legal regime for the regulation of ict in nigeria

7/31/2019 legal regime for the regulation of ICT in Nigeria

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1CHAPTER ONE

1.0 INTRODUCTIONInformation 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

1http://www.carapn.net/21445231-information-and-communication-technology-target-2015-

backgrounder.pdf[Accessed April 3 2011]


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2competition 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

todays 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.

2http:// rru.worldbank.org/Documents/PublicPolicyJournal/053smith.pdf [Accessed April 3 2011].


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3Notwithstanding 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.

3

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

4Ibid., p. 118


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41.1 THE MEANING OF TERMS AND RELATED

CONCEPTS

1.1.1 TECHNOLOGYTechnology 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 tekhn,

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.

5Merritt, Raymond H. "Technology," Microsoft Encarta 2009, (Redmond: Microsoft Corporation), 2008.


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5As 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 INFORMATIONInformation has been defined8 as

1. Knowledge derived from study, experience, or instruction.2. Knowledge of specific events or situations that has been gathered or

received by communication; intelligence or news

6The 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].

8Ibid


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63. A collection of facts or data: statistical information.4. The act of informing or the condition of being informed;

communication of knowledge: Safety instructions are provided for

the information of our passengers.

5. Computer Science Processed, stored, or transmitted data.6. A numerical measure of the uncertainty of an experimental

outcome.

Within the field of information science9, information is defined as the

knowledge contained in the human brain and in all electronic and written

records.

1.1.3 COMMUNICATIONCommunication 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. The act of transmitting,2. A giving or exchanging of information, signals, or messages as by

talk, gestures, or writing

9

Information science is the scientific study of information: how it is created, transmitted, encoded,transformed, retrieved, measured, used, and valued.

10http://www.yourdictionary.com/library/information.txt [Accessed April 4 2011].


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73. The information, signals, or message4. Close, sympathetic relationship5. A means of communicating; specifically, a system for sending and

receiving messages, as by telephone, telegraph, radio, etc.

6. A system as of routes for moving troops and material7. A passage or way for getting from one place to another8. The art of expressing ideas, esp. in speech and writing9. 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.

11

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


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8Likewise, body language and facial expressions are also examples of non-

verbal 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


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9the 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.


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10Perhaps 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 TELECOMMUNICATIONThe 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,


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11to 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,

12

http://www.en.wiki pedia.org/wiki/telecommunications [Accessed April 4 2011].13Frieden, Robert. "Telecommunications," Microsoft Encarta 2009, (Redmond: Microsoft Corporation),

2008


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12communication 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 TECHNOLOGYInformation 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

14Ibid


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13network 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 termICTis 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. There are large economic incentives (huge cost

savings due to elimination of the telephone network) to merge the audio-

visual, 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

http://www.wikipedia.org/wiki/information-and-communication-technologies [Accessed April 4 2011].16http://web.archive.org/web/20070104225121/http://rubble.ultralab.anglia.ac.uk/stevenson/ICT.pdf

[Accessed April 2 2011].


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14creation 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 INTELLECTUALPROPERTYIntellectual 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

17Asian Development Bank, Information and communication technology for development: ADBexperiences,( Philippines: Asian Development Bank), 2010, pp1

18Intellectual Property Organization (WIPO), Intellectual Property Handbooks: Policy, Law and Use,

(Geneva: Wipo Publication), 2

nd

ed., 1993, p.319Nasir, 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


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15owner 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

20Nasir, J. M., Common Licensing Agreement Terms In Intellectual Property (1999) JPPL, Vol. 3, No. 3,

p.139 at p.14021

Andrew, F. C., Intellectual Property and Intangible Assets: Legal Perspective(2005)IPRIAOP,No. 1/05,p. 1 at p. 9

22

Blacks Law Dictionary, (U.S.A. West Publishing Company, 8

th

ed. 2004) p. 125223Barnes, A. J, Laws For Business, (New York: McGraw Hill), 2000, p.567

24"Property," Microsoft Encarta 2009, (Redmond: Microsoft Corporation), 2008.


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16personal property.25 Personal property is usually classified as either

tangible property orintangible 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

Barnes, A. op cit., p. 56826Blacks Law Dictionary, Op cit., p. 1254

27Andrew, F. C., Op cit., p. 4


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17brain, such as ideas, inventions, poems, designs, microcomputers and Mickey

Mouse28

. 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.

1.2 HISTORICAL EVOLUTION OF INFORMATION ANDCOMMUNICATION TECHNOLOGY

29

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

28Phillips, J., and Firth, A., Introduction to Intellectual Property Law, (London: Butterworths), 3rd ed., 1995,

p.3.29This would attempt to trace the historical evolution of the systems that enable the communication and

information technologies operate.


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18first "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 instructionsa

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 electro-

mechanical 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

patternson 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.

30http://ccis.athabascau.ca/html/courses/comp210/CourseSample/chap01/section1.htm [Accessed April

10 2011]31

Ibid32

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 theUniversity of Pennsylvania's Moore School of Electrical Engineering starting the following month under

the code name "Project PX".


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19The major activities that expedited the information age can be attributed to the

following:

A. In 1820s Charles Babbage invented the ever first computer calledBabbage 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. In 1943, transistor was developed.D. 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 powerconsumption and been more accurate. Computers accommodated 100s

& 1000s of transistors.

F. Integrated circuits (ICs) replaced transistors. They evolved during last35 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, 33Communication technology,34

Memory technologies (Laser disc & CD-ROM.)

33These are in the form of silicon based Integrated circuit technology.


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20The 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

34Communication technology is made possible by Optical fibre communication resulting fibre optic link around

the globe.35http://www.opendb.net/element/19287.php [Accessed April 10 2011]36

http://history.nasa.gov/satcomhistory.html [Accessed April 10 2011]


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21making 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.37

Ibid38

first commercial communications satellite


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22 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).


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23With 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 mass-

produced cars rolled off the assembly line at the Ford plant. Information

technology can be sued in useful, frivolous or harmful ways.


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24CHAPTERTWO

2.0 SCOPE OF INFORMATION AND COMMUNICATIONTECHNOLOGY OPERATIONS IN NIGERIA

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 issuesparticularly

ground-transport networks, electrical-power generation and distribution, and

the availability, extent, and exploitability of water suppliesoccupied (and to

a large extent continues to occupy the central thrust of governance) the time,

39http://www.aucitmc2010.gov.ng/index.php?view=article&catid [Accessed May 8 2011]

40Atojoko, S., Investment Hot Spots, TELL magazine no. 1 (January 10, 2011), p.10


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25attention, 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 inSeptember, 2000 with National Communications Commission as

the major regulator of the sub sector;

development and launch of National Policy on InformationTechnology

43in 2001 and National Information Technology

Development Agency (NITDA) was established to implement the

policy; co-ordinate and regulate information technology

development in the country;

41Burkhart G. E and Older S., The Information Revolution In The Middle East And Africa, (California: RAND),

2003, p. ix42

http://www.aucitmc2010.gov.ng/index.php?view=article&catid [Accessed May 8 2011]43Vision 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.


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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 andestablishment 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 tomanage 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) in2006 to increase Nigeria's presence in the cyberspace; and

Establishment of a national Internet Exchange Point (IXP) in 2007in Nigeria to keep local internet traffic local and reduce the cost of

internet service within the country.

2.0.1 TELECOMMUNICATIONThe Nigerian telecommunications market has undergone radical change over

the

Past few years driven primarily by the introduction of a combination of

several measures.


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27Originally, 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 Nigerias 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. TheNigerian

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

44Adewopo, A., The Foundation Of Telecommunication Regulations: The Nigerian Experience (1999) UJLJ,

Vol. 7, p.117 at 118


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28context of National Communications Commission Decree No. 75 of 1992,

could be summarized as follows45

:

1. the inability and unwillingness of government to continue tosubsidize the public telecom company (NITEL)

2. the need to spread some of the burden of running telecom servicesto the private sector

3. a growing demand for more efficient and enhanced modernfacilities especially by the business community

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

5. The global trend towards liberalization of telecom services towardsa 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 1980s

with the commercialization of the operations of the state enterprise for the

purpose of enhancing its efficiency. However, a greater deregulation of the

45

Folasade, A., trade liberalization and technology acquisition in the manufacturing sector, Nairobi: AERC,2002, pp.43

46Eni, H., On The Digital Train, TELL magazine, no.21 (may 21, 2007), p.37-38


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29sector 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. Exchange and Trunks2. 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 theNCC Decree.

47Nigerian Communications Commission (Amendment) Decree No. 30 1998 Commencement 30th

September 1998


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30The 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

48Act No. 19 2003, commencement 8th day of July 2003.

49Section 31(1) NCC Act 2003 - Requirement for licences.

50Adewopo, A, The Foundation Of Telecommunication Regulations: The Nigerian Experience (1999) UJLJ,

Vol. 7, p.117 at 12951

The second round of licences granted to PTO and FWA operators in 2001 after the liberalization of thesector.

52Eni, H., op cit., p. 38


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31second 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 worlds fastest growing

53MTN Nigeria, Reltel, Etisalat and Globacom are the major GSM operators.


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32mobile (GSM) market. More than 80% of the subscribers are in the urban and

metropolitan areas.54

2.0.2 BROADCASTING/SATELLITE OPERATIONSThe 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 satellitebroadcast and any other medium of

broadcasting,

2.Radio and television stations owned,established or operated by the Federal,

State or Local Governments.

54

Atojoko, S., op cit., p. 1055National Broadcasting Commission Decree No. 38 of 1992, Act Cap. N11, L.F.N. 2004

56Section 2(b)i & 2(b)ii, NBC Act.


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33The 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.

2.0.2.1 Nigerian National Satellite ProgrammesThe 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

57Nigerian Television Authority Act, Cap. 329, L.F.N. 1990 Act, Cap. N136 L.F.N. 2004


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34manner 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.

58

Abiodun, A., Space Technology and its Role in Sustainable Development, Presented at the AnnualMeeting of the British Association for the Advancement of Science, University of Leicester, 2002,

Leicester, U.K.


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35ii. 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 theNational Geospatial Data Infrastructure (NGDI), an initiative for

GI-based economy that will improve the quality of life of Nigerians

and alleviate poverty.

B. 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 inthe design, manufacture, operation and maintenance of

communication satellite through strategic partnership with technical

partners.


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36ii. 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.

C. 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


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37bands. 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 COMMUNICATIONAlthough 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

59Mostert, S., Akinyede, J. O. and Adeniran, S.A.,. Joint Space Technology Project Proposal between South

Africa and Nigeria, AREMS, 2003.


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38principles 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

http://www.aucitmc2010.gov.ng/index.php?view=article&catid [Accessed May 8 2011]61small 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.


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39location 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

2.1 IMPACT OF INFORMATION AND COMMUNICATIONTECHNOLOGY ON THE SOCIO-ECONOMIC

DEVELOPMENT OF NIGERIA

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

62Ajayi G. O., NITDA and ICT in Nigeria, 2003 Round Table on Developing Countries Access to Scientific

Knowledge, The Abdus Salam ICTP, Trieste, Italy63Opera, S., and Ituen, I., Nigerias ICT sector: Growth, gains and challenges, PUNCH Newspaper,

(Tuesday, 10 May 2011)


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40becoming one of the top 20 global economies in the year 2020, good

governance through ICT hold the ace for Nigerias 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 EducationThe 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

64Nwelih E., and Ukaoha K. C., ICT Strategies for Consolidating Good Governance in Nigeria, Pakistan

Journal of Social Sciences, 2010, pp.22765

ICTS And The Attainment Of Universal Access To Education: An Address By The Executive SecretaryUBEC, Dr Ahmed Moddibo Mohammed, On The Occasion Of The 1st Public Sector ICT Infrastructure

Forum Meeting, Held On Wednesday, July 2nd, 2008


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41the 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 thekeyboard, accessing and editing file at the operating system level.

b. Use the computer to facilitate learning; andc. 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,


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42launched 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 EconomyThe 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


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43of young school leavers and professionals have been empowered

economically thereby increasing the economic base of the nation.66

2.1.3 Implications for Good GovernanceThe 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 andincreasing 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 decisionsmaking, 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

66

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

67http://www.unescap.org/pdd/prs/projectactivities/ongoing/gg/governance.pdf[Accessed may 11 2011]


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44services and facilitating better post-conflict reconstruction and

administration. Etc

2.1.4 Implications for AgricultureAlthough 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 decisionsfrom 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 services ability to provide timely

feedback to research organizations and in the research systems 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

68www.adbi.org/files/2004.12.08.cpp.rice.knowledge.paper.pdf[accessed may 11 2011]


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45rural communities and strengthen farmers and rural organizations to increase

the ability of farmers to learn from other farmers and formal knowledge

sources.


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46CHAPTER THREE

3.0 THE REGULATION OF INFORMATION AND COMMUNICATIONTECHNOLOGY

Regulation is the act or process of controlling by rule or restriction; such rule

or order, having legal force, usually issued by an administrative agency69

. 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.

69Blacks Law Dictionary, (U.S.A. West Publishing Company, 8th ed. 2004) p. 1311

70For instance, the I.T. policy of Nigeria as goals gave birth to the establishment of Nigerian Information

Technology Development Agency (NITDA)71Owasanoye, 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


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47The 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. Cross-

subsidization 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

72Adewopo, A, The Foundation Of Telecommunication Regulations: The Nigerian Experience (1999) UJLA,

Vol. 7, p.117 at 11773

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]


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48The 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 ofcompetition in the market and establishment of regulatory mechanisms

for issues such as interconnection, licensing, and tariff rebalancing etc.

2. expanding and enhancing access to ICT networks and services, and3. Promoting and protecting consumer interests, including universal

service and privacy.

3.1 RATIONALE FOR THE REGULATION OF INFORMATIONAND 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

75Guermazi, B and David S., Creating the Right Enabling Environment for ICT, e-Development: From

Excitement to Efficiency, The World Bank (2005), pg. 13.


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49regulatory 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 CRIMESCybercrimes 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 cyber-

crime 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

http://www.ictregulationtoolkit.org/en/Section.1254.html [Accessed March 3 2011]77Blacks Law Dictionary, (U.S.A. West Publishing Company), 8th ed. 2004 p. 399

78Ibid., p. 398


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50upon 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. illegal access or unauthorized access;2. 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 acomputer system by inputting, transmitting, damaging, deleting,

deteriorating, altering or suppressing computer data;

79Umar, 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-for-

ict-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 200681

Nigerian courts refuse to admit computer generated evidence on some technical grounds and where such

evidence are admitted they are treated as secondary evidence82Okonigene, R., and Ehimen, A., CYBERCRIME IN NIGERIA, Business Intelligence Journal, January, 2010 Vol.3

No.1, pg. 93 at pg.95


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515. 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:

83Blacks Law Dictionary, (U.S.A. West Publishing Company, 8th ed. 2004) p. 287

84Nigerian Communications Commission Act No. 19 2003, Laws Of The Federation of Nigeria (L.F.N.)2004


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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

85Section 31(2) NCC Act: Any person who acts in breach of sub-section (1) of this section commits an

offence and is liable on conviction86

Established by the National Broadcasting Commission Decree No. 38 of 1992, Act Cap. N11 L.F.N. 200487Supra., section 9(1)

88Supra., section 10


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53operating 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 alloperators 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 highquality 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 Law

91, 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

.

89Standards Organisation Of Nigeria Act, CAP. 412 L.F.N. 1990, CAP. S9 L.F.N. 2004

90Ibid., Section 5(1)a o

91Nigerian Urban And Regional Planning Decree No. 88 1992 Act Cap. N138 L.F.N. 2004

92

Ibid., Section 27(1)-(5)93Supra., Section 41(b)

94L.F.N. 1990, Cap 202


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54Tariff 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 co-

extensive. 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:

95Supra


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551. tariff rates shall be fair and, for similarly situated persons not

discriminatory

2. tariff rates shall be cost-oriented3. 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 investmentsThe 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 SAFETYInformation 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

96Act no. 6 of 2005, commencement 11

thmarch 2005.

97Supra., section 71(1)


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56issues, 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 Nigerias 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