● Says only state assemblies can legislate on power distribution
An energy expert and former member of the Ministerial Taskforce on Power, Engr. Olatunji Ariyomo, has urged members of the National Assembly against the plan to make the Nigerian Electricity Management Services Agency (NEMSA) the sole regulator of electricity’s technical standards in Nigeria.
In an interview in Akure, Ariyomo, who led the team that created the first independent state electricity law in Nigeria and established the first state electricity regulatory commission explained that “the justification advanced for the plan, while sounding good on the surface, is dangerous and has no basis in science, engineering, or law and is entirely antithetical to the ongoing revolution in the power sector”.
The Akure-born engineer who was part of the advocacy groups that led the agitation for the decentralization of the nation’s power sector stated that “the plot to centralize technical standard under a single federal agency is a threat to the very principle of decentralization of the power sector which is now a constitutional right for states.
"It will undermine sectorial growth, encumber investments into the sector through sub-nationals, and jeopardize the success achieved with the clarity brought to the power sector through the alteration of the relevant sections in the constitution as assented by President Muhammadu Buhari on the 17th of March 2023”.
According to Ariyomo “states derived the power to manage the entire lifecycle of the electricity process within their domains from the Constitution and not from the Electricity Act. If we leverage this decentralization properly, we are poised to experience exponential growth in the sector as against the incremental philosophy that we embraced in the past. We would have 37 people collaboratively shouldering a burden hitherto borne by a single person”.
Ariyomo highlighted that “lawmakers erroneously advanced that they desire a centralized provider of technical standard in other to avoid confusion. Confusion? This is very uncharitable. We are discussing engineering here.
"Engineering is a practice, a professional practice. Codes and technical standards are universal. There are no different or disparate standards of practice in engineering worldwide. What you can have are individuals who may desire to shortchange standards. You will find them at the national level, at state level, and in the local government or private sector”.
The engineer added that “for instance, most practitioners in the power sector globally today leverage the IEC technical standards for electrical, electronic, and related technologies whether in distribution or transmission line design or construction. Just the same way that civil and structural engineers have leveraged Eurocodes for several years even when ambitious and patriotic Nigerian engineers called for domestication. So, when national and state or sub-nationals across the world develop or upgrade their grid codes, they mostly recourse to the same IEC. In essence, it doesn’t matter who you are in the power industry, you must rely on the same fundamentals in your design and construction, and in your standards stipulates and benchmarks. That’s why we say codes and standards are universal because they are products of science and engineering. A state’s authority and a federal authority will drink from the same figurative fountain of knowledge. NEMSA does not possess any exclusive expertise or own any technical standard that can outclass the ones by the International Electromechanical Commission for example! Where standards appear to seemingly defer in engineering from the standpoint of non-engineers, they defer only along the principles of science and engineering but remain acceptable with provisions for adaptability and interoperability”.
Ariyomo further asserted that the National Assembly does not have the power to grant exclusive authority to NEMSA on local distribution networks, saying “Moreover the National Assembly does not have the exclusive power it seeks to exercise in making the regulation of technical standards the exclusive preserve of NEMSA. Power is on the concurrent legislative list. You cannot take away from states such rights and privileges granted to them by the Constitution. More significantly, as far as the distribution of electricity is concerned in Nigeria, the power to operate distribution networks or set up institutional frameworks for the management of distribution inter-state or within a sub-national is conferred exclusively upon states by the constitution – the only exception being at international boundaries. In essence, it is illegal for any agency of the Federal Government to dabble in any matter that bothers on distribution within the geographical boundaries of a state except in parts of a state that borders another country in which case such a ‘shobolation’ must in fact be for the purpose of distribution in an arrangement with another country”.
Quoting some sections of the constitution, Tunji Ariyomo stated that “For the avoidance of doubt, the power of the National Assembly on electricity is provided in the Second Schedule to the 1999 Constitution under Concurrent Legislative List, specifically in Section 13 where there are six items, that is, items (a) to (f). A community reading of items (a), (b), (c), (d) and (e) with item (f) shows that the Constitution unambiguously defines the scope of the legislative powers of the National Assembly. Item (f) thereafter defines the power of the National Assembly to legislate on the regulation of items within that scope. Remarkably, in none of the six items did the constitution grant the National Assembly the power to be involved in or meddle in distribution at all, except in item (d) where the National Assembly is clearly restricted to legislate on distribution only when it involves the participation of our federation in an arrangement with another country and solely in parts of our country impacted by that arrangement. The first implication of this in my opinion is that federal legislators cannot cover the field on the subject of distribution. They can only cover the field where they enjoy concurrency with state legislators. The second broader implication of this is that the responsibilities of an agency such as NEMSA should end at an injection substation between a state and the national grid otherwise the agency should be scrapped and its responsibilities ancillary to the grid be collapsed into a department within NERC.
Ariyomo further added that “Section 15 of the 1999 Constitution defines electricity distribution as the supply of electricity from a sub-station to the ultimate consumer”. In contrast with the National Assembly, legislating on distribution of electricity is conspicuously listed as part of the responsibilities of states’ houses of assemblies. The powers of the states’ houses of assemblies on electricity are provided in Section 14 of the Constitution. This is where distribution is situated. The only tier of government that can set up an agency or an authority as envisaged in Section 14(c) with the power to determine or decide what happens between an electrical substation and the final consumer in Nigeria is a State Government and the only legislative House that can make laws to govern distribution activities is a state house of assembly. That is the law. A state can establish an Authority as provided in that Section 14 (c) to manage distribution systems within the state. The Oxford English Dictionary defines ‘Authority’ as ‘the power or right to give orders, make decisions, and enforce obedience’. If we define ownership by who built the infrastructure, in a majority of states in Nigeria, the existing distribution infrastructure and assets being managed by Discos appointed by agencies of the federal government were in fact built by agencies of the state government, landlord, and residents’ associations and individuals within that state. There are Discos that have simply refused to invest in network upgrades and expansion in the past 11 years. Only an Authority established by a state government, the de facto owner of those assets, should legally determine what happens on those networks”.
On the legality of NENSA, the engineer insisted that “As it stands today, the NEMSA Act, laws or legal provisions within the Electricity Act are likely to be technically illegal set of laws because the agency’s activities cover distribution systems within states and its laws enacted by a body that has no such power within the intendment of the 1999 Constitution as amended. Amending the Act will not cure that illegality if it retains powers that foray into areas exclusively reserved for states by the Constitution, such as distribution. Should states decide to mount a legal challenge, it is highly probable that the Supreme Court would strike the illegality down. So it is either NEMSA is ready to accommodate sub-national enforcers of standards or it risks being challenged”.
Warning legislators, Ariyomo submitted further that “More importantly, centralization will only guarantee the continuous failure of the Nigerian power sector. That the National Assembly is ready to sacrifice our gains thus far on decentralization due to the apparent lobbying activities of a few people in NEMSA is a serious cause for concern. NEMSA neither has the capacity nor performance pedigree to support such continuous risky enslavement of the power sector in the hope that it will someday deliver sterling performance, it will not. We are where we are today because of the appalling failures of agencies like NEMSA at the federal level that are spending humongous taxpayers’ money to provide darkness for the masses while pretending to possess the technical expertise to drive success in the sector.
“Let decentralization take its full course. Let Lagos State take charge of its electricity market and determine in absolute what happens within its territory. Let Kaduna State take charge of its electricity market and determine in absolute what happens within its territory. Let Enugu take charge of its electricity market and determine in absolute what happens within its territory. If Ogun State people realize that Lagos State people and businesses enjoy an uninterrupted electricity supply, nobody will teach the government of Ogun State that it needs to sit up. If Kano State people realized that Kaduna State people and businesses enjoy an uninterrupted electricity supply, nobody would teach the government of Kano State that it needs to sit up. If Ebonyi State people realized that Enugu State people and businesses enjoy an uninterrupted electricity supply, nobody would teach the government of Ebonyi State that it needs to sit up. Hence, even if there should be any amendment to the Electricity Act at this time, it should be to empower sub-nationals to collaborate across state boundaries, especially among contiguous states. There could later be mergers as business interests align. Let economy of scale be driven by market considerations and not a national fiat. The country is too diverse to operate unitary utility growth”.
“I have seen comparisons to NAFDAC. Yet, between you and me, states should have agencies that perform roles that are tangential and auxiliary to those of NAFDAC. It should not require a NAFDAC that is quartered in Abuja to determine the quality of life and the quality of food of the people of Okerenkoko in Delta State. Whilst NAFDAC does the heavy lifting at the national level, there should be Departments at the subnational that carry out serious enforcement in the nooks and crannies of each state. That is what a federation should look like. I have also seen the comparison to the Council for the Regulation of Engineering in Nigeria and the Chartered Institute of Power Engineers of Nigeria, ARCON, and similar organizations. Except for mischief however, the very existence of those professional regulatory organs is the exact reason we should have confidence in a state standard or a state’s agency for the regulation and enforcement of electricity and electrical standards and competence certification because of the commonality of the regulators of the professional practice – in this case engineering! Others have mentioned JAMB, the NUC, and NECO, but none of those regulate utilities. Power is a utility. Utilities are local. You can decide to have a national standard but the enforcement has to be local”.
Engr. Ariyomo who had earlier led the team that midwife the successful regulatory transfer process between the Nigerian Electricity Regulatory Commission (NERC) and the Ondo State Government, shared his opinion on the way forward for the power sector, advising that “Even the national grid should be decentralized. Let us have a decentralized series of interconnected secondary regional grids to form our tertiary grid which we can then call a national grid. I have been in gatherings where many erroneously equated decentralisation to balkanization of our power system into hostile units. Our current national grid can be reconfigured to serve this purpose. It’s unfortunate that our mindsets are kind of primed toward adversarial tendencies instead of mutuality and collaboration. If we properly approach decentralisation, each subnational would then constitute the primary grid within its cluster with the ability to wheel excess power to a regional or contiguous cluster where further excess power can be transmitted to the tertiary grid. Federal and sub-national agencies can collaborate on this. We have the technology to achieve it. Humans have in 2024 evolved pass Networked SCADA system which used to be the highest standard. We now have IoT SCADA system that can enable multi-agency, multi-tier, and even multi-sector collaboration to achieve electricity network efficiency. But this will only work if we have competitive sub-nationals that are aiming at providing electricity for their people, for their businesses or productive clusters. Imagine that each state of the federation is encouraged and given a target of a minimum of 700MW new generation, that’s 25,200MW, and a minimum throughput above 15,000MW at a delivery efficiency of just 60% fed directly into the primary and contiguous grids with excess being transmitted to the national grid. Nigeria can achieve this in under 24 months”.
Engr. Olatunji Ariyomo, FNSE
Ariyomo explained further that “The United States of America which many consider a model does not operate a monolithic national grid both by law and in practice. Every state that submitted to federal authority in the US did so out of economic consideration and not because it is forbidden to do otherwise. This is why what the National Assembly is trying to do will kill the little progress being made in the power sector in Nigeria through forced centralization”.
“In the US, a state can decide to completely opt out of the national grid. Texas did. The USA has three separate power grids that are almost completely isolated from one another, the Eastern, Western, and Electric Reliability Council of Texas (ERCOT), the last being owned by a state. Yet, the US maintains 12 different autonomous transmission planning regions. Six of them are full Regional Transmission Organizations (RTOs) — with the mandate and authority to conduct transmission planning for their regions while five planning regions are loose associations of dozens of vertically integrated utilities, which tend to plan transmission with focus mostly on their own local territories.”
The engineer added that “even the regions under federal authority in the USA operate regional electricity autonomies and by so doing prevent the tyranny of a monolithic national authority of one powerful man in Abuja pretending to know what is going on in Ikot Omin in Calabar or Kwajafa in Taraba. Such will never work anywhere. This is why you would observe that the Department of Public Safety of the State of New York issues the Electric Safety Standards for power utilities within the State of New York and not a federal agency in Washington DC. This is why the North Carolina Utilities Commission, an agency of the State of North Carolina created by the General Assembly of that state, regulates electricity utility standards in North Carolina and not some federal agency in Washington DC. .Ditto South Carolina and pretty much every state in the USA even when they conceded to grid connectivity.”
“This is not to say that the US does not have national standards or that Nigeria should not have national standards. I held a meeting with the Chief Executive of NEMSA and his team this year where my team emphasized the need for collaboration and the setting up of a national peerage committee for sectorial standards in the sector to be led by NEMSA. An MOU was agreed to be firmed up between NEMSA and the subnational. It was to become a template for subsequent relationships with states. Both teams appeared elated that we made progress and a public statement was issued to that effect. But the behind the scenes manoeuvre at the national assembly shows that NEMSA wants to be a boss that controls the states instead”.
“If NEMSA wants to stay relevant since a national standard is desirable, NEMSA should be in the forefront of helping states to set up their standard units right away. And the national standards should be a set of codes that all stakeholders collaboratively own. There could be an annual, or a bi-annual council of regulatory authorities in the power sector where heads of agencies continuously meet as peers to address the science of better standards etc and have a special joint committee of experts regularly work on reviewing different aspects of standardisation, codes, etc that constitute the national standards.
“This is where the legislators at both national and state levels can help the sector by making laws that will ensure such authorities that deal strictly in core science and engineering issues are manned purely by qualified professionals”, he concluded.
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