If governors have their way, ongoing effort by the Senate to amend the Electricity Act through the Electricity Bill 2022 would be an exercise in futility.
The governors rejected the Bill, which they argued, is against the interest of the states because it seeks to re-establish a centrally-controlled electricity sector.
Their position is contained in a letter by the Chairman of the Nigeria Governors’ Forum (NGF) Dr. Kayode Fayemi, to the Chairman of the Senate Committee on Power, Gabriel Suswan.
The governors had an ally in Power Minister Abubakar Aliyu, who said the Bill if passed, would erode his supervisory powers.
In a statement, NGF spokesman Abdulrazaque Bello-Barkindo, noted Fayemi, who is Ekiti State governor, in the letter dated February 22, argued that the governors were averse to the Electricity Bill in the version currently before the Senate.
The governors faulted Suswam’s claim in an article that the Electricity Bill 2022 is based on recommendations put together by a team of consultants engaged by the Senate Committee on Power.
According to them, the Electricity Bill before the Senate Committee is neither a true and fair reflection of stakeholders’ interest in the electricity sector, nor a true and fair reflection of the Federal executive arm.
The governors argued that contrary to the views of the Chairman of the Senate Committee of Power, “Clause 2(2) of the Bill is rather injurious to the constitutional rights of states with regards to electricity generation, transmission, and distribution.
“Limiting the powers of state governments to build generation plants, transmission and distribution lines only in areas not covered by the national grid, shrinks the powers of states to make laws for electricity within their state jurisdictions,” the governors said.
They urged the Senate to engage the House of Representatives on existing Bills on the electricity sector, particularly the Electricity Power Sector Reform Act (EPSRA) Amendment Bill 2020 among others, which also infringe on the constitutional rights of states to make laws for electricity, with a view to harmonising it into a single draft electricity bill.
The letter reads: “We write concerning a matter that has now become one requiring urgent national attention.
“It has come to the attention of the Nigeria Governors’ Forum (NGF) that the Senate of the Federal Republic of Nigeria has before it a Bill for a law to repeal the Electric Power Sector Reform Act, 2005, consolidate various laws relating to the electricity sector and for many other matters both connected and unconnected herewith.
“We wish to point out that ‘electricity’ is not an exclusive federal matter. It is guided by the provisions of the Concurrent Legislative List. Articles 13 and 14 clearly provide that the power to make laws for the generation and transmission of electricity are concurrent.
“Also, Article 14 reserves exclusively to the State the power to make laws for the distribution of electricity within a State as it also does the power to make laws for the generation and transmission of electricity exclusively within the borders of a State.
“We also wish to note that the National Electric Power Policy, 2001, the only extant Federal Government general policy statement on the electricity sector, in Chapter Three, is very clear that the States and State Governments are key stakeholders in the electricity value chain.
“We believe that the reality of the states as key partners in the achievement of universal electricity access by all Nigerians must not only be accepted by the Federal Government but must be legislated by the National Assembly.
“It would be unconstitutional and an unjustifiable act of overreach for the Senate to consider and pass a Bill that continues to treat the Federation as one single electricity jurisdiction or sector.
“While a single Electric Power Sector Reform Act may have been useful as a catalyst for the sector in the early years of the Fourth Republic, the states have all come of age, literally and metaphorically, and the arrangements must change in a way that accepts and respects the maturity of the states in electricity matters; a reality that this Senate Electricity Bill does not recognise and take account of, but at best, only pays the most cursory lip service.”
Dismissing the Bill as not addressing any of the challenges facing the power sector, the governors said: “The re-establishment of the same single national electricity market that has brought neither growth in capacity, nor socio-economic development for the nation and as stated earlier, the continued absence of a clear path for the market to exit permanently from its long-running insolvent status.
“The Bill also re-establishes the existing Federal Government entities and a number of other new ones as key players in the sector.
“Finally, perhaps the most egregious feature that runs throughout the Bill is the establishment of a single Federal Government appointee, the Minister of Power, as the de facto head and statutory supervisor of all the key FG electricity sector MDAs, including the Nigerian Electricity Regulatory Commission (NERC), in a supposedly privatised electricity sector.
“Interestingly, the minister’s extensive powers over the sector are shared with the National Assembly through the mechanism of legislative oversight responsibilities.
“The NGF does not support this Electricity Bill in the version currently before the Senate, except these amendments are reflected.
“This is because it is unconstitutional and maintains the policy of Federal Government overreach in the electricity sector that has not yielded development to the country.
“We state in very clear terms that this Electricity Bill Is not a solution to the pressing challenges summarised above. It is also premature in that it does not follow from a comprehensive national dialogue on a completely revised national electricity policy.”
On the way forward, they reminded the lawmakers that “electricity is a vital matter of national security that, by virtue of the 1999 Constitution, is in the concurrent list and should, therefore, be made into law only with the collaboration and concurrence of the states of the federation.
“We look forward to close collaboration between the NGF, the National Assembly and the Federal Executive Branch in charting a new and productive path towards bringing energy security to our county.”
Kicking against the Bill, the Power minister insisted that some sections of the Electricity Bill 2022 would dilute the powers of the minister to effectively supervise the sector.
Aliyu maintained that rather than weaken the ministry, it should be strengthened in the Bill for the performance of its oversight functions to drive government policies are preserved.
According to him, under the Electric Power Sector Reform Act (EPSR Act 2005), supervisory powers of the minister to oversee the power sector and offer policy directions were unencumbered.
Aliyu said: “In the Bill, these powers appear to be severally diluted as they are in several areas subject to prior consultation with the Nigerian Electricity Regulatory Commission (NERC), (Sections 5(1)(b);5(1)(c);5(1)(g) and 5(2).
“Any such limitation on the power of the minister has the potential to hinder efficient coordination of the ministry and its agencies, impede the ministers’ ability for accountability as it hinders seamless reporting to the President.
“It may also be a challenge to the President’s mandate to direct and formulate government policies.”