By Aaron Ukodie
In less than six months, Dr Isa Pantami should be out of office as minister of communication and digital economy. Many who have suffered from his overbearing ways would heave a sigh of relief with his exit.
Since his emergence over three years ago as a minister, the 48-year-old computer graduate, some say, has had a spiritual influence over President Muhammadu Buhari and many others in government. As a Sheikh, he has held the ICT industry captive.
He has taken various decisions to override the independence of the Nigerian Communications Commission (NCC). He appointed a stooge, Mr Inuwa Kashifu, as director general of the National Information Technology Development Agency (NITDA). Kashifu, his former technical assistant when he was DG of NITDA, does his bidding. There are reports that Kashifu only gets something done at NITDA if he clears with Pantami. The era of Pantami as Minister has seen the ICT sector taken over by people from his ethnic Fulani. Pantami is oftentimes unchallenged because of his acclaimed spiritual influence over the president. All the Chief Executives of the MDAs in the ICT sector, except NIPOST, are from his Fulani tribe. A week ago, Pantami replaced Mrs Abimbola Alale, MD of NigComSat, with a Fulani from the Bua Group of Companies.
Before he leaves, Pantami seeks to give Nigerians a bill to curtail their freedoms and finally put the ICT industry under his grip and pocket.
If Pantami succeeds in getting his newly contrived bill passed by the National Assembly, whom he is pressuring to bow to his bid, even though he leaves office by May 29, 2023, he would still be in control of the industry through his stooge, who obeys his biddings. NITDA would have been so empowered by the new NITDA Bill 2021 that some of the powers of NCC and other MDAs would have been contracted to NITDA. NITDA would be empowered to impose draconian fees on operating companies in the digital ecosystem. Those who violate the NITDA’s new codes of conduct, including conduct in the social media space subjected to harsh fines and punishments.
The new NITDA bill seeks to take over or duplicate some of the roles and functions of NCC and other agencies such as NBC.
Sesan Gbenga, head of Paradigm Initiative, who has studied the bill, says the bill is an effort by the Minister to capture the industry. His organisation is in court to challenge the bill.
“We have seen this draft law and can confirm that the provisions have far-reaching implications for civil liberties, the media, social media platforms and other technology companies. In a nutshell, this is another attempt at social media (plus others) regulation.”
Paradigm Initiative is in court to challenge the power of NITDA to, through a document signed by the Minister, introduce a far-reaching piece of legislation (the “Code of Practice” for platforms). It also wrote a letter to the National Assembly to alert them to how Pantami uses them.
Sesan said, “I see this moment as a unique opportunity for the industry to come together and stand up to the outgoing Minister on his many missteps on this issue and others — not because anyone dislikes him but to let everyone who fills that shoe know that before and after them, there’s an industry.”
Association of Licensed Telecommunications Operators of Nigeria (ALTON) feels that passing the NITDA Bill will increase multiple regulations, complaining that telecom operators pay close to 30 different levies and taxes and may not afford additional levies which the bill will impose on them.
The Association of Telecommunications Companies of Nigeria (ATCON) agrees with ALTON saying any Bill imposing new taxes on telecoms licensees is evil.
Under article 10 of the bill NITDA is empowered to “fix permit fees and charges, and collect fees or penalties as may be necessary for the exercise of its functions; issue notices of contravention and non-compliance and enter premises, inspect, seize, seal, detain, and impose administrative sanctions where there is a contravention of any provision of the Act, among others.”
Under offences and penalties stipulated in Part 7 of the Act NITDA is empowered to impose a fine of not less than N30 million for corporate bodies and N3 million for individuals who violated its provisions or imprisonment for not less than one year.
The proposed NITDA Bill 2021, among other things, aims at changing NITDA from an IT Development Agency to a regulator of the information technology industry ecosystem.
An attempt by the National Assembly Joint Committee on ICT and Cyber Security to stage a public hearing last Friday on the controversial National Information Technology Development Agency, NITDA Bill, 2021, giving less than a day’s notice to stakeholders, attracted flaks across the sector.
Although the planned public hearing was later put on hold as the Joint committee couldn’t even form a quorum, the criticism is yet to abate.
Several industry stakeholders have described the attempt as an ambush to hurriedly pass a bill which all practitioners have repeatedly asked the National Assembly to throw away due to its controversial nature.
Some wondered what could be the motive of the person pushing the bill so strongly, knowing it is capable of railroading the gains so far made in the ICT sector.
Several Legal Practitioners in Nigeria at a webinar organised in March this year have spoken against the bill.
They pointed out that the bill was an attempt to unnecessarily duplicate the regulatory powers of some existing government agencies in the country.
NBA President, Olumide Apata, has raised three fundamental concerns on the bill; how the Bill will align with the Startup Act, how the NITDA Bill intends to navigate its way within the broad context of regulatory functions of other agencies to avoid overlapping of functions; and what will be the implications of the harsh penalties for violation of certain sections of the Bill on the ICT business environment?
The bill, the lawyers argue, conflicts with existing regulations of some other organisations, including the Central Bank of Nigeria, CBN, the Nigerian Communications Commission, NCC, Standard Organisation of Nigeria, SON, Computer Professional Registration Council of Nigeria, CPN, Federal Completion and Consumer Protection Commission, FCCPC, National Identity Management Commission, NIMC, the Nigerian Financial Intelligence Unity, NFIU and Office of the National Security Adviser, ONSA, among others.
Corollary to the NITDA bill is the draft code of practice for Interactive Computer Service Platforms/Internet Intermediaries and conditions for operating in the country. The draft code of practice, released by the National Information Technology Development Agency (NITDA) on 13 June 2022, aims to create guidelines for interacting within the digital ecosystem, especially on social media platforms.
NITDA’s Head of Corporate Affairs and External Relationships, Hadiza Umar, in a press release, said the code of practice was drafted on the directive of President Muhammadu Buhari.
But PIN said that the draft code of practice was a potential ‘tool for the abuse’ of constitutionally guaranteed rights of Nigerians. ‘The code of practice and its impending implementation goes to the essence of digital rights and freedom for all, and we are aware of the dangers inherent in closing digital civic space in Nigeria’, PIN said.
Also, MRA described the draft code of practice as a ‘clumsy attempt’ to usurp the powers, functions and authority of the National Assembly as well as a breach of the constitutional rights of Nigerians. ‘The federal government is attempting to circumvent the legislative process in favour of a backdoor approach to regulate social media and other internet platforms’, MRA’s Programme Director, Ayode Longe, said in a statement to Development Diaries. ‘It is curious that the government has chosen to use an administrative document to surreptitiously create criminal offences as the document states unequivocally that any platform or internet intermediary responsible for violating its provisions will be liable to prosecution and conviction. ‘The name is problematic.
Although it is termed a code of practice, it is not intended to guide the implementation of any specific law or regulation. Instead, it creates criminal offences not contained in any existing law. It attempts to legitimise them by a vague reference to its enabling Act and other laws, which is beyond the remit of any such administrative document’. MRA insisted that the document breaches Article 19 of the Universal Declaration of Human Rights (UDHR) and Nigeria’s treaty obligations under the International Covenant on Civil and Political Rights (ICCPR).
The code may threaten individual and corporate freedoms in Nigeria and signal the end of privacy for online platforms in Nigeria.
This new code undermines an existing Cybercrime Act of 2015 and The Lawful Interception for Communication Regulations of 2019, which are considered sufficient guidelines to manage and not regulate online presence.
NITDA claims it is riding on Section 6 of the NITDA Act 2007 to standardize, coordinate and develop regulatory frameworks for all Information Technology (IT) practices in Nigeria. It claims other power vested on it by President Muhammadu Buhari, to develop a Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries (Online Platforms) in collaboration with relevant Regulatory Agencies and Stakeholders.
NITDA says it is presenting to the public a Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries for further review and input. The public has until Friday, June 24, 2022, to input this.
NITDA claims that this Code of Practice aims to protect the fundamental human rights of Nigerians and non-Nigerians living in the country and define guidelines for interacting in the digital ecosystem. “This is in line with international best practices as obtainable in democratic nations such as the United States of America, United Kingdom, European Union, and United Nations.” a statement by Hadiza Umar, in charge of Corporate & External Affairs at NITDA said.
The statement further claims that the Code of Practice was developed in collaboration with the Nigerian Communications Commission (NCC) and National Broadcasting Commission (NBC), as well as input from Interactive Computer Service Platforms such as Twitter, Facebook, WhatsApp, Instagram, Google, and Tik Tok amongst others. Other stakeholders with peculiar knowledge in this area, such as Civil Society Organizations and expert groups, were consulted. “The results of this (sic) consultations were duly incorporated into the Draft Code of Practice.”
The new global reality is that the activities conducted on these Online Platforms wield enormous influence over our society, social interaction, and economic choices. Hence, the Code of Practice is an intervention to recalibrate the relationship of Online Platforms with Nigerians to maximise mutual benefits for our nation while promoting a sustainable digital economy.
Additionally, the Code of Practice claims it sets out procedures to safeguard the security and welfare of Nigerians while interacting on these Platforms. It aims to demand accountability from Online Platforms regarding unlawful and harmful content on their Platforms. Furthermore, it establishes a robust framework for collaborative efforts to protect Nigerians against online harms, such as hate speech, cyberbullying, disinformation, and misinformation.
Similarly, to ensure compliance with the Code of Practice, NITDA said it had notified all interactive Computer Service Platforms/Internet Intermediaries operating in Nigeria that the federal government has set out conditions for operating in the country. These conditions address issues around the legal registration of operations, taxation, and managing prohibited publications in line with Nigerian laws. The conditions include the establishment of a legal entity, i.e., registering with Corporate Affairs Commission (CAC); two, appointing a designated country representative to interface with Nigerian authorities; three, abiding by all regulatory demands after establishing a legal presence; four, compliance with all applicable tax obligations on its operations under Nigerian law;
Five, provide a comprehensive compliance mechanism to avoid publication of prohibited contents and unethical behaviour on their platform; and six, provide information to authorities on harmful accounts, suspected botnets, troll groups, and other coordinated disinformation networks and delete any information that violates Nigerian law within an agreed time.
If the NITDA code of practice survives, what happens to the lawful interception of communications regulations managed by the NCC? That piece of legislation of January 2019 is clear on its mandate.
PART II of that regulation states interalia: “It shall be lawful for any Authorised Agency listed in regulation 12(1) of these Regulations to intercept any Communication or according to any legislation in force, where—(a) the interception relates to the use of a Communications service provided by a Licensee to persons in Nigeria; or
(b) the interception relates to the use of a Communications Service provided by a Licensee to a person outside Nigeria,
provided that the Licensee shall not be liable in any civil or criminal proceedings for damages, including punitive damages, loss, cost or expenditure suffered “.
Regulations 12(1) states in part:” Pursuant to the provisions of section 148 (1) (c) of the NCC Act, an application for a warrant under these Regulations shall be made to the Judge by any of the following Agencies—(a) The Office of the National Security Adviser represented by the National Security Adviser or his designee, who shall not be below the equivalent of an Assistant Commissioner of Police; and (b) The State Security Services represented by the Director or his designee, who shall not be below the equivalent of an Assistant Commissioner of Police.
(2) Where a Warrant is required pursuant to any international mutual assistance agreement of which Nigeria is a party, the application for a warrant shall be made through the Attorney-General of the Federation, provided that the applicant shows evidence of authority from the relevant country”.
Providing the overview of the essence of the new bill, the Director Legal Service Department at NITDA, Emmanuel Edet, said: “What we are trying to do at NITDA is to ensure proper alignment with the management of the ever-expanding ICT ecosystem and maximally protect the users of digital services, thereby bridging the gap in the digital economy without necessarily straying into the regulatory power of other existing regulatory agencies.”
Corroborating him, Minister of Communications and Digital Economy, Dr Isa Pantami, who was represented by his Technical Adviser, Prof. Saliu Junaidu, said the NITDA Act 2007 is one of the laws that required a repeal and re-enactment to keep it in tune with the developmental regulation direction of the National Digital Economy Policy and Strategy (NDEPS), 2020-2030.
Also justifying the need for the Bill, the Director-General of NITDA, Kashifu Abdullahi, said the scope of ICT has widened over the years with a lot of convergence and expansion in technology platforms used by businesses and governments for delivery services. Abdullahi said: “Considering that 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”.
