by Legalnaija | May 7, 2024 | Blawg
Advantages Of DIY Contracts To Entrepreneurs
DIY contracts, or “Do-It-Yourself” contracts, are agreements that individuals can create and customize on their own without necessarily hiring a lawyer. These are legally binding agreements that individuals draft using templates or guides. They are designed to be straightforward enough for non-lawyers to understand and use, while still providing the necessary legal protection. DIY contracts can cover a variety of interactions, from business agreements to personal arrangements.
DIY contracts are particularly useful for simpler agreements where the stakes are not excessively high and the terms can be clearly defined by the parties involved. However, for more complex transactions or where significant assets or risks are involved, it’s advisable to seek professional legal advice.
Key advantages of DIY contracts include:
1. Cost-Effective: Entrepreneurs often operate with limited budgets, especially in the early stages of their business. DIY contracts can save on legal fees as they can be drafted without the immediate need for an expensive attorney.
2. Time-Saving: DIY contracts can be created using templates and tailored to specific needs, which is much faster than starting from scratch or waiting for a lawyer to draft them.
3. Flexibility: Entrepreneurs can customize DIY contracts to suit the unique aspects of their business dealings, allowing for greater control over the terms and conditions.
4. Legal Protection: Even a simple contract can provide legal protection by clearly outlining the rights and responsibilities of all parties involved.
5. Clarity and Prevention of Disputes: Contracts help prevent misunderstandings by making the terms of a business relationship clear from the outset².
6. Professionalism: Having a written contract can enhance the professional image of an entrepreneur and demonstrate seriousness about their business.
7. Building Trust: Contracts can help build trust between parties by showing a commitment to honor the agreed terms.
8. Reference Point: They serve as a reference for the obligations and expectations of each party, which can be particularly useful in long-term business relationships.
9. Risk Management: By defining the scope of work, payment terms, and other key elements, contracts help manage and minimize business risks.
10. Enforceability: A well-drafted contract can be enforceable in court, providing a remedy if one party fails to meet their obligations.
These advantages make DIY contracts a valuable tool for entrepreneurs looking to establish clear, legally sound, and cost-effective business arrangements.
Legalnaija’s tailor-made DIY agreements are for entrepreneurs. Our legal templates save you time and money, while ensuring your ventures are protected. Get started today and feel the confidence of sound legal backing!
Empower your business with #Legalnaija’s DIY. Follow this link to select your template https://app.legalnaija.com/shop/templates
#InnovateLegally #DIYLaw
by Legalnaija | May 5, 2024 | Blawg
Are you in need of legal documents but dread the thought of hefty legal fees? Worry no more! At LegalNaija (www.legalnaija.com), we empower you with the tools to Do-It-Yourself!
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by Legalnaija | May 2, 2024 | Blawg
Lawploy for stress free Law practice
Here are some of the many things you can do on Lawploy apps.
Use Lawploy to get Lawyers to hold your brief in any jurisdiction, very easy and free
Use lawploy to find legal jobs and apply for same
Post jobs on Lawploy and hire the best legal mind for your business
Using lawploy is very easy and free.
There are so much more you can do with Lawploy app as a lawyer.
download the app on play store and apple store.
You can use the web version of lawploy on your browser both on your phone and laptop. Visit www.lawploy.com
Registering is very simple and straightforward.
by Legalnaija | Apr 29, 2024 | Blawg
Kyari Bukar named keynote speaker at DOA’s TMT breakfast series
Chairman of ARCA Payments Limited and former Chairman, Board of Directors of the Nigerian Economic Summit Group (NESG), Mr. Kyari Abba Bukar, has been confirmed as the keynote speaker at the 2024 Technology, Media and Telecommunication (TMT) Business Law Breakfast Series being organised by the law firm of Duale, Ovia and Alex-Adedipe (DOA).
Giving the confirmation on Monday, DOA said Mr. Bukar will speak on “Fostering Innovation and Investments through Enabling Policies, Viable Business & Economic Environment”.
The TMT Business Law Breakfast Series is scheduled to take place on 2nd May, 2024 at Ebony Life Place, Victoria Hall, Lagos under the theme ‘The Nigerian Tech Ecosystem: Policies, Investments, and Global Trade’, the law firm said in an earlier press release.
Commenting on Mr. Kyari Bukar’s selection as keynote speaker, Managing Partner at DOA, Adeleke Alex-Adedipe, said it “is a deliberate choice, reflective of his (Bukar’s) extensive professional background, diverse expertise and profound industry acumen”.
“With a career spanning over three decades encompassing information technology, financial services, entrepreneurship and business, Mr. Bukar possesses a wealth of knowledge and an astute understanding of industry dynamics and governance,” Alex-Adedipe said.
“As a globally renowned thought leader, he adeptly provides comprehensive insights into trade dynamics and international best practices. Furthermore, his pragmatic approach to investment and cultivation of growth within the Nigerian technology landscape serves as a testament to his efficacy as a catalyst for development.
“We are most confident in Mr. Bukar’s ability to impart invaluable insights at the TMT Breakfast Law Series,” he said.
Bukar holds a B.Sc. in Physics from Ahmadu Bello University, Zaria, and an M.Sc in Nuclear Engineering from Oregon State University in the USA. He has worked at Hewlett-Packard USA in Silicon Valley, FSB International Bank (now Fidelity Bank), ValuCard Nigeria Plc (currently Unified Payments PLC), and Central Securities Clearing System PLC.
An alumnus of the Lagos Business School, Wharton Business School, and Harvard Business School, he is co-Founder and Managing Partner of Trans-Sahara Investment Corporation, a Private Equity firm that develops and actively manages direct investments in sub-Saharan Africa, with a focus in West Africa. He also serves on the boards of several companies, including as Chairman, SUNU Assurances Plc; Chairman, Ventures Platform; Independent Non-Executive Director, Standard Chartered Bank Nigeria Ltd, among others.
Besides the keynote speech by Mr. Bukar, the event will also feature a fireside chat and two panel sessions.
The first session on “Unlocking Investments: Policies, Reforms and Regulations” will be moderated by Adeniyi Duale, Partner, Duale Ovia & Alex-Adedipe, while the panellists are Olatubosun Alake, Commissioner for Science, Innovation and Technology, Lagos State; Adesuwa Okunbo-Rhodes, Founder and Managing Partner, Aruwa Capital Management; Femi Ogunjimi, Co-Founder and MD, CardinalStone Capital Advisers; Olumide Soyombo, Angel Investor and Co-Founder, Voltron Capital, BlueChip Technologies Limited, and Tosin Eniolorunda, Founder and Group CEO, Moniepoint (formerly TeamApt).
The second session on “Show Me the Money” will be moderated by Nichole Yembra, Founder and Managing Partner, The Chrysalis Company, while the panellists are Kola Aina, Founding Partner, Ventures Platform; Yanmo Omorogbe, COO and Co-Founder, Bamboo; Olu Oyinsan, Managing Partner, Oui Capital; Dr Femi Kuti, CEO, Reliance Health, and Tosin Faniro-Dada, Partner, Breega.
Earlier, Alex-Adedipe said the TMT Business Law Breakfast Series would serve as a catalyst for collaboration, innovation, and growth in the Nigerian tech sector.
He also noted the role of the event as a forum for stakeholders to assess the current state of the Nigerian tech ecosystem, deliberate on pertinent policies, reforms, and global trade dynamics influencing its trajectory, and identify pivotal challenges and opportunities in catalyzing investment and fostering growth.
The event targets government officials and policymakers, venture capitalists, investors, financial institutions, tech entrepreneurs, startups, innovators, corporate entities, industry leaders and tech enthusiasts, he said.
by Legalnaija | Apr 25, 2024 | Blawg
The Capital Market Solicitors Association (CMSA), under the Chairmanship of Odiaka Vincent Iweze, is thrilled to announce the upcoming Annual Business Summit scheduled for June 6, 2024, at the Oriental Hotel in Lagos. This year’s theme, “Revolutionizing the Nigerian Capital Market Through Innovative Financial Instruments for Sustainable Development,” focuses on transforming Nigeria’s economic landscape through strategic financial innovations.
The 2024 Business Summit is poised to be a pivotal event as Nigeria navigates through the challenges of global financial volatility and local economic dynamics. It aims to spark significant discussions on the utilization of innovative financial instruments to foster sustainable growth and resilience in the capital markets.
The CMSA is excited to introduce the members of the Organizing Committee, who bring a wealth of knowledge and experience to ensure the success of this event:
1. Mr. Oladele Oladunjoye, Chairman of the Summit Organizing Committee & Partner at Greychapel Legal
2. Mr. Chinyereugo Ugoji, Partner at Aelex
3. Mrs. Azeezah Muse-Sadiq, Partner at Banwo & Ighodalo
4. Mr. Adedoyin Afun, Partner at Bloomfield LP
5. Mrs. Tosin Ajose, Partner at Deal HQ Partners
6. Mr. Olujimi Bucknor, Partner at Dentons-ACAS
7. Ms. Simisola Eyisanmi, Managing Associate at Duale, Ovia & Alex – Adedipe
8. Mr. Kunle Soyibo, Partner at Jackson, Etti, and Edu
9. Mr. Ahmad Abdulrazak, Associate at MA Banire & Associates
10. Ms. Abimbola Ifederu, Senior Associate at Olajide Oyewole LLP, DLA Piper Africa
11. Ms. Victoria Anuri, Senior Associate at Templars
The CMSA invites all stakeholders to mark their calendars and prepare for an enriching experience that promises to advance the dialogue on financial innovation and sustainable development in Nigeria. Formal invitations will follow, and ongoing updates will be provided. We look forward to welcoming you to an event that aims not only to discuss but to shape the future of the Nigerian capital market.
For further information, please contact Mr. Oladele Oladunjoye at oladele@greychapellegal.com by email with i.gregory@greychapellegal.com in copy.
by Legalnaija | Apr 25, 2024 | Blawg
Amendment of Section 24 of the Cybercrimes (Prohibition, Prevention etc) Act 2015: A Fruit of Strategic Litigation | Olumide Babalola
Introduction
Strategic litigation has been defined as “using legal means aiming to ‘bring about broad societal changes beyond the scope of the individual case at hand” (ECCHR) – this simple definition clearly resonates with the subject of this article.
When in 2015, the Federal Government enacted the Cybercrimes (Prohibition, Prevention etc) Act (the Act), the legislation immediately became a ready-made tool of oppression used by politicians against investigative journalists and other voices of dissent. Consequently, in 2016, three civil societies approached me to challenge its constitutionality in court and that marked the beginning of the long-drawn legal battle spanning eight years across national and regional courts.
The offensive provision
Section 24 of the Act provide(d) that:
“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that –
(a) is grossly offensive, …or causes any such message or matter to be so sent …commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.”
Our umbrage was against the use of the word “offensive” since it was neither defined nor described under the Act, hence subject to self-centred and inconsistent interpretation by whoever sought to use them.
The Legal battles
On the 23rd day of May 2016, we filed an originating summons at the Federal High Court sitting in Lagos predominantly seeking a declaration that section 24 of the Act violates freedom of speech. The suit was heard by Hon. Justice M.B Idris (now JSC) who struck it out on the 20th day of January 2017.
Undeterred in our quest to rid our laws of such an archaic provision, we approached the Court of Appeal but before the appeal was struck out on the 1st day of June 2018, the court perhaps, appreciated our strategic litigation drive when the presiding justice, Justice J.S. Ikyegh (of blessed memory) held that:
“I commend Mr. Babalola, of learned counsel for the appellants, for the industry and research put in the brief for the appeal and, also, for the secondary copies of the foreign decisions and materials learned counsel graciously made available to the Court for the appeal.”
(Reported as Inc. Trustees of Paradigm Initiative and Attorney General of the Federation (2018) LPELR – 46655(CA).
Even though at that time, it seemed we lost the appeal but now it is clear we actually won! I will explain this later. Again, we proceeded to the Supreme Court where we lodged another appeal and filed our brief since 2019 but up till this moment, no date has been fixed for the appeal due to the unimaginable workload of the apex court – I hope the judiciary finds a way out of this unpleasant reality soon!.
Our strategic (litigation) move
The Community Court of Justice (ECOWAS) court presents another avenue for litigants to ventilate their issues where they cannot get justice before the national courts. Unlike the African Commission, the ECOWAS court does not have a procedural rule that requires the exhaustion of local remedies before approaching the court.
So, in 2018, we represented another civil society before the ECOWAS court where the same provisions were challenged and thankfully on the 10th day of July 2020, the court delivered judgment in our favour thus:
“The Defendant State (Nigeria), by adopting the provisions of section 24 of the Cybercrime (Prohibition, Prevention etc) Act 2015 violated Articles 9(2) of the African Charter on Human and Peoples Rights and 19(3) of the International Covenant on Civil and Political Rights.”
The court then consequently ordered Nigeria to repeal or amend Section 24 of the Cybercrime Act 2015 in accordance with her obligations under the African Charter and International Covenant on Civil and Political Rights (ICCPR). (See Inc. Trustees of Laws and Rights Awareness Initiative v Federal Republic of Nigeria (ECW/CCJ/JUD/16/20).
Like many other ECOWAS court decisions, the judgment was not obeyed by the Nigerian government, hence we wrote letters to the Attorney General of the Federation and we even filed other strategic suits for the interpretation of relevant sections of the Constitution including questions on whether or not the Attorney General is duty-bound to advise the government to comply with judgments of the ECOWAS court – the appeal is still pending.
The Results after eight years of litigation
Finally, on the 28th day of February 2024, the Federal Government signed into law the Cybercrimes (Prohibition, Prevention etc) (Amendment Act) giving effect the judgment of the ECOWAS Court.
The nebulous and problematic part of Section 24 (reproduced above) has now been repealed and replaced to read:
“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that –
(a) Pornographic: or
(b) He knows to be false, for the purpose of causing a breakdown of law and order, posting a threat to life or causing such message to be sent… commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.” (Emphasis mine).
This new-look section 24 even though not Eldorado, is a better version which aligns more with democratic dictates and expectations.
Other low-hanging fruits for privacy and data protection.
At the Court of Appeal, before striking out the appeal, Hon. Justice B.A. Georgewill, JCA significantly held that:
“I only wish to state that the provision of Section 38 of the Cybercrime (Prohibition, Prevention etc) Act 2015, though neither unconstitutional: nor null and void, needs a further look at by the National Assembly of the Federal Republic of Nigeria with a view to, in my respectful opinion, amending it to subject the exercise of powers or right to request for the release of any information required to be kept by service providers to the order of a Court of competent jurisdiction to be obtained upon an exparte application on due particulars showing prima facie reason why such information or data should be released by the service provider to the ‘Relevant Authority’. In my humble opinion to leave the provisions of Subsections 2(b) and 3 of Section 38 of the Cybercrime Act, 2015 as it is would clearly be and indeed amount to an invitation and encouragement of unbridled interference with the rights of the citizen to the privacy of their communications at the whims and Caprices of the relevant authority and or law enforcement agencies. There should he some form of legal checks on the wide discretion given to the relevant authority and law enforcement agencies in the operation of the Cybercrime Act 2015, more particularly in a developing democracy such as ours where abuse and or arbitrary use of powers is wont to occur. The provisions of Sections 37 and 39 of the Constitution of Nigeria 1999 (as amended), though not absolute, is sacrosanct and must not be made nonsense of by provisions of any law capable of exposing these rights to jeopardy without any legal check.”
As a remote or proximate reaction to the court’s admonition above, section 38 of the Act has also been amended to read:
“(1) A service provider shall keep and protect specific traffic data and subscriber information in accordance with the provision of the Nigeria Data Protection Act and as may be prescribed by the relevant authority for the time being, responsible for the regulation of communication services in Nigeria, for a period of two years”
This amendment is also commendable since it recognises the NDPA as the principal Act regulating access to personal data (including traffic data).
Conclusively, strategic litigation does not always have to end in court victories, focus should be on its effect on policy change and societal consciousness. It is comforting to see the much-abused section 24 of the Act amended into a better-looking provision. Kudos to the civil societies that championed this cause.
.
by Legalnaija | Apr 23, 2024 | Blawg
Everyone should be a part of the @doalaw TMT Business Law Breakfast Series 2024!
Duale, Ovia and Alex-Adedipe (DOA) is putting together an amazing Technology, Media and Telecommunication (TMT) Business Law Breakfast Series.
The Session will speak on “Fostering Innovation and Investments through Enabling Policies, Viable Business & Economic Environment”, will include a fireside chat, panel sessions among other amazing things lined up.
Partner, Duale, Ovia & Alex-Adeleke, Adeleke Alex-Adedipe, will give the opening remarks at the event, and the first session on “Unlocking Investments: Policies, Reforms and Regulations” will be moderated by Adeniyi Duale, Partner, Duale Ovia & Alex-Adedipe, while the panellists are Olatubosun Alake, Commissioner for Science, Innovation and Technology, Lagos State; Adesuwa Okunbo-Rhodes, Founder and Managing Partner, Aruwa Capital Management; Femi Ogunjimi, Co-Founder and MD, CardinalStone Capital Advisers; Olumide Soyombo, Angel Investor and Co-Founder, Voltron Capital, BlueChip Technologies Limited, and Tosin Eniolorunda, Founder and Group CEO, Moniepoint (formerly TeamApt).
Similarly, the second session on “Show Me the Money” will be moderated by Nichole Yembra, Founder and Managing Partner, The Chrysalis Company, while the panellists are Kola Aina, Founding Partner, Ventures Platform; Yanmo Omorogbe, COO and Co-Founder, Bamboo; Olu Oyinsan, Managing Partner, Oui Capital; Dr Femi Kuti, CEO, Reliance Health, and Tosin Faniro-Dada, Partner, Breega.
The event, which comes under the theme ‘The Nigerian Tech Ecosystem: Policies, Investments, and Global Trade’, will serve as a catalyst for collaboration, innovation, and growth in the Nigerian tech sector, DOA said earlier in a concept note announcing the opening of registration portal for the event.
Reflecting on the significance of the event, Managing Partner of the firm Adeleke Alex-Adedipe, noted its timely occurrence amidst substantial growth in Nigeria’s tech landscape.
#doable #legalnaija #doabreakfastsession
by Legalnaija | Apr 19, 2024 | Blawg
Like Nigerian Bobrisky, Like South African Mapodile, Can Nigerian Prisoners Claim Reasonable Expectation of (Bodily) Privacy?
Olumide Babalola
Introduction
When sometime in 2022, I read the South African decision in Tumelo Mapodile v The Minister of Correctional Services (2016) ZAGPJHC 174, it dawned on me that, sooner than later, the Nigerian Correctional facilities would have a similar issue on their hands. That day has come!
It is no longer news that on the 12th day of April 2024, the Nigerian cross-dresser, Idris Okuneye (Bobrisky) was sentenced to 6-months imprisonment for abusing the Nigerian currency. His sentence has been discussed from many perspectives but the part that caught my attention was the news report attributed to the Nigerian Correctional Service (NCS) that they will hold Bobrisky in a male correctional facility and “protect him from sexual predators”. In other words, the NCS has undertaken to protect Bobrisky’s privacy (bodily integrity) while in their custody. I will come back to this.
Facts of Mapodile’s case
Tumelo, a gay South African, was convicted and imprisoned in a male correctional centre. His fellow inmates considered him a female and repeatedly harassed him sexually. When he consequently wrote a letter to the prison authorities to put him in a solitary cell or together with people of similar sexual orientation, but his request was not acceded to, he approached the court for redress. In granting his application, the South African High Court (Gauteng division) per Mabesele, J held that:
“Gays who are in custody are part of the community of prisoners which include categories of prisoners mentioned in regulations (2) (f, h and i) and whose right to dignity, to privacy and to health care are protected due to their peculiar status. It is beyond debate that gays, too, have their own peculiar status. Therefore they are entitled to the same protection which is afforded to the categories of prisoners mentioned above. Such protection should not be limited to dignity and privacy but should include equality. The prison authorities are obliged to protect these rights and must not create an impression to the prison community and to gay people in particular, as in the present case, that elevating gays to the same level with the categories of prisoners mentioned in regulation (2) and accommodating them in separate cells is a favour. For these reasons, I granted order dated 06 April 2016.”
The decision above must however be understood, distinguished or (un)appreciated in the light of South Africa’s pro-homosexuality laws and jurisprudence. For context, in other decisions, the South African courts have peculiarly recognised gay rights and decriminalised homosexuality in deference to the right to privacy. (See National Coalition for Gay and Lesbian v Minister of Home Affairs and Others (1999) ZACC 17; National Coalition for Gay Lesbians Equality v Minister of Justice (1998) ZACC 15; Muri v Mutual and Federal Pension Fund (2002) 9 BPLR 3864; Satchwell v President of Republic of South Africa and Another [2002] ZACC 18; Du Toit and Another v The Minister of Welfare and Population Development [2002] ZACC 20; J and B v Home Affairs [2003] ZACC 3.)
Bobrisky’s case and the privacy angle
In Nigeria’s case, homosexuality remains a crime the last time I checked but that is not the crux of my intervention especially since Bobrisky was reported to have confirmed to the court that, he is male. Perhaps, the court and NCS were concerned for his sexual safety, hence the confirmation that he would be protected from sexual predators while in custody.
First, it is beyond doubt that a convicted person or a prisoner does not automatically lose his/her entitlement to the enjoyment of other fundamental rights apart from personal liberty, freedom of movement etc. As far as a prisoner’s privacy is concerned, even though it is extremely curtailed, it is not entirely eroded. Even though it is superficially contradictory for a prisoner to claim privacy, it is only when one views the right to privacy from a narrow prism that one concludes that prisoners lose the entirety of their privacy upon detention. For context, despite the terse jurisprudence on privacy in Nigeria, the Supreme Court has defined the right to privacy to imply “a right to protect … one’s body from unauthorised invasion”. (see M.D.P.D.T. v. Okonkwo (2001) 7 NWLR (Pt. 711) 206).
During his six-month’s term, Bobrisky still retains the right to protect his body from unauthorised sexual invasion which may await him from some sex-starved male prisoners if he is not protected by the authorities given his contradictory antecedents on social media depicting himself as a woman. While the State can validly intrude on prisoners’ privacy, the latter should enjoy a reasonable measure of bodily privacy from their fellow inmates, and they ought to be able to control how they are perceived by others – this is an interest protected by the right to privacy. Sebastian Hon, SAN notes that private life includes “The physical integrity of a person” and “the right to establish one’s details of identity as an individual human being” (see page 536-537 of S.T. Hon’s Constitutional and Migration Law in Nigeria published in 2016). Bobrisky has openly identified as a man in court, for the sanctity of his bodily privacy, the NCS’s decision to protect him from sexual predators is commendable and aligns with the constitutional provision that guarantees the privacy of citizens.
Conclusion
Imprisonment does not entirely extinguish all forms of the right to privacy. The Court of Appeal in Nwali v EBSIEC (2014) LPELR–23682(CA) interpreted ‘privacy of citizens’ to include: “citizens’ body… (including his plans and choices)… health…activities etc”. Hence, since Bobrisky is a Nigerian citizen, the respect for his privacy guaranteed under section 37 of the Constitution includes the protection of his body from sexual predators especially since he is more vulnerable as a result of his choices on social media and in life.
by Legalnaija | Apr 16, 2024 | Blawg
This article is the first part of the KS Legal Infrastructure & PPP series which will examine the levers of procuring and closing of PPP projects and programmes in Nigeria
In February 2024, the Federal Executive Council, under the directive of President Bola Ahmed Tinubu GCFR, approved the implementation of the recommendations in the Oronsaye Report .
Among these recommendations is the proposed merger of the Infrastructure Concession and Regulatory Commission (ICRC) with the Bureau of Public Enterprise (BPE), which will consolidate the oversight of the procurement of PPPs, concessions, and privatizations under the National Council for Privatization (NCP), chaired by the Vice President .
This reform, if fully implemented, with the necessary legislative action, promises to be the most significant overhaul of Nigeria’s framework for the procurement of Public-Private Partnerships (PPPs) and infrastructure concessions at the federal level in the last twenty years.
Institutional and Regulatory Framework for PPPs at the Federal Level
The Ministries Departments and Agencies of the Federal Government are generally responsible for project identification, prioritisation, development, and implementation within their respective sectors, working in tandem with regulatory agencies to facilitate successful PPP outcomes.
However, there are broadly two ways set out in the laws for federal PPP projects to be delivered i.e. taken from project identification through to commercial and financial close, wherein the contracts are signed between the government and the private sector party, financing is approved and disbursed by the lenders. These are the ‘BPE route’ and the ‘ICRC route’.
The current regulatory landscape is chiefly governed by two laws, the Public Enterprises (Privatization and Commercialization) Act of 1999 and the Infrastructure Concession Regulatory Commission Act of 2005.
The Infrastructure Concession Regulatory Commission Act 2005 (ICRC Act) is the law enabling and governing the participation of the private sector in the financing, construction, development, operation, or maintenance of infrastructure or development projects of the Federal Government Ministry, Agency, Corporation or body through concession or contractual arrangements entered into by the relevant Sector, Ministry or Agency .
The ICRC Act establishes the Infrastructure Concession Regulatory Commission (ICRC), tasked with overseeing concession agreements and ensuring compliance.
Conversely, the Public Enterprise (Privatization and Commercialization) Act 1999 (PEPC Act) governs the partial or full privatization and commercialization of public enterprises in Nigeria. The PEPC Act established the National Council on Privatization (NCP) under the chairmanship of the Vice President with the power to approve public enterprises to be privatised and commercialized . The PEPC Act also created the Bureau of Public Enterprises (BPE) with the mandate to implement and execute the NCP’s policy on privatization and commercialization.
Apart from the two main laws discussed above, the Public Procurement Act of 2007 which establishes the Bureau of Public procurement is also quite critical. This is the law and the body that oversees all public procurement processes including PPP project procurement, and ensures that all procurement methods, whether through the ICRC or the NCP, complies with legal and procedural requirements that safeguard public funds and promotes competition among bidders.
Regulatory Agency Dichotomy and Ambiguity
The NCP, in exercise of the powers conferred upon it pursuant to Sections 2 and 3 of the PEPC Act approved the commercialization of some public enterprises by way of concession under the Public Enterprises (Privatization and Commercialization) Order 2012. Consequently empowering the BPE to use concessions for the commercialization of government-owned enterprises.
The authorization of the BPE to engage in concessionary activities has crystalized into the existing dichotomy between the ICRC and BPE, by presenting a maze of overlapping regulatory responsibilities. This ambiguity has confounded investors and stakeholders involved in PPPs in deciding the route to embark on in originating, bidding and closing PPP projects in Nigeria.
Although the ICRC route grants significant autonomy to Ministers and the heads of Ministries, Departments and Agencies (MDAs) to shape the entire process, and even to expedite it. However, concerns linger over bid quality and project sustainability. For instance, is there a sufficient minimum mandatory scrutiny to ensure competitiveness and as a result ensuring the success of the best possible technical and financial bids with the most value for money under the ICRC bidding process?
Conversely, the NCP/BPE route is a rather slow process due to the multiple committee approvals projects must receive at the level of the BPE and the NCP from the various internal technical committees and from the Ministers and stakeholders in Council.
Recent directives such as the Presidential Directive of September 2020 have attempted to clarify responsibilities, The ICRC is to serve as the regulatory Agency for PPP transactions, with powers to inspect, supervise as well as monitor projects and process, on order to ensure compliance with relevant laws, policies and regulations while the BPE shall be responsible for the concession of already listed in the First and Second Schedules of the Public Enterprise (Privatization and Commercialization) Act 1999 and to act as the counterparty on behalf of the Federal Government alone or in conjunction with relevant MDAs on all infrastructure projects being developed on a public private partnership basis.
Despite the Federal Government’s efforts in streamlining the functions of the ICRC and BPE, operational disputes still persist.
Conclusion
The potential merger of the Infrastructure Concession and Regulatory Commission (ICRC) with the Bureau of Public Enterprise (BPE) represents a significant step towards enhancing the clarity and efficiency of Public-Private Partnership (PPP) procurement in Nigeria, particularly at the federal level. For investors, both domestic and foreign, this merger holds the promise of streamlining regulatory processes, reducing ambiguity, and fostering a more conducive environment for infrastructure investment.
By consolidating regulatory oversight under a single entity and aligning institutional frameworks, the merger aims to provide investors with greater certainty, transparency, and consistency throughout the PPP project lifecycle. Moreover, the synergy between the ICRC and BPE, under the umbrella of the National Council for Privatization, chaired by the Vice President, is poised to facilitate stronger policy coordination and strategic direction, bolstering investor confidence and attracting much-needed capital for critical infrastructure development. In the next part of this series we will examine the framework for executing PPP projects at the state or sub-national level, and the complexity of delivering projects across a diverse regulatory jurisdictions laws and insitutions.
References
– https://punchng.com/breaking-tinubu-orders-full-implementation-of-oronsanye-report%E2%81%A3-%E2%81%A3/ > accessed 18th March 2024.
– President Goodluck Ebele Jonathan set up the Stephen Oronsaye led committee to suggest reforms to streamline government agencies, reduce redundancy, and enhance operational efficiency in the executive branch of the Federal Government.
– https://von.gov.ng/wp-content/uploads/2024/02/Steve-Oronsaye-Report.pdf > accessed 18th March 2024.
– Section 1(1) ICRC Act
– Section 2(3) ICRC Act
– Section 6 of the PEPC Act defines public enterprises as any corporation, board, company or parastatal established under any enactment which the Government, a Ministry or agency has ownership, equity interests, partnership or any other form of business arrangement
– Section 9 PEPC Act 1999
– Section 11 PEPC Act 1999
– Section 12 PEPC Act 1999
– Circular Ref No SGF.50/S.37/II/749 dated 14th September 2020
by Legalnaija | Apr 9, 2024 | Blawg
Dear Charles,
As the sun marks the start of another day, we celebrate the milestone of your 40th birthday. It’s not just a measure of time, but a testament to the journey of a man who has lived with purpose and passion.
Your role as the NBA Assistant Publicity Secretary has been marked by dedication and a commitment to excellence. Your voice has been one of reason, your actions a reflection of integrity, and your presence a source of inspiration.
As we prepare to celebrate you on April, 12 (more…)
