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News Analysis: 2.3GHz: A victory for judiciary and telecoms industry

By Ighogboya Ezomo

AT last the legal resolution of the 2.3GHz saga has provided a befitting denouement, the sort that was unexpected and expected by the dramatist personae, depending upon the side of the divide.

The saga unnecessarily whipped up by an inconsequential contradiction tried the times and the system of justice generally but since the wind of justice grinds slowly, as the cliché has it, a pronouncement in the form of judgment was made last Thursday which declared that the former Minister of Information and Communications, Prof Dora Akunyili, acted recklessly and in excess of her powers. The ruling said her action caused the Federal Government to cancel a sale of frequency that was made according to industry regulations and the Communications Act.

The frequency sale by the Nigerian Communications Commission, NCC, was criticized by the former minister as not being transparent and inclusive enough and relying on information at her disposal, according to her, she suspended the process and subsequently cancelled the licenses already paid for by those who won the auction process.

Although a parastatal under the Ministry of Information and Communications, the Commission headed by Engr Ernest Ndukwe, and Alhaji Ahmed Joda being the Board Chairman, reasoned that the law setting up the Commission was clear on such issues and therefore the law and the processes put in place should have been followed by the minister.

Although Akunyili was criticized in the media and by members of the public, she stood her grounds until she eventually pushed the process through at the Federal Executive Council meeting. The President made a final pronouncement on the case, canceling the process in the manner of no vanquished, no victor.

However it soon turned out that what was unfolding was a case that could test the regulatory independence of the Commission as one of the winners, Mobitel, went to court to ask for justice. At a point, owners and operators of the company were harassed and made to pay some money to the government through the EFCC on the grounds that former company before reincarnating into new self got waivers from the NCC which it was not supposed to get.

It was a grinding process, the first of such test it would turn out, but Ndukwe stood his grounds. This was interpreted as stubbornness and insubordination on his part to the authority of the minister. However, those who know Ndukwe said his upbringing and family pedigree would not permit such behaviour. But industry observers were to maintain that somebody needed to pay a price and go through the crucible just to get some regulatory space for a sector which, aside of the oil sector, attracts the highest foreign direct investment, FDI, into the country. A deregulated sector, they said, could be strengthened by court pronouncements.

Perhaps as a confirmation of this, Pyramid Research of the United Kingdom, Tuesday last week, at a book presentation in Abuja, in submitting the product of a research on the country’s telecommunications industry, said that investment in the sector since 2000 has hit $18 billion

All that investment was considered endangered as the controversy raged. Experts of the sector warned that resolution of the case would signal the future of the sector with quite a few calling on government to take a decisive action. But the case was in court and even the presidential pronouncement was viewed as sub-judice by those who anxiously waited for the courts to take a position.

Minister’s irritating supervention
After paying N1, 368, 000,000 in April last year for a licence which it won out of about 40 companies and getting a minister’s irritating supervention instead of a formal document of payment and offer, and more ignominiously, EFCC’s harassment, Mobitel ran to the courts, which they say is the last hope of the ordinary man, for justice.

Last Thursday, the court acquitted itself and restored hope to the ordinary folk. Without mincing words, Justice Mohammed Umar Garba of the Federal High Court, Abuja, in his judgment said the action taken by the former minister who acted “in excess of her powers”, was incompetent and reckless.

After a comprehensive look at the regulatory Act of the industry, and pin-pointing section 121 (2) Justice Garba said: “The power of the minister under the Wireless Telegraphy Act as far as they relate to the communications are hereby vested in the commission.

“From the foregoing, it is my holding that the Act confers no power in the first respondent (Minister of Information and Communications) to impose any directive or instruction on the commission, or any of its officers or intervene in the performance of the commission’s functions. It is clear that the express intentions of the Act regarding the role of the first respondent is to limit its powers to only board matters on policy and issues that affect treaties in view of Section 23 of the Nigerian Communications Act.”

The judge then pointed out that the minister rather than meddle with the job of the commission, had a duty to promote its independence under section 25(2).

No doubt this is a big victory for Mobitel. But it is more of an industry victory and once again a major triumph for the judiciary at this time that the country is looking for men of truth to stand and be counted.

This is the stuff of great judgments that can help strengthen our various regulatory institutions and insulate them from the meddlesomeness of political appointees. This is the time to bury the hatchets and for all parties in the matter to realize that they have contributed to building a better Nigerian system.


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