The regulatory regime in the telecommunications industry in Nigeria was directly supervised by the government of Nigeria through the old Ministry of Communications. The functions of the Ministry of Communications are now vested in the new Ministry, the Ministry of Communications Technology. The new Ministry also supervises the various agencies mentioned above. The role of the Ministry in the telecommunications sector includes:
336 The Wireless and Telegraphy Act, 1961 and the Nigerian Communications Act 2003. See the Nigerian Communications Commission website [online].
337 See n 320.
338 Ndukwe Nigerian Telecommunications Environment [online].
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Giving overall directions for telecommunications development;
Ensuring policy consistency of telecommunications with other national policies;
Enacting the necessary laws and taking other measures promptly in support of the national telecommunications policy.339
The Ministry of Communications Technology is responsible for formulating broad telecommunications policy objectives. Its activities include, amongst other things:
Proposing policy options and recommending appropriate legislation to government;
Implementation of government policy;
Representing the government on matters pertaining to regional and international organisations such as the International Telecommunications Union (ITU), Pan African Telecommunications Union (PATU), International Maritime Satellite (INMARSAT) and International Telecommunications Satellite (INTELSAT);
Overall monitoring of the radio spectrum allocation in the country.340
At independence in 1960, the P&T was the department under the Ministry of Communications providing and regulating telecommunications services in Nigeria.
When the Wireless Telegraphy Act was enacted in 1961, it vested wide powers of control over telecommunications services in the Minister of Communications. The Wireless Telegraphy Act and the Wireless Telegraphy Regulations made pursuant thereto were the principal legislation regulating the telecommunications industry up to 1998 when the Act was amended.341 The amendment transferred the powers exercised under the Act by the Minister of Communications to the Nigerian Communications Commission, to the extent that such powers related to telecommunications. The powers under the Act relating to broadcasting were also transferred to the Nigerian Broadcasting Commission (NBC). The regulatory oversight functions of the Ministry of Communications are now vested in the NCC.
339 Ibid.
340 See n 313.
341 Wireless Telegraphy (Amendment) Act, Laws of the Federation of Nigeria, 1998.
99 The role of the old Ministry of Communications was reduced to policy-making with the enactment of the Nigerian Communications Act in 2003.342 In 2006, the Nigerian government under President Olusegun Obasanjo, merged the Ministries of Information and National Orientation and the Ministry of Communications into what is today the Ministry of Information and Communications. The policy-making role of the then Ministry of Communications were transferred to the Minister of Information and Communications.
Although the Nigerian Communications Act, 2003 effectively established the NCC as the primary regulatory authority over the telecommunications industry, the NCC nevertheless remained under the supervision of the Minister of Information and Communications, functioning more or less as one of the departments under the Ministry. The Act requires the Minister to indicate the general direction of government policy to the Commission while ensuring the protection of its independence. Section 25 of the Act provides:
(1) Subject to subsection (2) of this section, the Minister shall, in writing, from time to time notify the Commission of and express his views on the general policy direction of the Federal Government in respect of the communications sector.
(2) In the execution of his functions and relationship with the Commission, the Minister shall at all times ensure that the independence of the Commission, in regard to the discharge of its functions and operations under this Act, is protected and not compromised in any manner whatsoever.
Although the Communications Act seeks to protect the independence of the regulator, the NCC is not altogether independent of the influence of the government as hitherto exerted through the Ministry of Communications and then through the Ministry of Information and Communication. A new Ministry, the Ministry of Communications Technology was created in 2011 by the government of President Goodluck Jonathan, ―to foster a knowledge-based economy and information society
342 See n 322.
100 in Nigeria.‖343 The NCC is listed as one of the agencies under the Ministry, thus the supervision of the Commission has been transferred to the new Ministry. The NCC‘s independence is diminished by the fact that it is still retained as a department of the Ministry of Communications Technology and is supervised by the Minister.
Furthermore, the government controls the process of appointment of the Chairman, the Executive Vice Chairman and members of the Commission and thereby exercises significant influence over their stay in office. The principal officers of the Commission such as the Chairman, the Executive Vice Chairman and the Commissioners are appointed by the President on the recommendation of the Minister.
The observations made about the influence of the Ministry of Information and Communications on the independence of the NCC are also applicable to the new Ministry as it will exercise the functions hitherto performed by the Ministry of Information and Communications.
As part of its supervisory role in the industry and in response to the rapid technological developments in telecommunications, broadcasting and ICTs, the Ministry of Information and Communications started the process of consultations with a view to updating the National Telecommunications Policy (NTP) which was formulated in the year 2000. In August 2011, a report on the review of the policy was submitted to the Minister of Communications Technology which is now the supervising Ministry in charge of telecommunications. The Minister has indicated that after consultations with relevant stakeholders in the industry, a national ICT Policy will be released. The new policy will harmonise the policy directions in the telecommunications and IT policy documents.344 The influence of the Ministry of Communications Technology in the regulation of the telecommunications industry, though tempered by the Communications Act, cannot be waived aside. The Minister in charge of the Ministry still exerts a measure of control over the Nigerian
343 See the Ministry‘s website [online].
344 Nweke 15th August 2011 Daily Champion.
101 Communications Commission and there have been insinuations of interference by the Minister in the matter of frequency allocation.345