Professional Documents
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SECTOR REFORM
Hon. Justice Tijjani Abubakar
Judge, Federal High Court of Nigeria,
Port Harcourt.
Text of paper delivered at a seminar organised by Nigerian Electricity Regulatory
Commission in collaboration with the National Judicial Institute at Crystal
Gardens Hotel, Kaduna on 13th July, 2010
Genesis of Power and Energy Reform
• Incessant power failure and consumers
dissatisfaction arising generally from:
• Lack of Capital for Expansion;
• State monopoly of power and energy generation,
transmission, distribution and supply;
• Corruption and Mismanagement by the State’s
Power institutions such as ECN, NEPA.
• Increased Population and Energy Demand;
• Lack of Competitive Energy Law.
Highlights of the Reform
• Enactment of the Electricity Power Sector Reform Act.
• Establishment of PHCN – a special purpose state-
owned private company limited by shares presently
undertaking functions relating to the generation,
transmission, trading, distribution and bulk supply and
resale of electricity previously undertaken by NEPA.
• Establishment of Nigerian Electricity Regulatory
Commission.
• Licensing of Independent Power Generation,
Transmission, Distribution and Supply Companies.
• Multiple Regulations to regulate licensing,
transmission and distribution of power and energy.
Regulatory Models for Achieving Sustainable
Energy Production and Distribution
Legal
Command & Control Strategies
Laws, Regulations and Guidelines
Establishment of Institutions e.g. Courts, NERC,
Personnel & Provisions of infrastructures and
enabling environment
Enforcement of Laws, Standards , Guidelines and
Regulations
Review of Laws in line with dynamics of the energy
laws.
• Finance
• Corruption
Role of Judiciary in Energy and Power
Sector Reform, Act.
• Interpretation of the Act, Regulations, Standards and Code. section 49 which
requires the questions of law arising from an order or decision of the Commission,
the Commission, suo motu or at the request of any person directly affected by
such order should refer such question to the High Court.
• Jurisdiction: S. 49 gives jurisdiction to High Court but there is no definite provision
granting exclusive jurisdiction to the Federal High Court. Does it mean that both
the state and federal high court have concurrent jurisdiction on the Electricity
Reform Act and regulation made thereof?
• Cases bordering on Grant, Refusal and Revocation of Permits
• Non Disclosure of Material Information.
• Investigative and Inspectorate Powers.
• Enforcement of Penalties – Problem of Proof and Evidential Matters and Challenge
of Penalties.
• Challenge of Quasi-Judicial Functions under the Regulations. – e.g. power to
rehear appeal over decision to grant, refusal or revoke permits.
• Adjudicative power under section 6(6) of the 1999 Constitution.
• Power of the Court under ICPC and EFCC Acts.
Investigative and Inspectorate Powers
• The regulatory oversight over electricity power is further
enhanced by the inspectorate power of the NERC. Under
the Act, an official of the Commission is empowered to
carry out inspection and examination of books of the
regulated companies. In furtherance of its investigative
power, the Commission may search, detain, examine books,
documents or other records found in the premises of a
company and confiscate items recovered from suspect
without any warrant of arrest. The exercise of this power
will necessitate the officials of the Commission to access
the premises of the suspect without notification. In most
cases, key evidence will include the analysis of a sample of
items taken by the Commission from the premises where
the offensive items are kept.
Way Forward
Capturing of data for regulatory and enforcement
purposes.
Monitoring and Evaluation of Policies and Laws
Tracking violators of the energy laws .
Regular follow-up actions on
Corporate Energy Audits
Promotion of Renewable Energy
Applying Polluter Pay Principle
Reforms of Energy Law
Reappraisal of Energy Law Compliance Strategies
Prompt, effective and efficient prosecution of
defaulters.
Way Forward
Judicial involvement can make a unique contribution by
ensuring compliance with our energy and power law.
Consequently, judicial interpretation of our energy law
purposively would not amount to the usurpation of
legislative or executive roles; nor would it force a court
invariably to give in to the demands of regulated entities and
consumers allowing it to be captured by them. It would
certainly expand the role of the judiciary beyond the limits
set by those who seek to restrict it to the consideration of
the procedural rationality of decisions or to policy
implementation rather than formulation and to secure
harmonious and efficient implementation of the law for
overall benefit of the citizens and nation at large.
Way forward
• Reducing the level of corruption.
• Appointment and Training of Competent and Relevant
professionals in energy and power sector.
• Acquisition of modern technology to assess power
consumption such as Prepaid Meters.
• Provision of Enabling Infrastructure.
• Continuous training of legal and judicial officers for ease
prosecution of violators of energy and power laws.
Way Forward
Integrating energy and power conservation values into
the psyche of Nigerian through:
Social mobilisation and public participation.
Education and Seminars
Public Participation – Agenda 21
Right to participate in decision making, e.g.
Public hearing
Right to Know
Proper dissemination of energy and power
regulations and information, rules and
guidelines particularly in their local languages,
energy and power educational programs on
radio and television.
Conclusion
• It must be noted, however, that unless the
NERC takes proactive steps to enforce its
regulations strictly and boldly what happened
in the banking sector may occur in the nearest
future in the energy sector.
• The judiciary must also recognise its role in
preserving and enforcing Energy Reform Law
purposively for the benefit of all Nigerians.
Conclusion
• Thank you all for your attention.