" ITREALMS: NITDA Bill 2022: A basket of controversial overlaps - ITREALMS

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Monday, January 02, 2023

NITDA Bill 2022: A basket of controversial overlaps - ITREALMS

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Still on the efficacy of NITDA repeal and amendment Bill 2022, REMMY NWEKE spotlights on a basket of controversial overlaps.

Introduction:

The National Information Technology Development Agency (NITDA) bill 2022 currently before the National Assembly for purported repeal and amendment bill of NITDA Act No. 28, 2007, has been discovered largely to be ridden by rodents of controversial overlaps. This, for a wildly traveled Information and Communications Technologies (ICT) industry observers, deserve urgent national attention or intervention in all fronts.


Assuming Mr. Anunti Laniyi, an industry stakeholder on his own right has not seen the NITDA Bill 2022 from the beginning as shared earlier in "Can Lawan, Gbajabiamila kill cockroachesand stumbled on the objective of Section 9 (h) where it was stated inter–alia to "coordinate, monitor, and evaluate the use and adoption of digital services, products, and platforms to promote the digital economy." Of course, this is alien to NITDA Act 2007, and as such, this bill did not define ‘digital devices’ but it could be interpret to refer to devices that facilitate access to the internet and other communications services. Thus, this is understandably within the regulatory purview of NCC as defined in Section 2 of the Nigerian Communications Act 2003, which also in Section 147 empowered NCC to monitor equipment and devices for national security purposes and has issued a regulation in that regard.

IT platforms:

Equally of importance, the Section 9 (i) stated “The agency shall coordinate and supervise the activities of any entity incorporated, owned or partly owned by the government to provide information technology infrastructure and digital services.” For the likes of Mr. Anunti, the generic use of ‘information technology infrastructure’ and ‘digital services’ will bring current licensees of NCC under the regulatory purview of NITDA; this is basically because most IT infrastructure and digital services are driven by internet platforms that are majorly based on services provided by the Internet Service Providers (ISPs) and Mobile Network Operators (MNOs) that are contemporary licensees of NCC.

Double tragedy:

Double tragedy is that above statement overlaps with the functions of NCC as all corporate entities that provide information infrastructure and digital services as defined in this proposed act are directly licensed by NCC and all technology devices connected to the communications networks in the country are required to be type approved by NCC. A double overlap!

Then, a look at Section 9 (l) inter alia, “The agency shall promote universal access for information technology, digital services and systems penetration in Nigeria” avails Mr. Anunti Laniyi to belittle the generic use of ‘universal access’, ‘digital services’ and ‘system penetration’ because it made these provisions a replica of the provisions of Sections 112 and 113 of Nigerian Communications Act 2003 that established the Universal Service Provisions Fund (USPF) under the NCC, even though USPF has since 2019 been spuriously added-on to the office of the Minister of Communications and Digital Economy. Intelligently this was intended to deepen internet penetration in unserved and under-served areas within the compass of NCC, but unfortunately will create regulatory overlap.

Direct battle line:

A look at the Section 9 (p) “The agency shall promote the adoption of the Nigeria Top Level Country Code internet domain (.ng), sound internet governance and giving effect to the Second Schedule to this Act.” Noteworthy is that the Second Schedule of the Act stated inter alia “the agency shall advise the Federal Government generally on matters and issues that are related to the management and administration of Nigeria’s country code top-level domain (.ng).” Observers said that despite transferring the provisions from the schedule and made it substantive provision of the Act with implementation powers, created a regulatory overlap with the Commission’s oversight over the platform providers.

This, ICT analysts also pointed out, is in direct battle with the powers of NCC to assign electronic addresses to licensees and other users connected to the communications networks.

While Section 9 (s) intends to “support the development and promotion of technical specifications and standards for the use of information technology and digital service in Nigeria, including emerging technologies such as robotics, blockchain, cloud computing, and artificial intelligence” which was alien from 2007 NITDA Act, hence, in conflict with provisions of the NCA 2003, which provided in Section 4 (1) (l) that “NCC should propose, adopt, publish and enforce technical specifications and standards for the importation and use of communications equipment in Nigeria and for connecting or interconnecting communications equipment and systems.”

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NITDA in copy and paste:

ITREALMS gathered that just as NCC Act further provided in Section 4 (1) (n) that the Commission “should carry out type approval tests on communications equipment and issue certificates on the basis of technical specifications and standards prescribed from time to time.” As matter of fact, NCC has issued type approval guidelines and regulations in this respect.

For Section 26 which is on ‘Functions of the Minister’ has been described by industry observers as simple copy and paste of the NCA 2003 as provided in Section 23 and by extension deduced that NITDA will be an exact replica of NCC and with similar powers, under the same ministerial oversight as well as impact the current representations at the International Telecommunications Union (ITU), which is the global replica of NCC.

And what seems to have broken the camel back was the Section 33 of NITDA Bill 2022 under ‘Definitions’ which proposed the following meanings; “Computer” includes any electronic device or computational machinery using programmed instructions which has storage, retrieval, memory, logic, arithmetic or communication capabilities and includes all input, output, processing, storage, software, or communication facilities which are connected or related to such device in a system or network or control function by the manipulation of signals, including electronic, magnetic or optical, and shall include any input, output, data storage, processing or communication facilities directly related to or operating in conjunction with any such device or system or computer network;

“Computer Network” means the interconnection of one or more computers; “Computer system” means a device or collection of devices including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic arithmetic, data storage and retrieval, communication control and other functions.”


In addition, it stated that “Electronic form” means any information generated, sent, received or stored in media magnetic, optical, computer memory, microfilm, computer-generated, micro fiche or similar device; “Equipment” means computer hardware, software application, storage system, cloud, website, or any other thing or gadget usable alone, or capable of being used in conjunction with other equipment to manipulate or transmit data” for instance.

Whereas the above section 33 is cleverly ponderous, it was not contained previously in NITDA 2007; these definitions are broad and all encompassing, thereby creating a multi-sectoral applicability and conflicts across most of the sectors of the Nigerian economy, which could be very disastrous in implementation.

Conclusion:

Worthy of note, is that the prescriptions in Subsections (2) and (3) statutorily forms part of the Memorandum and Articles of Association of a company incorporated under the provisions of the Companies ad Allied Matters Act (CAMA) 2020. Sections 27 and 33 of CAMA provided for the content of the Memorandum and Articles of Association respectively. Thus advisable is that the provisions of Clause 28 (2) and (3) be reviewed to meet the expectations of the above stated provisions of CAMA.

Also of note is that the omen of controversial overlaps in the NITDA bill 2022 will create structural and regulatory conflicts in Nigeria, with a worrisome inkling to potentially impact immensely vibrant communications sector by creating uncertainty and drawing a largely grey map of applicability. As such, this will not only jerk investors negatively and distort the market structure, but could lead to multiple regulatory oversight and lack of coordination in managing the Sector.

The impact, therefore, will be far reaching and fundamental to market sustenance and deepening the gains of the sector that has twice driven Nigeria out of recession in the last six years.

Trashing this NITDA Bill 2022 as matter of urgency due to its current focus; bearing in mind that NCC as the sole and exclusive regulator of communications services in Nigeria for over 20 years, saw to berthing of the country from liberalization to the exponential growth that made the sector to attract commendations and emulations from other countries.

Invariably, most of the issues raised by this obnoxious bill are within the purview of the International Telecommunications Union (ITU), an international agency that manages communications globally and based on this alone, Nigeria has seamlessly aligned with other countries in managing innovations, services, spectrum utilisation and convergence processes to name but a few. This Bill will negatively impact on this harmonious coordination with international bodies and other jurisdictions across the globe.

From all intents and purposes, its prudent that NITDA make due with its original mandate to develop information technology, drive skills building and standardize the deployment of IT tools by the Nigerian government; therefore this mandate will appropriately be complemented by sectoral regulators and ensure a broad and well-articulated national approach to the deployment of communications services and IT tools as a convergence of ICTs evolves.

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