The Nigerian Communications Commission

The Nigerian Communications Commission (NCC) is the statutory regulator of the telecommunications industry established by the Nigerian Communications Commission Decree No. 75 of 1992.³⁴⁶ The Commission became operational in July 1993 and commenced full market liberalisation and sector reform in 2000. The main objectivesof the Commission include:

 Creating a regulatory environment to facilitate the supply of telecommunication facilities and services;³⁴⁷

 Facilitating the entry of private entrepreneurs into the telecommunication market and the promotion of fair competition and efficient market conduct;

 Assignment and registration of radio spectrum to licensed operators.

345 In March 2010, the Federal High Court, Abuja, reversed the cancellation of the 2.3GHz licence issued by the Nigerian Communications Commission to Mobitel Ltd (―Mobitel‖) by Prof Dora Akunyili, the then Minister of Information and Communications. The judge quashed the Minister‘s directive on the ground that it was beyond her powers and thus null and void. He also ordered the Commission to release the frequency slot to Mobitel, an order to which NCC immediately complied. Mobitel had taken the Minister to court for cancelling NCC‘s licensing process which awarded the three 2.3GHz frequency slots to Mobitel, Spectranet, Multilinks and Telkom. See Muraina and Nkanga 19th March 2010 Thisday.

346 Now repealed by the Nigerian Communications Act, Laws of the Federation of Nigeria, 2003.

347 S 1 of the Communications Act, 2003 provides as follows:

The primary object of this Act is to create and provide a regulatory framework for the Nigerian communications industry and all matters related thereto and for that purpose and without detracting from the generality of the foregoing, specifically to –

(a) promote the implementation of the national communications or telecommunications policy as may from time to time be modified and amended;

(b) establish a regulatory framework for the Nigerian communications industry and for this purpose to create an effective, impartial and independent regulatory authority;

(c) promote the provision of modern, universal, efficient, reliable, affordable and easily accessible communications services and the widest range thereof throughout Nigeria;

(d) encourage local and foreign investments in the Nigerian communications industry and the introduction of innovative services and practices in the industry in accordance with international best practices and trends;

(e) ensure fair competition in all sectors of the Nigerian communications industry and also encourage participation of Nigerians in the ownership, control and management of communications companies and organisations;

(f) encourage the development of a communications manufacturing and supply sector within the Nigerian economy and also encourage effective research and development efforts by all communications industry practitioners;

(g) protect the rights and interest of service providers and consumers within Nigeria.

102

 Administration of national numbering plan;

 Establishing mechanisms for promoting universal access to telecommunication services nationwide;

 Enforcing technical standards and protection of consumers from unfair practices by licensees.

The Commission adopted a phased approach to the liberalization of the telecommunications sector by issuing a number of licences for telecommunications services, including licences for the provision of fixed line telephony services by private telecommunications operators. In the absence of a telecommunications policy to guide its activities however, the result of the Commission‘s early activities was not impressive. In 1998 the combined fixed telephone lines by NITEL and the PTOs was less than 450 000.³⁴⁸ There was only one mobile cellular telephone network, provided by the Mobile Telecommunication Company Ltd (M-TEL), a subsidiary of NITEL. This poor state of the telecommunications industry prompted the formulation of the NTP in 2000.

The adoption of the Policy led to the enactment of the Nigerian Communications Act, 2003. In combination with the NTP, the Communications Act made extensive provisions for the regulation of the telecommunications industry. Issues such as licensing, general competition principles, investigations and appeals were addressed in the Act. Other areas include dispute resolution, interconnection, access to facilities, universal service, spectrum management, numbering and technical standards. To ensure the realisation of the objectives set out in the NTP and the Communications Act, the Act vested wide powers in the NCC and constituted it the main regulator of the industry in Nigeria.³⁴⁹

The Commission is empowered to make regulations exempting categories of services from licensing altogether.³⁵⁰ Under section 4(f) of the NCC Act, the Commission is responsible for the promotion of competition in the industry. It is also responsible

348 International Telecommunication Union (ITU) Licensing in the Era of Liberalization and Convergence:

The Case Study of the Federal Republic of Nigeria 8.

349 S 3 Nigerian Communications Act, Laws of the Federation of Nigeria, 2003.

350 Id at s 31and 32.

103 for protecting the providers of telecommunications services and infrastructure from unfair and anti-competitive practices.³⁵¹ The Commission has powers under section 70(1) of the Nigerian Communications Act³⁵² to make regulations for the guidance and direction of the industry. There is however, no provision in the said section for regulations that will secure the privacy of telecommunications and so no such regulations have been made by the Commission. It is pertinent to note that one of the objectives of the Act is to protect the rights and interests of service providers and consumers within Nigeria.³⁵³

Although no definition of ―communications‖ is made in the Act, it is clear that the Act applies to ―the provision and usage of all communications services and networks, in whole or in part within Nigeria or on ships or aircraft registered in Nigeria.‖³⁵⁴ Telephone calls and e-mails form part of the communications services offered in Nigeria. In the opinion of this writer, the failure of the NCC to make regulations for securing the privacy of communications is a major weakness in the regulatory capability of the NCC.

This is all the more disturbing in the light of newspaper reports suggesting that the government has taken steps to intercept telephone conversations in the face of growing terrorist, religious and ethnic attacks in the country. According to a report in one of the local newspapers,

351 S 4(g) Nigerian Communications Commission Act, Laws of the Federation of Nigeria, 1992.

352 The Commission may publish regulations for any or all of the following matters:

(a) written authorisations, permits, assignments and licences granted or issued under the Act ; (b) assignment of rights to the spectrum or numbers under Chapter VIII, including mechanisms for

rate-based assignment ;

(c) any fees, charges, rates or fines to be imposed pursuant to or under the Act or its subsidiary legislation;

(d) a system of universal service provision under Chapter VII, including but not limited to the quality of service standards ;

(e) communications and related offences and penalties;

(f) any matter for which this Act makes express provision; and

(g) such other matters as are necessary for giving full effect to the provisions of this Act and for their due administration.

353 See n 349 at s 1(g).

354 Id s 2.

104 [t]he federal government might have authorised the monitoring of

telephone lines of persons suspected to be involved in activities that may jeopardise the nation‘s security. The directive, it was learnt was handed down to the Nigerian Communications Commission which regulates the activities of telecommunications operators in the country.³⁵⁵

The question that arises is whether the Nigerian Communications Commission, in the absence of internally formulated regulations for the protection of the privacy of users of communications networks, and in the absence of statutory safeguards against illegal access to private communications by governments and private persons and entities in Nigeria, is in a position to fulfil its statutory mandate to protect the interests of the providers and users of communications services in Nigeria as stipulated by the Communications Act.

Lawful interception is nothing strange; it is the means by which law enforcement agencies are permitted, under a specific law, to intercept the communications of persons under suspicion of a crime. However, the problem with lawful interception arises where there is an absence of safeguards against abuse of the government‘s right to access private communication. In the case of Nigeria, the absence of a statute requiring judicial oversight of governments‘ interception of communications raises the question whether there is any reasonable expectation of privacy in communications, notwithstanding the constitutional guarantee of the same.³⁵⁶

The argument that access to communications gives law enforcement agents a veritable tool to fight crimes, particularly terrorism, resonates well in a society where criminal and terrorist activities are on the increase as in Nigeria in recent times.³⁵⁷ Nevertheless, there are concerns about interception of communications whether lawful or otherwise, that should be addressed. One such concern is the clear possibility of

355 Odittah and Isine 10th Oct 2011 Leadership newspaper.

356 S 37 of the Nigerian Constitution 1999 protects the privacy of communications. The question of privacy will be addressed in the next chapter.

357 The two primary threats to national security in Nigeria are violence in the Niger Delta and sectarian strife between Muslims and Christians in the northern part of the country. The violence in the Niger Delta is generally agreed to be due to the long neglect of the infrastructural deficiencies in the region and the environmental degradation occasioned by oil exploration activities. See Sunday 31st May 2009 Sunday Trust.

105 abuse of the right of interception. Even in countries with established traditions of respect for rule of law and the rights of the people, unlawful interference with citizens‘

communications are known to happen in clear violation of extant laws.³⁵⁸

Secondly, there is the question of trust. In the absence of safeguards, and even where such safeguards are available, it is debatable whether Nigerians trust their governments enough to believe that access to citizens‘ communications will be managed responsibly and without it being hijacked by particular interest groups such as the political class or any other group, as a weapon against political opponents or other persons adjudged by the state and its officials as ―enemies of the state‖. What happened in Greece in 2004³⁵⁹ during the Olympics Games, where unlawful intercepts of telephone communications was discovered, is a pointer to what can happen in a weak regulatory environment; it should not be allowed to happen in Nigeria. These concerns are weighty enough to compel a serious consideration of the need to adopt a data privacy law in Nigeria to safeguard information privacy, more so as the country‘s recent history suggests that democratic traditions and respect for rule of law are not yet fully entrenched. Nigeria needs to learn from the experiences of other countries with regard to addressing the issues of national security and information privacy. More will be said in chapter 7 about addressing the information privacy concerns of Nigerian citizens in an era of widespread use of telecommunications technologies and increasing security threats.

358 In the US, a federal judge ruled that the National Security Agency‘s program of surveillance without warrants was illegal and in violation of a 1978 federal statute which required court approval for domestic surveillance. According to a newspaper report, the National Security Agency monitored Americans‘

international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants. See Savage and Risen 31st March 2010 New York Times [online].

359 During the 2004 Olympic Games in Greece, Vodafone's mobile phone operation in Greece was ―embroiled in a phone-tapping scandal, nicknamed the Greek Watergate, after it discovered its network was being used to eavesdrop on the country's political and military elite.‖ The telephone operator, Vodafone Greece was fined €76m for failing to secure its systems against unlawful access that led to illegal wiretapping. See Smith 7^th February 2006 The Guardian.

106 4.2.4 Nigerian Telecommunication Limited (NITEL)

NITEL was the national operator and monopoly service provider for domestic and international services. The main objective of establishing NITEL was to harmonise the planning and co-ordination of the internal and external telecommunications services, rationalise investments in telecommunications development and provide accessible, efficient and affordable services. However, the slow pace of network rollout, non-competitive equipment procurement procedures and sub-optimal quality of service delivery, resulted in a weak infrastructure base that failed to meet the demands for telecommunication services.³⁶⁰

The release of a telecommunications policy in the year 2000 ushered in a new era of full liberalisation of the telecommunications industry. The implementation of the policy resulted in the successful auctioning of the 2G Digital Mobile Licenses in January 2001 with a total of four GSM licenses issued.³⁶¹ Furthermore, a number of Fixed Wireless Access (FWA) operators were licenced in 2002 (both national &

regional licenses issued) and even more significantly, a Second National Carrier, Globacom was licensed in 2002. The incumbent operator, NITEL, was brought under the regulatory oversight of the NCC in 2000 and was formally licenced in 2001.³⁶² As part of the privatisation and commercialisation programme of the Nigerian government, NITEL has been on offer for sale since 2001. All the attempts made so far by the Bureau of Public Enterprises (BPE), the government agency responsible for the privatisation of government enterprises, to sell the company have failed to produce a credible buyer for the premier telecommunications company. In 2001, Investors International London Limited made the first attempt to acquire NITEL but failed to pay the bid price of $1.317 billion and thereby lost the attempted acquisition.

Pentascope, a Dutch company, was thereafter appointed to manage the telecoms company but the arrangement was not without controversy. The management contract was eventually cancelled.

360 Ndukwe Telecoms Regulatory Environment 8 [online].

361 Id at 29.

362 See n 338 at 18.

107 In 2006, a consortium led by Transnational Corporation of Nigeria (Transcorp) won the bid to acquire a controlling 51% stake in NITEL. Due to Transcorp‘s inability to pay off NITEL‘s debts and invest in the operator‘s network, British Telecommunications (BT), a member of the consortium, pulled out of the management consortium in mid-2007, citing financing problems. In 2009, the government announced the revocation of the sale to Transcorp, on the ground that the buyer breached the shares sale agreement.

Following the revocation of the sale to Transcorp and the failure of the preferred bidder, New Generation Consortium, to meet payment deadlines, the BPE invited the reserve bidder Omen International to re-validate its interest in NITEL by making the necessary initial payments.³⁶³ The BPE has indicated that it would explore other options for disposing of NITEL should the reserve bidder fail to pay.³⁶⁴ The long delay in privatising NITEL has taken a heavy toll on its fixed assets which are not only deteriorating, but also diminishing in terms of subscribed lines. For example, MTel, the mobile subsidiary of NITEL, saw its share of the GSM market drop from 10.7% in 2001 to 0.4% in 2009.³⁶⁵ NITEL‘s inability to operate maximally as a national carrier has negatively affected its ability to invest in necessary telecommunications infrastructure. This in turn accounts for its inability to provide adequate switching facilities for the new entrants into the industry to connect to, thereby compounding the interconnection challenges that have plagued the industry for many years.