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Regulatory Accountability in the Nigerian Telecommunications Sector

Published online by Cambridge University Press:  16 May 2013

Chukwudiebube Bede Abraham Opata
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Abstract

This article addresses the issue of how the Nigerian Communications Commission, which is responsible for the independent regulation of the Nigerian telecommunications sector, could be made accountable. The need for accountability is relevant given the local context of pervasive corruption and lower expectations of accountability when compared with more mature democracies. The accountability question is analysed in terms of the traditional public accountability mechanisms of executive supervision, legislative oversight and judicial review, highlighting the limits and challenges facing the application of each traditional accountability mechanism to the commission. An extended notion of accountability, specifically the adoption of fair procedures in decision making and accountability to the public at large, are presented as feasibly complementary to traditional accountability mechanisms. Finally the article proposes an amendment to the pre-action conditions to judicial review to facilitate greater accountability.

Type
Research Article
Information
Journal of African Law , Volume 57 , Issue 2 , October 2013 , pp. 283 - 309
Copyright
Copyright © School of Oriental and African Studies 2013 

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References

1 International Telecommunications Union “Trends in telecommunications reform 2003 executive summary” (September 2003) at 4, available at: <http://www.itu.int/ITU-D/treg/publications/Trends03_ExecSummary.pdf> (last accessed 3 March 2011). See also International Telecommunications Union “Trends in telecommunications reform 2009 summary” (February 2010) at 8, available at: <http://www.itu.int/dms_pub/itu-d/opb/reg/D-REG-TTR.11-2009-SUM-PDF-E.pdf> (last accessed 27 February 2013).

2 As at December 2012, Nigeria had a total of 151,714,650 connected lines, of which 113,195,951 were active. See Nigerian Communications Commission “Monthly subscriber data” (January 2012 – December 2012), available at: <http://www.ncc.gov.ng/index.php?option=com_content&view=article&id=125:art-statistics-subscriber-data&catid=65:cat-web-statistics&Itemid=73> (last accessed 27 February 2013).

3 The Act, secs 3 and 4.

4 Id, secs 4(1)(j) and 121.

5 Id, sec 4(1)(e) and chap IV.

6 Id, secs 4(1)(k) and 128.

7 Id, secs 112, 114 and 118.

8 Association of Licensed Telecommunications Operators of Nigeria and Others v Attorney General Lagos State and Others (2007) unreported suit no FHC/L/CS/517/06, where the Federal High Court, Lagos Division held that the Lagos State Infrastructure and Regulatory Agency Law of 2004 was void to the extent that it sought to regulate telecommunications within the state contrary to the provisions of the Act.

9 With respect to the commission's involvement in the minister's statutory role of formulating general policy for the sector, see sec 24 of the Act. For the NCC's statutory requirement to assist the National Frequency Management Council in allocating spectrum, see secs 28(d) and 124 of the Act.

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24 The Independent Corrupt Practices and Other Related Offences Commission established by sec 3 of the Corrupt Practices and other Related Offences Act No 5 of 2000, and the Economic and Financial Crimes Commission established by sec 1 of the Economic and Financial Crimes Commission (Establishment) Act 2004.

25 See for instance E Aziken “Obasanjo under probe over N59bn telephone loan” Vanguard (23 December 2007). It reports that the Senate was set to probe loans obtained by the former President Olusegun Obasanjo for the National Rural Telephony Programme. The forthcoming probe never materialized.

26 The NCC published “Trends in the Nigerian telecommunications sector” up to the year 2004 but the statistics are no longer available on the NCC website; copies are on file with the author.

27 The Laws of Federation of Nigeria 2011 was published after this article was written but before it was published. It contains all federal statutes in force in Nigeria as at December 2010.

28 See notes 4, 5, 6 and 7 above.

29 See note 24 above.

30 See Usoro, P “Nigeria: Telecommunications – regulation” (1999) 5/4Computer and Telecommunications Law Review 51Google Scholar.

31 The Act, secs 4 and 23–25.

32 Mobitel Limited v The Hon Minister of Information and Communication, the Federal Ministry of Information and Communication, the Attorney General of the Federation and Minister of Justice and the NCC, unreported suit no FHC/ABJ/M/312/09, judgment delivered by MG Umar J of the Federal High Court Abuja Division on 18 March 2010.

33 See W Oyebade “Bickering over NCC's spectrum licenses” The Guardian (2 June 2009), available at: <http://www.ngrguardiannews.com/focus_record/article01/indexn2_html?pdate=020609&ptitle=Bickerings%20over%20NCC's%20spectrum%20licenses> (last accessed 3 June 2009) and S Aragba-Akpore and N Onyedika “NCC, ministry row over licenses deepens” The Guardian (27 May 2009), available at: <http://www.ngrguardiannews.com/news/article02//indexn3_html?pdate=270509&ptitle=NCC,%20ministry%20row%20over%20licences%20deepens&cpdate=270509> (last accessed 3 June 2009). At the minister's instance, the commission's executive vice chairman was invited for questioning by officials of the EFCC.

34 Mobitel, above at note 32 at 17.

35 Uganda Communications Act, chap 106 Laws of Uganda, secs 11–12.

36 Spiller, PT “Institutional changes in emerging markets: Implications for the telecommunications sector” in Majumdar, SK, Vogelsang, I and Cave, M (eds) Handbook of Telecommunications Economics (vol 2, 2005, Elsevier)Google Scholar 622 at 625.

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39 The Act, sec 25(1).

40 An example would be the minister issuing a directive to the commission to reverse its decision; see Mobitel, above at note 32.

41 The Act, secs 19(1) and 21(1).

42 Id, sec 7(2).

43 Id, sec 8(1).

44 Scott “Accountability in the regulatory state”, above at note 12 at 52.

45 The Act, sec 21(1).

46 See the National Assembly website at: <http://www.nassnig.org/> (last accessed 27 February 2013).

47 D Olowu “Public accountability, good governance and constitutional validation in Commonwealth Africa” (paper presented at the seventh world conference of the International Association of Constitutional Law, Athens, 11–15 June 2007) at 16, available at: <http://www.enelsyn.gr/papers/w16/Paper%20by%20Dr.%20Oladejo%20Olowu.pdf> (last accessed 8 October 2011).

48 Ibid.

49 House of Representatives, Federal Republic of Nigeria “Votes and proceedings, Wednesday 16 October 2007” (Fourth Republic third National Assembly, first session no 28) at 125.

50 House of Representatives, Federal Republic of Nigeria “Votes and proceedings, Wednesday 21 November 2007” (Fourth Republic third National Assembly, first session no 40) at 179.

51 “House c'ttee threatens to revoke MTN's licence” (13 December 2007) This Day, available at: <http://www.balancingact-africa.com/news/en/issue-no-384/telecoms/house-committee-thre/en> (last accessed 25 April 2013).

52 “N'Assembly may sanction GSM service providers” (15 January 2008) This Day, available at: <http://allafrica.com/stories/200801150273.html> (last accessed 25 April 2013).

53 Recommendation V.

54 See note 50 above.

55 As at 27 February 2013, Hon Mustapha Lekan, Hon Jerry Manwe, Hon Salako and the current chairman, Hon Oyetunde Ojo, have chaired the House of Representatives standing committee on communications.

56 Nationwide Action Against Corruption and Barrister Benson Ibezim v ECONET Wireless Limited, MTN Communications Nigeria Limited, GLOBACOM Nigeria Limited (2005) (Nationwide) unreported, appeal number CA/A/10/2005.

57 See S Lavrijssen and M de Visser “Independent administrative authorities and the standard of judicial review” (2006) 2/1 Utrecht Law Review 111, which presents judicial review as complementing administrative accountability for independent administrative agencies within the European Union.

58 S Shikyil “Challenges of judicial independence in Nigeria” (paper presented at the international conference on sources of accountability on the African continent, Cape Town, 20–24 July 2009) at 2 and 25.

59 Erero and Oladogun “Tackling the corruption epidemic”, above at note 23 at 281.

60 Yusuf, HO “Calling the judiciary to account for the past: Transitional justice and judicial accountability in Nigeria” (2008) 30/2Law and Policy 194CrossRefGoogle Scholar; Yusuf, HO “Democratic transition, judicial accountability and judicialisation of politics in Africa: The Nigerian experience” (2008) 50/5International Journal of Law and Management 236CrossRefGoogle Scholar.

61 Yusuf “Democratic transition”, id at 240–41.

62 The Act, sec 86(1).

63 Id, sec 86(4).

64 Id, sec 86(2).

65 Id, sec 87(1).

66 Id, sec 87(4).

67 Id, sec 87(2).

68 See id, sec 138; see also sec 251(1)(p) and (r) of the 1999 Constitution of the Federal Republic of Nigeria.

69 The Act, sec 88(1).

70 Id, sec 88(2).

71 Id, sec 88(3).

72 See NCC v MTN Communications Limited (2008) 7 NWLR 229, where MTN argued in part in the lower court that this provision was unconstitutional as it could have the practical effect of impeding a person's constitutional right of access to the courts. The courts declined to rule on this point.

73 The Act, sec 87(1) and (4).

74 Bluechip Communications Nigeria Limited v NCC unreported, appeal no CA/A/108/2004 (Bluechip) at 48–50.

75 Above at note 56.

76 Bluechip, above at note 74.

77 Above at note 32.

78 See NCC v MTN, above at note 72; ECONET Wireless Nigeria Limited v NCC unreported, appeal no CA/A/83/2004; and Bluechip, above at note 74.

79 See Obiegbu v UniAbuja [2005] 9 NWLR (pt 930). For cases involving chieftaincy disputes where provisions for recourse to administrative procedures have been upheld by the courts as condition precedents to judicial review by the courts, see Faloye v Omoseni [2001] 9 NWLR (Pt 717) 190.

80 Note, no actual challenge against the commission's decision was made in Nationwide.

81 Above at note 72.

82 Above at note 78.

83 (2007) 16 NWLR 270.

84 Above at note 74.

85 (2008) unreported suit no FHC/L/CS/909/2007.

86 Above at note 72.

87 CELTEL, above at note 85 at 13.

88 Independent National Electoral Commission v Alhaji Balarabe Musa [2003] 3 NWLR 72.

89 Savannah Bank of Nigeria Plc v CBN [2009] 6 NWLR 237.

90 Saraki v Kotoye [1990] 4 NWLR (pt 143) 144 at 147.

91 Scott “Accountability in the regulatory state”, above at note 12.

92 Graham Regulating Public Utilities, above at note 16 at 66 and 85.

93 See Bovens, M “New forms of accountability and EU governance” (2007) 5/1Comparative European Politics 104CrossRefGoogle Scholar at 107–08 and Bovens, M “Analysing and assessing accountability: A conceptual framework” (2007) 13/4European Law Journal 447CrossRefGoogle Scholar.

94 Ogus, ARegulation: Legal Form and Economic Theory (1994, Clarendon Press)Google Scholar at 111 and 114.

95 Graham Regulating Public Utilities, above at note 16 at 66 and 85.

96 Id at 67.

97 Id at 78.

98 See the Act, chap V on powers and procedures of the commission.

99 Ibid.

100 Id, secs 57–60.

101 See reports of different public inquiries held by the NCC, available at: <http://www.ncc.gov.ng/index.php?option=com_content&view=article&id=75&Itemid=90> (last accessed 27 February 2013).

102 See Orakul, above at note 83.

103 The Act, sec 67 (2).

104 See the Act, secs 21 and 89 on the NCC's annual reporting obligations and regs 80 and 81 of the Universal Access and Universal Service Regulations 2007 on the USPF's obligation to publish and disseminate annual reports. In May 2011, the USPF made its 2009 annual report publicly available on its website: <http://uspf.gov.ng/downloads.htm?p13_sectionid=2> (last accessed 27 February 2013); no later reports are available on the website.

105 See the NCC's notices and press releases on the NIGCOMSAT controversy and on the 2.3 Ghz spectrum licensing process published in various media. These and other statements released to the press by the commission are available at: <http://www.ncc.gov.ng/pressreleasesarchives.htm> (last accessed 3 March 2011).

106 See NCC Trends in Telecommunications Markets in Nigeria 2003–2004 (2005, E-Shekels Ltd) at 34–35 (copy on file with the author) for background on the formation of the consumer parliament and its role in addressing issues important to Nigerian telecommunications services consumers.