By Musa Adamu
Contrary to an extant clause of the Electricity Powers Sector Reform Act (ESPR 2005), the power sector chief regulator, Nigerian Electricity Regulatory Commission (NERC) is still without a substantive chairman almost 11 months after the tenure of Dr Sam Amadi led administration ended.
Dr Amadi led administration ended its tenure on December 22, 2016, without an extension.
This development, according to industry watchers has thrown the industry into a state of uncertainty as any step taken by the commission may be legally vulnerable.
The Commission was led in acting capacity by Dr Anthony Akah for some months before the present board was appointed. The nominated chairman of the present board, Prof. Akintunde Akinwande, however, turned down the offer after dilly dallies for some weeks.
Not even his replacement with Prof James Momoh has been able to bring the logjam to an end as the new nominee is yet to assume duty seven months after and this is because the Senate in protest, stood down any confirmation of nominees from the executive unless acting EFCC Chairman, Ibrahim Magu, is replaced, a directive yet to be implemented.
The inability of the board to get a substantive chairman is against section 35 of ESPR Act, 2005, because it does not allow for any vacancy in the management cadre of the NERC.
To avoid any room for vacuum, S. 35 (1) specifically stipulates that while the commissioners are to spend a term of four years each, the chairman is to spend five, with the window of reengagement of the commissioners for another term of four years.
The reappointment of the chairman, in line with this section of the Act, is to be made before he completes the term of five years or his replacement be nominated before his term elapses.
With this enormous mandates, not a few Nigerians are worried that the commission has not been constituted almost one year after the last one.
Stakeholders have blamed the failure of the appointing authority, the federal government, before the expiration of the last board that has led to the present logjam.
An industry stakeholder who craved anonymity said the present composition of the commission only makes vulnerable to legal manipulation.
He wondered why it was difficult for the government to fill vacant posts in the country asking: “is it for lack of competent Nigerians or is government putting politics before development. It must be noted that unless government gets power sector right it cannot claim to have made any gain since power sector is catalyst to any development.”
Speaking to Peoples Daily, a legal practitioner, Barrister Ikechkwu Ihedioha, said while any contract entered into by the commission without a substantive chairman was voidable it may not be void ab initio.
According to him, though section 35 (1) does not envisage a vacuum in the leadership structure of the commission, it is not clear at this point if any action taken by the commission in breach of the section is ultra vires unless challenged by an aggrieved party.
On the other hand, he added that if the extant law was such that the Chairman’s authority was mandatory then it became void ab initio.
NERC is an independent regulatory body with authority for the regulation of the electric power industry in Nigeria.
Set up in 2005 with broad mandates to form and review of electricity tariffs, transparent policies regarding subsidies, promotion of policies that are efficient and environmentally friendly, form and enforce standards in the creation and use of electricity in Nigeria.