Information and communication technology in more ways than one reflect the innate nature of man to satisfy his thirst for comfort. These technologies are basically aimed at improving on the art of sharing information through very creative ways without the limitations of geographical boundaries. Indeed, the rapid advancement of technology propels the social welfare, for better or worse. Information and Communication Technology (ICT) is increasingly becoming fundamentally critical to the development of our societies and economies. Access to the internet and telephones is expanding rapidly knitting together markets, people and communities as it grows, facilitating the worldwide exchange of knowledge and services.1 In the 1980s, countries began to recognize the increasingly important role of the Information and Communication Technology sector for economic growth. Such economic growth was made possible by new inventions in telecommunication, data and information sharing through the internet, satellite and wireless services especially in the financial sectors of such countries. The rapid development of information and communication technology infrastructure paved way for huge government involvement. As a result, in primarily developed nations, policies evolved to introduce

http://www.carapn.net/21445231-information-and-communication-technology-target-2015backgrounder.pdf [Accessed April 3 2011]

2 competition – albeit, often limited in scope, in an effort to inject dynamism into the sector, spur innovation, increase choice, enhance availability, and lower tariffs. 2 With the very fast pace of development of information and communication infrastructure within many complex societies such as Nigeria came the proliferation of certain problems often associated with ICT operations. These were issues ranging from monopoly to invasion of privacy, cyber crimes, consumer exploitation and unequal access to such technologies. It is undeniably clear that Information and Communication Technology causes today’s many social ills like cyber-bullying and privacy intrusion. Law plays a huge role in trying to regulate the operations of these new technologies within the society in order to curb its excesses. Law, being an instrument of the society, is principally concerned with the determination and recognition of societal standards of conduct. Through this, law strives to spell out what conducts are to be regarded as standard acceptable behaviour and otherwise unacceptable behaviour. Governments all over the world have recognized the importance of ICT to the development of their societies. Such governments have also recognized the huge need to provide some form of regulatory framework to streamline the excesses and flaws that arise from the ever developing ICT sector.


http:// rru.worldbank.org/Documents/PublicPolicyJournal/053smith.pdf [Accessed April 3 2011].

3 Notwithstanding the highlighted importance of the regulation of Information and Communication Technology, “the development of information and communication technology regulation in Nigeria has for a long time received very little attention.”3 As the contemporary world gradually emerges into a ‘global village’, increasingly networked (no longer by asphalt) with the bridges of satellite, wireless links, fibre optics and the likes with the growing realisation of the socio-economic significance of ICT as the basic infrastructure, it has become clear that increased attention must be geared towards developing of a viable ICT industry in Nigeria.4 One very obvious way to guarantee such growth and development is through the legal and institutional regulation of the industry. This project shall therefore principally aim to examine the legal regime for the regulation of ICT in Nigeria, its successes and challenges. In doing so, it seeks to examine the meaning of Information and Communication Technology, its evolution and the evolution of its regulation, its operation especially in Nigeria, the international legal instruments and the legal and institutional framework put in place in Nigeria. The work shall point out the inadequacies of the legal and institutional framework, its successes and challenges.


Adewopo, A., “The Foundation Of Telecommunication Regulations: The Nigerian Experience” (1999) UJLJ, Vol. 7, p.117 at 117 4 Ibid., p. 118


1.1 THE







Technology is a “general term for the processes by which human beings fashion tools and machines to increase their control and understanding of the material environment. The term is derived from the Greek words tekhnē, which refers to an art or craft, and logia, meaning an area of study; thus, technology means, literally, the study, or science of crafting.”5 The most general definition of technology is the application of science or knowledge to commerce and industry. Many fields of science have benefited from technology, as well as commerce and industry over the many centuries of human history. Perhaps the earliest known use of technology was in the Stone Age when the first knife or shovel was made from a piece of stone or obsidian. Technology has obviously come a long way since then. The development of simple tools from wood or shards of rock show some of the first applications of knowledge to create technology to solve a problem. The discovery of fire, which provided a way to cook food and create heat and light, was also a step along the road of technology. These technological developments allowed people to accomplish tasks more easily and quickly.


Merritt, Raymond H. "Technology," Microsoft Encarta 2009, (Redmond: Microsoft Corporation), 2008.

5 As knowledge increased, history entered into the Bronze Age.6 The introduction of the wheel allowed people greater ability to travel and communicate. Advances continued just as rapidly into the Iron Age where people developed the ability to work with harder metals than copper and tin. They developed the art of smelting iron and removing it from ore found in the earth. The Iron Age allowed for rapid increases in many branches of technology. Weapons making, development of tools that benefit civilization and greater ability to perform tasks, such as manufacturing and transportation, are just a few of the technological developments of the Iron Age. While each Age builds on the developments of the previous ones, new knowledge is obtained along the way. This new set of knowledge and the knowledge base of the past allow for new applications to the needs of society.7 1.1.2 INFORMATION Information has been defined8 as 1. 2. Knowledge derived from study, experience, or instruction. Knowledge of specific events or situations that has been gathered or received by communication; intelligence or news

The Bronze Age shows the evolving ability of man to work with metal and the ability to form stronger tools. 7 http://www.yourdictionary.com/library/technology.txt [Accessed April 4 2011]. 8 Ibid

6 3. 4. A collection of facts or data: statistical information. The act of informing or the condition of being informed; communication of knowledge: Safety instructions are provided for the information of our passengers. 5. 6. Computer Science Processed, stored, or transmitted data. A numerical measure of the uncertainty of an experimental outcome. Within the field of ‘information science’9, information is defined as the knowledge contained in the human brain and in all electronic and written records. 1.1.3 COMMUNICATION Communication is the sharing of ideas and information. While many people think of communication primarily in oral or written form, communication is much more. A knowing look or a gentle touch can also communicate a message loud and clear, as can a hard push or an angry slap. Communication is thus defined as10: 1. 2. The act of transmitting, A giving or exchanging of information, signals, or messages as by talk, gestures, or writing


Information science is the scientific study of information: how it is created, transmitted, encoded, transformed, retrieved, measured, used, and valued. 10 http://www.yourdictionary.com/library/information.txt [Accessed April 4 2011].

7 3. 4. 5. The information, signals, or message Close, sympathetic relationship A means of communicating; specifically, a system for sending and receiving messages, as by telephone, telegraph, radio, etc. 6. 7. 8. 9. A system as of routes for moving troops and material A passage or way for getting from one place to another The art of expressing ideas, esp. in speech and writing The science of transmitting information, esp. in symbols

This definition suggests that there can be several different types of communication, falling into the categories of non-verbal or verbal11. NON-VERBAL COMMUNICATION Non-verbal communication involves exchanging information or transmitting data without the use of words. There are many examples of non-verbal communication everywhere in the world. While you may not stop to think about it, a red light or a stop sign is a clear form of non-verbal communication. No one is physically telling you to stop, but you see that symbol or signal and know immediately what is expected of you.


Lievrouw, Leah A. "Communication," Microsoft Encarta 2009, (Redmond: Microsoft Corporation), 2008.

8 Likewise, body language and facial expressions are also examples of nonverbal communication. Over the years, numerous research studies have been done to suggest that babies respond to smiling faces the world over, and that when a person sees someone else smile, he may become a bit happier as well. Thus, while understanding non-verbal communication may require some knowledge of the cultural and social meanings behind the symbols and signs used, some types of non-verbal communication are instinctual and no teaching is necessary. VERBAL COMMUNICATION The system of verbal communication has become quite complex, with unique languages each having millions of words. Unlike non-verbal communication, in order for verbal communication to be meaningful, there must generally be a readily accepted understanding of the meaning of a series of sounds. In other words, sounds and words alone aren't sufficient to communicate: the person transmitting the message and the person receiving the message generally must have a cultural background or shared knowledge that allows them to understand what those sounds have come to mean. However, even some oral or verbal communication can be intuitive. For example, animals use verbal communication all the time to transmit messages to each other. Birds sing, some bugs chirp when mating, hounds bark to alert

9 the pack on a hunt, and even whales sing, although scientists aren't 100 percent certain what those songs mean. The fact that language was one of man's earliest developments, and the fact that there are similarities among languages and that animals also engage in oral communication, all suggest that although some shared cultural understanding is necessary, the specific act of verbal communication may be innate. MEANS OF COMMUNICATION Over time, the methods and means used to communicate have expanded greatly. In early records, hieroglyphics and primitive cave paintings were used to communicate information and transmit messages. Oral stories and traditions were also passed down through generations and eventually many of these stories also came to be written down in some cultures. The use of carrier pigeons, followed by Morse code and telegraph technology expanded the reach of communication, making it possible for people to send messages over longer distances. Today, communication has expanded and is easier than ever before. Television allows messages to be communicated quickly and instantly to millions of viewers worldwide, and viewers can watch events such as political elections unfold in real time.

10 Perhaps nothing has changed communication so much as the Internet. While television and radio provided one-way communication, the Internet allows for the two-way exchange of information and lets people throughout the world send data instantly and share ideas immediately. Video chat, instant messages and even voice-over-IP telephone systems make it possible to connect with and communicate with more people than ever before. 1.1.4 TELECOMMUNICATION The concept simply means electronic communication. Therefore, it involves instances where devices and systems are used to “transmit electronic or optical signals across long distances. Telecommunication is therefore the transmission of information, over significant distances, for the purpose of communication. In earlier times, telecommunications involved the use of visual signals, such as beacons, smoke, semaphore telegraphs, signal flags, and optical heliographs, or audio messages via coded drumbeats, lung-blown horns, or sent by loud whistles, for example. In the modern age of electricity and electronics, telecommunications now also includes the use of electrical devices such as telegraphs, telephones, and teletypes, the use of radio and microwave communications, as well as fibre optics and their associated electronics, plus the use of the orbiting satellites and the Internet. Telecommunications enables people around the world to contact one another,

11 to access information instantly, and to communicate from remote areas.” 12 Telecommunications usually involves a sender of information and one or more recipients linked by a technology, such as a telephone system, that transmits information from one place to another. Telecommunications devices convert different forms of information, such as sound and video, into electronic or optical signals. Electronic signals typically travel along a medium such as copper wire or are carried over the air as radio waves. Optical signals typically travel along a medium such as strands of glass fibres. When a signal reaches its destination, the device on the receiving end converts the signal back into an understandable message, such as sound over a telephone, moving images on a television, or words and pictures on a computer screen.13 These telecommunication devices operate on several systems. These systems are all independent of the other but all aim at transmitting data and information across long distances. These systems include telegraph, telephone, radio, television, global position and navigation systems (GPRS), personal computers, voice over internet protocol (IP) etc. Telecommunications systems deliver messages using a number of different transmission media, including copper wires, fibre-optic cables,



http://www.en.wiki pedia.org/wiki/telecommunications [Accessed April 4 2011]. Frieden, Robert. "Telecommunications," Microsoft Encarta 2009, (Redmond: Microsoft Corporation), 2008

12 communication satellites, and microwave radio. Wire-based (or wire line) telecommunications provide the initial link between most telephones and the telephone network and are a reliable means for transmitting messages. Telecommunications without wires, commonly referred to as wireless communications, use technologies such as cordless telephones, cellular radio telephones, pagers, and satellites. Wireless communications offer increased mobility and flexibility. In the future some experts believe that wireless devices will also offer high-speed Internet access.14

1.1.5 INFORMATION AND COMMUNICATION TECHNOLOGY Information and communications technology or information and

communication technology, usually called ICT, is often used as an extended synonym for information technology (IT) but is usually a more general term that stresses the role of unified communications and the integration of telecommunications (telephone lines and wireless signals), intelligent building management systems and audio-visual systems in modern information technology. Information and Communications Technology consists of all technical means used to handle information and aid communication, including computer and network hardware, communication middleware as well as necessary software. In other words, ICT consists of IT as well as telephony, broadcast media, all types of audio and video processing and transmission and



13 network based control and monitoring functions.15 The expression was first used in 1997 in a report by Dennis Stevenson to the UK government16 and promoted by the new National Curriculum documents for the UK in 2000. The term ICT is now also used to refer to the merging (convergence) of audiovisual and telephone networks with computer networks through a single cabling or link system. There are large economic incentives (huge cost savings due to elimination of the telephone network) to merge the audiovisual, building management and telephone network with the computer network system using a single unified system of cabling, signal distribution and management. This in turn has spurred the growth of organizations with the term ICT in their names to indicate their specialization in the process of merging the different network systems. In this era of global integration, information and communication technology (ICT) becomes indispensable and embedded in everyday activities. The promises of ICT seem limitless. It can provide governments, businesses, and citizens with access to relevant information and allow them to communicate to make informed decisions and enable more efficient processes and services to address various economic, social, financial, and educational needs. As a sector, Information and Communication Technology has contributed to the

15 16

http://www.wikipedia.org/wiki/information-and-communication-technologies [Accessed April 4 2011]. http://web.archive.org/web/20070104225121/http://rubble.ultralab.anglia.ac.uk/stevenson/ICT.pdf [Accessed April 2 2011].

14 creation of the most rapidly growing industries, such as electronics, business process outsourcing, and telecommunication and internet services. As an infrastructure, ICT is seen as an enabler of economic growth and competitiveness based on the uptake and utilization of ICT in business and society.17

1.1.6 INTELLECTUAL PROPERTY Intellectual property, very broadly, means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields.18 “These legal rights are known as intellectual property rights. Intellectual property is a general term that covers all the separate rights like copyright, patent, industrial designs, trademarks and trade secrets which a holder enjoys as a consequence of the exercise of his or her human intellect”.19 Intellectual property law has as its primary object the protection of a certain class of property – intellectual property. This is suggestive of the fact that there are several classes of property. PROPERTY The concept of property has special importance to the organization of society. In general, the most important feature of property is that the proprietor or

Asian Development Bank, Information and communication technology for development: ADB experiences,( Philippines: Asian Development Bank), 2010, pp1 18 Intellectual Property Organization (WIPO), Intellectual Property Handbooks: Policy, Law and Use, nd (Geneva: Wipo Publication), 2 ed., 1993, p.3 19 Nasir, J. M., “Trade Secrets and/or Confidential Information as It Relates To Intellectual Property Law”(2003) CJLJ, Vol. 6 No. 6, p.27 at p.28

15 owner may use his property as he wishes and that nobody else can lawfully use his property without his authorization.20 The key entitlement one may have in relation to property is the right to possess it exclusively – the corollary of which is the right to exclude others from accessing it21. This right of exclusivity is a hallmark of property. Thus, property has been defined22 as “the right to possess, use and enjoy a determinate thing (either a tract of land or a chattel)”. Property can be divided into different classes based on its characteristics. The most important is that of real property and personal property.23 Real property, according to English legal tradition, is the land and anything firmly attached to it, such as buildings and the permanent fixtures of those buildings, and the minerals beneath the surface of the land.24 On the other hand, Personal property is anything that can be owned other than real property. Real property can be turned into personal property if it is detached from the earth. Similarly, personal property can be attached to the earth and become real property. “Perennial vegetation, such as trees, shrubs and grass, which does not have to be seeded every year, is usually treated as part of the real property. When trees and shrubs are severed from the land, they become


Nasir, J. M., “Common Licensing Agreement Terms In Intellectual Property” (1999) JPPL, Vol. 3, No. 3, p.139 at p.140 21 Andrew, F. C., “Intellectual Property and Intangible Assets: Legal Perspective”(2005) IPRIAOP, No. 1/05, p. 1 at p. 9 22 th Black’s Law Dictionary, (U.S.A. West Publishing Company, 8 ed. 2004) p. 1252 23 Barnes, A. J, Laws For Business, (New York: McGraw Hill), 2000, p.567 24 "Property," Microsoft Encarta 2009, (Redmond: Microsoft Corporation), 2008.

16 personal property.”25 Personal property is usually classified as either tangible property or intangible property. Tangible property, also known as corporeal personal property, is any kind of property that can be seen, weighed, measured, felt, or touched, or is in any other way perceptible to the senses, such as furniture, cooking utensils, and books In other words, property that has physical form and characteristics is referred to as tangible personal property. Intangible property is that property that has no physical presence. These intangible personal properties are usually also known as ‘chose in action’. A chose in action is propriety right in personam. An action is said to be in personam when its object is to determine the rights and interests of the parties themselves in the subject-matter of the action.26 Despite its growing importance, intellectual property remains a challenging area of law. This is because, unlike the laws of real property, the laws of intellectual property create rights between individuals that are vested in abstract objects – being objects that, inherently, are difficult to define.27 Intellectual property rights are usually associated with intangible properties. A common way of classifying those intangible assets that constitute Intellectual Property is as ‘all those things which emanate from the exercise of the human
25 26

Barnes, A. op cit., p. 568 Black’s Law Dictionary, Op cit., p. 1254 27 Andrew, F. C., Op cit., p. 4

17 brain, such as ideas, inventions, poems, designs, microcomputers and Mickey Mouse’28. This classification is consistent with the notion that the subject matters constituting Intellectual Property are primarily derived from human intellectual activity – hence the word ‘intellectual’ in the title. The particular human intellectual activities that commonly result in most Intellectual Property are innovation and creativity. Recent advances in scientific and technological innovation have rapidly transformed the world, creating new industries, displacing and altering older ones, and recalibrating business and commercial activity in many ways. This has led to investments, developing new technology and advancing other creative activities. The resulting intellectual capital has become a valuable asset class.

The birth of computers and information technology goes back many centuries. The development of mathematics led to the development of tools to help in computation. Blaise Pascal, in 17th century France, was credited with building the first calculating machine. In the 19th century, the Englishman Charles Babbage, generally considered the father of computing, designed the

Phillips, J., and Firth, A., Introduction to Intellectual Property Law, (London: Butterworths), 3rd ed., 1995, p.3. 29 This would attempt to trace the historical evolution of the systems that enable the communication and information technologies operate.

18 first "analytical engine." This machine had a mechanical computing "mill" and, like the Jacquard loom of the early 19th century, used punch cards to store the numbers and processing requirements. Ada Lovelace worked on the design with him and developed the idea of a sequence of instructions–a program. The machine was not complete at Babbage's death in 1871.30 Almost a century later, the ideas re-emerged with the development of electromechanical calculating machines. In 1890, Herman Hollerith used punch cards to help classify information for the United States Census Bureau. At the same time, the invention of the telegraph and telephone laid the groundwork for telecommunications and the development of the vacuum tube. This electronic device could be used to store information represented as binary patterns–on or off, one or zero.31 The first electronic digital computer, ENIAC32 (Electronic Numerical Integrator and Computer), was developed for the U.S. Army and completed in 1946. Von Neumann, a Princeton mathematics professor, developed the idea further. He added the idea of a stored computer program. This was a set of instructions stored in the memory of the computer, which the computer obeyed to complete the programmed task.

http://ccis.athabascau.ca/html/courses/comp210/CourseSample/chap01/section1.htm [Accessed April 10 2011] 31 Ibid 32 The ENIAC's design and construction was financed by the United States Army during World War II. The construction contract was signed on June 5, 1943, and work on the computer began in secret by the University of Pennsylvania's Moore School of Electrical Engineering starting the following month under the code name "Project PX".

19 The major activities that expedited the information age can be attributed to the following: A. In 1820’s Charles Babbage invented the ever first computer called Babbage machine. It was based on mechanical gears & discs. This was the first step of human mankind towards computer. B. From 1890 to 1900, abundant and rapid development of electricity. In 1928, electron movement thesis came that opened various aspects towards pristine fields. Invention of electronic equipments fuelled the revolutionary scenario of IT. C. D. In 1943, transistor was developed. In 1948, ENIAC, the first computer of modern age was invented by US; it was based on Vacuum Tubes. E. In 1958, transistors were used with the advantage of less power consumption and been more accurate. Computers accommodated 100s & 1000s of transistors. F. Integrated circuits (ICs) replaced transistors. They evolved during last 35 years and have now become multi tasking, sophisticated algorithm design based chips. During this period of evolution, several technologies were developed. These are Data Processing & storage by computers, Memory technologies (Laser disc & CD-ROM.)


Communication technology,34

These are in the form of silicon based Integrated circuit technology.

20 The Main thrust of Communication Technology came from development of computer technology and defence requirements. The internet was started as small project (ARPANET) to communicate within the defence requirements in 1970s.35 Optical fibre technology in communication is used today so that information must not be lost even to a smaller extent. Satellite technology & internet use has been wide spread. The evolution of satellite communication began with the exploration of space and space travels36. In 500 years, when humankind looks back at the dawn of space travel, Apollo's landing on the Moon in 1969 may be the only event remembered. As a result, weather forecasting has undergone a revolution because of the availability of pictures from geostationary meteorological satellites - pictures we see every day on television. All of these are important aspects of the space age, but satellite communications has probably had more effect than any of the rest on the average person. Satellite communications is also the only truly commercial space technology. The launch of communication satellites over the past few decades reflects the growth of communication technology. Such satellites in orbit helped improve the capacities of television, metrological services, telecommunication and indeed


Communication technology is made possible by Optical fibre communication resulting fibre optic link around the globe. 35 http://www.opendb.net/element/19287.php [Accessed April 10 2011] 36 http://history.nasa.gov/satcomhistory.html [Accessed April 10 2011]

21 making the world a global village. The chronology of communication satellite evolution is as follows;37
• • • • • • • • • • • • • •

1956 First Trans-Atlantic Telephone Cable: TAT-1 1957 Sputnik: Russia launches the first earth satellite. 1960 1st Successful DELTA Launch Vehicle 1961 Formal start of TELSTAR, RELAY, and SYNCOM Programs 1962 TELSTAR and RELAY launched 1962 Communications Satellite Act (U.S.) 1963 SYNCOM launched 1964 INTELSAT formed 1965 COMSAT's EARLY BIRD38 1969 INTELSAT-III series 1972 ANIK: first Domestic Communications Satellite (Canada) 1974 WESTAR: 1st U.S. Domestic Communications Satellite 1975 INTELSAT-IVA: 1st use of dual-polarization 1975 RCA SATCOM: 1st operational body-stabilized comm. satellite

• •

1976 MARISAT: 1st mobile communications satellite 1976 PALAPA: 3rd country (Indonesia) to launch domestic comm. satellite


1979 INMARSAT formed.

Ibid first commercial communications satellite


1988 TAT-8: 1st Fibre-Optic Trans-Atlantic telephone cable

The transition from an agricultural society to an industrial society took centuries, but the change from an industrial society to an information based one is happening in decades. The main engine for the change has been the computer. Just as the industrial society was based on manufacturing, the information society focuses on the use of information as a resource. The “information age” and the increase in knowledge workers began in the 1960s, made possible by the rapid evolution of information technology over the last half century. Many of the jobs that will be available in five years have not yet been invented. New jobs are replacing the old manual labour and clerical jobs, and reducing the large administrative bureaucracies of earlier years. The ability to record, synthesize, and use information has helped to simplify work processed and to increase productivity. The computer has enabled automation of the plants that manufacture the products people consume. Industrial robots and large-scale automation of manufacturing processes has enabled widespread access to affordable goods. The use of technology to lever performance has led to the re-engineering of business. Computer technology enabled the move from mass production to mass customization. For example, if you want to remodel your kitchen, you can go to a store and works with a computer that will help you design your kitchen; see what it will look like and how much it will cost. This is Computer Aided Design (CAD).

23 With virtual reality (VR) software, you can ‘move around’ in your proposed kitchen. When you are satisfied with the design, the computer will develop the list of pars, produce the design drawings, and so on. In some applications, this customized-design information is then fed into the manufacturing system (Computer Aided Manufacturing) of automated factories. The rapid growth of telecommunications and its merging with computer technology has enabled us to use our computers to communicate world-wide. The infrastructure to allow computers to connect with each other was already in place when the personal computer started to become widespread. The parallel growth of telecommunications has been described as having the roads, garages and maintenance infrastructure in place when the first massproduced cars rolled off the assembly line at the Ford plant. Information technology can be sued in useful, frivolous or harmful ways.


Information and Communication Technologies (ICT) has brought about unprecedented improvements in the world's economic, political and social systems. This has led to the development of new goods and services with attendant significant positive impact on our way of life, such as no other technology has done before.39 For instance, the Nigerian information and communication technology sector is one which has, over the years, attracted a lot of attention via government and foreign investment. The subsector can currently be credited with grossing for the federal government a huge percentage of the national Gross Domestic Product (GDP)40 by attracting huge direct foreign investments. It must however be noted that the ICT subsector of the Nigerian economy had not always received the attention it receives today. The development of a technical industrial or service sector in particular and ICT issues in general were not front-burner issues. More basic infrastructure issues—particularly ground-transport networks, electrical-power generation and distribution, and the availability, extent, and exploitability of water supplies—occupied (and to a large extent continues to occupy the central thrust of governance) the time,

39 40

http://www.aucitmc2010.gov.ng/index.php?view=article&catid [Accessed May 8 2011] Atojoko, S., “Investment Hot Spots”, TELL magazine no. 1 (January 10, 2011), p.10

25 attention, and funds of all budgetary and fiscal policies of the government. Coupled with this is the pressing issue of population explosion and cost of living41. In realization of the above and the dire need for Nigeria to bridge the digital divide and be positioned as a major player in the global information society, the Federal Government of Nigeria embarked on some major initiatives to enhance ICT development and industry in the country. Prior to 1999, development in the ICT sector of Nigeria was very low. The federal government therefore embarked on major reforms in the ICT sector which included42: the launch of a new National Telecommunications Policy in September, 2000 with National Communications Commission as the major regulator of the sub sector; development and launch of National Policy on Information Technology43 in 2001 and National Information Technology Development Agency (NITDA) was established to implement the policy; co-ordinate and regulate information technology

development in the country;


Burkhart G. E and Older S., The Information Revolution In The Middle East And Africa, (California: RAND), 2003, p. ix 42 http://www.aucitmc2010.gov.ng/index.php?view=article&catid [Accessed May 8 2011] 43 Vision statement: To make Nigeria an IT capable country in Africa and a key player in the Information Society by the year 2005, using IT as the engine for sustainable development and global competitiveness.

26 the launch of National Space Policy and National Space Research and Development Agency (NARSDA) was established to implement the space policy and the Nigerian Satellite programme; promulgation of the National Broadcasting Commission Degree and establishment of National Broadcasting Commission (NBC) for the implementation of the National Mass Communication Policy with particular reference to broadcasting; NigComSat, a public private partnership was established in 2006 to manage and operate the first geostationary communication satellite in Sub- Saharan African i.e. The Nigerian Communication Satellite (NigComSat-1); establishment of Nigeria Internet Registration Authority (NIRA) in 2006 to increase Nigeria's presence in the cyberspace; and Establishment of a national Internet Exchange Point (IXP) in 2007 in Nigeria to keep local internet traffic local and reduce the cost of internet service within the country.

2.0.1 TELECOMMUNICATION The Nigerian telecommunications market has undergone radical change over the Past few years driven primarily by the introduction of a combination of several measures.

27 Originally, there was the mono-product public utility which was essentially built around the plain old telephone (POT) the cablegram services offered by the Post and Telegraph (P & T), and later the telex and international services offered by Nigerian and External Telecommunications (NET). This was followed by the establishment of the Nigerian Telecommunications Plc (NITEL), the sole carrier and owner of Nigeria’s only Public Switches Telephone Network (PSTN)44. NITEL had been unable to meet the telecomm requirements of the major sectors of the economy, typified by oil and banking, which had led to players in these sectors investing in and providing alternative means of communication for their business activities. The Nigerian government in recognition of this fact had taken steps to liberalize its telecom sector so as to make it efficient and internationally competitive. The liberalization process culminated in the privatization via the sale by the government of 40% of its interest in NITEL shares to technical partners, and an additional 20% to the Nigerian public by September 1999. The liberalization of the telecommunications industry began with the promulgation of the National Communications Commission Decree. The main reasons for the deregulating the Nigerian telecom industry, within the


Adewopo, A., “The Foundation Of Telecommunication Regulations: The Nigerian Experience” (1999) UJLJ, Vol. 7, p.117 at 118

28 context of National Communications Commission Decree No. 75 of 1992, could be summarized as follows45: 1. the inability and unwillingness of government to continue to subsidize the public telecom company (NITEL)

the need to spread some of the burden of running telecom services to the private sector


a growing demand for more efficient and enhanced modern facilities especially by the business community


the generally poor service delivery, and a slow growth of the infrastructure, access by rural populations, and quality of service


The global trend towards liberalization of telecom services towards a free market economy.

The deregulation of the sector in the late 1990s ushered in a new dawn in the telecommunications sector as the number of telephone lines increased.46 The coming in force of the Nigerian Communications Commission Decree, in creating the foundation for the telecommunications regulation, established a Nigerian Communications Commission (NCC). The process of the deregulation of the telecom sector began in the late 1980’s with the commercialization of the operations of the state enterprise for the purpose of enhancing its efficiency. However, a greater deregulation of the

Folasade, A., trade liberalization and technology acquisition in the manufacturing sector, Nairobi: AERC, 2002, pp.43 46 Eni, H., “On The Digital Train”, TELL magazine, no.21 (may 21, 2007), p.37-38

29 sector was effected by the promulgation of the National Communication Commission (NCC) Decree of 1992. The position upon deregulation was that telecom services were divided into 2 wide categories - one part for the exclusive preserve of NITEL, whilst the other allowed for private sector participation. In other words, NITEL would continue to have a monopoly in the following activities: 1. 2. Exchange and Trunks International services

In effect, the role of NITEL had been reduced to that of an operator and no longer a regulator or adviser to government on telecomm. Further deregulation of the sector was effected by the amendment made to the Decree in 199847. Prior to this, only Nigerians by virtue of section 10(a) of the Decree could participate in telecommunications activities. However, by the amendment, the criteria for being licensed as an independent service provider, as spelt out in Section 10 (as amended), stipulated that “No person shall operate a telecom service in Nigeria unless the person: a. is registered as a body corporate under the Companies and Allied Matters Act 1990 b. Is licensed as a telecom service operator under the provisions of the NCC Decree.


Nigerian Communications Commission (Amendment) Decree No. 30 1998 Commencement 30th September 1998

30 The 1998 decree was subsequently amended by the coming into force of the National Communications Commission Act48 which simply provided thus49: “No person shall operate a communications system or facility nor provide a communications service in Nigeria unless authorised to do so under a communications licence or exempted under regulations made by the Commission under this Act” It is thus instructive to note that there is a prohibition ab initio of any form of unlicensed telecommunications services and operations in Nigeria50. As a consequence of its regulatory functions, the National Communications Commission successfully auctioned the Second Generation51, digital mobile licences in 2001, which most Nigerians believe ushered in the real revolution witnessed in the sector52. MTN Nigeria, Econet Wireless Nigeria, Mobile Telecommunications (M-Tel) and the mobile unit of Nigerian

Telecommunications Limited (NITEL), emerged winners. Globacom Nigeria, the only wholly indigenous telecommunications firm, won a licence as the


Act No. 19 2003, commencement 8th day of July 2003. Section 31(1) NCC Act 2003 - Requirement for licences. 50 Adewopo, A, “The Foundation Of Telecommunication Regulations: The Nigerian Experience” (1999) UJLJ, Vol. 7, p.117 at 129 51 The second round of licences granted to PTO and FWA operators in 2001 after the liberalization of the sector. 52 Eni, H., op cit., p. 38

31 second national operator in 2002. NCC has also licensed a number of Fixed Wireless Access (FWA) operators. Nigerian Telecommunications Ltd (NITEL), the Pioneer and Government owned have a limited Fixed Line infrastructure. It has a present capacity of about 700,000 lines (about 450,000 currently functioning). Private Telecommunications Operators (PTOs) include Intercellular, Multi-Links, Reliance (Reltel), Starcomms, Cellcom, among others. These operators provide Fixed Wireless Access and account for about 250,000 telephone subscribers. Data services such as Short Message Service (SMS) and Wireless Application Protocol (WAP) are offered by the Global Systems for Mobile communications (GSM) networks53. Some of these GSM networks have roaming agreements with other international networks. The Private Telecommunication Operators (PTOs) such as Starcomms, Reliance Telecoms (Reltel), And Intercellular etc. also provide limited mobility telephones. Percentage mobile phone growth between December 2001 and December 2002 was 59% and mobile subscribers increased from a mere 500,000 in 1999 to 85 million in 2011, making Nigeria one of the world’s fastest growing


MTN Nigeria, Reltel, Etisalat and Globacom are the major GSM operators.

32 mobile (GSM) market. More than 80% of the subscribers are in the urban and metropolitan areas.54 2.0.2 BROADCASTING/SATELLITE OPERATIONS The landscape of the Nigerian broadcasting industry cannot be complete without the mention of the Nigerian Broadcasting Commission Act55 which established the Nigerian Broadcasting Commission in line with the National Mass Communication Policy. The key highlight in the functions of the Commission is as stated in the Act56 to the effect that: “The Commission shall have responsibility of receiving, processing and considering

applications for the establishment, ownership or operation of radio and television stations, including: 1. cable television services, direct satellite broadcast and any other medium of broadcasting, 2. Radio and television stations owned, established or operated by the Federal, State or Local Governments.”

54 55

Atojoko, S., op cit., p. 10 National Broadcasting Commission Decree No. 38 of 1992, Act Cap. N11, L.F.N. 2004 56 Section 2(b)i & 2(b)ii, NBC Act.

33 The commission, by virtue of its wide powers as provided by the establishing law, is the only body recognized by law within Nigeria to regulate and control the broadcasting industry. To this effect, section 2(2) provides that: “No person shall operate or use any apparatus or premises for the transmission of sound or vision by cable, television, radio, satellite or any other medium of broadcast from anywhere in Nigeria except under and in accordance with the provisions of this Act”. The NBC has licensed a couple of radio and television broadcasting stations to operate several wave lengths. Some of these are federal owned while others are state or private owned stations. The Nigerian Television Authority (NTA) is one perfect example of a broadcasting station owned by the federal government and created by law57. Nigerian National Satellite Programmes The national Television and radio broadcasts are transmitted via satellite. A prerequisite for the effective management of any development is essentially our ability to monitor the environmental status ands its variations in both time and space. Earth observation, communication and navigation satellites play a vital role in the collection and dissemination of information, in a very timely


Nigerian Television Authority Act, Cap. 329, L.F.N. 1990 Act, Cap. N136 L.F.N. 2004

34 manner providing crucial inputs required for carrying out operationally viable strategies. Consequently, Nigeria developed a couple of satellites. These were; A. NigeriaSat-1:

The first Nigerian satellite, a microsatellite called NigeriaSat-1, was successfully launched into low earth orbit on 27th September 2003. To date, NigeriaSat-1 has captured high quality images, using the six cameras on board the satellite, and demonstrated good commercial value. The launch has generated wide spread national attention and stimulated countrywide space and GI awareness, especially among stakeholders and users of satellite data for GI acquisition for socio-economic activities in Nigeria. Similarly, decision makers have shown a great interest and have been highly optimistic about its application potentials. The fact that data from NigeriaSat-1 is timely accessible and entirely owned by Nigeria has stimulated research and development by many relevant institutions of government and the private sectors in Nigeria. Further benefits of the availability of real-time data from NigeriaSat-1 include58: i. Opportunity for sharing knowledge and solving the problems of digital divide in Africa.


Abiodun, A., “Space Technology and its Role in Sustainable Development”, Presented at the Annual Meeting of the British Association for the Advancement of Science, University of Leicester, 2002, Leicester, U.K.

35 ii. Ground sampling distance (GSD) or spatial resolution of32m with an economic swath width of 600km; it has a minimum of five years life span. iii. Great potential for broad spectrum of data acquisition for the National Geospatial Data Infrastructure (NGDI), an initiative for GI-based economy that will improve the quality of life of Nigerians and alleviate poverty.


Nigerian Communication Satellite [NigcomSat1]

As a follow-up to the successful launch of NigeriaSat-1, the government of Nigeria began the implementation of a Nigerian Communication Satellite called NigcomSat-1. The project was originally intended to provide the bandwidth requirement to address the telephony, broadcasting and broadband needs of the country. NigComSat-1 includes 40 hybrid transponders with 15 years life spans and coverage of the African continent, Middle East and part of Europe and was eventually launched in 2006/2007. Some of the implications of NigcomSat-1 to socio-economic development in Nigeria include the following: i. To enhance the capabilities of Nigerian engineers and scientist in the design, manufacture, operation and maintenance of

communication satellite through strategic partnership with technical partners.

36 ii. To provide a platform for operation of a public services telecommunication networks in Africa providing linkages to educational institutions, regional organizations, and government in Africa, to facilitate developmental activities.


African Resource Management Satellite Project [NigeriaSat-2]:

This is a joint satellite programme of South Africa, Nigeria and Algeria and Kenya forming the cornerstone of the African Resource Management (ARM) Satellite Constellation, laying the foundation of sustainable technology development in Africa. The ARM initiative was proposed by South Africa and supported by Nigeria as documented in a joint space technology project proposal between South Africa and Nigeria. The countries involved would collaborate in building capacity to support space programmes in Africa. Such a programme would benefit Nigeria in advancing the realization of the objectives of its space policy. The space segment of the system will consist of identical satellites to be built together by participating African engineers. Each satellite will have a high-resolution payload with a 2.5 meters resolution in panchromatic mode and a 5m resolution in multi-spectral mode in 6 spectral

37 bands. The satellites will be phased to operate in constellation and will be accessed through the integration of the individual ground stations. 59 2.0.3 INTERNET DATA COMMUNICATION Although a relatively new sector within the Nigerian economy, internet data communication has been a world acclaimed tool of communication for decades. The electronic digital computer made its first appearance in Nigeria in 1963, in connection with the analysis of the 1962/63 national census data. The promulgation of the indigenization decree in 1977 which set apart some categories of industrial activity exclusively for participation by Nigerian nationals, while stipulating a minimum of Nigerian interest in others led to the influx of indigenous vendors in the computer business and a keener competition in the industry. This created more aggressive marketing policies and a resultant increment in the number of computer installations in the country. The turn around in the internet service industry began with the approval by the Federal Executive Council (FEC) of Nigeria of the National Information Technology Policy in March 2001. The National Information Technology Development Agency (NITDA) was subsequently established in April 2001 to implement the Policy. The Information Policy served more like objective


Mostert, S., Akinyede, J. O. and Adeniran, S.A.,. “Joint Space Technology Project Proposal between South Africa and Nigeria”, AREMS, 2003.

38 principles and a vision which the Nigerian government was committed to pursuing. Being a service industry with potential of attracting foreign direct investment, the federal government established the Nigerian Internet Registration Authority (NIRA) to serve as the body charged with the responsibility of registering and licensing all Internet Service Providers (ISPs). The number of licensed ISPs and investment in the sector in the last 8-9years also increased tremendously, the Nigerian Internet population has therefore witnessed tremendous growth with a boost from 2,418,679 users in 2005 to an estimated number of about 10million Internet users in 2008. The figure currently stands at over 24 million users.60 To cap it all up, the federal government established a national Internet Exchange Point (IXP) in 2007 to keep local internet traffic local and reduce the cost of internet service within the country. Regardless of all these efforts, the most dominant feature of the Nigerian internet sector is the establishment of the Public Service Networks (PSNet) by the National Information and Technology Development Agency (NITDA) in pursuance of the National Information Technology Policy. This PSNet addresses the major problem of ICT infrastructure, and serves as a pipe for ICT services. It consists of a Very Small Aperture Terminal (VSAT)61 sited in the State Capital. This VSAT will provide Internet access for that central
60 61

http://www.aucitmc2010.gov.ng/index.php?view=article&catid [Accessed May 8 2011] small satellite terminal used for digital communications, from 1 to 3 meters (3.3 to 10 feet) in diameter, capable of managing digital transmissions of up to 56Kbps.

39 location and all other locations connected to this centre using Broadband Wireless Access (BWA) technology. The various sites around the country are then connected to each other through a Virtual Private Network (VPN). Nine states (9) have already been completed in the 1st Phase of the project.62

The growth of information and communications technologies is changing the way economic and social development occurs in most countries. New ICT related tools have been known to make institutions and markets more productive, enhance skills and learning, improve governance at all levels, and make it easier for services to be accessed.63 Information and communication technology (ICT) has been regarded as the source for the social and economic empowerment of any country especially a developing country like Nigeria and has remained the catalyst of growth for developed countries. Virtually all government services could be initiated and delivered through ICT and since these ICT tools are efficient and reliable, they are today functioning as promoters of good governance in most countries. To realize her vision of


Ajayi G. O., “NITDA and ICT in Nigeria”, 2003 Round Table on Developing Countries Access to Scientific Knowledge, The Abdus Salam ICTP, Trieste, Italy 63 Opera, S., and Ituen, I., “Nigeria’s ICT sector: Growth, gains and challenges”, PUNCH Newspaper, (Tuesday, 10 May 2011)

40 becoming one of the top 20 global economies in the year 2020, good governance through ICT hold the ace for Nigeria’s Vision 2020 program.64 The impact of ICT to the development of Nigeria can be assessed through its impact on the various sectors of the socio-economic wellbeing of Nigeria. These sectors are the economy, education, health care, governance, agriculture etc. 2.1.1 Implications for Education The critical issues in basic education have been “Access”, “Equity”, “Quality” and “Management”. The development of ICT accelerates the attainment of full access. Access can be enhanced because it is not that you can physically build schools in every village before you can have access to information. Rather even in homes, there can be exchange of information between teacher and pupil through ICT facilities. Likewise for equity, the information being passed to the urban schools will be same as information reaching the rural schools through the full implementation of school mapping and micro planning. Quality can be maintained uniformly through ICT thus overcoming the limitations of locations, terrains etc.65 Thus cost of education in terms of delivery is considerably reduced. For example, one excellent teacher can be made to teach a number of children at the same time rather than scouting for

Nwelih E., and Ukaoha K. C., “ICT Strategies for Consolidating Good Governance in Nigeria”, Pakistan Journal of Social Sciences, 2010, pp.227 65 “ICTS And The Attainment Of Universal Access To Education”: An Address By The Executive Secretary UBEC, Dr Ahmed Moddibo Mohammed, On The Occasion Of The 1st Public Sector ICT Infrastructure Forum Meeting, Held On Wednesday, July 2nd, 2008

41 the equivalent number of such teachers. Teacher capacity is also enhanced. The entire workforce needed to educate the populace will be reduced and deployed to other sectors of the economy. This will create a multiplier effect. The National Policy on Computer Education stipulates the various objectives to be obtained at these levels. At the primary level, the objectives are to enable the pupils to: a. Use the computer and thereby acquire basic skills such as using the keyboard, accessing and editing file at the operating system level. b. c. Use the computer to facilitate learning; and Develop rudimentary skills in the use of computer for text writing, computation and data entry activities. ICT can be used as a tool to support teaching both in content and methodology. It can be used while marking assignments, collecting data, documentation, conducting research and communicating. ICT serves as medium through which teachers can teach and learners can learn. It can be in form of drills, simulations, practice, exercises and educational networks. ICT can be used in handling school records like time tabling, attendance, fee collection, examination results and general communication which is commonly referred to as “database management”. The Federal Ministry of Education has put in place a Policy on National Education Management Information System (NEMIS). In addition, computer education curriculum for all levels of basic education have been developed,

42 launched and distributed to schools. FEDERAL MINISTRY OF

EDUCATION has ensured the deployment of VSAT in Unity schools nationwide. FEDERAL MINISTRY OF EDUCATION has encouraged private initiative in the implementation of one computer per child in some basic education schools. FEDERAL MINISTRY OF EDUCATION has further made computer/ICT studies to be one of the core and compulsory subjects in basic education. 2.1.2 Implication for the Economy The operations of the various components of ICT operations in Nigeria have had a massive impact on the economic wellbeing of the nation. A classic example is how it has impacted the manufacturing industry thereby creating jobs and employment opportunities. The reach of ICT is evident in virtually all sectors of the economy, from oil and gas, to manufacturing, agriculture, banking etc. for instance, the ATM services that allow for withdrawal of cash from designated points helps to ease the bank service delivery thereby making banking more assessable to the citizenry. Economic activities in the last few decades have witnessed very impressive growth especially in sectors such as banking and telecommunication. Millions

43 of young school leavers and professionals have been empowered economically thereby increasing the economic base of the nation.66 2.1.3 Implications for Good Governance The term governance is wider than government and refers to the process of decision-making and the process by which decisions are implemented. Good governance could be consolidated in Nigeria through a lot of strategies. Example of well thought applications around the world show that ICT when applied to governance can help to:67 a. Reduce poverty by creating a more skilled workforce and increasing the penetration of aid and subsidies to the underserved b. Provide basic needs by improving the quality of healthcare, providing educational opportunities, planning for basic service delivery and helping to improve agricultural productivity and commerce c. Improve public administration by facilitating informed decisions making, managing the burden of informed decisions making, managing the burden of foreign debt, revitalizing local economies, improving policing and safety, improving public administration and efficiency, facilitating regional, national and sub-national

coordination and communication, improving the quality of public

Adewopo, A, “The Foundation Of Telecommunication Regulations: The Nigerian Experience” (1999) UJLJ, Vol. 7, p.117 at 118 67 http://www.unescap.org/pdd/prs/projectactivities/ongoing/gg/governance.pdf [Accessed may 11 2011]

44 services and facilitating better post-conflict reconstruction and administration. Etc

2.1.4 Implications for Agriculture Although petroleum continues to dominate the public finances and foreign exchange resources of Nigeria, the sector is, in reality, an enclave economy employing less that 100,000 Nigerians directly in production. Knowledge is a major need for farmers. It can empower them to make informed decisions—from selecting seed variety to selling their produce in the market. Knowledge, however, can only be useful if it is credible and reliable, packaged in a format that target users can understand, and delivered to a wide audience in a timely manner. On-the ground realities in developing countries show that a gap exists between credible research-based information and the extension system, which serves as an information intermediary to farmers. The challenges lie in the extension service’s ability to provide timely feedback to research organizations and in the research system’s ability to transfer new knowledge to the extension system.68 Rural communities have the need to exchange and exploit information and knowledge more effectively using ICT to improve livelihoods and reduce their vulnerability to market price fluctuations, global changes, natural disasters, pest and disease occurrences etc. Access to ICT is thus used to enhance the social capital of

www.adbi.org/files/2004.12.08.cpp.rice.knowledge.paper.pdf [accessed may 11 2011]

45 rural communities and strengthen farmers and rural organizations to increase the ability of farmers to learn from other farmers and formal knowledge sources.


TECHNOLOGY Regulation is “the act or process of controlling by rule or restriction”; such rule or order, “having legal force, usually issued by an administrative agency”69. The notion of regulation usually and fundamentally involves the creation of laws on one hand and creation of institutions on the other. The rational behind this fundamental necessity is the fact that there must exist an administrative organ of government charged with the responsibility of enforcing certain standards which themselves are a creation of law70. In other words, ‘regulation’ is an integral aspect of the development of any market economy. It usually seeks to protect investments in business, the growth and stability of the corporate market economy and the promotion of industrial stability. In order to do this, the state establishes a monitoring agency charged with wide responsibilities aimed at achieving certain objectives.71 Regulation is not an end in itself. Rather it is the vehicle to attain, and subsequently sustain, widespread access, effective competition and consumer protection. To this end, regulation is a continuing act which cannot be done away with so long as such subject matter exist needing regulation.

69 70

Black’s Law Dictionary, (U.S.A. West Publishing Company, 8th ed. 2004) p. 1311 For instance, the I.T. policy of Nigeria as goals gave birth to the establishment of Nigerian Information Technology Development Agency (NITDA) 71 Owasanoye, B., “some aspects of monitoring and enforcing corporate regulation under the Companies and Allied Matters Act” (1996) CJLJ, Vol. 2, No. 2, pg. 24 at pg.24

47 The liberalization and introduction of competition in any market economy often requires strategic policies and regulations that establish an effective regulator, and dismantle implicit barriers (such as the potential influence of the incumbent telecommunications operator over the regulator).72 For instance, prior to the telecommunications sector reforms undertaken in many countries during the last two decades, information communication services were largely provided under monopolistic conditions, either by state entities or, to a lesser extent, by private companies. Often the operator and regulator for information and communication technology services was the government; therefore, no regulatory independence existed. This classic model of supply generally concentrated policy-making, regulatory, frequency management and network operating responsibilities in a single entity73. This model worked well for many years in the more developed economies. However, the model did not work as well in developing countries where networks were generally restricted to urban areas and more accessible to middle/high income consumers. Crosssubsidization kept local prices low for the wealthy, but did not generate sufficient income for infrastructure investment, and low-income consumers were subject to long waiting lists and poor quality of service.74


Adewopo, A, “The Foundation Of Telecommunication Regulations: The Nigerian Experience” (1999) UJLA, Vol. 7, p.117 at 117 73 This was the case in Nigeria where the Nigerian Telecommunications Company (NITEL), prior to the National Communications Act of 1992, was created as an independent regulator. 74 Peter S., Subscribing to Monopoly: The Telecom Monopolist's Lexicon, Public Policy for the Private Sector, September 1995. http://rru.worldbank.org/Documents/PublicPolicyJournal/053smith.pdf [Accessed April 19, 2011]

48 The aims of regulation are very extensive, but this goes without saying that the proliferation of ICT services often calls for the need to check and control its operations so as to maximize benefit and ensure equality and fairness. To this end, regulatory reforms must always include measures aimed at75: 1. Creating independent entities to oversee the introduction of competition in the market and establishment of regulatory mechanisms for issues such as interconnection, licensing, and tariff rebalancing etc. 2. 3. expanding and enhancing access to ICT networks and services, and Promoting and protecting consumer interests, including universal service and privacy.

AND COMMUNICATION TECHNOLOGY Regulatory intervention, among other reasons, has become very necessary to safeguard consumer interests, to maintain an effective competitive marketplace, and to foster the long-term development of the ICT sector. Effective regulation has resulted in many benefits, such as greater economic and technological growth, increased investment opportunities, better quality of service, lower prices and higher penetration rates. The level of regulatory intervention will vary from country to country, and will depend on various factors, including the level of ICT service maturity, the legal and regulatory framework, and the

Guermazi, B and David S., “Creating the Right Enabling Environment for ICT, e-Development: From Excitement to Efficiency”, The World Bank (2005), pg. 13.

49 regulatory issues arising from new technologies and services.76 Below are some of the major issues which regulation must always seek to address. 3.1.1 CYBER CRIMES Cybercrimes are crimes involving the use of a computer, such as sabotaging or stealing electronically stored data.77 The phrase ‘cybercrime’ is composed of two principal words; ‘cyber’ and ‘crime’. A reference to ‘cyber’ is a reference to anything that relates to computers and the internet. However, a reference to ‘crime’ has much more implications. Crime is defined as “an act that the law makes punishable, the breach of a legal duty treated as the subject matter of a criminal proceeding”.78 This definition is suggestive of the fact that a ‘cybercrime’ is any act which is done with the aid of a computer, prohibited by law that attracts some kind of punishment when breached. The implication of this would seem to be that before any act can be categorized as cybercrime; such act must be clearly spelt out in a statute and defined as a crime. However, it must be stated that in Nigeria there is an acute shortage of laws which spell out which conducts can be classified as “cybercrimes”. Sadly, practitioners and users of ICT are generally confronted each day with legal issues arising from the deployment of ICT. Cyber crimes and internet related crimes are realities. As ICT gets more advanced so will the crimes and other misdemeanours using ICT. Interestingly, so will the law courts be called
76 77

http://www.ictregulationtoolkit.org/en/Section.1254.html [Accessed March 3 2011] Black’s Law Dictionary, (U.S.A. West Publishing Company), 8th ed. 2004 p. 399 78 Ibid., p. 398

50 upon to adjudicate on these issues but without existing laws?79 It is therefore not surprising that clear cases of computer and cyber crimes in Nigeria were tried under the ‘Advanced Fees Fraud Act80’ because there are no laws on cyber or computer crimes in the country. Equally interesting is the position of the Nigerian law on digitally generated evidence.81 Cyber crimes can therefore be considered as those acts which are prohibited by law and are nonetheless committed using computers and information technology. In other words, cyber crimes can also be called computer crimes. Computer crime can broadly be defined as criminal activity involving an information technology infrastructure including82; 1. 2. illegal access or unauthorized access; illegal interception that involves technical means of non-public transmissions of computer data to, from or within a computer system; 3. data interference that include unauthorized damaging, deletion, deterioration, alteration or suppression of computer data; 4. systems interference that is interfering with the functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data;

Umar, N., “The need for ICT and Cyber laws for Nigeria,” Daily Trust Online, (February 16 2011), http://news.dailytrust.com/index.php/index.php?option=com_content&view=article&id=20060:the-need-forict-and-cyber-laws-for-nigeria&catid=20:law-pages&Itemid=126 [Accessed March 23 2011] 80 ADVANCE FEE FRAUD AND OTHER FRAUD RELATED OFFENCES ACT 2006, with commencement date of 5th day of June 2006 81 Nigerian courts refuse to admit computer generated evidence on some technical grounds and where such evidence are admitted they are treated as secondary evidence 82 Okonigene, R., and Ehimen, A., CYBERCRIME IN NIGERIA, Business Intelligence Journal, January, 2010 Vol.3 No.1, pg. 93 at pg.95

51 5. Misuse of devices, forgery (ID theft), and electronic fraud.

These activities more often than not lead to other activities that can cause more harm to the society. Activities such as cyber-terrorism, cyber-fraud, cyber-theft etc are some examples of these activities. It is thus mandatory for there to exist some kind of framework that curbs and reduces the effect of these ills on the society. Governments are therefore often pressured to put in place institutional and legal regulatory measures to check these excesses. Most of these pressures are asserted by the international community. The United Nations through the United Nations Institute of Training and Research (UNITAR), presenting recommendations to the member nations of the United Nations, urged members to adopt certain laws to enhance cyber security. 3.1.2 LICENSING AND TARIFF CONTROLS The requirement for issuance of licence is a tool of regulation aimed at controlling activities of operators in any sector. Licensing involves issuing a permit by a competent authority, conferring the right to do some act which without such authorization would be illegal, or would be a trespass or a tort83. A licensing structure offers the parties the opportunity to draw the line between permitted and excessive uses with much greater clarity. A very clear example of this is the provision of section 31 of the National Communications Act84 which stipulates thus:

83 84

Black’s Law Dictionary, (U.S.A. West Publishing Company, 8th ed. 2004) p. 287 Nigerian Communications Commission Act No. 19 2003, Laws Of The Federation of Nigeria (L.F.N.)2004

52 “(1) No person shall operate a communications system or facility nor provide a communications service in Nigeria unless authorised to do so under a communications licence or exempted under regulations made by the Commission under this Act.” This singular provision gives the National Communications Commission, being the sole regulator of the telecommunications, the power to regulate the telecommunications sector by way of granting licences to operators. The Act goes further to make it a criminal offence for any one to operate telecommunications operation in Nigeria without a permit.85 Licences could also be a regulatory tool to disallow a certain kind of practice and prohibit any form of conduct that may be detrimental to societal wellbeing. The National Broadcasting Corporation86 (NBC) in accordance with its statutory functions of granting licences to broadcast stations87 has been limited in its powers and “shall therefore not grant a licence to a religious organization or a political party.”88 These operator licences are of different classes and often require some basic standard requirements. The requirements or conditions for the grant of an

Section 31(2) NCC Act: Any person who acts in breach of sub-section (1) of this section commits an offence and is liable on conviction 86 Established by the National Broadcasting Commission Decree No. 38 of 1992, Act Cap. N11 L.F.N. 2004 87 Supra., section 9(1) 88 Supra., section 10

53 operating license are usually contained in regulations which the regulating authority is empowered by law to make. The benefits of licensing as an instrument of regulation are many folds. Some of these benefits include: 1. Allows the government to have effective control and knowledge of all operators within any sector without which no form of uniformity and regulation can be achieved. 2. Provides a platform to set standards of operations and ensure the high quality of service provided. A perfect example of this is the role of the Standards Organization of Nigeria which is created by law89 and empowered90 to investigate all manufacturing industries operating within Nigeria and ensure that products manufactured within such industry or factories comply with standards. 3. Licensing also aims at safeguarding consumer interests. For instance, under Nigerian Urban and Regional Planning Law91, the commission, board or authority,92 charged with the responsibility of making and enforcing urban plans, in exercising its power93 to grant, reject or revoke a development permit shall take into account matters of over-riding public interest as provided for in section 27 (2), (3) of the Land Use Act94.

89 90

Standards Organisation Of Nigeria Act, CAP. 412 L.F.N. 1990, CAP. S9 L.F.N. 2004 Ibid., Section 5(1)a – o 91 Nigerian Urban And Regional Planning Decree No. 88 1992 Act Cap. N138 L.F.N. 2004 92 Ibid., Section 27(1)-(5) 93 Supra., Section 41(b) 94 L.F.N. 1990, Cap 202

54 Tariff control is another mode of regulation. However, the control of tariffs is very much associated with the issuance of license of operation. This is because any regulatory body with the authority to regulate tariff is in most cases also authorized to issue permits. Both forms of regulation can thus be said to be coextensive. Tariff simply means any “schedule of charges” especially as charged on consumers and users of a product or service. The rational behind the power to control tariff as a regulatory measure is always to safeguard consumer interests. Therefore, regulatory laws always make it mandatory for the power to review and approve tariffs to vest in the regulatory authorities. A classic example of this tariff control power is provided for in section 108(1) of the National Communications Commission Act95 to the effect that; “Holders of individual licences shall not impose any tariff or charges for the provision of any service until the Commission has approved such tariff rates and charges except as otherwise provided in this Part.” Without this supervisory and approval powers of any regulatory body, such tariff rates could well be put so high as to stifle competition and massively take advantage of consumers or even reduced to an extent where it exterminates competition. To this effect, tariff rates must always be set on the basis of certain principles. These may include the fact that:


55 1. tariff rates shall be fair and, for similarly situated persons not discriminatory 2. 3. tariff rates shall be cost-oriented tariff rates shall not contain discounts that unreasonably prejudice the competitive opportunities of other providers 4. tariff rates shall be structured and levels set to attract investments

The power of tariff control can even be pushed a little further. A couple of regulatory laws even provide that the regulatory authority can determine how such tariff can be calculated and computed. The National Electricity Regulatory Commission which is a creation of the Electric Power Sector Reform Act96 is further empowered to “reasonably determine terms and conditions prescribing the use of a tariff methodology.”97 This means that not only shall the commission determine the tariffs which the electricity distributors shall charge customers but shall also determine the methodology by which such tariffs shall be arrived at. 3.1.3 TECHNICAL STANDARDS AND SAFETY Information and Communication Technology like other technical services inhibits some kind of dangers when not properly used. Most of the ICT infrastructure usually emits dangerous signals and radiation which is capable of causing serious harm to human health. In order to put a check to these safety

96 97

Act no. 6 of 2005, commencement 11 march 2005. Supra., section 71(1)


56 issues, it is expected that regulatory authorities would set technical standards by which all operators must comply. This is ideal especially considering that in a business and capitalist motivated environment; huge ICT corporations would do anything just to get an economic and financial edge thereby ignoring public health and safety. In furtherance of the safety issues, regulatory authorities must therefore make regulations spelling out the technical standards and safety standards for operators. The issue of standards and safety formed some of the major objectives of the International Telecommunications Union (ITU) of which Nigeria is a member. The ITU as an international telecommunication regulator had set certain technical standards of which all member nations must comply with. Consequently, amongst the functions of the National Communications Commission is “the formulation and management of Nigeria’s inputs into the setting of international technical standards for communications services and equipment.”98 These technical standards for telecommunication operators were enacted into the Telecommunications Networks Interconnection Regulations99 and expressed in Regulation 15 which bothers Interconnection PRINCIPLES APPLICABLE TO ALL Telecommunications operators.

98 99

Section 4(1)m of the NCC Act of 2003 Telecommunications Networks Interconnection Regulations S.I. 13 2003

57 3.1.4 MARKET LIBERALIZATION Market liberalization allows for the natural forces of the market place i.e. demand and supply to push and determine prices. This is one major factor that allows and fosters competition thereby adding value to the economy by creating more jobs and investment opportunities. The cumulative effect of granting of licences and regulating the entire ICT sector is to open up the market and allow for more competition. It is therefore the role of the regulator to provide for a market environment that allows the forces of the market to determine the success of operations. Regulation in the light of this ensures that all participants within the ICT sector have equal access to the market and fair treatment. In a fully competitive environment, there is a more limited need for regulation. However, regulatory authorities still have a critical role to play, particularly given the dynamic role of the sector and the unsettled issues that new technologies may introduce into the regulatory environment. Moreover, in certain areas, regulators need to maintain a prominent role because market forces often fall short of creating the conditions necessary to satisfy public interest objectives such as universal access and service. In such situations, regulation by government may be deployed to ensure that services satisfy public interest. However, significant upfront investments, high operating costs, and uncertain demand may make the satisfaction of these objectives unjustifiable on commercial grounds. Thus, government initiatives directed at providing access and services to generally remote, un-served areas may need to be adopted. In

58 such cases, regulators should narrowly define and identify the areas and services that will benefit from government subsidies or incentive programs so as to avoid closing the door to private investments in areas where market forces alone do not provide an incentive to offer services in such areas.100 Despite the benefits of new technologies, regulators also must be attentive and responsive to the regulatory issues that arise from the implementation of these new technologies and their related services. For example, in today's environment, regulators are grappling with how to address issues such as spam and consumer concerns regarding privacy, which were not issues of concern to regulators ten years ago. In addition, while new technologies often offer consumers greater choices at lower prices, regulators have a responsibility to ensure that consumers are aware of the potential limitations that may exist with these lower-price offerings ( e.g. , emergency services may not be available through such services; services offered may be of a lower quality of service).

Human relationships are governed by informal and formal standards of conduct called norms. Law is the political mechanism by which those who are in charge of society create and enforce social, economic and political norms101. In other

International Telecommunication Union, Trends in Telecommunication Reform: Promoting Universal Access to ICTs , 2003, at 30 101 Melone, A., and Karnes, A., The American Legal System: Foundations, Processes and Norms, (los angels: Roxbury publishing company), 2003, pg.3

59 words, law is the expression of the societal ‘accepted’ standards of conduct. Regulation of ICT as an instrument of law strives to achieve the set objective of ensuring that societal standards and norms are complied with. Effective regulation has proven to result in greater economic growth, increased investment, lower prices, and better quality of service, higher penetration, and more rapid technological innovation in the sector. 1. Increased Investment

This is most often a direct consequence of market liberalization. Investors consider the regulatory environment to be a critical factor in their analysis of whether or not to invest in a country. They often have a set of regulatory conditions that must be present for them to consider an investment in a particular country. The Nigerian telecommunications reform is a clear example of this fact. The introduction of market liberalization by virtue of the reforms opened up the telecoms market and attracted more investments. As a result of the regulations, NCC has issued more licences to private telecom operators in the last two decades and there’s still a long waiting list of operators willing to do business in Nigeria and commit huge capital investment into the Nigerian telecoms market. 2. Economic Growth and Consumer Benefits

Increased regulation of the ICT sector encourages increased access and participation. This increased participation and investment lead invariably to economic growth. The granting of more licences by the National

60 Communications Commission in 2005 led to increased competition and creation of jobs. Effective regulation of ICT guarantees consumer benefits and the introduction of innovative services that would tend to benefit the wellbeing of consumers. A classic example of such innovative services is the increased access to the benefits of ICT in the various sectors of the economy. Issues bothering on banking services, education, social networking and distance education are just but a few of the advantages that consumers and users of ICT benefit from. 3. Lower Prices for Consumers

The regulation and control of tariffs cumulatively lead to lower prices for consumers. For instance, lower prices for international telephone calls, for example, are also highly correlated with the level of competition. In Africa, one of the regions of the world where competition in long-distance telephony is lowest, prices for both international telephone calls and broadband service are much higher than in other regions of the world. Regulations must often intervene to remedy shortcomings in competition and ensure that competition is working effectively, which sometimes includes imposing some form of regulation, such as regulation on interconnection charges to force incumbent operators to charge competitive operators wholesale cost-oriented rates and eliminating restrictions on resale to allow entry of multiple operators and greater competition.102

Boutheina. G., and David S., Creating the “Right” Enabling Environment for ICT, http://www.ictregulationtoolkit.org//en/index.html [Accessed March 23 2011]


This section of the study is divided into two main interdependent but mutually reinforcing subheads. These are; a. b. The general legal context of regulatory reform and; The institutional and organizational regulation and processes

Effective regulation requires the implementation of a supporting legal and regulatory framework to create an environment that promotes public confidence and ensures stability, transparency, competition, investment, innovation, and growth in the sector. Many of the laws, regulations, and best practice examples examined in this study address and provide guidelines for effective regulation for competition.103 Information and Communication Technology comprises several component parts. Just as discussed in chapter one104, “the term ICT is now also used to refer to the merging (convergence) of audio-visual and telephone networks with computer networks through a single cabling or link system”. The implication of this convergence on regulation is also the need to concentrate regulations to cater for the component parts of ICT i.e. telecommunication, satellite services, broadcasting etc.

103 104

http://www.ictregulationtoolkit.org/en/Section.1255.html [Accessed March 23 2011] Meaning of terms and related concepts: Information and Communication Technology, pg. 12-13


International law is the aggregate of rules governing relations between states105 in the process of their conflict and cooperation, designed to safeguard their peaceful co-existence. The concept has been aptly defined as “the sum of rules or usages which civilized states have agreed shall be binding upon them in their dealing with one another.”106 The states of the world, with different political and economic backgrounds, have formed a true community and a society that requires standard rules for its orderly development. International law derives its content from long-standing customs, provisions agreed to in treaties, and generally accepted principles of law recognized by nations. Sources of international law are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories. During the 19th century, it was recognised by legal positivists that a sovereign could limit its authority to act by consenting to an agreement according to the principle of pacta sunt servanda.107 Article 38 of the statute of the


Meaning: a Political system of a body of people who are politically organized. The state is the primary subject of international law. Thus, international law primarily regulates interactions between states as members of the international community. 106 Denning, L.J. in Trendtex Trading Corp. v. Central Bank of Nigeria [1977] 1 All E.R. 881 at 901 107 The concept known by the Latin formula pacta sunt servanda (agreements must be kept) is arguably the oldest principle of international law. Without such a rule, no international agreement would be binding.

63 International Court of Justice108 enumerates the sources of international law. It provides as follows; 1. “the court whose function is to decide in accordance with international law such

disputes as are submitted to it, shall apply:a. International conventions, whether

general or particular, establishing rules expressly recognized by the contesting states b. International custom, as evidence of a general practice accepted as law c. The general principles of law recognized by civilized nations d. Subject to the provisions of Article 59109, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law. With the world figuratively smaller and with increased contacts and intensified relations, mandatory rule become even more necessary for the

The United Nations International Court of Justice, sometimes referred to as the World Court, has headquarters in the Peace Palace of The Hague, Netherlands. Established in 1945, the court addresses international disputes and provides advisory opinions on legal questions arising under international law. 109 “The decision of the Court has no binding force except between the parties and in respect of that particular case.”

64 promotion of international cooperation and development and the avoidance of conflicts and chaos.110 The operation of ICT is one of such issues which has an international appeal and goes beyond the boundaries of nations and cultures. Its benefits cut across the whole spectrum of human existence necessitating the need to attempt to provide an international regulatory platform to tackle the several issues arising from its operations. 4.1.1 INTERNATIONAL LEGAL AND INSTITUTIONAL REGULATORY FRAMEWORK As pointed out above, the major sources of international law are treaties and conventions, international customs and general principles of law as recognized by states. As a corollary, several treaties and conventions have been signed by the international community as a direct or indirect means of regulating information and communication technology practice. Most of these treaties and conventions aim at providing minimum standards of safety, guarantee of competition, equal access etc. it must however be noted that such international law does not and cannot form a primary source of law within any municipal legal system such as Nigeria and therefore not have any binding effect of municipal courts. Until and unless such international treaty or convention gets ratified by the municipal system, such international law looses its binding effect within the municipal jurisdiction.


Umozurike, U.O., Introduction To International Law, (Ibadan: Sprectrum Law Publishing), 2 pg.1


ed, 1999,

65 The internationally recognized institution of the United Nations has a long history of promoting international collaboration in rule-making and has shown to be a successful forum for unifying internet and information related rules at a global level. The internationality and subsequent uncertainties and problems of the regulation of ICT have also been noticed by the World Trade Organization (WTO). In view of this, the WTO has promoted or considered international harmonization as well as international co-operation with respect to issues such as intellectual property rights and electronic commerce as well as consumer protection. An organization that has a long time tradition in advocating international rule-making is World Intellectual Property Organization (WIPO). WIPO issues provisions that are binding upon the member states. The challenges that intellectual property rights especially copyright holders face in a borderless society with the increasing entrance of electronic copying and distribution facilities has triggered the Geneva-based organization to implement a vast set of rules harmonizing the copyright systems of numerous countries around the world. By means of its 1996 Copyright Treaty, WIPO has set the worldwide standard for rules on issues such as reproduction in an online environment and legal protection for Digital Rights Management systems. The US111 and Europe112 closely followed the standards set by WIPO. Reference must be made to the International Telecommunications Union, the United Nation’s telecommunications policy111 112

By means of the Digital Millennium Copyright Act of 1998 Through the May 10 Copyright Harmonization Directive

66 making body, in organizing the World Summit on the Information Society (WSIS). The first meeting, held in Geneva in December 2003, was aimed at a better understanding of the information revolution and its impact on the international community. There is no distinct international ‘ICT’ body of law with its own sources and methods of rule making deriving from principles peculiar or exclusive to ICT concerns. Instead, regulatory action at the international level has emerged in a rather ad hoc fashion, originating from the variety of international institutions and organizations that deal with specific ICT-related topics and only proffer solutions to the issues of ICT. Nonetheless, a distinct set of rules and regulations does now exist for the application and use of ICT. International regulation covers a broad range of instruments. The term includes more than just law but also includes economic, market and technological steering instruments. Certain regional as well as international bodies have used a large body of binding harmonization measures with respect to ICT developments. The output of such institutions and measures adopted by them serve as model laws or model rules that states are free to implement. They may also have an impact on court rulings in developing judicial doctrines. Even more informal are certain customs developed by the on-line community (e-customs) that, over time, may become a source of law.


In discussing the legislative enactments geared towards regulating the Nigerian ICT sector, it must first be pointed out that there exists no “unified” statute regulating the “converged”113 Nigerian ICT sector. However, there exist a number of statutes which provide some form of regulation for some of the components of ICT in Nigeria. While the Nigerian National Assembly had enacted several statutes to regulate certain aspects of ICT in Nigeria, the same legislative organ had also failed to regulate on certain other aspects of ICT in accordance with their constitutional powers114 to legislate on matters in the “Exclusive Legislative List.” 115 4.2.1 WIRELESS TELEGRAPHY ACT Telegraphy is one of the components of telecommunication. In earlier times, telecommunications involved the use of visual signals or audio messages via coded drumbeats. A telegraph is a device, system, or process for transmitting messages or signals to a distance, especially with the use of electromagnetic impulses transmitted by conducting wires between sending and receiving points.116 The first breakthrough into modern electrical telecommunications came with the push to fully develop the telegraph starting in the 1830s. The use of these electrical means of communications exploded into use on all of
113 114

The concept of convergence is a reference to a the unification of visual, voice and data service. Section 4(1) Constitution of Federal Republic of Nigeria 1999, CAP. C23 L.F.N. 2004 115 These are issues which are exclusively a preserve of the National Assembly set out in Part I of the Second Schedule to the 1999 Constitution. 116 “telegraph” Webster’s Comprehensive Dictionary of English Language, (Florida: Trident Press ), 2004, pg. 1289

68 the continents of the world during the 19th century, and these also connected the continents via cables on the floors of the ocean.117 Wireless Telegraphy operations also extended to Nigeria and led to the enactment of the Wireless Telegraphy Act in 1992.118 This Act has however been modified by the National Broadcasting Commission Decree No. 38 of 1992. In definition of “wireless telegraphy, section 2 provides thus119: In this Act, unless the context otherwise requires“wireless telegraphy” means the emitting or receiving, over paths which are not provided by any material substance constructed or arranged for that purpose, of electro-magnetic energy of a frequency not exceeding three million megacycles a second, being energy which either:a. serves for the conveying of messages, sound or visual images (whether the messages, sound or images are actually received by any person or not), or for the actuation or control of machinery or apparatus; or b. Is used in connection with the determination of position, bearing or distance, or for the
117 118

http://www.en.wiki pedia.org/wiki/telecommunications [Accessed April 4 2011]. WIRELESS TELEGRAPHY ACT CAP. 469 L.F.N. 1990, commencement date:1st July, 1966 119 Ibid.

69 gaining of information as to the presence, absence, position or motion of any object or of any objects of any class. Enforcement Just like every other statute, the Wireless Telegraphy Act provides for how its provisions would be enforced. Although the Act does not directly create a commission with the sole purpose of enforcing its provisions, it concedes such powers of enforcement to other institutions. Section 3(1) therefore provides: In this Act, unless the context otherwise requires- ‘commission’ means, in the case of matters relating to; a. Telecommunications, the Nigerian Communications Commission created under the Nigerian

Communications Act, and b. Broadcasting, the National Broadcasting Commission established under the National Broadcasting

Commission Act.” This therefore means that the sole responsibility of enforcing the regulations and other provisions of the Wireless Telegraphy Act in respect of matters relating to communication and broadcasting rests with the National Communications Commission and the National Broadcasting Commission

70 respectively. Both commissions, as the case may be, are granted powers120 to make regulations:a. prescribing the things which are to be done or are not to be done in connection with the use of any station for wireless telegraphy or wireless telegraphy apparatus, and, in particular, requiring the use of any such station or apparatus to cease on the demand in that behalf of any such persons as may be prescribed by or under the regulations; b. imposing on the person to whom a wireless telegraphy licence is used with respect to any station for wireless telegraphy or wireless telegraphy apparatus, or who is in possession or control of any station for wireless telegraphy or wireless telegraphy apparatus, obligation as to permitting and facilitating the inspection of the station and apparatus are as to the condition in which the station and apparatus are to be kept and, in the case of a station or apparatus for the establishment, installation or use of which a wireless telegraphy licence is necessary, as to the production of the licence, or of such other evidence of the licensing of the station or apparatus as may be prescribed by the regulations; c. where sums are or may become due from the person to whom a wireless telegraphy licence is issued after the issue or renewal

Section 9(1) a - e

71 thereof, requiring that person to keep and produce such accounts and records as may be specified in the regulations; d. requiring the person to whom a wireless telegraphy licence has been issued to exhibit at the station such notices as may be specified in the regulations; e. for preserving the secrecy of communications by wireless telegraphy Licensing Section 4 of the Act makes it illegal for any person to operate wireless telegraphy without a licence. It provides as follows: “No person shall establish or use any station for wireless telegraphy or install or use any apparatus for wireless telegraphy except under and in accordance with a licence in that behalf.” In addition to the requirements of a licence for operating a wireless telegraphy station, section 5 further regulates the business of wireless telegraphy by providing a requirement for licence. It provides thus: “No person shall offer for sale, sell or have in his possession with a view to sale in the course of his business any installation, mechanism, instrument, material or other apparatus constructed for the purpose of or intended to be used for wireless

72 telegraphy except under and in accordance with a licence in that behalf.” The grant or renewal of a licence shall be in the discretion of the appropriate commission.121 Although there are no express conditions for the grant of a licence, “a licence may be issued subject to such terms, provisions and limitations as the Commission may think fit, including in particular in the case of a licence to establish a station, limitations as to the position and nature of the station, the purposes for which, the circumstances in which, and the person by whom the station May be used, and the apparatus which may be installed or used therein, and, in the case of any other licence, limitation as to the apparatus which be installed or used, and the places where, the purposes for which, the circumstances in which and the persons by whom the apparatus may be used.”122 This further reiterates the discretionary power of the appropriate commission to grant or renew a licence. Just as the commission has the absolute preserve to grant or renew a licence, same can be said of its power to refuse or revoke a licence. The application of this discretionary power however has limitations. Accordingly, section 8(1) provides as follows: “Subject to the provisions of this section, where an application for the grant or renewal of a licence is

121 122

Section 6(2) Section 6(3)

73 made to the Commission by a citizen of Nigeria and the Commission is satisfied that the only purpose for which the applicant requires the licence is to enable him to conduct experiments in wireless telegraphy for the purpose of scientific research, the

Commission shall not refuse to grant or renew the licence and shall not revoke the licence when granted, and no sum shall be payable under regulations under this Act otherwise than on the issued or renewal of the licence.” This class of licence is called “experimental licence”. Offences The operation of wireless telegraphy, like other modes and forms of ICT can be used to perpetuate illicit activities. In an effort to protect the users and beneficiaries of telegraph services, the Act labels certain acts as offences. Section 4(2) provides the first offence. Its provisions make it an offence for any one to operate a wireless telegraphy apparatus without a licence. This provision places the appropriate commission with the exclusive right to grant permits for such operations and enables the commission regulate the operations and operators of wireless telegraphy.

74 Section 9(2) similarly provides that in as much as the commission has powers to make certain regulations, it shall be an offence for any one to contravene any of the provisions. This therefore means that anyone who contravenes any of such regulations shall be guilty of an offence. Similarly, Section 10(1) of the Act thus provides: 1. No person shall— a. by means of wireless telegraphy, send or attempt to send, any message which, to his knowledge, is false or misleading and is, to his knowledge, likely to prejudice the efficiency of any safety of life service or endanger the safety of any person or of any vessel, aircraft or vehicle, and in particular, any message which, to his knowledge, falsely suggests that a vessel or aircraft is in distress or in need of assistance or is not in distress or not in need of assistance; or b. otherwise than under the authority of the Commission, or in the course of his duty as a servant of the State, either— (1) use any wireless telegraphy apparatus with intent to obtain information as to the contents, sender or addressee of any

75 message (whether sent by means of wireless telegraphy or not) which neither the person using the apparatus nor any person on whose behalf it is acting is authorised by the Commission to receive or; (2) except in the course of legal proceedings or for the purpose of any report thereof, disclose any information as to the contents, sender or addressee of any such message, being information which would not have come to his knowledge but for the use of wireless telegraphy apparatus by him or by another person. This particular provision is principally aimed at ensuring security of information obtained by means of wireless telegraphy without the consent of the minister or in legal proceedings. Consequently, anyone who contravenes this provision is guilty of an offence.123 To further guarantee the protection of such information as emitted by any apparatus of wireless telegraphy, the Act provides that “any person who wilfully uses any apparatus for the purpose of interfering with any wireless telegraphy shall be guilty of an offence.” 124 In

123 124

Section 10(2) Section 16(1)

76 such instances, it is immaterial that the apparatus used to interfere with any wireless telegraphy is not an apparatus of wireless telegraphy.125 Where a person is convicted of an offence under this Act consisting in any contravention of any of the provisions the Act in relation to any station for wireless telegraphy or any wireless telegraphy apparatus or in the use of any apparatus for the purpose of interfering with any wireless telegraphy, the court may, in addition to any other penalty order all or any of the apparatus of the stations, or as the case may be, of the apparatus in connection with which the offence was committed, to be forfeited to the Federal Government.126 Any person who is in possession of any apparatus for wireless telegraphy shall be deemed, until the contrary is proved, to have used the same.127 Consequently, the onus is on the party in which such apparatus is found in his possession to prove otherwise. Technical Standards and Safety In an attempt to guarantee safety and standards, the Act provides certain standards of safety to be complied with by all licensees. Wireless telegraphy like other technical services inhibits some kind of dangers when not properly used. In recognition of this fact, the Wireless Telegraphy Regulations128 provides in section 14 that:

125 126

Section 16(2) Section 19 127 Section 24 128 Wireless Telegraphy Regulations, L.N.31 of 1969, Commencement: 1st July 1966

77 The licensee, and or his agents shall observe and comply with the relevant provisions of the International Telecommunications Convention in operating the station. Section 15 of the regulations129 similarly provides; 1. The apparatus comprised in a station shall be so designed, constructed, maintained and used in such a way that the station does not cause interference with any other wireless telegraphy. 2. Every precaution shall at all times be taken to keep the radiated energy within the narrowest possible frequency bands, having regard to the class of emission in use. In particular the radiation of harmonics and other spurious emission shall be suppressed to such a level that they cause no interference with any wireless telegraphy. Tests shall be carried out from time to time with a view to ensuring that the requirements of this clause are met. An officer of the Ministry of Communications authorised in that behalf may at all reasonable times enter any premises, station, vehicle or vessel (as the case may be), on which equipment for wireless telegraphy is known or


78 suspected to be installed, for the purpose of examining the licence under which such equipment is installed, and may examine or test the apparatus and the working or use thereof.130 This power of investigation is to, among other things; ensure that the technical and safety standards are maintained at all times. 4.2.2 NIGERIA COMMUNICATIONS COMMISSION ACT 2003 The Nigerian communications commission Act 2003131 was enacted to replace the Nigerian communications commission Act of 1992. The primary objective of the Act is provided in section 1 as follows; “to create and provide a regulatory framework for the Nigerian communications industry and all matters related thereto and for that purpose and without detracting from the generality of the foregoing…” This Act applies to the provision and use of all communications132 services and networks, in whole or in part within Nigeria or on a ship or aircraft registered in Nigeria.133 The Act defines “telecommunication”;“as meaning any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by wire,

130 131

Ibid., Section 17 National Communications Commission Act 1992, Commencement 8th July, 2003 132 To include wireless telegraphy 133 Section 1(2)

79 radio, visual or other electro-magnetic


Enforcement To enforce its provisions, the Act creates the National Communications Commission with responsibility for the regulation of the communications sector in Nigeria.135 The Commission shall be a body corporate with perpetual succession and a common seal, capable of suing and being sued in its corporate name. The main objectives for the creation of the commission, other than to enforce the provisions of the Act, are to: 1. Promote the implementation of the national communications or telecommunications policy as may from time to time be modified and amended. 2. Establish a regulatory framework for the Nigerian communications industry and for this purpose to create an effective, impartial and independent regulatory authority. 3. Ensure fair competition in all sectors of the Nigerian

communications industry and also encourage participation of Nigerians in the ownership, control and management of communications companies and organisations. Etc

134 135

Section 157 Section 3(1)

80 The commission, in carrying out its primary objective of enforcing the Act, is vested with certain powers. The Commission must at all times exercise its powers efficiently, effectively and in a non-discriminatory and transparent manner and in a way that is best calculated to ensure that there are provided throughout Nigeria, subject to the regulatory controls specified in this Act, all forms of communications services, facilities and equipment on such terms and subject to such conditions as the Commission may from time to time specify.136 In furtherance of its powers, the Act137 grants the commission the power to make and publish regulations for all or any of the following issues: 1. Written authorisations, permits, assignments and licences granted or issued under this Act. 2. Assignment of rights to the spectrum or numbers, including mechanisms for rate-based assignment. 3. Any fees, charges, rates or fines to be imposed pursuant to or under this Act or its subsidiary legislation. 4. A system of universal service provision, including but not limited to the quality of service standards. 5. Communications and related offences and penalties.

136 137

Section 4(2) Section 70(1) a - g

81 6. Such other matters as are necessary for giving full effect to the provisions of this Act and for their due administration. The Commission shall also have the powers to resolve disputes between persons who are subject to this Act (“the parties”) regarding any matter under this Act or its subsidiary legislation.138 In exercise of this power to resolve disputes, Subject to the objects of this Act and any guidelines issued by the Commission under, the Commission “may resolve the dispute in such manner including but not limited to Alternative Dispute Resolution processes and upon such terms and conditions as it may deem fit.”139 The Commission, shall always be guided by the objective of establishing a sustained dispute resolution process that is fair, just, economical and effective and that shall not be bound by technicalities, legal form or rules of evidence and that shall at all times act according to the ethics of justice and the merits of each case. Licence and Tariff control Section 31(1) provides that: “No person shall operate a communications system or facility nor provide a communications service in Nigeria unless authorised to do so under a communications licence or exempted

138 139

Section 73 Section 76(1)

82 under regulations made by the Commission under this Act.” Consequently, there are created by the Act two classes of licenses to include an ‘individual licence’ and a ‘class licence’. A person may apply to the Commission, in writing and in such form as the Commission may prescribe, for an individual licence in respect of any matter requiring an individual licence under this Act.140 The conditions to be satisfied before the issuance of an individual licence may from time to time be determined by the commission. The Commission may grant a class licence in respect of any matter requiring a class licence under the Act. “Class licence” means a licence for any or all persons to conduct a specified activity and may include conditions, to which the conduct of that activity shall be under.141 In an effort to control tariff rates, the Act provides the following: “Holders of licences shall not impose any tariff or charges for the provision of any service until the Commission has approved such tariff rates and charges except as otherwise provided in this Part”.142

140 141

Section 39(1) Section 156 142 Section 108(1)

83 The tariff rates established by a licensee shall be on the basis of such principles as the Commission may from time to time stipulate in its guidelines or regulation including the following:143 1. Tariff rates shall be fair and, for similarly situated persons not discriminatory. 2. Tariff rates shall be cost-oriented and, in general, cross-subsidies shall be eliminated. 3. Tariff rates shall not contain discounts that unreasonably prejudice the competitive opportunities of other providers. 4. tariff rates shall be structured and levels set to attract investments into the communications industry; and 5. Tariff rates shall take account of the regulations and

recommendations of the international organisations of which Nigeria is a member. Notwithstanding the guidelines above, the Commission may intervene in such manner as it deems appropriate in determining and setting the tariff rates for any non-competitive services provided by a provider for good cause or as the public interest may require.144 Technical Standards and Safety

143 144

Section 108(4) a - e Section 109

84 The Act vests on the commission the power to specify and publish to the general public, technical code and specifications in respect of

communications equipment and facilities that may be used in Nigeria.145 Notwithstanding this authority, all technical standards and codes must conform to the standards prescribed by any international organizations of which Nigeria belongs to like the International Telecommunications Union.146 To enforce these standards, the Act places on the commission the power to enter upon any premises and investigates whether such standards are indeed adhered to. 4.2.3 NIGERIAN CRIMINAL LAW STATUTES in the last twenty years of the 20th century, and right at the heels of the new millennium, the body of criminal laws in Nigeria have assumed the dimensions of separated and disjointed legislations variously enacted by the federal and state Governments, most of which appeared to be duplicated and overlapping in structure and context.147 The following are the principal sources of what constitutes the major operational Codes of crime in Nigeria; 1. The Criminal Code applicable in all the 17 states in the southern part of Nigeria 2. The Penal Code applicable to the 19 states in the northern part of Nigeria.
145 146

Section 130 Section 130(3) 147 nd Ocheme, P., The Nigerian Criminal Law, (Kaduna: liberty publishers) 2 ed., pg. 15

85 3. For the Federal Capital Territory, the penal code, by virtue of Cap 532 of the Laws of the Federation, 1990. Both criminal codes spell out what conducts constitute ‘crime’ and the penalties for such conducts. This part of the work shall examine some of the offences which could be committed with the use of information and communication technology and the consequence of such commission. Presently, in Nigeria there is no specific law to combat cybercrime. Consequently, the provisions of the Nigerian criminal codes especially as pertaining to acts which could be criminal in character though committed with the aid of a computer or information technology must therefore be examined. The most common provisions of Nigerian Criminal Codes which have any linkage to cyber or computer activities are those that spell out offences against property, public morality, privacy infringement (copyright) and offences against the state. For instance, section 163 of the criminal code provides that it is an offence for anyone being employed by or under the Nigerian postal service to tamper knowingly with telegrams or even authorizes anyone else to so temper or destroy such telegraph device. The act however provides a lesser and simpler offence when such interference or destruction is done negligently.148


Section 183 Criminal Code

86 Another clear offence provided in the Criminal Code is that stated in section 204149 which provides that any person who does any act which any class of persons consider as a public insult on their religion, with the intention that they should consider the act such an insult, and any person who does an unlawful act with the knowledge that any class of persons will consider it such an insult, is guilty of a misdemeanour. The emphasis here should be on the words ‘any act’. Such class of acts may include publishing over the internet or via voice and video messaging so long as such act is done with the intention to so insult the religion. Section 233d150 provides for a similar offence. It provides that any person who, whether for gain or not, distributes or projects any article deemed to be obscene commits an offence. In defining what the term ‘article’ means, section 233b provides that ‘article’ means anything capable of being or likely to be looked at and read or looked at or read, and includes any film or record of a picture or pictures, and any sound records. This offence can be said to be similar with the socially frowned act of pornography especially in public places. This is usually frowned at because it is capable of corrupting public morality. The most potent provision of the criminal law as relating to ICT regulation is provided in section 419. Its provisions state as follows:

149 150

Insult to a religion Prohibition of publication of obscene matter

87 “Any person who by any pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a felony…” It is under this provision that the popular cyber crime of “yahoo yahoo” is checked. In this area of offences, we discover that the law-makers are striving to bring to book or nip in the bud all nefarious fraudulent practices which do not out rightly qualify for stealing or theft as known to the Codes, but which do, in fact result in the loss of property or its value, by means of deceit, trick or cunning.151 The Nigerian police in collaboration with the Economic and Financial Crimes Commission in concordance with other anti corruption institutions try all they can to check the activities of the perpetrators. As a corollary to this provision, section 421 provides that any person who by means of any fraudulent trick or device obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen or to pay or deliver to any person any money or goods, or any greater sum of money than he would have paid or delivered but for such trick or device, is guilty of a misdemeanour. Over the years, the use of the internet and other forms of information technology has


Ocheme, p., Op cit., pg. 265

88 been one very potent medium through which these offences are committed. In other words, the offenders make use of technology to deceive and trick their unsuspecting victims. The Criminal Code also creates the offence of forgery. Section 467 provides that any person who forges any document, writing or seal, is guilty of an offence which, unless otherwise stated, is a felony. “if the thing forged purports to be, or is intended by the offender to be understood to be or to be use as, a message to be sent by telegraph, or a message received by telegraph, the offender is liable to the same punishment as if he had forged a document to the same effect as the message”152 Section 491 of the Criminal Code similarly provides for the offence of dealing in infringing copies of copyright work. Consequently, any person who knowingly makes for sale or hire, sells or lets for hire, distributes or by way of trade exhibits in public any infringing copy of such work, or has possession153 any plate for the purposes of making infringing copies is guilty of the offence In the absence of clear-cut computer or cyber crime laws, the Nigerian criminal law is the closest form of legislation for the regulation of criminal activities committed through the use of ICT.

152 153

Section 467(5) Criminal Code Section 492 Criminal Code

89 In addition to both criminal codes, the Miscellaneous Offences Act154 creates additional criminal offences in relation to communication and information. It provides in section 1(1) that the Federal High court has power to try any person for any of the offences specified in the Act. Amongst these offences is the offence created in section 1(11). The subsection provides thus: “Any person who unlawfully disconnects,

removes, damages, tampers, meddles with or in any way whatsoever interferes with any cable155, wire, assembly of wires used for conveyance of telephone, telegraphs, visual messages or images is guilty of an offence and liable on conviction to imprisonment for a term not exceeding 21 years.” Liability of this offence is not just restricted to the actual act, but also extends to an intention to commit the act. Consequently, a mere intention to commit the act would be deemed an offence and punishable as if the act was actually committed.156 4.2.4 NATIONAL I.T POLICY, NIGERIA 2001 The national ‘information technology’ policy, though not a statute to equate with other legislative statutes, represents the national directive objective
154 155

Miscellaneous Offences Act, Cap M17, L.F.N. 2004 Section 4 defines ‘cables’ to mean: any wire or appliance used for generating, conveying, converting or supplying electrical energy or used for purposes of telegraphs or television communication 156 Section 1(1)a

90 which the Nigerian government wishes to pursue and attain. The IT policy was one of the foremost steps taken by the Nigerian government in the wake of discovering all the challenges which the Nigerian ICT is saddled with. Information Technology (IT) is the bedrock for national survival and development in a rapidly changing global environment, and challenges us to devise bold and courageous initiatives to address a host of vital socioeconomic issues such as reliable infrastructure, skilled human resources, open government and other essential issues of capacity building.157 The national IT policy has as its ‘vision statement’ to make Nigeria an IT capable country in Africa and a key player in the Information Society by the year 2005, using IT as the engine for sustainable development and global competitiveness. The general objectives of the IT policy include the following: I. To ensure that Information Technology resources are readily available to promote efficient national development. II. To guarantee that the country benefits maximally, and contributes meaningfully by providing the global solutions to the challenges of the Information Age. III. To empower Nigerians to participate in software and IT development. IV. To encourage local production and manufacture of IT components in a competitive manner.

The Preamble, National Policy Information and Technology

91 V. To improve accessibility to public administration for all citizens, bringing transparency to government processes. VI. To establish and develop IT infrastructure and maximize its use nationwide. VII. To improve judicial procedures and enhance the dispensation of justice. VIII. IX. X. XI. To improve food production and food security. To promote tourism and Nigerian arts & culture. To improve healthcare delivery systems nationwide. To enhance planning mechanisms and forecasting for the development of local infrastructure. XII. To enhance the effectiveness of environmental monitoring and control systems. XIII. XIV. To re-engineer and improve urban and rural development schemes. To empower children, women and the disabled by providing special programs for the acquisition of IT skills. XV. To empower the youth with IT skills and prepare them for global competitiveness. XVI. XVII. To integrate IT into the mainstream of education and training. To create IT awareness and ensure universal access in order to promote IT diffusion in all sectors of our national life.

92 XVIII. To create an enabling environment and facilitate private sector (national and multinational) investment in the IT sector. XIX. To stimulate the private sector to become the driving force for IT creativity and enhanced productivity and competitiveness. XX. To encourage government and private sector joint venture collaboration. XXI. XXII. To enhance national security and law enforcement. To endeavour to bring the defence and law enforcement agencies in line with accepted best practices in the national interest. XXIII. To promote legislation (Bills & Acts) for the protection of on-line, business transactions, privacy and security. XXIV. To establish new multi-faceted IT institutions as centres of excellence to ensure Nigeria’s competitiveness in international markets. XXV. To develop human capital with emphasis on creating and supporting a knowledge-based society. XXVI. To create Special Incentive Programs (SIPs) to induce investment in the IT sector. XXVII. To generate additional foreign exchange earnings through expanded indigenous IT products and services. XXVIII. To strengthen National identity and unity.

93 XXIX. To build a mass pool of IT literate manpower using the NYSC, NDE and other platforms as “train the trainer” Scheme (TTT) for capacity building. XXX. To set up Advisory standards for education, working practices and industry. XXXI. To establish appropriate institutional framework to achieve the goals stated above. To achieve these general objectives, the IT policy spells out specific actions to be taken to enhance sectors of the socio-economic welfare of Nigeria. The policy’s National Security and Law Enforcement158 thrust is to Protect and promote the interest, assets and safety of Nigeria, Nigerians and those we work with within the global environment, by developing knowledgeable manpower with commensurate discipline and IT skills-set capable of efficiently generating and effectively utilizing information in a timely manner, for national decision making. The policy emphasizes the need for increased legislation in certain matters. Such legislation would aid159; I. To facilitate electronic communication and electronic governance (e- governance).

158 159

Chapter 12, National Policy of Information Technology, pg. 28 Chapter 13, National Policy of Information Technology, pg.32

94 II. To facilitate electronic communication and electronic commerce (ecommerce). III. To promote and secure electronic fund transfer and digital transaction payment system. IV. To protect government data, records and information in digital form. V. VI. To establish and enforce Cyber laws to combat computer crime To enthrone public confidence in the use, application and sharing of information VII. To promote acceptable standard, authenticity and integrity in IT use nationwide VIII. To enhance freedom and access to digital information at all levels while protecting personal privacy IX. X. To promote intellectual property and copy rights. To address critical ethical issues of the digital culture and protect the rights of the child and under-privileged.




In addition to the legislations that regulate the ICT sector is the establishment of a number of institutions. It is absolutely mandatory to have some kind of

95 institutional capacity to enforce any statute. Consequently, most of the legal frameworks have created institutions to enforce the provisions of the establishing statute. Some of them to be discussed in this part of the work include, the Copyright Commission, the Economic and Financial Crimes Commission (EFCC) etc. in discussing these institutions, focus will be paid on their functions and powers as they constitute the act of regulation of ICT. 4.3.1 NIGERIAN COPYRIGHT COUNCIL

The Nigerian copyright council is a creation of the Copyright Act.160 The Council, also known as the ‘Commission’161 is a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.162 The Act makes provisions for the definition, protection, transfer, infringement of and remedy and penalty thereof of the copyright in literary works, musical works, artistic works, cinematograph films, sound recordings, broadcast and other ancillary matters. Copyright is an intellectual property right in which the rights of the owner or author of literary works, musical works, artistic works, cinematograph films, sound recordings, broadcast and other ancillary matters are protected. Copyright is therefore infringed by any person who without the licence or authorisation of the owner of the copyright either163;

160 161

CAP. C28 L.F.N. 2004 Ibid., Section 1 162 Section 34(2) 163 Section 15

96 A. does, or causes any other person to do an act, the doing of which is controlled by copyright; B. Imports or causes to be imported into Nigeria any copy of a work which if it had been made in Nigeria would be an infringing act. C. Exhibits in public any article in respect of which copyright is infringed. D. distributes by way of trade, offers for sale, hire or otherwise or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed. E. makes or has in his possession, plates, master tapes, machines, equipment or contrivances used for the purpose of making infringed copies of the work; F. permits a place of public entertainment or of business to be used for a performance in the public of the work, where the performance constitutes an infringement of the copyright in the work, unless the person permitting the place to be so used was not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the copyright. G. Performs or causes to be performed for the purposes of trade or business or as supporting facility to a trade or business, any work in which copyright subsists.

97 To ensure compliance, the Commission has the power to appoint copyright inspectors as they deem fit.164 The copyright inspector usually has the power to: 1. to enter, inspect and examine at any reasonable time any building or premises which he reasonably suspects is being used for any activity which is an infringement of copyright 2. to arrest any person who he reasonably believes to have committed an offence under the Act 3. to exercise such other powers as the Commission may delegate to it to give effect to the provisions of this Act etc A Copyright Inspector usually has all the powers, rights and privileges of a police officer165 as defined under the Police Act166 and under any other relevant enactment pertaining to the investigation, prosecution or defence of a civil or criminal matter under this Act. These powers allow the copyright commission to commence investigations into suspected illicit activities of any person or body. The connection between copyright and information and communication technology is the avenue through which copyright infringement can occur. The unlimited access to information and communication technology especially the internet avails an unrestricted access to copyright works. This
164 165

Section 38(1) Section 38(5) 166 Police Act CAP. 359, L.F.N. 1990, CAP. P19 L.F.N. 2004

98 also creates an avenue where copyright infringements occur without any kind of authorization. The American Supreme Court167, in trying to draw the connection between ICT and copyright, made the following statement: “From its beginning, the law of copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copying equipment—the printing press— that gave rise to the original need for copyright protection. Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary” As a consequence, the copyright commission performs some sort of regulation of ICT as regards intellectual property and copyrights, thereby limiting the violations of copyright works with the use of ICT. The Commission has powers with the consent of the Minister to prescribe any design, label, mark, impression or any other anti-piracy device for use on, in or in connection with any work in which copyright subsists.168 It follows therefore that any person who without the permission of the Commission imports into Nigeria or has in his possession, any anti-piracy device or any machine, instrument or other contrivance intended for use in the production of the anti-piracy device,
167 168

Sony Corporation of America v. Universal City Studios, [1984],464 U.S. 417, pg. 430-31 Section 21(1)

99 commits an offence.169 The emphasis here is on the phrase “any anti-piracy device, machine or instrument”. Consequently, the use of information technology or even the internet to duplicate or pirate copyright works falls within the provisions in section 21 thereby rendering the offender liable. 4.3.2 ECONOMIC AND FINANCIAL CRIMES COMMISSION The Economic and Financial Crimes Commission (EFCC) is a creation of the Economic and Financial Crimes Commission (Establishment) Act170. A body corporate with perpetual succession, it is the designated Financial Intelligence Unit (FIU) in Nigeria, which is charged with the responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria.171 The Commission has the following functions: 1. the enforcement and the due administration of the provisions of the Act; 2. the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc. ;

169 170

Section 21(3) Act No. 1 2004 171 Ibid., Section 2(c)

100 3. the co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority 4. the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities , economic and financial crimes related offences or the properties the value of which corresponds to such proceeds; 5. the adoption of measures to eradicate the commission of economic and financial crimes; 6. the adoption of measures which includes co-ordinated preventive and regulatory actions, introduction and maintenance of

investigative and control techniques on the prevention of economic and financial related crimes; 7. the facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes; 8. the examination 'and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved; 9. the determination of the extent of financial loss and such other losses by government, private individuals or organisations;

101 10. taking charge of, supervising, controlling, co-ordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes; 11. the co-ordination of all existing, economic and financial crimes investigating units in Nigeria etc In addition to its clearly spelt out functions, the EFCC also has the powers to investigate and prosecute all offenders of offences as provided for in other statutes like the Money Laundering Act172 and the criminal codes173. The connection between the operations of EFCC and ICT is the fact that most of these economic crimes are committed in collaboration with financial institutions such as banks with their huge ICT infrastructure. Consequently, the EFCC and other law enforcement agencies, by their activities, can be said to regulate ICT services. The true connection between the activities of EFCC can be unveiled in the meaning of ‘economic and financial crime’ as envisaged by the Act. Section 46 defines the term "Economic and Financial Crimes" as the non-violent criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in a group or organised manner thereby violating existing legislation governing the economic activities of government and its administration and includes any

172 173

CAP M16, L.F.N. 2004 sections 418 and 419 of the criminal code which has to do with deception and receiving of property by misrepresentation and fraudulent means

102 form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, etc. This means that the jurisdiction of the Commission covers a wide range of criminal activities including fraud. Fraud, the noun variant of fraudulently, is i. an action or a conduct consisting in a knowing representation made with intention that the person receiving that misrepresentation should act on it ii. iii. the misrepresentation resulting in the action or a conduct An action or a conduct in a representation made with the intention that the person receiving that misrepresentation should act on it and so on and so forth

4.3.3 NATIONAL COMMUNICATIONS COMMISSION The commission is a creation of the National communications Act174 with the sole responsibility of regulating the Nigerian communications sector. The Commission has the following functions175:

174 175

Ibid., section 3 Ibid., section 4

103 a. the facilitation of investments in and entry into the Nigerian market for provision and supply of communications services, equipment and facilities; b. the protection and promotion of the interests of consumers against unfair practices including but not limited to matters relating to tariffs and charges for and the availability and quality of communications services, equipment and facilities; c. ensuring that licensees implement and operate at all times the most efficient and accurate billing system; d. the promotion of fair competition in the communications industry and protection of communications services and facilities providers from misuse of market power or anti-competitive and unfair practices by other service or facilities providers or equipment suppliers; e. granting and renewing communications licences whether or not the licences themselves provide for renewal in accordance with the provisions of the Act and monitoring and enforcing compliance with licence terms and conditions by licensees; f. proposing and effecting amendments to licence conditions in accordance with the objectives and provisions of the Act; g. Fixing and collecting fees for grant of communications licences and other regulatory services provided by the Commission;

104 h. the development and monitoring of performance standards and indices relating to the quality of telephone and other

communications services and facilities supplied to consumers in Nigeria having regard to the best international performance indicators; i. making and enforcement of such regulations as may be necessary under the Act to give full force and effect to the provisions of the Act; j. management and administration of frequency spectrum for the communications sector and assisting the National Frequency Management (NFM) Council in developing a national frequency plan; k. development, management and administration of a national numbering plan and electronic addresses plan and the assignment of numbers and electronic addresses there from to licensees; l. proposing, adopting, publishing and enforcing technical

specifications and standards for the importation and use of communications equipment in Nigeria and for connecting or interconnecting communications equipment and systems; m. the formulation and management of Nigeria’s inputs into the setting of international technical standards for communications services and equipment;

105 n. carrying out type approval tests on communications equipment and issuing certificates therefore on the basis of technical specifications and standards prescribed from time to time by the Commission; o. encouraging and promoting infrastructure sharing amongst licensees and providing regulatory guidelines thereon; p. examining and resolving complaints and objections filed by and disputes between licensed operators, subscribers or any other person involved in the communications industry, using such disputeresolution methods as the Commission may determine from time to time including mediation and arbitration; q. preparation and implementation of programmes and plans that promote and ensure the development of the communications industry and the provision of communications services in Nigeria; r. designing, managing and implementing Universal Access strategy and programme in accordance with Federal Government’s general policy and objectives thereon; s. advising the Minister on the formulation of the general policies for the communications industry and generally on matters relating to the communications industry in the exercise of the Minister’s functions and responsibilities under the Act; t. implementation of the Government’s general policies on

communications industry and the execution of all such other

106 functions and responsibilities as are given to the Commission under this Act or are incidental or related thereto; u. generally advising and assisting communications industry

stakeholders and practitioners with a view to the development of the industry and attaining the objectives of this Act and its subsidiary legislation; v. representation of Nigeria at proceedings of international

organisations and fora on matters relating to regulation of communications and matters ancillary and connected thereto; and w. General responsibility for economic and technical regulation of the communications industry. The Commission must at all times carry out its functions and duties and exercise its powers efficiently, effectively and in a non-discriminatory and transparent manner and in a way that is best calculated to ensure that there are provided throughout Nigeria, subject to the regulatory controls specified in the Act, all forms of communications services, facilities and equipment on such terms and subject to such conditions as the Commission may from time to time specify.176 It necessitates the application of the trite principle of public law that a statutory body such as the NCC while performing its statutory or administrative duty is enjoined to observe the rules of natural justice and is


Section 4(2)

107 therefore subject to judicial review of its actions.177 The use of discretion is generally allowed in enabling statutory bodies such as the NCC to discharge their duties, however, a wrongful or arbitrary exercise of discretion for an improper purpose or without taking into account all relevant considerations is regarded as failure to exercise the discretion lawfully. Lord Halsbury, L.C. in Sharp v. Wakefield178 explained the concept thus: “Discretion means when it is said that something is to be done according to the rules of reasons and justice not according to the private opinion. It is to be not arbitrary, vague and fanciful but legal and regular. And it must be exercised within the limit to which a hones man competent to the discharge of his office ought to confine himself” The Commission is empowered to determine and cause to be published a regulation on its licensing processes specifying, amongst others, the persons or classes of persons who are eligible generally to apply for licences.179 In a similar vein, The Commission may at any time amend, modify, vary or revoke any licence condition or a declaration regarding a licence.180 The Commission may, from time to time, issue directions in writing to any person regarding the compliance or non-compliance of any licence conditions or provisions of this Act or its subsidiary legislation, including but not limited to
177 178

R v. Deputy Industrial Injuries Commission Ex-Parte Administrative Action (3 ed) p. 529 [1891] A.C. 173, 179 179 Section 33(1) 180 Section 37(1)


108 the remedy of a breach of any licence condition or the provisions of the Act or its subsidiary legislation.181 A person who fails to comply with a direction of the Commission shall be liable to the payment of fine to the Commission in such amount as the Commission may at its discretion impose.182 The Commission is also empowered to establish procedures or guidelines for the making, receipt and handling of complaints of consumers regarding the conduct or operation of licensees and may, at its discretion, institute alternative dispute resolution processes for the resolution of the complaints or disputes provided that the licensee’s dispute resolution procedures shall first have been exhausted by the consumer without resolution of the complaint before presentation of the complaint to the Commission.183 4.3.4 NATIONAL INFORMATION TECHNOLOGY DEVELOPMENT AGENCY The Federal Executive Council (FEC) of Nigeria approved the National Information Technology Policy in March 2001. The National Information Technology Development Agency (NITDA) was established in April 2001 to implement the Policy. As its name suggests, the agency is merely a developmental in character. Although the agency is not an institution with the powers to regulate the ICT sector, the agency plays a central role as a development agency as it is empowered to develop possible legislations for
Section 53(1) Section 55 183 Section 105(2)
182 181

109 the industry. One of the main contributions of the agency to the regulation of ICT in Nigeria asides the implementation of the National Information Technology Policy is the production of a ‘draft’ Nigerian Cybercrime Act and the Nigerian IT Bill.


The work has underscored the importance of information and communication technology, the several facets of information and communication technology, the advantages and disadvantages of its operations, the regulation of its operations both in international law and within the Nigerian legal context. The benefits of ICT in the socio-economic development of any nation especially a developing nation such as Nigeria are enormous. These benefits are ever present and can never be ignored and neither can they be overlooked. These benefits surround our every-day activity. The benefits of ICT, when looked at from the insatiable nature and quest of mankind for a much faster and easier means of getting information from one point to another need to be sustained. These measures at maintaining sustainable development have necessitated the need to regulate its operations. The regulation of ICT, just like the regulation of any aspect of human behaviour, is not without its own challenges. The challenges of regulation of ICT are always a pointer to the fact that regulation must never be seen as an end but as a means to an end. This is because the regulation of ICT is primarily to sustain its benefits while minimizing the drawbacks of its operations. The drawbacks of the operation of ICT comes on the heels of the unequal access to ICT as is the case in most developing nations

111 such as Nigeria where information and communication technology is not given the full government policy attention it deserves. One point which must be very well emphasized is the importance of ICT to basic living especially in a modern world such as ours. Indeed this probably justifies the push by the United Nations for access to the internet (an aspect of ICT) to be included as a ‘universal human right’184 in which all nations are enjoined to protect. Now, because of the ever evolving nature of ICT and its increasing importance, regulation must always keep up with the growing circumstances of the operation of ICT in order to ensure that the basic aim for regulation which is the sustainable development of ICT is maintained. Having noted the importance and the expected output in which regulation of ICT must produce, it is also important to point out the loopholes and inadequacies which are apparent in the regulation of ICT in Nigeria. These problems, especially as regards the existing legal and institutional regime within Nigeria will now be analysed and discussed below. The equality of access is one of the fundamental objectives of regulation however, there still exist far levels of unequal access to certain aspects of ICT in Nigeria. That been said, it is very obvious that the telecommunications sector has recorded enormous growth in the last decade owing largely to the provisions of


Product of the United Nations Universal Declaration of Human Rights spelling out the fundamental rights in which every person inherently possesses needing protection by legitimate governments of nations.

112 the Nigerian communications Act185 and the Nigerian Communication Commission. Telecommunications, unarguably, has impacted positively on the national economy, the effectiveness of businesses and the lives of individuals.186 The populace now has more access to telephone services and options of service providers as well as some innovation in service offering and pricing.187 Notwithstanding the successes in the telecommunications sector as outlined above, internet access still remains very limited. There is virtually no statute, to equate with the Nigerian Communications Act, to regulate and midwife the increase in investment and access to the internet in Nigeria. Consequently, internet services cannot be accessed by a majority of the citizenry in the rural areas. Access to the internet can in more ways than one increase the access and speed of the dissemination of data. The Nigerian Internet Registration Authority created by the Federal Executive Council to register all internet service providers has not done very well owing largely to the absence of statutory backing. There still needs to be legislative instruments created to enable the increased access and investment in the internet sector. Equality of access is one fact that must be coupled with cost. It is indeed the low cost of ICT that ensures access. The only institutions empowered to make regulations as to tariff control are the communications commission and the broadcasting commission, other than which no other institution has any such powers. Consequent upon which, satellite
185 186

National Communications Commission Act 2003, Commencement 8th July, 2003 Eni, H., “On The Digital Train”, TELL magazine, no.21 (may 21, 2007), p.37-38 187 Nnama, E. C., Present Status Of The Telecommunications Industry In Nigeria: A Brief On The Nigerian Communications Commission (NCC), speech of Director General/Chief Executive, NCC, July 1999

113 operations, cyber or internet operations and telegraph operators are usually at liberty to charge exorbitant prices for access thereby limiting access to such services. Cyber-space is part of the common heritage of mankind. Access to its benefits is a legitimate right for all peoples. Access to knowledge is by far the greatest benefit of this technology, and all efforts must be made to guarantee access.

Asides the provisions of the criminal law, which are clearly insufficient, there exists no laws within Nigeria that spell out and punish cyber crimes. The criminal codes criminalizes certain cyber crimes like fraud, piracy, interference with telegraphy188 etc, but there are still new and evolving activities conducted with the aid of information technology which the old Nigerian criminal codes would not have envisaged. Activities such as cyber-terrorism, spamming189, phishing,190 cyber-bullying, pornography, cyber security attacks, unauthorized access etc are now prevalent and require apt legal attention to help curb their practices. The absence of clear laws is partly responsible for the activities of ‘yahoo yahoo’ boys who send spam mails and commit fraud using the internet. National Information technology Development Agency (NITDA) has attributed low investments in Information Technology (IT) to absence of cyber crime law in Nigeria. The Director General of NITDA, Cleopas Aganye, who made the
188 189 190

Although the methods of proof are very difficult Sending of a large number of electronically generated messages to a large number of people at a time

The fraudulent practice of disguising spam as legitimate e-mail in an attempt to coax recipients into revealing private financial data

114 observation in Abuja at the e-Nigeria 2010 summit press briefing bemoaned that many foreign investors were afraid of investing in ICT in Nigeria because of lack of legal framework upon which they can operate.191 The NITDA in collaborative effort with other bodies have however developed a draft Bill for Cyber Crime which is yet to be passed into law. The UN was perhaps the first international body to recognize the importance of addressing cyber-crime. In December 2000 and January 2002, the UN General Assembly adopted Resolutions 55/63 and 56/121 on Combating the Criminal Misuse of Information Technologies. Resolution 55/63 declares that States should review their laws to eliminate safe havens for those who carry out cybercrime. Resolution 55/63 recommends, inter alia, that states take appropriate measures to prevent the criminal misuse of information technologies, international cooperation in investigation and enforcement efforts, and the preservation and timely sharing of electronic data and evidence. Resolution 55/63 also recommends educating law enforcement authorities and the general public on cyber-crime issues. Despite all this international effort at ensuring that states enact laws to regulate cyber-crime, Nigeria is yet to enact any such Act.

The enforcement of the existing ICT related laws and all other laws enacted to combat some form of computer related crime requires a well funded and capable

http://www.news.hostexploit.com/cyber-crime-news/3984-absence-of-cyber-crime-law-threat-to-ictinvestment.pdf [Accessed April 5 2011]

115 institution. In addition to having the appropriate access to ICT and the wide knowledge of its use, it is absolutely mandatory for such institutions to possess the requisite legal authority and technical knowhow to prosecute and indeed regulate. This is coming on the heels of the fact that the prosecution of cyber crimes in Nigeria has over the years been put on the shoulders of the police force and such other institutions that prosecute offenders of crimes remotely related to cyber crimes such as the EFCC and the ICPC. These institutions lack the technical know-how and capability to investigate such cyber crimes especially when the provisions of the law tend to make it very difficult to prove cyber or ICT related crime.

Just as the existing laws enacted to criminalize certain acts are outdated, so also are the punishments prescribed for the commission of such offence. A clear example of this is the provision of section 491 of the Criminal Code which provides that any person liable of dealing in and infringing copyright is liable to a punishment of fine not exceeding four naira for every copy dealt. Such punishment is entirely insufficient to deal and deter the perpetrators of these illicit acts.

From all the foregoing, certain measures need to be put in place to improve the effectiveness of regulation of ICT. It is only when such regulation is effective

116 that the ultimate aim and objective of regulation will be achieved. These measures include: 1. The enactment of all the appropriate legislation to provide adequately for ICT. Legislation which would, for instance, conform to the United Nations resolutions on cyber security has to be enacted. Similarly, enactments to regulate satellite and internet operations are very much required. 2. More institutions must be established with all the requisite powers to function appropriately in a sector that grows at an increasing pace. These institutions must be invested with special powers and functions. Consequently, the need for a cyber crime commission is highly justified. 3. There should be intensified regulation over the market in accordance with the laws and improve the rules governing market entry and interconnection. This would optimize the allocation of the resources and further form a fair and effective market with competition thereby creating a favourable environment for the enterprises and the industry to reform, develop, restructure and transform them so that overall competitiveness of Nigeria’s ICT industry can be enhanced. At the same time also encourage and guide more investment entities both from home and from abroad to enter into the ICT market. 4. There is a need to regularly review the existing laws regulating ICT in Nigeria. This is because the scope of ICT is constantly changing and evolving. There is thus a need to keep up with the changing nature of ICT in the world and indeed in Nigeria.

117 5. Just as the United Nations resolution making access to the internet a universal right, Nigeria must also make measures to render such access to the internet as a fundamental right which is enforceable. This would go a long way in speeding up the development of the Nigerian economy and provide the much needed push for the attainment of vision 20:2020.


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