Controversy trails proposed NITDA Bill

The bill that is seeking to make the National Information Technology Development Agency (NITDA) the regulator of regulators in the ICT sector has been generating a serious heat as condemnations have continued to trail it. 

The NITDA Bill 2021 is seriously generating heat in the industry over its possible overlapping and overbearing effect on some functions, which industry analysts claim would cause serious frictions in the sector if not expunged or simplified.

Since 2021 when the news about the contentious bill was made public, stakeholders, operators, startups, among others, have continued to raise the alarm at different fora over some of the provisions in the proposed bill, which they described as ambiguous, overlapping and overbearing and could cause deep frictions within the ICT/telecoms ecosystem. 

Speaking with Daily Trust via phone on Thursday, the chairman of National Association of Telecommunications Subscribers (NATCOMS) Deolu Ogunbanjo noted that the NITDA Bill 2021 arrogates powers of several other regulatory agencies to NITDA, which is an infringement on the statutory powers of agencies of government like the Nigerian Communications Commission (NCC), Computer Professionals (Registration Council of Nigeria) (CPN), Galaxy backbone, Office of the National Security Adviser (ONSA), the National Universities Commission (NUC), among others.

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Under the current Act of 2007, which it seeks to amend, Ogunbanjo said NITDA has no powers, its roles are basically developmental, but the agency does have a host of functions which increased from 14 to 24 in the new bill.

The proposed bill, expected to repeal the NITDA Act 2007, is aimed at creating a regulatory framework for the development of the Nigerian IT sector and digital economy.

Kashifu-Abdullahi disclosed that to keep up with the pace of innovation that has swept the country, there should be a realignment of the Act with “tenets and ideals of the Fourth Industrial Revolution” and Nigeria’s Digital Economy Policy.

Daily Trust reports that NITDA is the agency tasked with creating a framework for the planning, research, development, standardisation, application, coordination, monitoring, evaluation and regulation of Information Technology practices in Nigeria. Simply put, NITDA is a developmental agency.

The agency is currently under the Ministry of Information and Digital Economy. As part of its mandate, it provides regulations regarding data protection, registration of domain names, IT Clearance, among others.

However, some ICT stakeholders said if the proposed bill is anything to go by, NITDA appears to be gearing up for a more active and forceful reign, which would see it usurping the authorities and powers of other regulatory agencies like NCC and others in the country.

In the planned bill, Sections 6, 13, 20, 21, and 22, which cover NITDA’s power, classes of licenses and authorisations, and offences and penalties, among others, are the most contentious provisions causing apprehension within the sector in Nigeria.

Section 6 proposed new powers to be given to NITDA. Also, a new subsection also gives the agency the power to “enter premises, inspect, seize, seal, detain and impose administrative sanctions on erring persons and companies who contravene any provision of the Act subject to the order of a court of competent jurisdiction.

NITDA will also have the power to “fix licensing and authorisation charges, collect fees and penalties as may be necessary for the exercise of its functions under this Act.”  This bill would also introduce a new regime of licences and penalties.

Section 20 would give NITDA power to issue regulations regarding licences and authorisations for operators in the information technology and digital economy sector — which the agency is to determine.

Bill clashes with NCC roles

With the identified abrogation of regulatory powers of other agencies to itself in the proposed NITDA Bill 2021, experts said one of the key agencies, whose regulatory powers and functions shall be distorted by new provisions in the proposed Bill is the NCC. 

Specifically, Sections 1, 2, 9, 10, 16, 26, 28 and 33 conflict with functions of NCC.  

“For instance, Section 1 (Objectives of the Bill), states that “The purpose of this Act is to create an effective, impartial, and independent regulatory framework for the development of the Nigerian information technology sector and digital economy.” 

This section lays the foundation of converting NITDA from an IT Development Agency to a regulatory outfit, a top official in a telecom firm said.

The official further said the inclusion of the concept of ‘Digital Economy’ as part of its regulatory purview expands its frontiers to matters within the exclusive regulatory mandate of the NCC. This will impact on the NCC’s functions in Section 4 of the Nigerian Communications Act 2003; that empowers the Commission to regulate communications services that drive the digital economy.

Some legal experts in Nigeria have picked holes in the proposed NITDA (Repeal and Re-Enactment) Bill 2021, describing it as infiltrating or attempting to unnecessarily duplicate the regulatory powers of some existing government agencies in the country.

The legal experts made their positions known last year during a webinar on ‘Stakeholders’ Engagement for Legal Practitioners in Nigeria on National Information Technology Development Agency Bill.

The former NBA President, Olumide Apata, who raised three fundamental concerns on the proposed Bill, which, he said, should be looked into by stakeholders at the webinar. Apata was represented by the ICT Committee, NBA-SBL, Rotimi Ogunyemi.

But speaking on the need for the Bill, Kashifu-Abdullahi, said: “Considering that the NITDA Act is almost 16 years old, we consider it necessary to keep the Act up-to-date with the current reality in the Nigerian digital economy space.”