Towards a conceptualization of regulatory accountability

For Professor McEldowney, to be accountable is “to give reasons and explanations for actions or decisions taken”.Footnote ¹³ Thus accountability in government can be traced back to the earliest forms of government. He distinguishes between internal accountability and external accountability. Internal accountability here refers to “[i]nternal guidance within government departments based on rules of conduct that are not statutory”Footnote ¹⁴ and may not be publicized. It is often hidden from scrutiny, could be secretive involving confidential and sensitive information, but may nonetheless be effective. External accountability connotes a sense of being responsible or answerable to an external body which, in the context of the United Kingdom, takes a variety of forms, from Parliament and the courts, to various offices administratively authorized to carry out audits, and also includes various ombudsmen.

The issue of reconciling an agency's independence with the need to keep it accountable invariably turns on the choice of the accountability mechanism deployed. Traditional discussions of agency accountability in the public sector have revolved around the use of mechanisms traceable to the three arms of government: executive control / supervision, legislative oversight and judicial review. However, with the onset of privatization and liberalization programmes, the discourse has evolved to accommodate new accountability modalities to deal better with this collaboration of public sector and private capital.Footnote ¹⁵

Professor Cosmo Graham perceives accountability as connoting the ability of regulators to give a reasoned justification for their actions which is rationally related to their mandate.Footnote ¹⁶ For him, the difficulty with traditional accountability mechanisms in the context of utilities regulation in the United Kingdom is the retroactive application and reactionary nature of these mechanisms. He consequently argues that, as a result of their participatory nature, fair participatory procedures in regulatory decision making have the potential to fill the accountability gap created by traditional mechanisms in the regulatory process. He examines the application of these procedures in the areas of regulatory enforcement and licence modification. Private participation in the regulatory process has expanded in ways beyond mere participation through negotiated rule making in a strict public choice sense. Jody Freeman argues that there is a need properly to appraise the role of private persons in the regulatory process to secure their accountability where those persons perform regulatory functions.Footnote ¹⁷

Scott's work on accountabilityFootnote ¹⁸ revisits the issue of deploying a variety of mechanisms to secure agency accountability. He asserts that the various accountability mechanisms deployed in a modern state, particularly in multilateral contexts and market oriented settings, are in response to the questions of who is to account to whom and for what purpose. He asserts that accountability in this form could be given either upwards, horizontally or downwards. He identifies two major extended models of accountability discernible in the United Kingdom: interdependence and redundancy. Interdependence refers to the existence of interdependent actors. As a consequence of the dispersal of the key resources of authority, information, expertise and capacity to bestow legitimacy, these actors have to account consistently for their actions to other actors as a precondition to further action. Redundancy on the other hand refers to the deployment of more than one overlapping accountability mechanism such that the centrality of any of them is reduced. He further arguesFootnote ¹⁹ that the collision of accountability modes as a result of private participation in the regulatory process has given rise to an unanticipated or spontaneous modality of accountability.

For Mashaw, key issues, that need to be addressed in the design of accountability structures for any regulatory framework, revolve around six accountability questions: who is accountable, to whom, for what, through what mechanism, based on what criteria, and to what effect.Footnote ²⁰ Mashaw argues that these questions provide a template for evaluating the accountability of any regulatory framework. He asserts that the intermingling of the private and public has led to a hybridization of the accountability mechanisms deployed as mechanisms from different fora are combined.

Accountability in this context, in the author's view, simply represents a regulator's obligation to explain its actions and decisions by justifying its conduct based on the mandate that is given. Such conceptualization obviates the necessity to equate or distinguish accountability from control, a conceptual difficulty which Scott tackled through the perception of accountability as a continuum. Furthermore, it avoids overly broad accountability questions which go so far as to question the mandate given to the regulator. Thus, in this context, the question of who is accountable obviously refers to the NCC. However the concept of accountability used here is broad in terms of the key accountability questions of “to whom is accountability given” and “through what mechanism is accountability given”. Its conception of the questions “for what is accountability given” and “on what criteria the accountability is based” is however determined by reference to the legislative mandate given to the regulator. Furthermore all the accountability mechanisms considered below are external to the regulator, in that the preoccupation here is with how the NCC could be called to account for its actions given its statutory independence. Internal mechanisms through which officials of the commission are held accountable by their superiors are not within the scope of this article.

Accountability viewed thus in the Nigerian context consists of a variety of mechanisms. These could be retrospective mechanisms, including the submission of annual reports, audits of budgetary expenditure, legislative hearings into the circumstances of actions or decisions that generate public interest, and judicial review of particular decisions. Alternatively, the mechanisms could be set in advance, for example proposed rules for the sector following compliance with fair procedures, such as giving notice of and justifying intended regulatory actions.

It is pertinent to note that Nigeria inherited from her colonial legacy some notion of accountability to ministers, the head of government and the National Assembly for day to day practices. Given the commission's statutory regulatory independence, two questions arise as to how well this works in practice with regard to the commission: whether the president and National Assembly can hold the commission to account for its actions; and whether the commission could remain neutral from external interests, such as the companies it regulates.

This article will address the first question in the context of traditional regulatory accountability. The second question, which is tied to the issue of the commission's independence and impartiality, is beyond the scope of this article but would make an interesting area for further study.

There is also an issue of whether this concept of accountability, derived as it were from western models, fits Nigeria's needs as a developing country struggling with corruption among other problems. This article will argue about the need for accountability in the Nigerian telecommunications sector in the light of the local context and expectations.

The need for accountability in the Nigerian telecommunications sector

Accountability is necessary as a safeguard to ensure that the regulators charged with regulating the sector stay focused and deliver their objectives. The need for accountability in the Nigerian telecommunications sector is made greater by three factors. The first is that Nigeria has for a long time consistently ranked as one of the more corrupt nations in the world.Footnote ²¹ Given Nigeria's pervasive association with corruption, the success of any meaningful development programme or project would to a reasonable extent depend on its built-in measures to ensure that it is not derailed by official corruption. Professor Oyewo recognizes that preventing and tackling corruption is essential to Nigeria's development.Footnote ²² He observed however that constitutional and legal provisions designed to tackle corruption and foster the rule of law are not effectively enforced in Nigeria. In 2000, Erero and Oladogun provided examples of the corruption pandemic by different institutions such as the police, judiciary, Nigerian Railways Corporation, Customs Service, Immigration Service and National Drug Law Enforcement Agency to show pervasive corruption in Nigeria.Footnote ²³ They discussed several efforts to combat corruption such as the establishment of the Code of Conduct Bureau, Code of Conduct Tribunal, Public Complaints Commission and Public Accounts Committee. They concluded that corruption was more entrenched in Nigeria, notwithstanding these efforts to combat it. The realization that tackling corruption is essential to the success of development programmes has among other things led to the declaration of a war on corruption and the establishment of two separate commissionsFootnote ²⁴ to tackle corruption and economic crimes resulting from it.

Secondly, although accountability and the related concept of transparency have long been recognized as useful in tackling corruption, Nigeria lacks a culture of rigorous public accountability. Threats of conducting inquiries in the aftermath of appropriation scandals are seldom matched by the inquiries in question actually being held.Footnote ²⁵ On the rare occasions where actual inquiries have been held the findings are often not published and made publicly available. This culture of not publicly disclosing the proceedings or accounts of inquiries is also mirrored in the operation of government departments. As at 27 February 2013, none of the three main commissions set up for developmental purposes since the return to democracy in 2001 (the NCC,Footnote ²⁶ Universal Basic Education Commission (UBEC) and the National Electricity Regulatory Commission (NERC)) made annual reports of their activities publicly available on-line. Furthermore, the enabling laws setting up the UBEC are not available on its website. These laws were enacted after the publication of the Laws of the Federation of Nigeria 1990 and as such cannot be found in its volumes either. Official gazetted copies can be obtained from the government printer, but official copies are not widely available through print media outlets.Footnote ²⁷ It could be inferred that public disclosure of the operations and activities of governmental bodies and providing the opportunity to receive and answer questions about these operations are not features regularly associated with governmental bodies in Nigeria. Public expectations of public accountability in Nigeria are therefore very low compared with those in mature democracies. Consequently, any measures which improve public accountability in Nigeria can only be seen as steps in the right direction.

Thirdly, the NCC is responsible for the effective and efficient allocation of scarce resources such as spectrum frequency and for the administration of programmes that require the allocation of resources such as the Universal Service Provision Fund.Footnote ²⁸ Ensuring that the NCC accounts for and justifies its decisions significantly lessens the risk of corruption impeding the aforementioned responsibilities which are central to ensuring universal availability and accessibility of telecommunications services, equipment and facilities especially in hitherto unserved or underserved areas.

Having established the need for greater accountability in the Nigerian telecommunications sector, this article will argue that traditional accountability mechanisms such as executive supervision and legislative oversight are currently constrained in their ability to secure accountability by the NCC for the substance of its decisions and activities. The article will suggest that judicial review remains the best option among the traditional accountability mechanisms for the scrutiny of both the substance and procedures of the commission's decisions. Consequently it will argue for a time frame to be specified within which the NCC should give reasons for its decisions, as the absence of such a time frame is a major impediment to judicial review of its decisions. Furthermore given the constraints impeding traditional accountability mechanisms, extended accountability mechanisms, such as the adoption of fair procedures and accountability to the public at large, are necessary to ensure that the appropriate checks are built into decision making processes and that there is ample opportunity for the justification of decisions and their subsequent scrutiny.

Executive supervision as an accountability mechanism

Executive supervision as an accountability mechanism refers to the aggregation of those measures through which members of the executive arm of government can call the NCC to account for or justify its conduct or activities. A significant feature of the Act is its departure from reliance on ministerial control as a major accountability mechanism. Pre-existing obligations required the NCC to report to the minister pursuant to the NCC Decree No 75 of 1992; these have been repealed and, with the enactment of the current legislation, are no longer in force. Section 4, paragraphs (e), (m) and (q) of that repealed legislation gave the NCC, as it then was, different obligations to report to the minister. These ranged from a general responsibility to give reports and assistance to the minister with regard to the telecommunications sector, to specific obligations to monitor and report to the minister on charges paid by consumers, the performance of licensees, and their compliance with standards pertaining to the quality of services and facilities offered. These reporting obligations were part of the general scheme of the previous regulatory framework in which the NCC was very much subordinated to the minister and lacked the powers to discharge its functions effectively.Footnote ³⁰ The National Policy on Telecommunications (NPT) published in 2000 marked a turning point in Nigerian policy and evinced the intention to make the NCC independent of ministerial control. This intention received legislative approval with the enactment of the Act.

Under the Act, the minister is not empowered to issue directions or guidance to the NCC.Footnote ³¹ However, the minister's office retains responsibility for articulating general policy for the sector. The minister is also empowered to communicate periodically to the NCC the general direction of government policy regarding the telecommunications sector. Since the enactment of the Act there have been at least four ministers responsible for communications.

The minister's inability to give the NCC directions or guidance on specific matters under the Act means that, in the event that the NCC reaches a decision with which the executive is dissatisfied, it cannot suffer any meaningful consequences for its failure satisfactorily to justify its course of action to the minister, as long as the specific action undertaken is part of a range of actions which the commission may lawfully undertake. This state of affairs received judicial support in Mobitel Limited v The Honourable Minister of Information and Communication and Others Footnote ³² (Mobitel).

In Mobitel, the plaintiff had participated in the award by the NCC of frequency on the 2.3 spectrum frequency band. There were four slots of national spectrum frequency on the 2.3 GHz band advertised by the NCC as available for award on a first pay to first serve basis upon the payment of N1 368m. The plaintiff was one of the companies successful under this process. However, by a letter dated 25 May 2009, the honourable minister purported to cancel the process. The minister had in contemporaneous press reports announced that the particular licensing procedure adopted by the commission lacked due process.Footnote ³³ Aggrieved with this decision, the plaintiff commenced action against the minister and the Ministry of Information and Communication, and joined the attorney general of the federation and the NCC as the third and fourth defendants respectively.

At the hearing, the issue for determination was whether the minister and the Ministry of Information and Communication have the power to cancel an auction conducted by the NCC for the issue of licences in the communications sector. Based on a construction of sections 121, 23 and 25 of the Act, the court held that the Act confers no powers on the minister “to impose any directive or instructions on NCC or any of its officers or to intervene in the performance of NCC's functions”.Footnote ³⁴ The court held that section 123 of the Act gives the NCC exclusive power regarding the sale of frequencies and makes absolutely no mention of the minister. Therefore the minister's act in cancelling the auction violated the due operation of the law by which everyone is bound. The court upheld the plaintiff's application and granted all the reliefs requested.

The effect of these provisions of the Act is to establish the primacy of technical decision making by a technocratic body such as the NCC at the expense of political decision making by politicians. While technical decision making does not always deliver “good” outcomes, the fact that decisions are made by politicians does not necessarily equate with a bad outcome, particularly where distributional goals are aimed for. However a move towards the primacy of technical decision making over political decision making is not peculiar to Nigeria. There are instances where the independence of the sector regulator has been prioritized with regard to the discharge of the regulator's functions and duties. For instance, directive 2009/140/EC of the European Parliament and Council amended directive 2002/21/EC by inserting a new article 3a which provides inter alia that national electronic communications sector specific regulators shall act “independently and shall not seek or take instructions from any other body in relation to the exercise of these tasks assigned to them under national law implementing Community law. This shall not prevent supervision in accordance with national constitutional law. Only appeal bodies set up in accordance with article 4 shall have the power to suspend or overturn decisions by the national regulatory authorities…”

In not dissimilar circumstances, the Ugandan Communications Act provides that the minister may, after consultation with the Ugandan Communications Commission (UCC), give the UCC such guidelines as may be appropriate, provided that the guidelines shall be in writing and published by the commission in the gazette.Footnote ³⁵ Other than as provided by the act or any other law, the UCC shall be independent of any person or body. Indeed, the raison d'être of the independent agencies as sector regulators in utilities such as telecommunications is in economic theory to prevent the government from acting opportunistically towards investors and companies operating in the sector.Footnote ³⁶ Thus independent regulation is crucial to telecommunications reform because it moves competition between the major operators from the arena of politics and bureaucracy towards the market.Footnote ³⁷ Furthermore, independent regulation solves the problem of accommodating government policy objectives with the needs of private investors.Footnote ³⁸

The removal of direct ministerial oversight for a range of duties under the Act, while modelled on the currently prevailing concepts of independent regulatory agencies, goes against a culture of political and administrative centralization in Nigeria traceable to the colonial era. However, the NCC's compliance with the minister's periodic communications of the general direction of government policy as envisaged by the ActFootnote ³⁹ ensures that, although the NCC is responsible for the regulation of the telecommunications sector in Nigeria, it discharges this duty in a manner cognisant of the policy directions of the government of the day. In the author's view, this is not inconsistent with the idea of the commission's independence. Indeed, the absence of a mechanism for communicating to the sector shifts in the nuances of direction of government policy could result in the NCC exercising its duties and arriving at decisions in conflict with the existing direction of government policy. This could increase the risk of executive intervention in ways not anticipated by the ActFootnote ⁴⁰ to “correct” decisions reached.

As an agency of government, the NCC has a duty periodically to answer to the president for the exercise of its functions in accordance with its mandate. This is recognized by the Act, which requires that the NCC's budget and supplementary appropriations be prepared and presented through the president for approval.Footnote ⁴¹ The NCC is also required to submit an annual report of its expenditure in the preceding financial year through the presidency. Furthermore, as a government agency, the NCC's records are subject to scrutiny by the auditor general of the federation. The Act also requires the NCC to have its accounts independently audited. With respect to financial matters, the NCC and its commissioners may be required to justify their conduct to officials of anti-corruption agencies such as the ICPC and the more administratively affiliated EFCC.

The Act has not, however, left the NCC impervious to political control, as the power to appoint and remove commissioners still resides in the presidency. This power is however qualified and subject to certain conditions to prevent its arbitrary use. For instance, appointment is subject to the eligibility requirementsFootnote ⁴² of the Act and still requires confirmation by the Senate.Footnote ⁴³ Similarly, section 10 of the Act constrains the power to remove by specifying the only grounds for removal and introducing the requirement for giving notice to the affected commissioners, affording them the time and opportunity to defend themselves.

In conclusion however, since the passage of the Communications Act, the executive is increasingly unable to call the NCC to account for or justify specific decisions or to face the consequences where its explanations are found unsatisfactory. The plurality of the institutions involved in executive supervision without any single one of them able to issue directions to the NCC points to redundancy in Scott's senseFootnote ⁴⁴ being at play here. After the Federal High Court decision in Mobitel, there is no doubt that the executive can do little or nothing when faced with an unsatisfactory NCC decision.

Legislative oversight as an accountability mechanism

The idea of legislative oversight of the NCC is a fairly new development in Nigeria. This is because the NCC, as established before the enactment of the Act, operated largely under military regimes. Even with the advent of civil rule in 1999, the NPT published in 2000 did not specify a role for the legislature in developing the sector. The general basis for legislative oversight in Nigeria is currently section 88 of the 1999 constitution. It vests either house of the National Assembly with the power to investigate or inquire into anything within its legislative competence, subject to the proviso that the investigation is only for the purpose of enabling the house to: make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.

The Act also requires the NCC to ensure that its annual accounts and records are presented to the National Assembly through the president.Footnote ⁴⁵ Furthermore, under section 21 of the Act, the NCC's annual report of the performance of the licensees operating in the sector (published in compliance with section 89 of the Act) must be attached to the annual reports submitted to the National Assembly.

Legislative oversight is conducted through the committees of the Senate and House of Representatives. The relevant standing committees with respect to the commission are the Senate and House committees on communications. Since the enactment of the Act, the Senate committee on communication had been chaired by Senator Sylvester Anyanwu but he was replaced in the 2007–11 legislative session by Senator Patrick Osakwe. Senator Gilbert Emeka Nnaji is the current chairman, with Senator Abu Ibrahim the vice chairman. The House committee is currently chaired by Hon Oyetunde Oladimeji Ojo, with Hon Bawa Shehu Usman the vice chairman.Footnote ⁴⁶

The NCC is also subject to the scrutiny of the public accounts committees (PAC) of both houses of the National Assembly with respect to its finances and expenditure. Both PACs have the power to examine the NCC's accounts together with the auditor's reports, and subpoena persons, papers and records to assist their examination of the accounts. The Senate PAC also has oversight powers over the auditor general of the federation with respect to any prepayment audit queries which might have been over-ruled by the NCC chief executive. PACs in Nigeria are however not as effective or efficient as those in more mature Commonwealth democracies.Footnote ⁴⁷ The ruling party retains leadership of PACs, although their membership is filled with loyal party men rather than members with professional accounting or financial experience.Footnote ⁴⁸

Both houses of the National Assembly also periodically set up ad hoc committees to enquire into matters of national interest. In this regard a number of ad hoc committees have been set up to report on matters relevant to the exercise of the NCC's powers. A prominent example is the committee led by Hon Leo Ogor on the decay of services provided by GSM networks which presented its recommendations to the House of Representatives in October 2007.Footnote ⁴⁹ The committee report proffered a variety of recommendations. The house agreed with some of them but rejected more controversial recommendations, such as a 12 month ban on the sale of SIM cards and the organization of promotions by telecommunications operators. It also referred unsubstantiated recommendations, including a call for the immediate reorganization of the NCC and prosecution of its management by the attorney general, to the standing committee on communications for further deliberation.Footnote ⁵⁰

It is pertinent to note that legislative oversight of the NCC is a relatively new development which results in some “teething problems” that may need to be overcome, associated with some understanding of the precise role of the body. This is illustrated in the reported instances of rather worrisome threats to recommend the revocation of an operator's licenceFootnote ⁵¹ and to sanction telecommunications operators generally.Footnote ⁵² Although these suggest an inclination in these instances for legislative oversight to extend to regulatory decision making in specific areas which have been statutorily assigned to the commission, they have not generally been characteristic of the nature of legislative oversight. On the whole, neither house has been quick to adopt such recommendations.

Furthermore, it is unclear how influential the house committee recommendations are to the NCC. For instance, the ad hoc committee's report on the decay of services provided by GSM service providers, deliberated on 21 November 2007, recommendedFootnote ⁵³ that the NCC issue a 3G spectrum licence to NIGCOMSAT as directed by the former president; the House of Representatives agreed to this recommendation,Footnote ⁵⁴ but the licence has yet to be issued. This may be attributed to the rather high turnover in the composition of the standing committee with at least three different legislators chairing the committee between 2006 and 2010.Footnote ⁵⁵ This quick turnover in personnel has impeded the build up of legislative expertise and familiarity with issues in the sector which is necessary for effective oversight. It should be noted that the Senate has had more stability in its standing committee leadership, having had no change of chair from the commencement of the Act until the 2007–11 session and thereafter only one more change at the start of the 2011–15 legislative session. These difficulties with legislative oversight could however be overcome with the passage of time and the increasing maturity of Nigeria's legislative arm of government.

In conclusion, although legislative oversight is very much work in progress in the Nigerian context, short of amending the Act, the legislature as an accountability forum is unable to provide the NCC with credible consequences for failing satisfactorily to justify its decisions. It cannot direct the commission, it cannot reasonably threaten to reduce the commission's budget, as that would adversely impede the efficient regulation of the telecommunications sector, and its resolutions have so far not had any significant impact on the NCC's decision making process. This leaves judicial review as the last possible traditional accountability forum with the potential to provide credible consequences in the event of the commission's failure to justify its decisions satisfactorily.

Judicial review as an accountability mechanism

Judicial review of the NCC's decisions is often preceded by the activation of the dispute resolution mechanism provided for in sections 73–78 of the Act. The issue of whether a party is statutorily obliged to refer a dispute to the NCC under these sections as an essential precondition to seeking judicial review in the Federal High Court in a dispute with another person or persons subject to the Act was a specific issue in the Nationwide case.Footnote ⁵⁶ In that case, the Court of Appeal rejected the appellant's contention that section 75 of the Act created an optional not mandatory obligation for parties to refer disputes to the NCC. The court held that sections 73–75 should be read jointly and not in isolation. Consequently, disputes between parties subject to the Act, in matters that concern the Act, should be referred to the NCC for resolution, with aggrieved parties utilizing the internal review mechanism under sections 86–88 as a precondition for recourse to judicial review by the courts to resolve the disputes.

Judicial review in the context of independent regulatory agencies is an accountability mechanism designed to ensure that an independent sector regulator could be called to account for or justify its decisions before an independent and impartial tribunal with the authority to set aside decisions where these are found to be unlawful or beyond the regulators' powers. It is thus one of the mechanisms to ensure that, while the regulator remains independent of excessive political interference or control, it can still be called to account for its actions.Footnote ⁵⁷

The notion that judicial review in Nigeria is a credible accountability mechanism is not uncontested. Shikyil argues that the judiciary in Nigeria lacks security of tenure and is dependent on other arms of government with regard to the appointment and removal of judicial officers as well as for its operational revenue.Footnote ⁵⁸ The judiciary is alleged to be implicated in the corruption pandemic in Nigeria although this is more evident within its administrative arm.Footnote ⁵⁹ Yusuf opines that the Nigerian judiciary should be held accountable, using truth telling mechanisms, for its complicity in the decades of authoritarian rule endured by the country.Footnote ⁶⁰ However, even scholars at the vanguard of calls to hold the Nigerian judiciary to account concede that the judiciary is still the preferred forum to make decisions of a contested (or politicized) nature in Nigeria.Footnote ⁶¹ This makes it well suited to hold accountable a regulator that operates in the sensitive telecommunications sector where private interests and public policy combine to meet distributional objectives (especially with regard to the universalisation of access to services). With respect to judicial review as a mechanism for keeping the NCC accountable, the crucial issues are the precise scope of judicial review in this context and the extent to which it has been deployed to keep the NCC accountable.

Sections 86–88 of the Act provide for judicial review of the NCC's activities. It may be useful to summarise the provisions of these sections, highlighting the specific steps that have to be taken before an application for judicial review can be made. Section 86 requires a person aggrieved by an NCC decision to write to the NCC asking it to provide reasons for the decision.Footnote ⁶² A “decision” is broadly defined and could be an order, action, report or direction of the commission.Footnote ⁶³ On written request, the NCC is required to provide a copy of a statement of the reason(s) for the decision, and any other information it took into account in arriving at its decision.Footnote ⁶⁴ Within 30 days of receipt of the NCC's reasons for the decision, the aggrieved party may write to the NCC asking it to review the decision, stating the specific grounds or reasons for requesting a review.Footnote ⁶⁵ The NCC then has 60 days within which to review the decision and communicate its final decision to the aggrieved party.Footnote ⁶⁶ Before reaching its final decision, the NCC is obliged to take into account the specific grounds and reasons stipulated by the aggrieved party in its request.Footnote ⁶⁷ Finally, if the party is dissatisfied with the final decision, it can apply to the Federal High CourtFootnote ⁶⁸ for judicial review of the decision.Footnote ⁶⁹ However unless and until the NCC's decision is expressly set aside in a final judgment of the Federal High Court, it subsists and is binding on all the parties involved.Footnote ⁷⁰ The provisions require an internal review of NCC decisions, comprising the steps enumerated above, before recourse can be had to a judicial tribunal.Footnote ⁷¹

However, the Act does not specify a time frame within which the NCC should provide its statement of reasons to the aggrieved party. Thus in theory the NCC could take as long as it likes to provide this statement. This can pose a problem for aggrieved parties, particularly if the decision in question relates to a matter where time is of the essence.Footnote ⁷²

In the author's view, the NCC should provide this statement of reasons within a reasonable time. A reasonable time here should be a matter of construction, particularly taking into account the 30 day and 60 day time frames mentioned in the next section of the Act.Footnote ⁷³ It would however be preferable if section 86(2) could be amended to provide a specified time frame within which the NCC should provide its statement of reasons and other factors which it took into consideration in arriving at a decision. Since the NCC is presumed to have arrived at a reasoned decision, mere disclosure or communication of these reasons should not take long. A time limit would remove the possibility of the NCC being perceived as stalling the review process and thus significantly increase the perception of the review process as credible and transparent.

Recourse to the administrative internal review mechanism is a condition precedent for recourse to judicial review. “Judicial review” here has its plain and ordinary meaning and is not restricted to a narrow or technical construction necessary to identify it with a specific procedure for commencement of proceedings under order 47 of the High Court Rules.Footnote ⁷⁴ In Nationwide,Footnote ⁷⁵ the Court of Appeal held inter alia that judicial review was the statutorily prescribed mechanism for seeking redress against decisions made by the commission under sections 86–88 of the Act. However the judgment did not expressly state that this was restricted to compliance with the specific judicial review mechanism prescribed in order 47 of the Federal High Court Rules. Consequently, the commencement of a suit seeking declaratory reliefs by way of an originating summons does not dispense with the need to fulfil the procedural steps outlined in sections 86–88 of the Act as conditions precedent to the commencement of a suit challenging a decision by the NCC.Footnote ⁷⁶

The conditions precedent outlined in sections 86–88 only apply with respect to a party aggrieved by an NCC decision. Where the decision that the aggrieved party is challenging is one made by a body or authority other than the NCC, the provisions of sections 86–88 would not apply. In Mobitel,Footnote ⁷⁷ the plaintiff sued for a declaration that a letter sent on behalf of the minister responsible for communications, which purported to cancel the NCC processes through which Mobitel Limited was awarded a spectrum frequency licence on the 2.3 GHz band, was beyond the minister's powers and therefore null and void. A preliminary objection was entered by the minister asking that the suit be struck out because the conditions precedent stipulated in sections 86–88 had not been complied with. In disallowing the objection, the court held that the provisions of sections 86–88 apply to proceedings for the review of decisions made by the commission. They do not extend to decisions or activities of the minister responsible for communications.

The requirement that an aggrieved party must first seek internal review of a decision by the commission before recourse to judicial review has been affirmed in a number of cases.Footnote ⁷⁸ An acknowledgement of the need to comply with administratively prescribed preconditions to judicial review is not peculiar to the telecommunications sector in Nigeria. The principle has been upheld in other areas in Nigerian law.Footnote ⁷⁹

With respect to the telecommunications sector, to the best of the author's knowledge, no case has been reported involving the interpretation of sections 86–88 of the Act. However, in a number of unreported cases on this issue, none of the parties challenging the NCC's decisionsFootnote ⁸⁰ have attempted to comply with this internal administrative review precondition. These cases pertained to issues pivotal to both the development of the regulatory framework and the expansion of access from licensing to interconnection and quality of service standards.

Fair procedures as an accountability mechanism

Ogus perceives the presence of fair and impartial procedures as a form of accountability: procedural accountability.Footnote ⁹⁴ Professor Graham opines that traditional accountability mechanisms are inadequate for dealing with utility regulators that lack direct ministerial accountability. The retrospective nature of these mechanisms and their generic limitations leave accountability gaps which fair procedures have the potential to fill.Footnote ⁹⁵ For Graham, properly designed fair procedures would require regulators to hear relevant parties before making decisions, base their decisions on justifiable interpretation of the regulators' mandate, and give reasons based on evidence.Footnote ⁹⁶ For him the fairness of a procedure is determined by whether the procedure in question serves the proper application of the regulatory mandate given.Footnote ⁹⁷ Building on his exposition of fair procedures as an accountability mechanism, this article will show how the Nigerian legal framework for regulation of telecommunications has made provision for procedures which have the potential to serve as an accountability mechanism.

A key feature of the current regulatory framework is the stipulation of a variety of procedures,Footnote ⁹⁸ with some requiring or at least encouraging stakeholder participation in the regulatory process; some create obligations for the regulator to consult while others extend to the obligation for it to give reasons for its decisions and publicize its actions. These procedures are embedded in the Act and the exercise of key powers accorded to the NCC under the Act requires compliance with stipulated procedures.Footnote ⁹⁹

There are two main comments to make about the NCC's adoption of fair procedures, especially those involved in the conduct of inquiries,Footnote ¹⁰⁰ including the requirements to give notice and hear persons before exercising rule making functions. First, applying these procedures to the making of regulations constitutes a form of accountability, particularly where there is an obligation to have a public inquiry. NCC reportsFootnote ¹⁰¹ indicate that the public inquiries it conducts in the exercise of its rule making powers are often consultative in nature, with substantial participation by the services and facilities providers in the sector. Initially, the NCC publishes a draft of a proposed regulation. It subsequently publishes its report of the inquiry, containing both submissions received before the inquiry and comments or questions posed at the inquiry. These submissions are usually followed by the NCC's own responses addressing the questions posed or replying to the comments. Beyond merely having private participants consulted in the regulation making process, the NCC in these fora thus proffers explanations and attempts to justify its proposed rules. The effect is that the NCC is simultaneously held accountable for its decisions (in this context, the making of regulations) as they are being made.

Secondly, as a form of accountability, these procedures are not necessarily an alternative form of accountability but in essence could supplement or be complementary to other accountability mechanisms. This is because the NCC is required to observe these statutorily prescribed procedures and failure to do so could form the basis of recourse to traditional, retrospective accountability mechanisms. For instance, failure to observe these procedures could form the basis for invoking the courts' jurisdiction to review the validity of the resulting regulation. Such recourse to judicial review would however still entail compliance with the statutory preconditions stipulated in sections 86–88 of the Act.Footnote ¹⁰² It is also not inconceivable that questions of procedural compliance could be raised by the appropriate legislative committees in the exercise of their oversight functions if the regulation in question is material to the legislative inquiry. Similarly, persistent non-compliance with stipulated procedures could serve as basis for the affected commissioners to justify their actions on request or face removal from office on the basis of section 10 of the Act.

Accountability to the public

Attempts to use agency accountability as a basis for legitimizing agency action often rest on variations of the notion that the action is legitimate because it has been undertaken by agents authorized by representatives of the people to give effect to the people's will. If this construction were adopted, then nothing could be more legitimizing than explaining or justifying agency action, not just to elected representatives, but directly to the people. The legitimizing effect of such forum democratization is immensely beneficial, particularly in fledgling democracies like Nigeria, and could encourage greater public participation in the regulatory process. An agency's direct accountability to the people through the publication of reports of its actions, deliberations and decisions also goes beyond the mere notion of transparency which could be satisfied by giving notice of intended actions and ensuring that documents produced can be accessed on request by members of the public. It constitutes accountability in its most basic form and has real consequences for the body giving account, as the loss of public confidence or the accumulation of public displeasure would leave the agency vulnerable to adverse political action.

The Act obliges the NCC to publish reports of its activities. For example, the NCC has a general obligationFootnote ¹⁰³ to publish information obtained in the exercise of its powers under chapter 5 of the Act where such publication is consistent with the objects of the Act. It should however take into consideration the commercial interest of affected parties before it carries out such publication. It also has obligations to publish reports of its monitoring of operations of services and facilities providers in the sector.

It is pertinent to note that extended accountability, such as fair procedures, could complement and reinforce the more traditional accountability forms. For instance the NCC's obligation to publish annual reports of the findings of its monitoring of the operations of telecommunications services and facilities providers under section 89 of the Act complements legislative oversight. Section 21 of the Act requires the published annual monitoring report to be included in the annual reports submitted by the commission for legislative scrutiny. Legislative oversight is thus exercised here based in part on accountability rendered to the public at large. It is pertinent to note that neither the NCC nor the Universal Service Provision Fund (USPF) which the NCC is responsible for staffing has published any annual reports since 2006. This is patently unlawful.Footnote ¹⁰⁴ Urgent steps should be taken to remedy this blot on the NCC's otherwise impeccable credentials.

Apart from compliance or otherwise with these statutory requirements, the NCC, particularly at times when its decisions have been the subject of controversy, has resorted to publication in various media, from the more traditional media outlets to the internet, to explain and justify its actions or decisions.Footnote ¹⁰⁵ A drawback with publication, particularly where published in print media or merely posted online on the commission's website, is that it is not interactive. Immediacy in the asking and answering of questions, which is obtainable in other forms of accountability such as legislative oversight, is thus lacking.

This lack of immediacy in the accountability process is not coterminous with all forms of accountability to the public. Indeed, another significant form of public accountability that has developed is the NCC's consumer parliament,Footnote ¹⁰⁶ a non-statutory, non-binding, consultative forum which meets monthly. Each meeting of the parliament is held in a different town in Nigeria, announced well in advance; it is not uncommon for different meetings to be held in different geo-political zones of the country. The hosting of each consumer parliament session is well publicized in different media in the country and attendance is open to ordinary members of the public thus ensuring greater grassroots participation in the consumer parliament's deliberations. This parliament allows consumers to question and receive answers from NCC officials on issues regarding the telecommunications sector, which the NCC is responsible for regulating.

In conclusion, accountability to the public, including the regular publication by the NCC of annual reports and all other reports that it is legally required to publish, would complement traditional accountability mechanisms as it would enable the general public to participate effectively in scrutinizing the commission's activities. This requires transparency throughout the NCC's activities. Infusing its activities with transparency shines the harsh glare of public opinion and criticism on decisions and processes, thus reducing incentives to harbour corrupt practices.