By Innocent Anaba & Henry Ojelu
Mr Mark Griffiths is a South African legal practitioner, who also practises in England and a Competition and Consumer Protection law expert. In this interview, he spoke on the Federal Competition and Consumer Protection Council, FCCPC Act, signed into law and how it will help Nigerian firms as well as Nigerians get quality service from companies operating in the country.
You just held a training workshop on the new Federal Competition and Consumer Protection Council, FCCPC. Give us an overview of what was discussed.
During the conference, a number of concerns were raised. It was a healthy engagement between business, legal practitioners and the commission. I think from a business perspective, they legitimately set out the needs to understand the implementation framework of the Act. The FCCPC is far reaching. The participants were asking for transparency from the commission in terms of how they were going to be implemented.
On the other side, the commission itself, particularly the chief executive, demonstrated his willingness to engage businesses, in particular, that he wants to collaborate and be pragmatic in their approach and that there are a number of developments which are in the pipeline. There are guidelines in the Act for example which will change business activities in Nigeria. It is quite clear that healthy descriptions are needed first and is welcomed by stakeholders, regulative and indeed, business conferences are most welcome to have this conversation which is imperative because this is particularly impactful for peace legislation.
The practices in a legal sense boils down to agreement between competitors. We haven’t heard any provisions on that up till now. I suspect there will be a focus on what the impact of these provisions on business in terms of collaborations between competitors in trading sections. Those are the key areas of focus from my perspective and certainly, it is part of the discussion. We spoke about the precautions to be taken and the type of internal measures we need to take now to prepare ourselves for the full force of this act.
What is the assurance that the council will be effective?
There are many competition regimes across Africa that are paper-based and not practically enforced. There is a number of key critical success-parties that need to be looked out for. For example, there is need for sufficient political and budgetary support from the commission. In a competition authority, it’s quite an expensive authority. We have looked at the type of budget that was spent across Africa by authorities.
There is a significant amount for a commission such as we have got in Nigeria, so clearly, sustainable support is the key. There is also need for significant recruitment of the staff and competition role will be economically-based layers, an economist in the commission itself in order to appropriately enforce legislation.
In addition, you need to have a credible and effective regime, you need to be at the level of authority that sets out policy statement and its expectations. That will drive effectiveness because basically, we need to understand the views of the commission and come forward with terms of enforcement, that in itself drives an enforcement in respect of that.
What is the guarantee that certain provisions of the Act would not be exploited by some businesses and their lawyers?
It will not be exploited because competition laws is based on subjective use and in many cases, in terms of what is competitive or not. So certainly, there is room for discretion where you have got provisions. For example, in terms of anti- competitive grooming , there is an exception process which is available and also there are some discretions you can have in the authority and of course, it is whether it is competitive or not. It is not about circumventing, it is about what it actually means in practice, legal discretion and economic discretion as well.
The repealed Consumer Protection Council Act didn’t achieve much, as service providers simply disregarded its provision. What is the assurance that the same fate will not befall the new Act?
There is a problem with that and I think that problem is not going away very soon because under the present regime which is the FCCPA, there is concurrency in jurisdiction between the primary regulator as well as the commission. The commission is now FCCPC ( Federal Condition and Consumer Protection Council) and what has happened with the establishments you have mentioned was because they both had their own sector regulator. The commission will probably allow those regulators to reign and there will be the struggle of control in area of jurisdiction.
Talking about what you just mentioned now, that was actually mentioned during the workshop, ridiculous flight delays without apologies. They just assume that it is the norm and they don’t owe you any apology. Even if there was a change in the timing and all of that, there is no compensation whatsoever, because they feel that they are right and there is nothing coming from it and that is so true. Nothing comes out of it and you find very few people challenging them on why the flight was delayed. For PHCN which has now been unbundled into different distribution companies, we have about 11 Discos, it is the same.
The primary regulator, Consumer Protection Council at a time was a bit removed from the immediate re-enforcement because those guys had primary regulators. It is now the same under the FCCPA, that is the new act. What changed was that, the law now mandates both the primary, secondary regulator, the commission to enter into an agreement within one year on how they want to regulate the respective industries.
That is yet to start. They are still within the one year to do it. How soon they are going to start to allow us have full achievement of the set objectives is something to watch out for. Because of the ongoing conversation, we could see a subtle struggle for control, sector regulator trying to hold on to their sector and the commission saying we could be able to do this together. So how that will play out is just a matter of time. I must say in the act there is a provision that the commission will cover the sector regulator. They are still expected to work together to achieve their objectives.
Are you optimistic that the Act will succeed?
We want to give them a chance to succeed, we don’t want to approach it from a pessimistic perspective. It is extremely difficult for a client like us. If we say there is an establishment of an act by the National Assembly, what the agreement is meant to do is to delineate their areas of control by mutual consent. I think there is a chance of success for that to happen and I pray that it comes out 50-50 . You will not achieve success across the board but may be in some sectors there would be. I don’t think the government should leave it to the respective heads of these regulators and the commission to deal with.
Government should be at the table when this is being negotiated. When I say government, I mean the Federal Executive Council, FEC. It is the responsibility of the head of the FEC which is the president to appoint the heads of the commission, the chairman and vice-chairman respectively, who then will be confirmed by the Senate. The government has a role to play, they shouldn’t just leave it to the sector regulator as well as the commission to draw that agreement; they need to sit at the table and ensure that success is achieved.
Did the Act provide for time frame within which cases must be concluded?
It does not say when a case should be concluded. In fact, under the two provisions, task competition as well as consumer protection, it will appear that there are divergent views on the jurisdictional issues. Under the commission’s aspect of the act, if there is an issue, it is expected that the complaint is lodged with the commission. The commission can make a decision on it or file it to triangular.
If you are not satisfied with the decision of the triangular, you can only appeal to the Court of Appeal for any objection and the Court of Appeal will act, to fine and empower officers to the type of imprisonment up to like three years. Under the consumer protection, reference is made to court of competent jurisdiction. What it means is that it is not clear, whether it is Federal High Court, State High Court or the same Court of Appeal which under interpretation act was defined as the court. There are some areas around jurisdiction to start with when you talk about the length of number each action should take.
So the only act where federal court was mentioned was competition law and it states that if you want to register the decision of the triangular for the purpose of re-enforcement, you need to get it registered at the Federal High Court. Other than that, court generally could be Court of Appeal. That is an area we feel they need to properly clarify and that can be done by way of regulation, we just wait and see.
Do you think enough consultation was done before the Act was passed?
Just as it is in terms of procedures for passing rules into law, we believe the procedures were followed. It is the function of the NASS to pass laws. So people could make contributions during public hearings of the bill before it became law but the reality is that what comes out is a function of the National Assembly. What I think is key is for us to see in the act, highlight the key issues from the act.
The need of the act will be felt in the regulations and enabling guidance. That is what we are waiting and whether it will be consultative or not. As the case in any legislation act, the practical effect will always connote immeditate regulations and as the commission said during the workshop, they want to engage, listen and be diplomatic. Some businesses are well part of the legislation, they were comforted to hear that there is a competition, a consultative approach as such, you can afford, the views of businesses would be taking into account to understand how that will be implemented and I think that is a positive message.