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The Perils of Rogue Public Agencies, By Chidi Odinkalu [MUST READ]

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IN January 2014, a coalition of advocates, including Femi Falana, a Senior Advocate of Nigeria, SAN; Jiti Ogunye and Tokunbo Mumuni, both senior lawyers; and I wrote to the Economic and Financial Crimes Commission, EFCC, inviting it “to investigate the allegations of fraud detailed by the two committees set up by President Goodluck Jonathan in the wake of the 2012 fuel subsidy crisis.” It failed to do so. Ten years later, the EFCC, a public agency, is now preoccupied with chasing after cross-dressers. How it got so derailed bears attention.

At the beginning of this past week, Nigerians woke up to the story that a demographic of energy users, described in the language of the industry as “Band A” and constituting roughly about 15% of the approximately 12 million official subscribers to electricity in the country, will have their energy tariffs raised by 230.8%. They claim the four other bands will be unaffected. That’s false. Tariff regulation in the energy sector in Nigeria is the primary responsibility of the Nigerian Electricity Regulatory Commission, NERC, a body created originally under the Electricity Power Sector Reform Act in 2005 which was repealed and replaced in 2023 by the Electricity Act.

For some time prior to last week, various news media had sought unsuccessfully to confirm from the NERC the veracity of information suggesting that it had reached a decision to upwardly review the electricity tariff or that it had plans to do so. When it broke the story on April 2, Bloomberg, a private and foreign news agency, credited “people in the presidency with knowledge of the matter”, suggesting not only a decision with a long gestation period but also that one that had the active authorization of the presidency. The implication is that when it initially denied to Nigerian news sources that it had such plans, the NERC had dissembled.

The day after the Bloomberg story, on April 3, NERC confirmed the accuracy of the report. On the same day, it released the text of the applicable statutory instrument, dated March 28, which designated the commencement date as April 3.

The energy minister, Adebayo Adelabu, chimed in, explaining that the decision was because Nigerians keep their deep freezers plugged even when absent from home. This energy minister is so out of touch, he doesn’t know that deep freezers need constant electricity. But how could he when all he does is prance about in private jets.

For context, the Energy Progress Report issued jointly by the International Energy Agency, the United Nations, the World Bank and the World Health Organisation, among others, in 2022, conservatively assessed over 92 million Nigerians as without access to electricity. This is at the very bottom of the global energy league. The NERC claims that one of its reasons for the secret energy tax is to “attract more investment into Nigeria’s power sector.” This is what one of my old teachers called “future speculative tense.”

For starters, the new tariffs foster undue discrimination contrary to Section 116(2)(e) of the Electricity Act of 2023 which requires the Commission in setting tariffs to “avoid undue discrimination between consumers and consumer categories.”

The principal crisis with energy consumption currently is not generation but transmission. The country is unable to evacuate anything close to what it generates. To achieve an increase in energy supplied to or enjoyed by any band, therefore, the Transmission Company will have to create energy hunger in a band somewhere in the consumption ecosystem.

So, to increase the quantity of energy supply that it guarantees to the Band A customers, NERC has to ensure reduction in what is transmitted to those at the bottom end of the bands. In other words, the increase of transmission to Band A customers is achieved by eviscerating supply to the roadside vulcanizer, the neighbourhood Mama-Put restauranter, the welder, all of whom will suffer denial of energy.

This pricing strategy is also poorly reasoned. The Band A users whom it supposedly favours are mostly in a position to transfer the burdens of the higher tariffs to consumers, most of whom are in the lower bands. This hits lower band consumers with a double whammy. By imposing energy hunger on them, it threatens the livelihoods of micro, mini and informal entrepreneurs and will put many of them out of business. At the same time, it will increase their costs of consumption. Unable to pay the new prices of goods and services, they will vote with their feet, which will hit revenues, profitability and viability of industry, leading to loss of jobs, loss of tax take and ultimately burdensome social costs.

What emerges is that the new tariffs are effectively a regressive energy tax on the poor. In a country already afflicted with prohibitive insecurity, even further rise in insecurity is foreseeable.

It became clear also during the week that NERC chose to adopt this most consequential of decisions for citizens, employers and consumers in utmost secrecy. To preclude predictable public furore about it, the NERC also garlanded the decision making with a bodyguard of lies. Not satisfied with this, the release of the statutory instrument coincided with a pattern of coordinated online behaviour which clearly suggested that the Commission had actively recruited a gang of digital influencers and bloggers in order to create maximum distraction from the measure.

One source of such distraction was the EFCC. As the NERC rolled out this prohibitive energy tax on April 3, the EFCC procured the high profile arrest of Idris Okuneye, a transactional transvestite, better known as Bobrisky, on impressive charges of “abuse of the Naira” and alleged money laundering. With unremitting alacrity, the Commission first paraded Bobrisky, a practice that has repeatedly been declared unlawful by courts in Nigeria. Thereafter, they arraigned him before the Federal High Court in Lagos.

The law that establishes the EFCC defines “economic and financial crimes” to mean “non-violent criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in a group or organized manner thereby violating existing legislation governing the economic activities of government and its administration.” At the court, the EFCC dropped the two counts relating to money laundering, ultimately charging Bobrisky only with crimes connected with so-called “abuse of the Naira.”

Having dropped the only charges that could remotely fall within the purview of economic or financial crime, the EFCC forfeited any claim to acting within the law or in the public interest because abuse of the Naira, whatever that means, is outside the statutory scope of crimes that it can prosecute. Yet, in a mere 48 hours, the EFCC processed Bobrisky through the entire gamut of criminal justice from arrest to conviction, setting a Nigerian record in prosecutorial diligence.

It becomes evident, therefore, that the charges against Bobrisky were an artifice for persecuting a person whose life choices are a tad unusual. The EFCC lent itself to this despite the fact that Lagos, where Bobrisky lives, decriminalized the Victorian crimes of “unnatural offences” long ago in 2011. Nor does the leadership of the EFCC remember that over half a century ago, Uzoma Odimara freely promenaded as a cross-dresser and entertainer around the country under the name “Area Scatter”.

In the week in which the EFCC bungled and threw the biggest corruption case in the country in a quarter of a century, it takes unique institutional commitment to frippery to reduce its core business to chasing cross-dressers. In targeting Bobrisky as it has, the EFCC arguably sought to achieve the twin objectives of distracting Nigerians from the NERC’s steep and unlawful energy tax while at the same time pressing home a blinkered wedge advocacy.

In so doing, the leadership of the Commission clearly abused the sacred instrument of prosecutorial prerogative and showed itself as either idle or misguided, if not both. When this was brought to their attention, they descended into threats, bluster and cringe-worthy trade in mangled adjectives. One concerned citizen responded that “EFCC has gone rogue.”

Ten years ago, citizens looked to them as part of the solution. Today the EFCC has become part of the problem.

Chidi Anselm Odinkalu is a lawyer and professor teacher at Tufts University, Boston. He can be reached by email HERE.

The opinions expressed in this article are solely those of the author.

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