The Telecommunications advocacy body, the Association of Licensed Telecommunications Operators of Nigeria (ALTON), says the ‘Bill for An Act to Repeal the National Information Technology Development Agency Act, no 28 2007 And Enact the National Information Technology Development Agency Act’, otherwise known as NITDA Bill would adversely affect the ICT industry, if implemented without modification.
As signed by its Chairman, Engr. Gbenga Adebayo and Executive Secretary, Gbolahan Awonuga, respectively, ALTON advises NITDA, at best, to be focused on research and development (R&D) since it was meant for the development of the ICT space, instead of seeking to regulate the industry.
ALTON has given its verdict after careful reading of the bill as both NITDA and NCC is sister agencies under the Federal Ministry of Communications and Digital Economy (FMoCDE). While insisting that most of the regulatory functions being ascribed to NITDA in the new Bill were duplicating NCC’s roles the Telco’s submitted.
Citing the provisions of Section 6(1) and (12) of the Bill, the Agency is empowered to “implement all government policies on information technology and digital economy,” and “issue and renew licenses and authorizations for the provision of information technology and digital services.” What constitutes information technology and digital economy are defined in Section 33 of the Bill. By the said provision of Section 33, “Digital Economy” is defined to mean “any aspect of the Nigerian Economy that is based or driven by digital technologies,” while “Information Technology” is defined to include “all forms of technology used to create, store, exchange and use information in its various forms (business data, voice, conversation, still images, motion pictures, multimedia presentations and other forms including those not yet conceived).”
If the Bill is passed as presently constituted, there is the risk that the Agency, acting properly under the Bill may issue regulations, guidelines and standards with regards to the use of information technology and digital services, which will conflict with the functions of the NCC. It will also result in double and possibly conflicting regulation for telecommunications companies in Nigeria. Presently, the NCC regulates the activities of all telecommunications companies that fall within the purview of digital economy and information technology.
Specifically, the NCC with regards to digital economy is responsible for the monitoring and implementation of the National Broadband Plan (2020 – 2025) and the National Digital Economy Policy and Strategy. Closely related to the above are the provisions of Section 6(2) of the Bill, which empowers the Agency to test and approve the use of information technology infrastructure and services before adoption in Nigeria and Section 20, which clothes the Agency with powers to make regulations and issue licenses and authorization for operators in the information technology and digital economy sector.
The Bill, by Section 13, also seeks to establish a Fund, which is to be known as the National Information Technology Development Fund (“the Fund”), which shall be used for the advancement of the country’s digital economy objectives and related purposes. In order to fund the activities of the Fund, the Bill provides that, Companies and Enterprises, including mobile and fixed telecommunications companies with a turnover of N100,000,000 (One Hundred Million Naira), shall pay a levy of one percent of the profit before tax.
“While ALTON as an association and our members as individual corporate entities are always observant of their tax obligations and other responsibilities, we submit that the tax sought to be introduced by the Bill, in addition to existing taxes and levies will overburden telecommunication companies.
The telecommunications companies in Nigeria are overburdened with over 39 different taxes and levies, a bulk of which are multiple or excessive. If this new tax is added to existing taxes, it will effectively increase Nigeria’s corporate income tax rate to about 36 per cent which is one of the highest rates in the world.
By the provisions of Section 6(7), the Agency has the jurisdiction to enter premises, inspect, seize, seal, detain and impose administrative sanctions on erring persons and entities who contravene any provision of the Bill. While our members as law abiding entities are not averse to being regulated, nor do they have the intention to disobey any law, rule or laws of our country, we feel that Section 6(7) is too broad and could give room for abuse of power by the Agency.
“Our fears are founded on the fact that, the Bill does not provide for prior warning/notice to be issued to the defaulting person or entity before the Agency exercises the power to enter premises, inspect, seize, seal, detain and impose administrative sanctions on erring persons and entities. Although the Section states that such actions by the Agency are subject to orders of a court of competent jurisdiction, the Bill fails to stipulate whether the Agency is to first seek and obtain orders of court before exercising its powers to sanction defaulting persons or entities or such orders could be obtained after the Agency exercise its powers under the Bill, ALTON stated.
Where the order of court is to be first sought and obtained before the Agency undertakes any of the actions mentioned in Section 6(7), the Section is silent as to whether the orders are to be obtained ex-prate or on notice to the person or entity against whom the orders are sought to be obtained.
Besides mentioning the various categories of licenses, the Bill does not define what these classes of licenses mean, neither is the Bill explicit on the types of activities which are covered by each class of license. The danger in the Bill not defining these licenses and category of activities which they cover is that the Agency may inadvertently appropriate more powers to itself than intended to be delegated to it by the legislature or, the Agency, may by error, seek to regulate activities already under the regulation of other regulatory agencies.
We believe that the role of NITDA as an agency is for the development of the ICT sector and the focus should be of how to empower the agency on this development and not another regulator for the industry thereby causing unnecessary confusion and disestablishing the gains the sector has made so far to the Nigeria economy. Therefore, Distinguished Members of the Committee, we have made our submission as our existence as a going concern will be threatened by effect of the Bill, if passed as presently constituted.”
Since last year when it came into the public glare, the NITDA Bill, which is still at the National Assembly, has come under heavy criticism from different stakeholders in the ICT industry. The main concern has been that the Bill is the functions of other existing agencies and regulators to NITDA.
ALTON assured that it would always continue to partner with the National Assembly and the Federal Ministry of Communications and Digital Economy in deepening mobile network and broadband penetration in Nigeria and stimulate the growth of the digital economy in Nigeria.