By Emmanuel Ukera, Esq

The enactment of the Constitution of the Federal Republic of Nigeria (CFRN),1999 (Fifth Alteration) (No.17) Act,2023 and the Electricity Act, 2023 which paved way for full devolution of intra-state electricity regulatory powers to state governments have stirred up a lot of contestations amongst stakeholders than ever imagined.

The bone of contention appears rooted in the misconception amongst stakeholders regarding the extent of the regulatory powers available to state governments under the current multitier regulatory regime recognized by the CFRN (Fifth Alteration) (No.17) Act,2023 and the EA,2023. One of such misconceptions which has gained traction in the media is that the recent constitutional alteration and the consequent enactment of the EA, 2023 have for the first time devolved electricity regulatory powers to sub-nationals to the extent that the newly established State Electricity Regulatory Commissions (SERCs) can now regulate ( in all its ramifications), electricity generation, transmission and distribution activities within state boundaries to the exclusion of the Nigerian Electricity Regulatory Commission ( NERC), which hitherto regulated electricity activities nationwide.

Relatedly, there are those who are of the strong opinion that under the current legal regime, power plants located within state boundaries should fall under the overriding regulatory powers of SERCs including full takeover and control of the eight (8) power plants now operated by the eight successor generating companies (GENCOs) that emerged after the conclusion of privatization in 2013.

It has also been argued that the EA,2023, is an iniquitous and needless piece of legislation which has abolished cross-subsidization and provided the framework for promotion of energy inequalities especially considering the disproportionate distribution of electricity infrastructure between the northern and southern states of Nigeria.

The instant intervention seeks to disambiguate the jurisdictional boundaries of the SERCs and NERC under the current legal regime and shed light on recent debates.

To fully understand the jurisdictional confines of the two levels of governments regarding electricity regulation in Nigeria, it must be stated that the Constitution of the Federal Republic of Nigeria, 1999 (as altered) and the Electricity Act, 2023 constitute the primary sources of electricity law in Nigeria currently. Furthermore, there are other federal enactments that must be taken into consideration when discussing the regulatory powers of the two levels of government.

These include the Standard Organization of Nigeria (Establishment)Act which is the general legislation on national technical standards; Federal Competition and Consumer Protection Commission Act which is the general legislation on competition, consumer protection, and anti-trust; Climate Change Act ,2021 which deals with climate change mitigation and adaptation bearing in mind Nigeria’s international commitment to climate change; Water Resources Act, CAP W2, Laws of the Federation of Nigeria (LFN) ,2004 which regulates the planning, development and use of water resources that affects more than one state; National Environmental Standards and Regulations Enforcement Agency (Establishment) Act; and the Environmental Impact Assessment Act, CAP.E12, LFN,2004 which are relevant in the area of environmental impact of electricity projects or related activities in the power sector. Additionally, licensed electricity entities operating under the regulatory purview of state regulators are expected to comply with extant federal enactments on company income tax, personal income tax and value added tax etc .

The above, amongst others constitute the gamut of laws that are critical in disambiguating the legislative and regulatory competences of the two levels of government in Nigeria on the issue of electricity and should be well understood by key players in the power sector.

With respect to the powers of the two levels of government under the Constitution, one must recall that prior to 1999, the business of electricity generation, transmission and distribution was for decades under the sole control of the defunct National Electric Power Authority (NEPA) as a vertically integrated monopoly.

The defunct NEPA operated a redial national grid system comprising of on-grid power plants, high voltage transmission lines and distribution lines through which electricity albeit epileptically was supplied to Nigerian nationwide without regard to geographic boundaries of state governments.

This integrated high voltage system of interconnected generation plants, transmission lines, substations and related facilities crisscrossing states of the Federation and beyond that was operated by NEPA as a unified network is what is essentially referred to as the national grid system.

However, following the promulgation of the CFRN,1999, electric power was included as an item on the concurrent list. In this regard, item F, paragraphs 13,14, and 15, Part II, Second Schedule to the CFRN,1999 (“the Constitution”) defined the legislative competence of the respective levels of government regarding electricity.

The implication of the aforementioned constitutional provisions is that, since 1999, state governments were at liberty to invest in electricity within their domains including the power to set up of state grids and regulate intra-state electricity where they possess the wherewithal. No state government took advantage of this constitutional provision either due to lack of the political will or some other inexplicable reasons.

It is, however, important to note that prior to constitutional alteration in 2023, the powers of State Houses of Assembly to legislate on intra-state electricity generation, transmission and distribution activities was greatly impeded by the restriction under paragraph 14 (b), Part II, Second Schedule to the Constitution “to areas not covered by the national grid system within that State”.

It was this restrictive phrase “to areas not covered by the national grid system within that State” that was essentially deleted through the enactment of the CFRN,1999 (Fifth Alteration) (No.17) Act,2023. According to the long title to the CFRN,1999 (Fifth Alteration) (No,17) Act,2023, the constitutional alteration was intended to “allow states to generate, transmit and distribute electricity in areas covered by the national grid”…. What is apparent from the foregoing is that it is not correct to say that the CFRN,1999, (Fifth Alteration) Act (No.17) Act,2023 for the first time transferred “electric power” from the exclusive list to the concurrent list as it is often reported in some sections of the media. Electric power was an item in the concurrent list to the CFRN 1999 and remains so even after the said constitutional alteration of 2023.

What the CFRN,1999 (Fifth Alteration) (No.17) Act,2023 did is to simply delete the inhibitive words “to areas not covered by the national grid system within that State” to allow state governments legislate on and regulate intra-state electricity activities and most fundamentally “generate, transmit and distribute electricity in areas covered by the national grid” as expressly stated in the long title.

In other words, the constitutional alteration was not aimed at empowering state governments to embark on far reaching regulatory measures that would conflict or undermine the regulatory powers of the Nigerian Electricity Regulatory Commission (NERC) such as taking over NERC licensed on-grid power plants, setting tariffs or slashing tariffs for electricity procured through the National Wholesale Electricity Market(NWEN) or regulation of other activities on the national grid .

The constitutional alteration was primarily intended to promote investments within state boundaries without being inhibited by the presence of the national grid or component of it within such state boundaries.

In simple terms, by virtue of this constitutional alteration, state governments can now embark on embedded generation, mini-grids, licensing and regulation of independent electricity distribution networks (IEDNs) and independent electricity distribution network operators (IEDNOs), and even set up state grid even if such activities have bearing on the national grid.

Unfortunately, most state governments have since focused on issuing controversial regulatory measures that will throw the Nigerian Electricity Supply Industry (NESI) in disarray and put the state regulators at cross-purposes with NERC instead of taking initiatives that will boost investments and ultimately improve electricity access to their citizens, the latter being the primary intendment of the constitutional alteration.

Furthermore, the powers of state governments to legislate on and regulate intra-state electricity activities without being inhibited by the presence of the national grid as recognized by the CFRN (Fifth Alteration) (No.17) Act,2023 must be understood against the preeminence powers of the federal government to ” make laws for the Federation or any part thereof with respect to — electricity and establishment of electric power stations, generation and transmission, damming of water for electricity generation, cross-border electricity trading and distribution, promotion and establishment of the national grid system, regulation of right of any person to use, work, operate any plant, apparatus, equipment or work designed for the supply or use of electrical energy as provided under paragraph 13 (a)(b)(c)(d)(e)and(f) part II, Second Schedule to the Constitution all of which remains unaffected by the recent constitutional alteration.

The implication is that it will amount to constitutional infraction for any state government to set or approve parallel technical standards and operational codes or set up an agency for enforcement of technical standards under the guise exercising intra-state electricity regulatory powers.

Similarly, while state governments are at liberty to invest around the national grid presence within their state boundaries, in deference to the powers of the federal Government to regulate the national grid system as indicated above, any investment around the national grid including activities, transactions and services that have bearing on the national grid system will still require the authorization (not license) of NERC before such can legally take place. Such activities, transactions and services that will require NERC authorization may include : interconnection to, injection into, wheeling of electricity over, withdrawal of electricity from the national grid; sale and purchase of electricity, the delivery of which requires the use of the national grid; provision and receipt of ancillary services to or from the national grid; use of metering, control, dispatch and other systems required by the Grid Code for interconnection and wheeling services etc.

The law is trite, the apex court has held in the case of **AG. Ogun State v.Aberuagba &Ors (1985)LPELR-3164** that the powers of state governments to legislate on matters in the concurrent list to the Constitution is limited by the constitutional doctrines inconsistency and covering the field.

One other issue that requires clarification here is the claim in some quarters that the EA,2023, is an iniquitous and needless piece of legislation which has abolished cross-subsidization and provided the framework for promotion of energy inequalities. This is an erroneous impression borne out of lack proper understanding of the objectives, principles and rigorous processes that culminated into the enactment of the EA,2023.

To begin with, the issue of cross-subsidization was introduced through the Power Consumer Assistance Fund (PCAF) and first given statutory recognition under the Electric Power Sector Reform Act,2005 (now repealed) but retained under part XV of the EA,2023.

However, with the full decentralization of electricity including policy matters, the framework for subsidy administration in the NESI is currently undergoing review in the National Assembly bearing in mind the need to allow for the two levels of government to take independent policy decisions on matters of electricity subsidy and also determine fairly, which categories of electricity consumers should bear the brunt of cross subsidization under the current multitier electricity industry.

It must also be added that the Electricity Act,2023 is not a framework for promotion of energy inequalities but was introduced following a rigorous stakeholder engagement including the Nigerian Governors Forum (NGF) to replace the EPSRA,2005, the latter being a reform legislation that became unsuitable for the next phase of the electricity market after conclusion of the privatization exercise in 2013.One of the key features of the EA,2023 as a compelling framework for addressing energy inequalities is the provision of Section 110 which imposes an obligation on NERC to ensure fair spread of transmission and other electricity infrastructure across the country. Similarly, the EA,2023 for the first time made provision for integrated resource planning and leveraging on this provision the Federal Executive Council recently approved the National Integrated Electricity Policy and Implementation Plan,2024 which takes into consideration the peculiar strengths and weaknesses of the various state governments. It is expected that state governments will take advantage of this paradigm shift that recognizes a robust role for wind,biomas, solar and other renewable sources of energy in addressing perceived or existing energy inequalities.

From the foregoing, it can be safely concluded that the current legal regime for regulation electricity in Nigeria as articulated above leaves no room for confusion or controversy. With about 14 states already enjoying regulatory autonomy within their respective state boundaries, NERC should focus on regulation of the NWEN and activities on the national grid system while states should focus on retail activities within their respective boundaries without encroaching on the jurisdiction of NERC.

The primary focus of state governments at this stage of the market should be to adopt state integrated electricity policies and plans that will among other things leverage on potentials for generation and consumption of electricity from renewable sources such as wind, solar and biomass and as a priority integrate a large number of big self-generation consumers into the emerging state markets. A robust plan for integration of self-generation consumers into the nascent state electricity markets can in the short and medium terms be achieved through embedded generation, issuance of licenses for IEDNs/IEDNOs and mini-grids etc.

The Federal Government through the Ministry of power should equally fast track and streamline ongoing transmission and distribution upgrades under the auspices of FGN Power to allow for efficient evacuation of generated power across state boundaries where such states are in position to execute bilaterals that recognize NERC tariffs. State governments should avoid toying with the idea of unstructured tariffs which has left the National Wholesale Electricity Market in crippling debts.

The weakest links in the Nigerian power value chain today remains the transmission and distribution segments and with concerted efforts being made by President Bola Ahmed Tinubu,GCFR to settle legacy debts owed GENCOs, radical actions need to be taken to conclude ongoing upgrade of the transmission and distribution assets for operational and financial synergy along the national grid.

Barrister Ukera, Esq can be reached on emmauks@yahoo.com

By: A G Abubakar

Society throws up a leadership it deserves. Better still, it elects a leadership that reflects its character. Life is about choices and outcomes. And, this holds true in all major faiths. The Qur’an says, ‘indeed, Allah will not change the condition of a people until they change what is within themselves.” (Qur’an 13:11). The Bible corroborates this and more, to the effect “that the sluggard who does not plough in autumn; he will seek at harvesting and have nothing.” (Proverbs 20:4). It went on to state in Galatians 6:7-8 that “…whatever a man sows, he will reap in return.” These divine injunctions simply meant choices have consequences.

The inability to make informed choices or to deliberately ignore taking informed decisions has been at the core of Nigeria’s existential challenges. Nigerians love to turn divine injunction on their heads, in preference for sentiments and emotions, then turn around to seek the Creator’s interventions. So cheap. So evasive.

Buhari represented a larger Northern sentiment of the time in 2015. Tinubu rode on a similar bandwagon, though with diametrically different consequences. Actually, Tinubu is proving to be a backlash. If Buhari was too laid back with a compromised vision, Tinubu lacked a sense of proportion and character. The two political actors might have achieved their ambitions, but the nation’s dream of greatness is neither here nor there. This is because the two deficits found between the duo – vision and character – incidentally are the main ingredients that drive national transformation. The two, unfortunately, have been missing. The question was; Why do Nigerians recruit leaders who are lacking in vision and/or character?

The answers lie in the jaundiced perception of issues and the degradation of ethical values. Years of poor governance had compromised the citizens’ vision as much as their sense of brotherhood and patriotism. The prolonged failure of leadership has simply turned segments of the society on each other, with little respect for the common good: Muslims on Christians, herders on farmers, the young against the old, the poor versus the rich, the minority slugging it out with the majority, etc. The nation has become one giant ocean of mutual distrust, rendering, every decision suspect, and every move, self-serving. As this disposition persists, every known guardrail of social and ethical values simply varnishes, leaving society bare, and vulnerable, especially its leadership recruitment processes, which had become highly ineffective with the concomitant negative impacts on life, property, and socioeconomic development. Today’s Nigeria is a two-horse race between a compromised leadership and a poor followership as to which one becomes the undertaker of the nation called Nigeria.

The rot in Nigeria might have been induced by leadership, which obviously takes the larger part of the blame, but the followership seemed to have learned faster. And because of the masses’ overwhelming size, they have succeeded in foisting anarchy upon society seamlessly. Here was a society where people do not see anything wrong in destroying or vandalizing public property, observing simple order of things in breach, taking advantage of each other in basic interpersonal interactions, hold each other accountable, and even take civic duties like elections for granted. Nigerians simply “enjoy” living in mess, often revealing their capacity to self-regulate.

For illustrations: nearly all the non-concrete guardrails on the highways are gone. Iron and aluminium structures stripped. Even the concrete demarcation is being chipped away in search of the stabilizing iron rods. Electric cables, poles and fittings, and manhole covers are not safe. In rural areas and city suburbs, schools, hospitals, and related public (even private) buildings are not safe. It’s common sight to see roofs, windows, doors, furniture, etc. gone, leaving the structures like animal shades/pens.

The latest tragedy was the bringing down of power towers along major arteries just to steal the installations. Though initially blamed on insurgents and terrorists, the unwholesome practice had been rife in the southeast and now catching up in the northeast. Many enclaves have been thrown into needless darkness because of these dastardly acts. As if not enough, it has now been allegedly reported that screw bolts holding rail lines in place are being stolen, putting rail travels at risk. But why are Nigerians so base? Many are quick to rationalize the ugly development on the usual alibi of poverty. Really? India, and China until the turn of the twenty first century were the poster boys of poverty in its extreme form, where people at time self-immolate out of frustration, but there was no history of this wanton destruction in their societies. Something must be wrong and peculiar with Nigerians!

The saga doesn’t stop with physical or non-living matters. It is in Nigeria that today, the observance of basic curtesy and etiquette had become a tall call. Even where an individual’s life and safety are at risk. The same clumsy mindsets characterize interpersonal relations in commerce and faith. To cheat is business. To insult each other’s ethno-religious backgrounds is piety and God ordained.

Taking turns to access social services, in the considered opinion of Nigerians, is to be unenlightened. To observe a traffic light for 60 seconds is a waste of time that should be circumvented even when heading to a meaningless or not so urgent destination. Traffic lights have literally been turned into a point of vehicular frustrations and even “death spots.” The story is worse when it comes to taking turns to access services at public functions and journeys. For Nigerians, simple queuing and taking turns is luxury. There has to be commotion. Pushing. Shoving. And fisticuffs. Nothing in the individuals says that it is not right, even those who have been lucky to be exposed to other climes, where they imbibed and were expected to be role models. That residual sense of right and wrong had simply varnished from the DNA of Nigerians. The citizens have simply chosen to operate a society that chocks itself – almost willfully.

Actually, one may be tempted to believe that there is something fundamentally not right with Nigerians and indeed the sub-Saharan peoples. Something that make them poorly capable of coping with the basics of “modernity,” decorum, and critical thinking. Historical experiences can not be discounted from the said peoples’ predicaments, but many parts of the world have strived and risen above similar experiences for good. Why not Nigeria? Why not Haiti, Sudan, DRC, Somalia? Or even the dwellers of the favelas/ghettos around some major cities of the western hemisphere? Why are they perpetually trapped and not the others around the world? Why did the people get mummified in terms of ideas? One hates to hear this, but in diagnosing the problems with Nigerians and indeed peoples of the sub-Saharan extraction, such factors as epigenetic and neuroplasticity – i.e., how environmental and historical experiences in a complex interplay alter people’s worldview/capacity – can not be totally discounted unless one wants to go the metaphysical way.

In parts of the North, it is a common practice for families to be hell-bent on breeding kids beyond their means, which inadvertently leads to the creation of huge pools of poorly adjusted youths. For lacking in proper socialization and parental care, this generation of youths has become the nation’s albatross, serving as easy recruits into all sorts of crimes and criminality. The insurgency movements, the armed terrorists/kidnappers’ ranks, are filled with poorly schooled (western and/or Islamic) young men between the ages of 18-35 years. The same goes for those involved in urban gangsterism, snatching handsets, and breaking into people’s houses. All of it is a consequence of bad choices. But as usual, those concerned Nigerians wouldn’t like to hear of it. They are quick to pass the buck to the government or even justify it through a warped understanding of religious scriptures.

Now, the paradox. If the government has been responsible for all the ills in the Nigerian society, it becomes instructive then for people to take their voting rights seriously. Hold their local elites to account. This is with a view to changing their conditions, but no, not in Nigeria. It is during electioneering seasons that all forms of primordial sentiments are inputted into the process. Religion, region, tribe, and other stripes wound are brought to bear, leaving the polity with fractured outcomes and outlook and compounding governance the more. Now is a vista to register and to restrategize for change, but like a possessed people, the same schism is holding sway. A typical lackadaisical attitude that brought Tinubu and his predecessor Buhari.

Maybe it is uncharitable to put serious blames on the people, especially against the backdrop of being serially handed the short end of socioeconomic and political stick. For, doing so is akin to holding a slave deserving of his master or share the blame for his oppression. A friend succinctly put the predicaments of the hapless masses in Nigeria’s leadership recruitment process as follows, “those who did not contest elections have won; those who lost elections have won; those who were not nominated have won; and those who won have lost.” Protests have been crushed with examplary force, or gavel of a compromised judiciary, not once, twice, but multiple times. And the blood so spilt used in writing warnings that says, “let him who is mad enough to throw his life away, oppose the outcome. Some did and ended up creating emergency widows and orphans as a prize for wanting to secure their civic rights.

Those who chose not to engage in the bloodbath simply restricted their campaigns and three or so corporate citizens – INEC, Security Agencies, and the Judiciary (Judges). No doubt these developments have the potential to create a feeling of despair and resignation. In enlightened climes, they serve as wake-up calls to do the needful; the quest for self-actualisation and fundamental rights. This inherent modicum of mindset seemed to be lacking among Nigerians, which invariably made them culpable in their own challenges and deprivations. A drawback so entrenched, it has impacted their capacity to make rational socio-political choices, and also resist injustices.

Elementary knowledge of economics and the economy would tell that Buhari left power when the economic fundamentals were barely holding. Joblessness, poverty, and security were all being interpreted more on paper than the quality of people’s lives. As for corruption, it was a way of life. Recall the AGF, the AG, the CBN governor, and many more. Ordinarily, Nigerians would have been circumspect in the recruitment of a successor. But that has never been in Nigeria’s character. The new leader should mirror its ugly content as a society. So, Bola Ahmed Tinubu (BAT) became the new kid on the block – a new sheriff in town with all baggage in tow. A president that can be likened to a dark matter and a dark energy, operating in fashion that only he knows.

Nobody is perfect in life, but PBAT’s imperfections were self-cultivated, which should have made the larger society apprehensive in recruiting him ab initio. Here was an individual who has every imaginable thing about him suspect except his breathing. From name, parents, village, schools attended, qualifications, business interests, and even his vision of “one indivisible and insolvable Nigeria” (curtesy, Zik), all remain guesses Regardless, Nigerians should not complain. For, as long as they keep doing the same thing, they shouldn’t expect a different outcome. That’s the law of nature and society.

It would, however, seem that Nigerians are condemned to repeat choices with adverse consequences in the future. Something true to type of Robert Kelly’s Followership Model (Kelly, R 1992) that isolated five followership styles based on a combination of engagement and critical thinking. They include exemplary, conformist, passive, alienated, and pragmatist. Exemplary citizens are characterized by active engagement and independent critical thinking, while the passive ones have both limited engagement and critical thinking.

The alienated, possessed independent thinking but limited engagement, and the pragmatist has balanced engagement and critical thinking, too. The conformist may engage actively but with limited critical thinking. It would appear as if Nigerians fall in the conformist group, with sprinklings of maybe the other traits. This, as they kept engaging but with limited attention, paid to leadership qualities with its concomitant repercussions on wellbeing, peace, and development. A case of sowing wind and harvesting whirlwind. Do Boko Haram, armed herders/terrorists, ethnic militia, twenty million kids out of school, etc, ring bell? They are manifestations of bad choices.

Attitudinal change has never been an easy task, especially in a diverse setting like Nigeria. However, the awareness as well as the acknowledgement of the need to do so shall be a crucial first step towards cultivating the culture of rational choice, and also for both leadership and followership to hold themselves mutually accountable. The leadership, by necessity, should take the lead in driving the process. This is to forestall a possible mass disaffection and its dire consequences. It is tantamount to naivety to take nationhood for granted. Let there be a rebirth on the part of both the leadership and followership for Nigeria to work and for all, too.
A.G. Abubakar
agbarewa@gmail.com

By: Fabian Apechihin

Renowned activist Aisha Yesufu has accused the Nigerian government of deliberately conditioning citizens to normalise “system glitches” ahead of the 2027 general elections.

Yesufu, a prominent ally of Labour Party’s 2023 presidential candidate Peter Obi, alleged in a post on X that the sudden spike in technical failures across government institutions is no coincidence.

“All of a sudden there are system glitches everywhere! People are being conditioned ahead of time to accept the glitches that will come during the election!” she wrote.

Her remarks come on the heels of several high-profile technical disruptions, including the Joint Admissions and Matriculation Board’s (JAMB) apology for errors in the 2025 UTME results, reported malfunctions during the West African Senior School Certificate Examinations (WASSCE), and the controversial glitches on INEC’s Results Viewing Portal (IReV) in the last election.

Yesufu’s comments have sparked fresh debate about Nigeria’s electoral transparency, with many questioning whether recurring “glitches” are genuine errors or part of a broader pattern ahead of 2027.

Want me to also add INEC’s past defense of the IReV glitches for context, so it feels more balanced?