Addressing The Scope Of Jurisdiction And Limits Of Advertising Practitioners Council Of Nigeria (APCON) In Light of Its Overstretched Regulatory Oversight On Advertising In Nigeria -By Adetunji Mustafa Olatunde
Advertising is a sale strategy through which awareness is given to the general public about the availability of existing or new products in the market.
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The importance of advertising from time immemorial up till this modern milieu cannot be underestimated, owing to the roles it plays in products promotion. Nonetheless, advertising is usually adopted with a view to increasing sale by reason of the competitive nature of the market in a given economy. Hence, it is a powerful tool in the hands of brand owners, products manufacturers, including service providers to attract patronage to their products and/or services.
The Advertising Practitioners Council of Nigeria was established by the APCON Act to designate adverting as a legally recognized profession in Nigeria, to establish a Council for advertising Practitioners and to make provisions for the control of the practice of the profession of advertising.
Amidst the controversies ragging the jurisdiction and statutory oversight of APCON with respect to the subject of advertising in Nigeria, which in recent times has become overbearing; it is indeed paramount and momentous to sensitize the Nigerian populace on the regulatory jurisdiction and limits of the Advertising Practitioners Council of Nigeria, in light of the afforestated controversies that currently bedevil the subject of advertising in Nigeria.
APCON through the APCON Act is saddled with the utmost responsibility of regulating the practice of advertising in Nigeria. It is a legally constituted body vested with the primary function of putting under check professional advertisers in Nigeria who are fondly called Advertising Practitioners.
Having expressed the above view, it is however surprising that APCON has recently put itself in a position of having unbridled authority and jurisdiction to mete out sanctions on erring and non-conforming individuals who are basically non-Advertising Practitioners, who similarly run afoul of APCON’s regulations and guidelines on advertising.
This work seeks to address the validity, authenticity, constitutionality or otherwise of the exercise of APCON authority and/or jurisdiction over advertising placement and/or display by non–advertising practitioners in Nigeria. It is a thorough research work that holds a scholarly inquest as to whether or not APCON possesses total and unfettered control over advertising in Nigeria, in light of what is obtainable under our federal structure, where it is evident that there is a constitutional division of governmental powers between federal Government and other constituent units (state and local government).
Advertising is regulated in Nigeria under both general and sector-specific laws, regulations, and guidelines, which expressly and by legal implications stipulate the dos and don’ts of advertising practice in Nigeria.
Some of the laws, regulations and guidelines are discussed below for clarity purpose.
- The Advertising Practitioners Council of Nigeria Act
- The Nigeria Code of Advertising Practice, sales promotion and other rights and restrictions on practice( aka the advertising Code)
- Advertising Practitioners Council of Nigeria (APCON) Vetting Guidelines (known as Vetting Guidelines)
- Standard Organization of Nigeria Act 2015
- Federal Competition and Consumer Protection Act (FCCPA)
Aside the laws, regulations and guidelines listed above, it is also pertinent to state that some sectors, administrative bodies and government Agencies play significant roles on advertising in Nigeria among which are: National Food Drugs Administration and Control (NAFDAC), Nigerian Communication Commission (NCC), Central Bank of Nigeria (CBN), Nigerian Broadcasting Corporation (NBC), etc.
The fact that Nigeria is a country whose governance model is rooted in constitutional federalism cannot be gainsaid. In fact, the Constitution of the Federal Republic of Nigeria 1999(which shall be referred to in the latter part of this work as 1999 constitution) in section 1(3) provides thus:
“If any other law is inconsistent with the
provisions of this constitution, this constitution
shall prevail, and that other law shall to the extent
of the inconsistency be void.”
The implication of the above constitutional provision is that every affair within the Nigerian political system whether of government or carried out by individuals must conform to the dictate of the constitution, otherwise, such act or affair would be declared null and void by reason of being inconsistent with the constitution.
Consequent on the above, we wish to express that advertising is a medium through which ideas and information about products and services that can better the course of members of general public are reasonably held and imparted. Indisputably, it is a medium for dissemination of information, ideas and opinions by business owners, products manufacturers and service providers.
It is worthy of note to set the record straight here that despite the constitutional backing and/or support of dissemination of ideas and information, such act cannot be done without passing through the hurdles of government regulations. The dictate of necessity demands that ideas and information be filtered in order not to put the populace in danger, owing to the fact that some ideas and information could have harmful effect on the populace, hence, the various efforts of government from different quarters and at different levels to regulate advertising and other medium of dissemination of information in Nigeria.
The opening phase of this work highlights Nigeria’s observance of constitutional federalism. Simply put, Nigeria as an independent state operates a federal system of government which supports and re-invigorates a constitutional division of powers between federal government and the remaining constituent units.
In consonance with the fact available under the Nigerian federal structure; governmental powers at various levels are proportionately shared among the three tiers of government. Their powers are clearly spelt out under the three legislative lists.
Similarly, under Nigerian federalism, legislative powers have three constitutional delimitations, which are: Exclusive, Concurrent and Residual legislative lists.
The Constitution has spelt out items which each tier of government could legislate on.
The Second Schedule to the constitution, Part 1 thereof spells out legislative powers under the exclusive list.Without mincing word, the legal implication attached to the items under exclusive legislative list is that only the federal government through the functional instrumentality of the National Assembly has power to legislate on the items earmarked thereunder. Those items are the exclusive preserve of the National Assembly to the strict exclusion of state House of Assembly.
In a similar vein, it is worthy of note to express the fact that items under the concurrent list can also be legislated on by the National Assembly. It is therefore important to note that if the National Assembly has legislated on an item under the concurrent legislative list, state House of Assembly cannot through a legislation of similar legislative or statutory character negate that of the National Assembly. This idea summarises the doctrine of covering the field.
In other word, if any law enacted by a state House of Assembly is inconsistent with any Act validly enacted by the National Assembly on an item under the concurrent list, the law made by the National Assembly shall prevail, and the other law made by a State House of Assembly shall to the extent of its inconsistency be void. This legal position is well reinforced in the case of Oloba v. Akereja. (1988) 3 NWLR pt. 84 p. 508 SC
The last legislative list is the Residual list. Items on the list can only be legislated upon by state House of Assembly to the strict exclusion of National Assembly.
It is our candid opinion that federal government’s total regulatory stance over the subject of advertising in Nigeria is inordinate and insufferably overbearing, in that, it cannot through APCON build up an exclusive regulatory or supervening benchmark over advertising, due to its absence in the exclusive and concurrent legislative lists.
However, one would arrive at a conclusion that Federal Government or National Assembly could only extend the exclusivity of its legislative power over advertising profession not advertising as a subject of legislation which we thought was ably done through the enactment of the APCON Act, an Act enacted by the National Assembly pursuant to Item 49 in Part 1 of the Second Schedule to the Constitution tagged “Professional occupations as may be designated by the National Assembly”.
The legal implication of the above referenced constitutional provision presupposes the fact that, it shall be within the unfettered power of the National Assembly to designate professional occupations which was done at the instance of the advertising profession via the enactment of the Advertising Practitioners Council of Nigeria Act. By the Act, the profession of Advertising was designated, which is clearly within the legislative ambiance of the National Assembly. Meanwhile, it needs to be stressed that it is Advertising profession that the APCON Act seeks to regulate and advertising practitioners as well, not exclusively the subject of advertising or advertising by non-Advertising Practitioners or non APCON members, as advertising is a matter under the residual list, which is indisputably out of the legislative competence of the National Assembly. Section one of the Act reads thus:
There is hereby established for advertising practitioners a body to
be known as the Advertising Practitioners Council of Nigeria (in
this Act referred to as “the Council”) which shall be charged with
the general duty of-
(a) determining who are advertising practitioners;
(b) determining what standards of knowledge and skill are to be
attained by persons seeking to become registered as members
of the advertising profession and reviewing those standards from
time to time;…
Bringing advertising into the legal philosophy of what is obtainable under the Nigerian Federal structure of governance, we would agree that advertising is not an item under the exclusive legislative list, neither is it an item under the concurrent list. Its absence in the two legislative lists automatically represents that, it is an item under the residual list, which by legal implication makes it outside the legislative powers of the National Assembly.
However, premised on what has been reiterated earlier, it would be reasonable to conclude that advertising being an item not listed under the exclusive and concurrent lists in the 1999 Constitution places it under the residual list, the singular fact that makes it an item under the residual list. If the National Assembly wants to flex its legislative muscle on this subject, such efforts should be deployed and annexed within the territorial limit of the Federal Capital Territory Abuja and by constitutional extension to Advertising Practitioners and APCON members, not non-Advertising Practitioners, who are far from the envision of the drafters and makers of APCON Act.
Government in its paternalistic role puts it upon itself to regulate the affairs of people within the political system. It is therefore safe to express that if advertising is left unregulated by government, a lot of harm would be unleashed on the uninformed populace, hence, the need for regulation of advertising in Nigeria.
Consequent on the above elucidated facts, all forms of advertising must conform to certain standards. Failure to advertise in consonance with such standards makes the advertisement displayed illegal and as such, in breach of the laid down advertising regulations and guidelines.
The Nigerian Code of advertising practice and sales promotions (5th Edition) known as Advertising Code sets out some standards that advertisements must conform with stricto sensus, they include but not limited to the following:
- All advertisements in Nigeria directed at the Nigerian market shall be legal, decent, honest, truthful, respectful, and mindful of Nigeria’s culture, constitutional tenets and relevant lawful enactments.
- Models used in advertisements for the promotion of products or services must be Nigerian except where the concept specifically requires non-Nigerians to act in this capacity.
- The descriptions, claims or illustration in an advertisement shall be subject to empirical proof or capable of substantiation
- Advertisement shall not exploit or depict or suggest sexual behaviour either in obvious or implied context
This implies that for an advertisement to be acceptable or be allowed to be viewed by the public, it must not have content that could implant thoughts of obscenity in the minds of the target audience.
- It also states that the content of an advertisement including pictures, statements etc. used must not violate any copyright or international copyright law or intellectual property right.
- Advertisements should provide the price for each product in the currency of the federal Republic of Nigeria i.e. Naira.
- By virtue of Article 14(1) b of the Advertising Code, failure to comply with the Advertising Code attracts specific sanctions. The sanctions are clearly spelt out in the Code.
Aside APCON Advertising Code governing advertising in Nigeria, there are some other sector-specific or sectoral regulations on advertising. They include:
- A producer, importer, distributor, retailer, trader or service provider shall not make any false representation to a consumer in a manner that is likely to imply any false or incorrect representation concerning those goods
- Products specifications are required to comply with the Nigerian Industrial standards provided by the Standard Organization of Nigeria (SON).
To us, the above stated standards and guidelines for advertising are moves in the right direction. They are all welcome ideas fabricated with a view to protecting the Nigerian populace from falling prey of uncontrolled, unregulated and unchecked advertisements whose patronage could inflict harm on them.
In a similar vein, we wish to express that an advertisement would be valid and lawful, if it complies with the above stated regulations. (a-g& a-b). The said regulations were put in place to gag harmful advertisements that could visit untold hardship on the populace or have capacity to wreak havoc on public policy.
Meanwhile, aside the above referenced Nigeria Code of Advertising practice and sales promotion (5th edition) which is a subsidiary legislation made pursuant to the APCON Act; there is yet another guideline for the regulation of advertising in Nigeria, also made pursuant to the same Act, which is APCON Code of Advertising and promotion guidelines (the Vetting Guidelines). This Code highlights the requirements for advertising in Nigeria.
The following are some of the notable provisions of APCON Vetting Guidelines:
- Paragraph 7.4 of the Vetting Guidelines provides that all advertisements except those for public service announcements, goodwill message, obituaries and vacancies shall be presented for vetting and approval by the advertising Standards Panel (ASP) before exposure to the public. The penalty for any media house that exposes an advertisement without the ASP certificate will be liable to a minimum penalty of 500,000.00.
Also, the ASP recognises that certain forms of advertisements may require submission to relevant self-regulatory organizations for clearance before they are presented to it for vetting. The organizations include: CBN, NAFDAC, NBC and FCCPC.
- Paragraph 7.1 of the Vetting Guidelines stipulates the requirements for pre-approval of advertising materials of which some relevant documents are expected to accompany such application before it would be subsequently forwarded to the Register of APCON.However, the application must be filed by APCON registered Practitioner not non-registered practitioner or non-APCON member.
As brilliant as the above referenced provisions appear, it has engendered a lot of controversies within the Nigerian advertising Arena than what the National Assembly that enacted the Act under which the Vetting Guidelines was made would ever envisage.
It is quite understandable that an application must be forwarded to the Registrar of APCON for pre-approval of advertising materials. This position is not farfetched. Some materials set to be advertised may possess serious health consequences or may yield negative results on the populace if not regulated, especially where advertisement of this character is coming from an advertising Practitioner. Similarly, we understand the fact that some advertisements are rooted in the statutory mandate and/or sectorial oversights of some Federal government Agencies and the oversight and statutory functions are items in the exclusive legislative list e.g. Drugs-NAFDAC, Currency-CBN, Products Standard-SON and Federal Competition and Consumer Protection Commission (FCCPC), Such that the endorsement or ratification of those Federal Government Agencies of a product would serve as a condition precedent to determine the validity of advertisement of products emanating from those Government Agencies. Any advertisement having this regulatory semblance is expected to be submitted to APCON for vetting.
The reason for arriving at the above conclusion is simple. Going by the argument canvassed earlier that advertising is an item under the residual list, which would ordinarily divest the National Assembly of its legislative power regarding that subject.
However, any advertisement touching an item in the exclusive legislative list would bring it under the regulatory oversight and jurisdiction of APCON. So such advertisement must be forwarded to APCON via a registered advertising Practitioner for vetting before the advertisement can be exposed to the public.
Let’s take for instance a pharmaceutical company that just came up with a drug to fight cough or flu. It is presumably believed that the product must have been registered with NAFDAC before the pharmaceutical company can propose to place advertisement for the new drug. The essence of this is that NAFDAC’s approval would be forwarded to APCON to know whether NAFDAC has approved the drug in actual sense, before advertisement of the drug can be submitted to APCON for vetting and subsequently displayed to the public.
The opening citation to the APCON Act provides thus:
An Act to establish a Council for advertising Practitioners
and to make provisions for the control of the practice
of the profession of advertising.
The intendment of the legislature for coming up with the APCON Act is easily deducible from the above referenced citation to the Act. The Act in its entirety seeks to designate, regulate the profession of advertising and mutatis mutandis, conduct of advertising practitioners and not enacted with a view to holistically or unilaterally regulating advertising throughout the federation, as this is not within the exclusive preserve or legislative competence of the National Assembly.
Consequent upon the above synoptic analysis, the fact cannot be gainsaid that advertising is an item under the residual list and in no way traceable to any item under the exclusive list nor concurrent list. Impliedly, it is within the legislative exclusivity of state House of Assembly and not National Assembly.
The above canvassed argument is well established and judicially supported in the contentious case of A.G Federation v. A.G Lagos State.
In the case, the Supreme Court declared without equivocation that the Federal Government lacks the constitutional powers to make laws outside its legislative competence, which are by implication residual matters meant for state Assembly.
It was once commented that the apex court says, the National Assembly cannot in the exercise of its powers to enact laws, takes the liberty to confer powers or authority on the federal Government or any of its Agencies to engage in matters, which ordinarily ought to be the responsibility of state Government or its Agencies.
In the above case, by virtue of the Nigerian Tourism Development Corporation Act 1992, the Nigerian Development Corporation(NTDC) whose functions were to register, classify, grade and regulate all Hotels, Motels, Hospitality and Tourism enterprises, and tour operations was created. But in 2003, the Lagos state Government passed into law the Hotel Licencing Law cap H6 Laws of Lagos State of Nigeria 2003, which conflicted with the mandate of the Nigerian Tourism Development Corporation Act.
In 2009, the Lagos State Government published a public notice that registration of hotels and tourism related establishments in Lagos State was the exclusive responsibility of the Lagos State Ministry of Tourism and Intergovernmental relations. The law was subsequently amended by the Hotel Licencing (Amendment) Law, the Lagos State of Nigeria Official Gazette dated 20th July 2010.
Based on the foregoing, NTDC issued a public notice advising all operators of hotels, and companies alike to disregard the earlier notice issued by the Lagos State Government. In this regard, the AGF on behalf of the Federal Government commenced an action at the Supreme Court against Lagos AG, by way of originating summons challenging the validity of the laws enacted by the House of Assembly of Lagos State. However, the Supreme Court ruled in favour of Lagos and held that the Law promulgated by Lagos State was not among items in the Exclusive and Concurrent lists but was rather among residual matters for the State.
In as much as it is indisputable that under the Nigerian legal system, the constitution determines the validity or otherwise of statutes (Acts and Laws) by reason of the fact that the constitution is the springboard through which all the laws available in the legal system emanate and take their source. This position indicates that, any law which takes itself out of the purview of the ground norm (the constitution) shall be rooted out and declared null and void owing to its inconsistency with the constitution.
The positions we are asserting here are very clear and well laid out below accordingly:
- THE SCOPE OF THE JURISDICTION OF APCON IN NIGERIA
Section 19(a)-(f) of the APCON Act speaks volume of the scope of jurisdiction of the Advertising Practitioner Council of Nigeria which is majorly to regulate the advertising profession, determine who are advertising practitioners, what standards of knowledge and skills are to be attained by persons seeking to become registered as members of the advertising profession and regulating and controlling the practice of advertising.
Without too much ado, one would agree that the major rationale behind the APCON is designation of advertising as a profession in Nigeria in consonance with the power vested in the National Assembly under item 49 of the exclusive legislative list as provided for in the Constitution of the Federal Republic of Nigeria 1999. Similarly, the advertising profession designated by the National Assembly through the APCON Act is in the same vein regulated by APCON Act.
In APCON v. The Registered Trustees of International Covenant Ministerial Council (ICMC) & others, the court of Appeal congruously held that religious Organizations are excluded from APCON oversight. in that case, the plaintiff/Respondent filed an action against APCON (Defendant/Appellant) based on the letter from the Appellant requesting the Respondent to submit their religious advertisement for vetting. The Respondent contested the power of the Appellant to review advertising materials of religious nature and argued that it constituted an infraction of their constitutional rights based on sections 10,28, 39, 40 and 42 of the 1999 constitution.
It was further held that the APCON Act imposes restriction on the right of freedom of worship as guaranteed under section 38 of the constitution, and APCON has no right to compel religious organizations to produce religious materials for vetting before being displayed, broadcast or aired.
The position we maintain here is very straightforward. Nigeria being a constitutional democracy can only be governed in line with the provisions of the constitution. Anything short of that would be illegal and unconstitutional. The APCON Act itself took its source from the constitution by virtue of the provision of section 1(3) thereof and item 49 of the exclusive legislative list also provided for in the same constitution. This implies that the provisions of the constitution should not be interpreted disjointly but cumulatively so as to bring the constitution in compliance with the purpose it was created for. It shouldn’t be interpreted in isolation. All relevant provisions of the constitution must be read together in form of community reading before arriving at a conclusion as to the meaning of a provision with respect to a subject matter covered by the constitution.
As we rightly argued above that Nigeria operates a constitutional Democracy, a political system deeply rooted in federalism. As such, the constitution is always a litmus test that every law of the land (with no exception to APCON Act) must be subjected to in order to determine the legal validity of such law. From the above cited case, we would agree that the scope of the jurisdiction of APCON was put to test through the yardstick of the constitution. In the end, the court concluded that APCON jurisdiction and oversight could not be extended to religious materials and religious organizations as doing so would be an infraction to the fundamental Human right of freedom of Religion as provided for under section 38 of the Constitution.
The decision arrived at by the Court of Appeal in the above case would leave one with a conclusion that the constitution is the major yardstick to measure or quantify the relevance or validity of laws under the Nigerian Legal system.
- THE CONSTITUTIONALITY OF APCON ACT VIZ-AVIZ THE SUBJECT OF ADVERTISING IN NIGERIA.
The power of the National Assembly to enact APCON Act is traceable to the constitution and must as well be exercised in strict conformity and compliance to the dictate of same.
The constitution in its assertive stance in section 4 underlines the legislative powers of the federal Republic of Nigeria.
The section further provides in sub-section 2 that the power of the National Assembly to make laws for the country shall be in respect of matters in the exclusive legislative list set out in part one of the second schedule to the constitution.
Further to the above, section 4(4) also makes it clear that the legislative powers of the National Assembly may be extended to any matter in the concurrent list. In addition, section 4(6) accords legislative powers of the constituent units of the federation to House of Assembly of State. While, the powers are to be exercised to the exclusion of any matter included in the exclusive list and to the inclusion of matters in the concurrent list subject to the provision of section 4(5) of the 1999 constitution known as covering the field.
Having laid out the constitutional provisions delineating the legislative powers of both National Assembly and State House of Assembly in Nigeria; based on the delimitation of legislative powers recognised by the constitution, it therefore becomes imperative to use the constitution as a yardstick to measure the legality or constitutionality of APCON Act in relation to the subject of advertising in Nigeria.
The second schedule to the constitution, part 1 thereof spells out items under the exclusive legislative list and of a fact, it contains 68 items, of which unarguably, none of them is traceable to or have semblance with advertising. The implication of this is that, advertising is not within the exclusive preserve of the National Assembly.
Also, part 11 of the second schedule to the constitution unveils items under the concurrent legislative list in which both the National Assembly and State House of Assembly have both legal and constitutional powers to legislate on, subject to the provision of section 4(5) of the constitution. A very thorough scrutiny of the above constitutional provision brings to fore the fact that advertising is not one of the items glaringly provided for under the concurrent list. One could therefore logically conclude that advertising is a residual list meant to be legislated on only by State House of Assembly.
Although, only the concurrent and legislative list are expressly provided for by the constitution; there is however a jurisprudential constitutional concept of the residual legislative list which is not expressly provided for by the constitution. This is basically with specific regards to issues which are not sheltered by both the exclusive and the concurrent legislative list.
The residual list thus belongs to the state. This means that only the state House of Assembly can legislate on them. Hence, where an incidental matter under federal legislation is a residual matter, the law takes effect as a state law and applies only in states and the federal Capital Territory, Abuja
Also by constitutional implication, the 1999 constitution arrogates an open ended legislative power to the National Assembly by virtue of the provision of section 60(a) thereof which I termed “omnibus Legislative power of the National Assembly” By virtue of the said omnibus legislative power, the National Assembly has an unfettered power to legislate on items emanating from chapter two of the constitution tagged “fundamental objectives and directive principles of state policy”. Having subjected chapter two to a closer perusal, we found no hesitation to hold the view that advertising is not one of the items or subjects contained under it, hence, the National Assembly lacks power to make an enactment on advertising especially where such Act professes to take effect throughout the federation by an extension of the jurisdiction or administrative arm of the Advertising Practitioners Council of Nigeria(APCON) to non-Advertising Practitioners or non-APCON registered members.
Premised on the above clear assertion, the APCON Act would have been rendered null and void owing to its inconsistency with the constitution but for its application to FCT Abuja only. Another factor that could be ignited in support of its validity throughout the federation is by its strict adherence to its primary purpose i.e. its rationale to designate advertising as a profession and as well to regulate the conduct and practice of advertising practitioners in Nigeria; regardless of where they are, whether within FCT, Abuja or any parts of the Federation. This position is traceable to the exclusive power given to the National Assembly in item 49 of the exclusive legislative list (professional occupation as may be designated by the National Assembly)
It therefore suffices to say that, the APCON Act would be divested of its constitutional validity and therefore rendered null and void if its application is targeted at non advertising practitioners or non APCON Members, as this would be ultra vires of the National Assembly.
At this juncture, it is therefore instructive to emphatically stress that, the only way the National Assembly could by APCON Act control or regulate advertising by non APCON Members or non-advertising practitioners is by amending the constitution pursuant to section 9(1) and 9(3) thereof.This is the only legal solace or refuge that APCON can resort to if non APCON Members or non-Advertising Practitioners are to be subjected to APCON jurisdiction and statutory oversight with respect to submission of advertisements to it for vetting by the same set of people who in actual fact outside its limit.
- LEGAL VALIDITY AND EXTENT OF THE CONSTITUTIONALITY OF THE SUBSIDIARY LEGISLATIONS MADE PURSUANT TO THE APCON ACT
So many subsidiary legislations were made pursuant to the APCON Act, but we would limit our discussion to just two of them, which represent the hallmark of our agitation and vituperation in this work. These are:
- APCON Code of Advertising and promotion Guidelines (otherwise known as Vetting Guidelines)
- The Nigerian Code of Advertising Practice and Sales Promotion (5thedition)
Having expressed the above reality, it is incontrovertible that subsidiary legislations are not always made by the legislature; rather, they are made by non-legislature through delegated legislations. Ese Malemi defines delegated legislations as laws made by an administrative authority, public authority or agency to whom the constitution or an enabling statute has given power to make law.
In other word, it is law made by delegated authority
Simply put in a clearer parlance, subsidiary legislations are laws made by bodies or authorities other than the legislature pursuant to the constitution or an enabling law.
The above referenced subsidiary legislations I.e. the Vetting Guidelines and the Advertising Code were made pursuant to APCON Act. As such, their validity can only be measured through the yardstick and parameter of the validity of APCON Act itself.
Article 0.5 of the Advertising Code provides:
“The provision of the APCON Act and the
Provisions of this code are applicable to non-
Nigerian individuals and corporate persons
In so far as they offer advertising services
Directed at the Nigerian advertising market
Or are sponsored by a company doing business In Nigeria.”
In consequence of the above, it was maintained earlier that advertising being a residual list is out of the preserve and legislative competence of the National Assembly, the implication resulting to the fact that the APCON Act itself is partially invalid and unconstitutional save for its application to the advertising profession and advertising practitioners in Nigeria, by reason of the fact that advertising is a residual list.
The National Assembly lacks power to legislate on the subject except where such item links up with any of the powers given to it by the constitution.(item 48 exclusive legislative list bordering on designation of a profession by National Assembly)
In so far the Advertising Code and Vetting Guidelines were made pursuant to the APCON Act, the subsidiary legislations must as well crumble like a pack of cards with the enabling. Their validity can only be upheld only to the extent of the validity of the enabling Act under which they were made. The mentioned subsidiary legislations lack originality in themselves but their originality and legal validity can only suffice through the validity of the enabling Act under which they were made. Anything that affects the enabling Act will automatically affect the legal sanctity and validity of the subsidiary legislations made under the Act, as it is very clear beyond mere conjecture that we cannot place something on nothing and expect it to stand. It would not stand but crumble into the pit of futility and nullity.
It is therefore safe to theorize that the vetting Guidelines, Advertising Code or any other legislations made pursuant to the power derived from the APCON Act are only valid and constitutional to the extent of the validity and constitutionality of the APCON Act that empowers the existence of those subsidiary legislations.
Under constitutional law, where a matter of this semblance or character comes up; it is not unusual to invoke the doctrine of “Quo Warranto” meaning by what authority? If truly the authority of the makers of the Advertising Code and Vetting Guidelines was derived from the APCON Act; the power to make those subsidiary legislations cannot be better than or have greater legislative or constitutional vigour than the power of the makers of the APCON Act, which is National Assembly.
If advertising being a residual list is outside the rubric and purview of the legislative preserve, competence and constitutional power of the National Assembly, save for the conditions analysed above with an inclusion of the designation of advertising profession and regulation of the conduct, skills, standards of practice etc. of Advertising practitioners; the subsidiary legislations made thereunder which include but not limited to the Advertising Code and Vetting Guidelines cannot possess a better or greater legal vigour than APCON Act save for its application to Advertising practitioner and APCON Membersand in no way to non-APCON members or non-Advertising Practitioners.
To conclude, extending APCON regulatory frontiers and oversight to non-APCON Members by saying individuals who are not advertising practitioners or non APCON Members should submit their advertisements for APCON vetting is totally ultra vires APCON power.
It has been laid out without any iota of ambiguity and in clear terms in this work that the Advertising Practitioners Council of Nigeria is a professional Body which came to being by the APCON Act. The Council is saddled with the responsibility of regulating the advertising profession and practice in Nigeria. However, in recent times, the body has been in the habit of over stretching her legal mandate beyond what the law permits.
This work has explained in great details the reasons why APCON cannot extend her oversight to individuals who are not advertising Practitioners or registered APCON Members, owing to the fact that advertising as a subject or item doesn’t fall within the legislative competence of the National Assembly that enacted APCON Act through which APCON was established. Hence, the power can only be constitutionally exercised if it is directed at regulating the advertising profession and conduct of advertising practitioners. Anything outside this would render the Act and any subsidiary legislations made pursuant to it null and void by reason of the fact that advertising remains the exclusive preserve of the state House of Assembly.
The legal implication of the conclusion arrived at is that any law, regulation, guidelines etc. made by the state House of Assembly would suffice in regulating advertising in Nigeria, because it lies solely within the legislative competence of State House of Assembly as a residual list.