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The grey area of regulation in Nigeria

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Rotimi Fawole is a legal practitioner with a career to date in intellectual property, media and corporate law.

My route to legal ‘columny’ at this newspaper started with a blog running broadly on the same premise, looking at what I thought to be pressing legal issues.

Till date, the article that has been read the most is one from 2012 on local governments and radio and television licences.

People search for information on this topic every day and their search engines direct them to the blog post.

To my mind, this shows two things – first, that six years down the line, the local government regulatory regime is still as nebulous as ever and secondly, that local government officials are taking advantage of this lack of clarity and harassing the businesses and residents.

This is the case despite the assurances from all presidential and gubernatorial candidates on addressing the several layers of regulation in force in Nigeria and their impact on business and the economy.

Post-election, it is quickly relegated and the grey area of uncertainty between government, through its regulatory agencies, and citizens is where you will find the activity of many agencies.

The police, for example, is entitled to stop and search vehicles and verify documentation.

Where things get complicated is that the number and description of documents required to pass muster depends on the location of the police checkpoint and the disposition of the enquiring officer.

What is worse, especially on the routes that connect the south-west to the eastern parts of the country, you will also encounter the customs service, the road safety corps, the army, military police and other agencies.

The customs service globally is typically a border service and the army only mounts checkpoints when martial law is in force.

Expectedly, their suite of required vehicle documentation is different from the police’s and the result is a system in which the average citizen is frequently unsure of his legal standing on many issues.

It is because of this grey area that a radio station that has been in operation for over ten years, paying all taxes levied by the state government can suddenly wake up to find itself allegedly in breach of urban planning regulations by the same government.

The state government in question demolished the premises, despite an injunction restraining it, purportedly because the planning approval given was for an office complex and not a radio station.

Perhaps choosing to use the building as a radio station rather than office complex could indeed alter the approved dimensions of a building but it is certainly not clear that this justifies demolition, never mind in the face of a court order.

Personally, I have also found it curious that the correspondence on the urban planning issues appears to have come directly from the office of the governor rather than the head of the urban planning agency.

But this is Nigeria after all, and we like to see “action”.

Action of the kind that involves the Consumer Protection Council shutting down a business on what its own statement now suggests were spurious grounds.

Action, that again sees the CPC attempting to regulate the price at which a broadcaster may offer its subscription service to the public, clearly inching beyond its current regulatory remit.

But this action, despite the non-movement that invariably accompanies it, means that very little is getting done and personalities rather than institutions are what gets built.

We are a public quick to bay for blood (especially foreign investor blood), and sometimes egg these agencies on into the grey area notwithstanding their lack of a proper legal foothold.

Perhaps indeed we also have an ideological grey area ourselves.

The 28th December 2016 edition of this column alluded to this – we do not know if we want to be a democracy or a dictatorship, capitalist or statist, meritocratic or nepotistic, light-touch or hammer-wielding regulated.

They may all seem like abstract concepts but they matter and are fundamental to the ideas that impel our development.

One of the most fascinating things about studying EU Law in university, for me, was the fact that every EU directive is preceded by consultation papers, accompanied by a guidance document and a preamble that sometimes has as many paragraphs as the operative sections themselves.

Thus, from the outset, it is clear what the regulatory intention and enforcement method is – and the governments seem almost to be making a compact with private citizens and businesses.

These accompanying papers all guide the courts when interpreting the law as well, making litigation more predictable.

It is a process that works and looking at indices of living, there is the argument that adopting this approach to regulation and enforcement has a correlation with national development & prosperity.

Reducing our regulatory grey area must become a national priority.


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