Concerns Mount over Non-reconstitution of NERC Board

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There are serious concerns among the operators in Nigeria’s power sector over the failure of President Muhammadu Buhari to appoint a new Chairman and commissioners for the Nigerian Electricity Regulatory Commission (NERC) four months after the expiration of the tenure of the Dr. Sam Amadi-led management team, THISDAY has learnt.

The Amadi-led management team was inaugurated on December 22, 2010 and ended on December 21, 2015.

Other members of the last commission included: the Vice Chairman and Commissioner in charge of Renewable Energy, Research and Development, Mr. Muhammed Lawal Bello; Commissioner, Finance and Management Services, Mrs. Mary Emiola Awolokun; Commissioner Legal, Licensing and Enforcement, Dr, Steven Andzenge; Commissioner, Engineering, Standards and Safety, Dr. Abba Armiya’u Ibrahim; Commissioner, Government and Consumer Affairs, Mr. Ekpo Olagoke Eyo and Commissioner in charge of Markets, Competition and Rates, Mr. Patrick Umeh.

NERC is presently headed by Dr. Anthony Ikenna Babatunde Akah as the acting Chief Executive Officer, a position, which industry sources say is alien to the Electric Power Sector Reform (EPSR) Act of 2005, which established the regulatory agency.

The Chief Executive Officer of one of the privatised power firms, who opted not to be quoted, told THISDAY at the weekend that with the non-constitution of a new executive, any regulatory decision taken by the acting CEO would be null and void.

“Our worry is the long term consequence of this avoidable vacuum. If the regulatory body takes any major decision today and somebody goes to court in the future to challenge the implementation of such decision, the decision will be rendered a nullity and the sector will suffer the consequence. We just hope that the government will do the needful because NERC as it is today is a threat to the industry,” he explained.

To avoid the creation of this current vacuum at NERC, the power reform act under Sector 35 (5) stipulates that “all appointments or re-appointments of commissioners shall be made before the expiry of their term of office in accordance with Section 34 of this Act.”

But the president failed not only to appoint new commissioners before the expiration of the tenure of the last commission but has also not been able to replace the former commissioners four months after they left office.

Section 34 (1) of the EPSR Act provides that “subject to subsection 2 and 3 of this Section, the commission shall consist of seven full-time commissioners appointed by the President subject to the confirmation by the Senate.”

According to subsection (2), “in selecting potential nominees, the president shall ensure that individuals are chosen from both the public and private sectors, for their experience or professional qualifications in the following fields or areas of competence: (a) generation, transmission, system operation, distribution or marketing of electricity (b) law, accountancy, economics, finance or administration.”

Subsection (3) provides that the “seven commissioners shall be appointed to reflect one commissioner per geopolitical zone and a chairman from any zone.”
However, while the chairman’s tenure of office is five years, the vice chairman and other commissioners are appointed for four years.

Reacting to the federal government’s target of 10,000 megawatts of electricity by 2019, Amadi told THISDAY that for the sector to realise government’s target, NERC should be restored to its statutory form and powers.

“Unfortunately, without appointment of commissioners, NERC is comatose, in spite of the hard work and best intentions of the management staff,” Amadi said.

According to the former boss of NERC, the agency’s regulatory framework guarantees high level of efficiency to achieve government’s target if enforcement is vigorous
“The work we did in NERC in the last five years has guaranteed a stable electricity model even in the face of very acute problems of poor quantity and quality of electricity. To ensure you have 10,000MW, you need to start from the end and get back to the beginning,” Amadi added.

Also a Lagos-based lawyer and investment adviser on energy matters, Mr. Iseoluwa Abiodun-Johnson told THISDAY that it was the height of irresponsibility for any government to act in a manner that was contrary to its own laws.

He said any action taken without the constitution of a new NERC would be “null and void.”
Abiodun-Johnson said since NERC was established by statute, the federal government should deal with the agency based on that statute.

“The whole essence of law is for good governance so that the running of the government is not done according to the whims and caprices of whomsoever that is in charge. When you do something that is not in accordance with the law, it is illegal; it is null; it is void and of no effect whatsoever. The federal government is being emotive because their action is not guided by what the law says but by their emotion,” he explained.
Abiodun-Johnson insisted that NERC could not be run under any manner but according to the EPSR Act.

“We have been talking about only 3,000MW since 1998 because of silly things like this, where government takes decisions that are contrary to the law. That was how the governing councils of the federal universities were dissolved when their tenure had not ended,” he added.