Major Concerns In NITDA Amendment Bill 2022

The proposed amendment to the Act establishing the National Information Technology Development Agency (NITDA) for advancement of information technology development in the country, is long overdue.

The bill that established NITDA was passed and signed into law in 2007 for the regulating and development of information technology in Nigeria however the legacy Act could no longer address the new developments in information technology space, because of changes that had occurred in the IT sector ever since.

Therefore, major stakeholders backed the National Assembly on the moves to repeal the Act to meet the present and future requirements for the IT industry.

But, a section-by-section review of the proposed NITDA (Repeal & Re-Enactment) Bill 2022 by the Joint Senate and House Committee on Information Communications Technology (ICT) has  shown a clear departure from the expectations of these stakeholders hence the criticisms.

To the Civil Society Organisations (CSOs), this is an attempt by the National Assembly at Social Media regulation. The Nigerian Bar Association (NBA) also condemned the Bill.  The legal practitioners described it as infiltrating and an attempt to unnecessarily duplicate the regulatory powers of some existing government agencies in the country.

Also, the Computer Professionals (Registration Council of Nigeria) (CPN) condemned the proposed NITDA Bill 2022 in its entirety.

In fact, the CPN delegates, led by Kole Jagun, the President and Chairman of Council, were at the stakeholder’s engagement, recently organized by the National Information Technology Development Agency (NITDA) to consider the proposed NITDA Bill 2022 which, among other things, aimed at changing NITDA from an IT Development Agency to a Regulator of the Information Technology industry ecosystem.

Curiously, most of these stakeholders that have condemned the proposed NITDA Bill were left out during the hurriedly arranged joint public hearing by the Senate and House of Representatives Committees on ICT and Cyber Security held in the Senate on Friday December 23, 2022.

The most surprising is that the Bill seems targeted at balkanizing the Nigerian Communications Act 2003.

If the Bill is passed as proposed will ultimately, ‘…reverse Telecoms’ Contribution to Nigeria’s GDP’, borrowing the words of the Association of Licensed Telecommunication Operators of Nigeria (ALTON).

A section-by-section review of the amendment Bill shows that the National Assembly is working on imposing NITDA as a Super-Regulator. Even the celebrated Oronsaye report never envisaged a thing like this.

For instance,

Section 1 of the Amendment Bill (Objectives) reads: “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…”

Note, this was not contained in the NITDA Act of 2007. This is simply laying the foundation of converting NITDA from an IT Development Agency to a regulatory outfit.

Also, 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 Commission’s functions in Section 4 of the Nigerian Communications Act 2003; that empowers the Commission to regulate communications services that drive the digital economy.

It is noteworthy that the Draft Bill has not defined “Digital Economy” in Clause 33

On the other hand, this Bill is a copy-cat of Nigerian Communications Act (NCA) 2003.

NITDA as Nigeria’s version of America’s OIRA

Never in the history of America did the Office of Information and Regulatory Affairs (OIRA, pronounced “oh-eye-ruh”) and the Federal Communications Commission (FCC) clashed over their functions.

They have clear mandates. OIRA, for instance, is a Federal office that Congress established in the 1980 Paperwork Reduction Act (44 U.S.C. Chapter 35). OIRA is part of the Office of Management and Budget (OMB), which is an agency within the Executive Office of the President. In addition to reviewing government collections of information from the public under the Paperwork Reduction Act, OIRA reviews draft proposed and final regulations under Executive Order 12866 and develops and oversees the implementation of government-wide policies in the areas of information policy, privacy, and statistical policy.

OIRA also oversees agency implementation of the Information Quality Act (44 U.S.C § 3516), including the peer review practices of agencies.

In Nigeria, NITDA Act of 2007 empowers the Agency to create a framework for the planning, research, development, standardization, application, co-ordination, monitoring, evaluation and regulation of Information Technology practices, activities, and system in Nigeria. The emphasis is on IT not ICT! What has changed now?

On the other hand, the FCC, like Nigeria’s NCC, regulates interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia and U.S. territories.

FCC is the federal agency responsible for implementing and enforcing America’s communications law and regulations.

Five major concerns in NITDA Amendment Bill 2022

1. Type-Approval

The NCA Act encourages and promotes infrastructure sharing amongst licensees and providing regulatory guidelines thereon.

But, the NITDA Act is now going to bequeath NITDA with the responsibility of “testing, and ‘granting’ approval of the use of information technology infrastructure services and before adoption in Nigeria”.

Concerns:

NCC, it appears, will relinquish the right to carry out type-approval tests on communication equipment and issuing certificates therefore based on technical specifications and standards prescribed from time to time by the Commission. This will leave sour tastes in our mouths as it will affect a lot of things in the telecommunications industry, including the Quality of Service (QoS).

2. Communications Services Interference

Going by NCA 2003, NCC is empowered to for the ‘Preparation and implementation of programmes and plans that promote and ensure the development of the communications industry and provisions of communication services in Nigeria’.

But the new Bill will subtly transfer this power to NITDA. How? With the provision in the Bill that NITDA should be in-charge of ‘The implementation of all Government policies on information technology digital economy’, it then implies that NCC would surrender its mandate on the implementation of all Government general policies on communications industry and execution of all such other functions and responsibilities as are given to the Commission under NCA Act or are incidental or related thereto.

3. Confusion over Cyber Security Related Regulations

Under the NCA Act, NCC is empowered to encourage local and foreign investments in the Nigerian communications industry and the introduction of innovative services and practices in the industry in accordance with international best practices and trends.

Be it as it may, the new Bill ‘empowers’ NITDA to take up the responsibility of promoting digital skills, job creation, government digital services, cybersecurity, digital inclusion, and local content development.

Importantly, the NCC and the Central Bank of Nigeria (CBN) and other stakeholders are in the forefront of digital and financial inclusion with an industry-wide committee. Secondly, there is already a department in NCC that is concerned with cybersecurity, named new media and Information Security. You remember the NCC-CSIRT.

Concerns:
Now, cybersecurity is a serious issue. It is connected to data privacy hence the National Data Protection Bureau should have the mandate to coordinate cyber security related issues.

Another school of thought believes that there are different layers of cybersecurity concerns. For instance, the CBN deals with issues around financial fraud and works closely with other agencies. Already, the Office of the National Security Adviser (ONSA), has its cybersecurity architecture for the country. The Police and the Department of State Security (DSS) have developed platforms to tackle cyber-crimes.

Now, NCC-CSIRT is majorly concerned with cyber incidents targeted at telecommunications – both the operators and the users. So, the argument is that allowing just NITDA to be in charge of cybersecurity related incidents might be overwhelming for them. The National Assembly should be circumspect in this regard.

4. ITU General Assembly, which Agency represents Nigeria: NITDA or NCC?

When it comes to representation of Nigeria at proceedings of international organizations and fora on matters relating to regulation of communications and matters ancillary and connected thereto and general responsibility for economic and technical regulation of the communication industry, of course, NCC has shouldered this responsibility.

However, if you look at it, this Bill confers NITDA with the responsibility to ‘Represent Nigeria at international proceedings and meetings of international organizations’ relating to information technology and digital economy’.

As at the time of this analysis, there are no such fora for information and digital economy.

Digital economy is simply a term coined to mean economy being driven or facilitated by digital technology. Digital technology here is powered by infrastructure such as fiber and radio spectrum which are being managed by NCC in accordance with the powers vested in it by the NCA 2003.  There is also a department in NCC named Digital Economy Department.

Are you seeing the confusion?

5. Section 70 of the NCA 2003 also empowers NCC to make regulations, Guidelines, Directions etc. “The making and enforcement of such regulations may be necessary under this Act to give full effect to the provisions of the Act”, it reads accordingly.

Now, flip to the new Bill, it reads: “The development of regulations, guidelines and directives on the use of information technology and digital services in every sector of the economy to attain the purpose of the Agency”.

Recommendations:

Truly, the NITDA Act 2007 is due for review, especially now its mandate should cover the startup ecosystem and to cater for emerging technologies.

Therefore, the recommendation here is that the Joint Senate and House Committee on Information Communications Technology (ICT) should seek further stakeholders’ input for a robust Bill.

The committee should do everything within its powers to allay the fears of every stakeholder by making sure their views count. And it must be clearly spelt out that the government’s bid isn’t to place further tax burdens on the already over-taxed telecommunications industry.

Culled from Techeconomy