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As Nigerian ICT regulators, NITDA disagree over amendment bill

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Two stakeholder meetings held on Friday February 18, 2022 and Friday March 11, 2022 respectively and organised by the National Information Technology Development Agency (NITDA), to look into the draft NITDA (Repeal & Re-Enactment) Bill 2021, which seeks to empower it regulate digital economy in Nigeria, ended with some participants asking NITDA to maintain its status quo as an IT development agency.

ICT regulatory agencies like Computer Professionals (Registration Council of Nigeria) (CPN) and the Nigerian Communications Commission (NCC), were of the view that the NITDA bill if amended, would conflict with their regulatory powers. Legal experts weighed in asking NITDA to reconcile the draft bill with the Startup Bill and the regulatory functions of CPN and NCC as well as the punitive fines it intends to force on operators in the industry via the bill.

According to the NCC, Section 1 (a), (b), (c), (d), (e), (f), and (g) will impact on the NCC’s functions in Section 4 of the Nigerian Communications Act 2003 to regulate communications services that drive the digital economy.  Section 2 of the NIDTA Bill 2021 “is an attempt to replicate the provisions of Section 2 of the Nigerian Communications Act 2003 that provides: “This Act applies to the provision and use of all communications services and networks in whole or in part within Nigeria or on a ship or aircraft registered in Nigeria.”

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NCC submitted that Section 9 (d), (e), (h), (i), (l), (p), (s), (v), (w) is a reflection of the provisions of Section 4 (1) (h) of the NCA 2003 and “this section will create a regulatory overlap for matters that relate to setting standards for communications services in Nigeria.” It picked holes in Section 10 (c) and Section 16 of the Bill, stating that if NITDA becomes a regulatory agency and issue licences for ‘digital services’ and ‘digital economy’ across all sectors of the Nigerian economy, “This will lead to imposition of licencing fees and creation of additional burden on current licensees of the Commission.”

NCC also called on NITDA to amend its Section 26 (which is copied from Section 23 of the NCA 2003) and Section 28 (l) to meet with the provisions of CAMA and Section 33 which “definitions” will create conflicts across most of the sectors of the Nigerian economy.”

On its part, CPN president, Mr. Kole Jagun, stated that “the NITDA Bill 2021 arrogates powers of several other regulatory agencies to NITDA, which is an infringement on the statutory powers of other agencies of government like CPN, National Communications Commission (NCC), Galaxy backbone, Office of the National Security Adviser (ONSA), the National Universities Commission (NUC), etc. that had been in existence before NITDA, and who have been performing their statutory roles.

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“For instance, Section 6, 13, 20, 21, and 22, which talked about NITDA’s power, licensing and authorizations, and offences and penalties, among others, raised some pertinent issues. Section 6 arrogated new powers to NITDA, which included the ability to fix licensing and authorization charges, collect fees and penalties and issue contravention notices and non-compliance with the Act.” Jagun stated that all the offending sections of the proposed NITDA Bill, giving NITDA powers to perform other agencies’ functions should be expunged.

Meanwhile, NBA President, Olumide Apata, represented by ICT committee, NBA-SBL, Rotimi Ogunyemi, welcomed the amendment process, noting that it responds to the call of healthy legal and regulatory environment to support the growth of digital economy. However, he asked: “We will like NITDA to explain how this bill proposed to align with other similar efforts, such as the Startup bill?

“How does NITDA aim to achieve regulatory harmony and alignment with other critical digital economy institutions like the NIMC and the NCC and we also hope to hear from NITDA’s perspective on what appears to be harsh penalties for violations that has been proposed by this bill, which perhaps might have an intended effect of stiffening the growth of the digital economy. These are few concerns that have been raised by the members of the NBA,” Apata stated.

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The director, Legal Service Department at NITDA, Emmanuel Edet in response said, NITDA will ensure proper alignment with the management of the ever-expanding ICT ecosystem and maximally protect the users of digital services, thereby bridging the gap in the digital economy without necessarily straying into the regulatory power of other existing regulatory agencies.

He emphasized that NITDA would be collaborating with these agencies, adding that NITDA would take a look into consideration all the observations, comments and inputs by stakeholders on further work on the proposed Bill.

In his welcome address, director-general of NITDA, Kashifu Abdullahi, called for regulation that governs use of modern technologies. “We know that technology can be used as a tool and as a weapon. Anybody who uses it as a weapon, there should be a law that will hold that person accountable for it. We want the people developing tech, to develop it with a legal mind, hence the reason why we are here today.”

Earlier in his opening remarks, minister of communication and digital economy, Prof. Isa Pantami represented by his technical adviser, Prof. Saliu Junaidu, said there is the need to review the existing NITDA regulation and facilitate where necessary the enactment of those policies that will enhance the development of digital technology sector for national growth.

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