The Electric Power Sector Reform Act 2004 (the Act) provides legal framework for the ongoing efforts of the Federal Government of Nigeria to unbundle the electricity sector.
To balance the interests and activities of the licensee, investors, the consumer, and other stakeholders, Section 31 of the Act establishes the Nigerian Electricity Regulatory Commission (NERC). NERC’s principal objectives as provided by section 32 (1) are:
• To create, promote, and preserve an efficient industry and market structure, and to ensure optimal utilization of resources for the provision of electricity services
• To maximize access to and availability of electricity and to ensure that consumers are charged fair prices for electricity consumed.
Further Section 96 of the Act vests in NERC the powers to make regulations prescribing all matters which are by the Act required or permitted to be prescribed or which in the opinion of the commission are necessary or convenient for giving effect to the Act.
NERC’s regulatory powers in respect of complaint handling procedures, practices relating to payment of bills, connection and disconnection procedures are emphatically provided for under subsection 2 (j) of Section 96 of the Act. It is in the exercise of this regulatory power that NERC has made regulations for CUSTOMER COMPLAINT HANDLING: STANDARD AND PROCEDURE (the Regulations). The Regulations erroneously cites Section 96 subsection 2 paragraphs c and d of the Act instead of Section 96 (2) (j) of the Act as the enabling provision to make regulations relating to complaint handling standards and procedures.
The Regulations applies to the distributing licensee who is defined in Section 2 (13) of the Regulations to mean a company authorized to operate and maintain a distribution system for supplying electricity to customers in his area of supply.
Under the Regulations, the licensee is required to establish a customer complaint unit (CCU) with the responsibility of resolving complaints as provided for under section 2 (6) of the Regulations. Sections 2 (6) and 8 of the Regulations makes it clear that a complaint must be in writing and relate to defects or deficiencies in services, unfair or restricted trade practices, bills in excess of NERC’s fixed prices, unsafe or hazardous electricity supply, recovery of excess bills or charges, or any breach of obligation whether in law or contract.
The definition of a complainant under Section 2 (5) (v) of the Regulations includes in the case of the death of a customer, his legal heirs or representative making or continuing a complaint. If a complaint is not resolved by the CCU or a complainant is not satisfied, appeal may be made to the Forum. Appeals from the Forum lie to NERC. Section 4 (1) of the Regulations provides that the Forum is to be established by NERC at a date set out in the Order of NERC for hearing and resolving of customer complaints in the licensee’s operational area.
The Forum seeks to establish a framework for safeguarding customers’ rights. Section 4 (10) of the Regulations requires the licensee to provide office space and other facilities required by the members of the Forum for their efficient functioning. In my opinion, although the requirement is expedient, it may affect the public perception of the independence of the Forum.
Under section 4 (3) of the regulations, NERC is to appoint five part-time members of the Forum who are to be reputable men and women resident in the licensee’s operational area provided that they are not employees or family members of the licensee. The membership of the Forum is designed by Section 4 (1) to include a nominee each from the Manufacturers’ Association of Nigeria, the Nigerian Association of Chambers of Commerce Industry Mining and Agriculture and the Consumer Protection Council, a member of non-governmental organization, and a person with a bias in electrical engineering.Section 4(5) of the Regulations provides that the Forum is to elect their chairperson.
Given that the Forum will be a dispute resolution body, the non-inclusion of the Nigerian Bar Association (NBA), or other association which is likely to nominate lawyers in the list of bodies that may nominate members may impact the efficiency of the Forum especially if a party engages a lawyer to appear before the forum.
It is therefore recommended that Section 4 (3) (i)-(v) of the Regulations be amended to include a nomination from the NBA, Institute of Chartered Arbitrators or other body conversant with the law or dispute resolution processes for appointment into the Forum and that Section 4 (5) be amended to provide that such nominee shall be the Forum’s chairperson as opposed to the Forum electing its chairperson.
Furthermore, Section 4 (10) of the Regulations cited earlier should be deleted. The office space and other facilities required by the Forum should be provided by the government.
If the foregoing recommendations are speedily enshrined in the Regulations it may increase the public perception of the independence of the Forum.
Osita F. Enwe
Legal Practitioner
E-mail: ofenwe@elisiolegal.com