The decision of the Senate in suspending the proposal presented by the Nigerian Electricity Regulatory Commission, NERC, for the increment in electricity tariff, has been criticized by the National Executive Committee (NEC) of Nigerian Bar Association, NBA, in a communique issued after the group held a meeting on Thursday 18th February 2016 in Jos, Plateau State.
In view of this, NEC persuaded all affected parties to peacefully settle the controversy in the interest of all citizens of Nigeria, as he added that the country’s extant laws must be protected at all times considering the fact that the rights of electricity consumers to a fair and reasonable electricity tariff mechanism and the rights of Investors in the power sector are determined by the law. According to NBA,
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.
Added to the breach of the legal principles mentioned above is the threatening suggestion that this purported action of the Senate sends to present and would-be investors in the Nigerian economy. It is equally unsettling.
The concept of NERC was formed and instituted as an independent regulator, immune and free from interference by consumers, investors and government.
While NERC is expected to function within the boundary of Nigerian laws like every other agency of the government, it is nevertheless, of maximum importance, that in the regulation of the Nigerian power sector, it has practical and demonstrable independence in order to make the required decisions with regards to its mandate for the sake of its credibility and effectiveness.
Recall that the Nigerian Senate recently ordered the suspension of the new 45 percent electricity tariff increase by the Nigerian Electricity Regulatory Commission (NERC) in line with the Electric Power Sector Reform Act, 2005 (EPSRA) which took effect on February 1, 2016. The order of the Senate followed a motion to suspend the implementation of the new tariff, sponsored by Senator Suleiman Nazif (APC, Bauchi North), under Matters of National Importance.