NBA faults Senate’s order to suspend increase in electricity tariff

NIGERIAN Bar Association in a communiqué issued after the meeting of its National Executive Committee (NEC) held in Jos, Plateau State on Thursday 18th February 2016, has faulted the resolution of the Senate directing NERC to suspend any proposed increase in the electricity tariffs. NEC therefore, urged all concerned parties to amicably resolve the controversy in the interest of all Nigerians, adding that the rights of electricity consumers to a fair and reasonable tariff mechanism and the rights of Investors in the power sector as determined by the country’s extant laws must be protected at all times.

NBA said: “The Constitution of the Federal Republic of Nigeria recognizes the principle of separation of powers and assigns different functions and powers to the different arms of government – the Executive, the Legislature and the Judiciary.
Under our Constitution, the Senate does not have the power to suspend or reverse the implementation of regulatory actions. Whilst it may investigate such regulatory actions, it may only do so in order to make or correct laws or to expose corruption.

The power to check regulatory or executive action lies with the Judiciary and this power may be validly exercised where it is established that an agency has acted outside of the powers granted under its enabling legislation or has not followed the procedure required prior to carrying out such an action.

“Consequently, the purported suspension or reversal of the Amended MYTO has no legal basis and therefore, constitutes a usurpation of the functions of the judicial arm of government.
In addition to the violation of the above-mentioned legal principles, equally disconcerting is the dangerous signal that this purported action of the Senate sends to current and potential investors in the Nigerian economy.

The NERC was conceptualized and established as an independent regulator that would be immune and insulated from interference by consumers, investors and government.

While NERC, like all other government agencies, is expected to function within the ambits of our laws it is however, critical, for its credibility and effectiveness, that in the regulation of the Nigerian power sector, it has effective and demonstrable independence in order to make the necessary decisions with respect to its mandate.

It must be recalled that the Senate of the Federal Republic of Nigeria recently ordered the suspension of the implementation of the amended Multi-Year Tariff Order of 2015 which was issued by the Nigerian Electricity Regulatory Commission (“NERC”) pursuant to the Electric Power Sector Reform Act, 2005 (EPSRA) which became effective on February 1, 2016.