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Draft Regulations: GSM Operators Move against NCC
By Tunde Rahman, 11.20.2004
Telecommunications operators in the country under the aegis of Association of Licensed Telecommunications Operators of Nigeria (ALTON) have expressed concerns over some aspects of the draft Enforcement Regu-lations 2004, which they say infringe on their rights under the Nigerian constitution. The draft regulations were issued by the Nigeria Com-munications Commission pursuant to the powers conferred on it by Section 70 of the Nigerian Communica-tions Act no 19 of 2003. In a letter to NCC's Executive Vice- Chairman, Mr. Ernest Ndukwe, ALTON said specifically that section 8(1) of the draft regulations was manifestly absurd. The NCC however said on Saturday that it was yet to recieve the letter dated November 8, 2004. NCC Head of Public Affairs, Mr. Dave Imoko said in a telephone interview that the commission was yet to receive the letter either from ALTON or its lawyers adding however that NCC would react to the letter when it receives it. ALTON in the letter signed by its lawyers, Olisa Agbakoba and Associates, said although the purpose of the said Section 8 (1) of the draft regulations, according to NCC, was to "prevent crime, enforce Nigerian law, protect public revenue and preserve national security," it however pointed out that none of the objects were objects for which NCC was established. The association noted that the power to prevent and detect crime was exclusively that of the Nigeria Police Force as stated under Section 214 of the Constitution. It said further that protecting public revenue and preservation of national security were duties outside the functions of the NCC. “The many provisions criminalizing conduct of telecommunications operators and imposing severe sanctions and penalties fall outside the powers enabled by the NCC Act and the Constitution. It is vital to draw a distinction between the type of power available to a regulator under constitutional prescriptions in Nigeria and other jurisdictions without Constitutions. "Generally, the Nigerian Constitution has allocated power say of sealing off detention and seizure to the Nigerian Police Force. This power is a criminal process. We doubt that the NCC can claim them,” ALTON said in the letter. According to the association, "NCC’s power to enforce, while a regulatory function, was limited only to quality and standards issues in the telecommunications industry. The enforcement process did not entitle the NCC to conduct investigations or hearings in a manner that violated any person's fundamental rights. “When the draft regulation purports to exercise legislative judgment, say by directing the change of management, this is certainly a usurpation of the prescribed duty of the courts set out in Section 6 of the Constitution. It will be very interesting to test this crucial constitutional issue whether a regulator either under a parent or delegated Law, can exercise judicial powers." ALTON further said that, “On reading the draft regulation, we observed, with respect, that the principles relating to a quasi judicial and administrative body and a purely judicial organ were not fully kept in view. "We readily admit that in the exercise of their functions, a regulator certainly must process administrative measures but this is not the same thing as claiming judicial power. This distinction derives from the notion that regulators are simply designed to be disciplinary bodies distinct from judicial authorities. The proposed draft failed to keep this vitally important issue in mind, hence matters within the purview of courts are claimed by the NCC. “A related concern is whether in the exercise of discipline, the NCC can at once assume the role of investigator, prosecutor, judge and jury. The proposed draft contains references to administrative procedures, sanctions, fines and penalties but no attempt was incorporated to preserve the historical notions of fair hearing and due process. "Is it not necessary that NCC consider creating an administrative panel constituted in a way to secure and guarantee decisions. The courts say repeatedly that those who feel called upon to exercise restraint over others should keep in mind constitutional requirements of due process. Our clients provided the example of the Securities and Exchange Commission, which has a special administrative panel to review administrative and disciplinary measures. We strongly urge NCC to revisit this vitally important matter.” Noting that the provision asking telecommunications clients to hand over in advance for "vetting" advertisement relating to telecommunications services infringed guarantees of privacy of communication, ALTON asked the NCC to carefully review the draft regulation with a view to incorporating the concerns of stakeholders. “The last of this type of regulation probably emanated from Communist Russia as depicted in Frank Fanon's KAFKA. How can it reasonably be expected in a deregulated reformed and competitive environment for operators to "vet" advertisements. The Laws of Libel, deceit, misrepresentation, etc are strong enough to deter false advertising. The requirements provided by Laws relating to Advertising standards pursuant to Act No. 93 of 1992 more than cover the field,” ALTON said. On the power to revoke licenses, ALTON said harmonization between agreements contained in licenses of operators, the enabling Act, the draft regulation and the constitution should be taken into consideration in invoking such powers.
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