Electricity Act Changes: Forum Vows Court Action Against Sen
The All Electricity Consumers Protection Forum has threatened to institute legal action against the Senate should it proceed with the proposed amendments to the Electricity Act 2023, arguing that the changes would undermine states’ constitutional powers to regulate electricity markets.
In a chat with our correspondent, the National Coordinator of the forum, Adeola Samuel, described the proposed amendment as an attempt to reverse the decentralisation of Nigeria’s electricity sector introduced by the Electricity Act signed into law on March 17, 2023.
According to him, the existing law has enabled about 15 states to establish their own electricity markets in line with the provisions of the Act, warning that any attempt to restore regulatory oversight to the Nigerian Electricity Regulatory Commission would erode the autonomy granted to the states.
“The attempt being made by the National Assembly to amend for the fourth time the Electricity Act 2023 is nothing but an attempt to rubbish the much-appreciated decentralisation of the electricity market and make it a multifaceted market, which is already taking shape with about 15 states adopting and beginning implementation of Section 63 of the Act as presently provided,” he said.
Samuel argued that Section 230(6) of the Electricity Act expressly removes NERC’s regulatory authority over electricity market activities in states that have established their own electricity regulatory bodies.
Quoting the provision, he said, “On the completion of the transfer under subsections 2 and 3 of Section 63 of the Electricity Act 2023, as amended, whichever occurs later in time, the commission (NERC) shall’ have no further regulatory responsibility whatsoever for electricity market activities in its entirety within the state in which regulatory body responsibilities have been transferred.”
He cautioned, “An attempt to tamper with this subsection, which has ousted the power of NERC, will automatically erode the power of the states and their legislative bodies and make them stooges to NERC in operation, which the decentralisation intended to establish as provided for in the original Electricity Act and the constitutional amendment that put the power sector on the Concurrent Legislative List.”
The consumer rights advocate maintained that the Electricity Act, backed by constitutional amendments placing electricity on the Concurrent Legislative List, empowers states to establish, regulate, and operate electricity markets independently.
“A cursory look at the intended amendment by the National Assembly, it’s obvious that their intention to take away the states’ concurrent power from the state assemblies and vest it in the hands of NERC once again will make the much-celebrated decentralisation a ruse,” he said.
Samuel further alleged that the proposed amendment was intended to preserve NERC’s relevance despite the transfer of regulatory powers to state electricity regulators.
“It will be foolhardy for the National Assembly to think we don’t know why the amendment is to strip the SERCs and transfer power back to NERC for oversight functions, because by virtue of the full implementation of the original provision, especially Section 230(6), NERC as an agency will be redundant, and this automatically reduces the oversight functions of the National Assembly Committee on Electricity, which invariably they don’t want,” he stated.
According to him, restoring NERC’s oversight powers would weaken state regulators and ultimately work against electricity consumers by allowing electricity distribution companies to continue practices that consumers have long complained about.
He said the amendment “will further entrench the DisCos’ continuous exploitation in tariffs and activities way too numerous to list.” Samuel urged the Senate to abandon the proposed amendment, insisting that the current legal framework already provides states with sufficient authority to regulate electricity within their territories.
He warned, “We assure the Senate that if they go ahead with the amendment, which will strip the state assemblies of the powers to enact laws related to the electricity markets in their states, which was provided for by the Constitution that accommodates the power sector on the Concurrent Legislative List, we will challenge their action in a court of competent jurisdiction because the amendment is repugnant to the provision of the Constitution, bearing in mind the constitutional provision that says any law that is repugnant to the Constitution is null and void.”
The Electricity Act 2023 liberalised Nigeria’s electricity sector by allowing states to establish their own electricity markets, regulators, and utilities following constitutional amendments that moved electricity from the Exclusive Legislative List to the Concurrent Legislative List.
The National Assembly is currently considering amendments to the law, with some stakeholders expressing concerns that the proposed changes could alter the balance of regulatory powers between NERC and state electricity regulatory commissions.