad.

Also, President Umar Yar’Adua could not have authorized the closure of the radio station, again, while still trying to recover from the damage Ekiti by-election did to his so-called electoral reforms.
If on the other hand, any or both the Minister and the President ordered the closure of the radio station, then the NBC authorities failed woefully in their duties in acquiescing. Instead, they should have been bold enough to advise against the closure.
Where do Radio Biafra and Radio Kudirat come in? These two stations operated at a time Nigerians no longer relied on the objectivity of government owned television and radio stations. Transmitting at emergency periods in Nigeria’s history, both stations went clandestine because Nigerian authorities would not allow them to operate in a free atmosphere.

Radio Biafra beamed from anywhere in that part of the world straight to Nigeria. Radio Kudirat was even more determined. At a stage, the authorities were reportedly stopping vehicles in Lagos to search for the mobile transmitter of the pirate radio. At a stage, Radio Kudirat moved its transmitting station to one of the Nordic countries from where it transmitted to Nigerians every night.

The plight of Adaba FM vividly illustrates a people’s desperation and determination when denied freedom of and access to information.
There was a similar cat and mouse relationship between the British authorities and a pirate station Radio Caroline in the sixties. At the height of the confrontation, Radio Caroline moved out of London to European as from where it continued to beam to Britain. Humannature being what it is, the more the British authorities harassed Radio Caroline, the more listeners the station attracted from Britons for two reasons (a) music and (b) disapproval of violation of right to entertainment and information.

Similar considerations attracted huge Nigerian listeners for Radio Biafra and Radio Kudirat. With the latest harassment of Adaba FM, the station, NBC has unwittingly conferred credibility on the station’s performance and increased its listenership.