There have been several arguments regarding the powers of state governments to legislate on electricity and actually regulate electric power matters within their states. Indeed some state governments have frowned at the Nigerian Electricity Regulatory Commission (“NERC”) having oversight over their power projects.
In light of the foregoing we shall, in the next couple of weeks, be reviewing the Nigerian electricity legal and regulatory regime from a constitutional point of view, in order to determine the extent of the federal government’s powers to legislate on and regulate the power sector in Nigeria, versus the powers of the component state governments to do same.
Apart from our critical analysis of constitutional provisions, we shall be looking at issues such as the Exclusive Legislative list and the Concurrent Legislative list dichotomy and the doctrine of covering the field to determine the extent, if any, to which the states can legislate on electricity and or regulate the power sector in their states.
Supremacy of the Constitution
In countries which practice constitutional democracy, the constitution is the fundamental law of such countries. According to the former justice of the Nigerian Supreme Court, Justice Niki Tobi, in the popular case of Attorney-General of Abia State v. Attorney-General of the Federation;
“the Constitution of a nation is the fons et origo, not only of the jurisprudence but also of the legal system of the nation. It is the beginning and the end of the legal system. In Greek language, it is the alpha and the omega. It is the barometer with which all statutes are measured. In line with the kingly position of the Constitution, all three arms of government are slaves of the constitution…in the sense of total obeisance and loyalty to it…All the arms of Government must dance to the music and chorus that the Constitution beats and sings, whether the melody sounds good or bad…..”
Specifically, Section 4(2) of the Nigerian Constitution empowers the federal legislature to make laws for the Nigerian Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution. Subsection 3 of the same section of the Constitution does make the powers of the federal legislature to enact laws in connection with the items in the said Exclusive Legislative List, ‘exclusive’ to the federal legislature.
Apart from the Exclusive Legislative List, there is a Concurrent Legislative List which spells out specific items upon which both the federal government and component state governments may legislate. Very importantly, the Concurrent List does not just specify the items upon which both levels of government may legislate, but also specifies the extent of such powers.
Provisions of the Legislative Lists
As regards the foregoing, Nigeria’s Constitution places electricity generation, transmission and distribution on the Concurrent Legislative List. Although, both the Federal and State legislatures share legislative powers in respect of matters contained in the Concurrent Legislative List, the powers of the federal legislature to make laws in respect of matters listed in the Concurrent Legislative List, is limited to those items specifically listed in the first column of Part II. With regard to the Power Sector, Paragraphs 13 and 14 of the Concurrent Legislative List respectively, provide as follows:
13. The National Assembly may make laws for the Federation or any part thereof with respect to –
(a) Electricity and the establishment of electric power stations;
(b) The generation and transmission of electricity in or to any part of the Federation and from one State to another State;
(c) The regulation of the right of any person or authority to dam up or otherwise interfere with the flow of water from sources in any part of the Federation;
(d) The participation of the Federation in any arrangement with another country for the generation, transmission and distribution of electricity for any area partly within and partly outside the Federation;
(e) The promotion and establishment of a national grid system; and
(f) The regulation of the right of any person or authority to use, work or operate any plant, apparatus, equipment or work designed for the supply or use of electrical energy.
14. A House of Assembly may make laws for the State with respect to –
(a) Electricity and the establishment in that State of electric power stations;
(b) The generation, transmission and distribution of electricity to areas not covered by a national grid system within that State; and
(c) The establishment within that State of any authority for the promotion and management of electric power stations established by the State.
We shall continue this piece in the next edition of this column. For more information on the electric power sector in Nigeria, you may review the text, the Nigerian Electric Power Sector by Ayodele Oni.
Ayodele Oni ([email protected]), a solicitor specializes in international energy (oil, gas & power) investment law and has a mini MBA in power & electricity. You can follow me on twitter @ayodelegoni.