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Legal Options Towards Addressing Akwa Ibom State Electricity Concerns

Legal Options Towards Addressing Akwa Ibom State Electricity Concerns

By Ekemini Simon

One of the problems bedeviling the development of Nigeria is electricity shortage. However, over the years, Akwa Ibom State has made frantic effort to wriggle itself out of the challenge.
In 2007, the Obong Victor Attah’s administration completed one of the first and promising Independent Power Plant in the Country, Ibom Power Plant.

Commissioned by President Olusegun Obasanjo, the first phase of the project which cost $191 million dollars (24.4 billion) was expected to add 191MW to the national grid.

According to Obong Attah at the Commissioning, the electricity power situation in the state was so poor that it could not open opportunities for both the private and public sector to utilise their economic potentials that would have driven the state’s investments forward. He saw the birth of Ibom Power Plant as the solution to the challenge.

Years after, that dream seemed to remain a mirage. When Governor Udom Emmanuel came on board, he invested significantly on power in a bid to change the narrative.

Governor Emmanuel’s Investment in Power

According to the  Managing Director of Ibom Power Company, Engr Meyen Etukudo, Ibom Power generates 115 megawatt of electricity a day. This, he said is more than enough to meet the power needs of the state. Curiously, this is not the reality on ground.

The Chairman of Ibom Power Company, Engr Etido Inyang identifies the problem: ” You have 100 plus megawatts or 200 megawatts, yet, PHEDC is picking up like 20. 20 megawatts for the whole state does not take anything. On a normal day, the valuation gives us 70 to 80 megawatts and you are picking only 20. So, it is not looking good at all.”

To address the deficiencies by Distribution Companies, in 2017, the governor built a modern 3311KV, 2X15 MVA electricity injection sub-station in the State Capital, Uyo. Governor Emmanuel also collaborated with Transmission Company of Nigeria to commission a 132/33KV, 1 x 60MVA transformer at Afaha Ube in Uyo. This 60MVA transformer increased the state’s available power for distribution from 96megawatts to 144megawatts. 
Still working with the Transmission Company of Nigeria (TCN), the State Government constructed a 132/33kV, 2 x 60mva transmission substation at Ekim in Mkpat Enin Local Government Area.

In October 2020, Governor Udom Emmanuel also ordered the relaese of 452 transformers to villages which have challenges of electricity. In addition, Akwa Ibom State Government has secured a 30MVA transformer for the proposed construction of the Ikot Abasi substation. Same plan is also made for Oron. Yet, in spite of these investments over the years, most residents of the state have decried the total blackout or epileptic power supply in their areas. According to the Federal Government, the fulcrum of the problem is that Distribution Companies have not been distributing all the power wheeled to them on the pretext that the consumers were not paying for power supply. 

But the Chairman of Ibom Power exposes the key challenge. He says ” The issue of Power being in the Exclusive list is the problem.  This means electricity is controlled by Federal Government. If NERC had done what it should do; sanction the DisCos that take pleasure in rationing power, things would improve.”

“Sadly, that is not happening and it shows that they are not in control.  Nobody is really looking into what the Distribution Companies are doing. They have a cabal as DisCos. They pull it and say this is what we want. If not so, why would NERC backtrack from what they were supposed to do? Erring DisCos were supposed to be sanctioned and that would serve as deterrent. Others would have sat up and the populace would have power.”

Unfortunately, due to the privatisation of power distribution assets and Federal Government’s total control of power transmission, Akwa Ibom State government says it does not have much say on the assets’ utilisation. 

The Power for All Initiative

In 2019,  the Federal Ministry of Power gave a commitment that its ‘differential power distribution policy’ will come into enforcement. Under the policy, electricity is designed to be wheeled directly from the generation companies (GenCos) to willing consumers who are ready to fully settle their bills.

The new electricity distribution policy called “Willing Seller, Willing Buyer” is designed to bypass middlemen and sell power directly to consumers.

To buy into this, the Chairman of Ibom Power Company, Engr Etido Inyang reveals the effort of the administration ” The State Governor is pushing every time to change the narrative. We had gone to NERC before and they said yes, whatever you have to do, let us know.”

“The Governor said I am coming here so that you give me license let me run my power and distribute. That is when the issue of Power for All Initiative came in. They opted for Power for All initiative because it will now be in conjunction with PHEDC”.

Grabbing the opportunity, in September 2019,  during the commissioning of the transmission substation at Ekim, Mkpat Enin, the Vice President, Prof.Yemi Osinbajo, launched a scheme initiated by Governor Emmanuel’s administration, the power-for-all initiative. This initiative is expected to come into force by December 2021.

Be that as it may, the State does not seem totally comfortable with NERC as the regulator in Power-For-All- Initiative.

“We have been trying to get out of the partnership but we cannot. Even if we go now to register, NERC are the regulators. They have been backtracking. There must be focus from forward looking States like us to get licence and run power.” the Chairman of Ibom Power Company notes. Experts posit that the Power for All Initiative will not allow the State gain adequate dividends of the power it generates since the Initiative will still be controlled by the Federal Government.
Regardless, all hopes seem not lost as there are legal options proffered to address the concerns.

Akwa Ibom Has Power to Distribute Electricity- Legal Practitioner

The  Managing Solicitor, Whyte Horse Solicitors, Lagos and also an International Law Partner in the Law Firm of Ceejay Solicitors Stratford, London, Barr Victor Ukutt says Item 14 and 15 under the Concurrent list of the Nigerian 1999 Constitution as amended has empowered States with the power to generate and distribute power.

Item 14 reads: A House of Assembly may make laws for the State with respect to -(a) electricity and the establishment in that State of electric power stations;
(b) the generation, transmission and distribution of electricity to areas not covered by a national grid system within that State; and
(c) the establishment within that State of any authority for the promotion and management of electric power stations established by the State.”

Item 15 states:  In the foregoing provisions of this item, unless the context otherwise requires, the following expressions have the meanings respectively assigned to them –
“distribution” means the supply of electricity from a sub-station to the ultimate consumer;
“management” includes maintenance, repairs or replacement;
“power station” means an assembly of plant or equipment for the creation or generation of electrical energy; and
“transmission” means the supply of electricity from a power station to a sub-station or from one sub-station to another sub-station, and the reference to a
“sub-station” herein is a reference to an assembly of plant, machinery or equipment for distribution of electricity.”

The legal practitioner says with the Constitutional provision, a State that generates electricity does not need the license from NERC rather the only licence needed is a law from the State House of Assembly made pursuance to the Constitutional Provision.

Ukutt adds ” Now, all the State need to do is pass Executive or Private bill to establish a law for the State for generation, distribution and marketing of electricity. And the law says other than those on the national grid. Just set up your own grid line. The State can set up her own distribution grid line.””When they do that, they have to set up their own distribution and marketing company. How would you allow the Federal Government to come and regulate the electricity that you are generating.”

“All Akwa Ibom State needs to do is to set up a law in the State and tell the Federal Government, let’s go to court.  If any of the South West States had an independent power plant, they would have gone to court. ”  Yet, as exciting as the provision may be to States like Akwa Ibom, are there antecedents over States triumphing over the Federal Government on related issues?

Lagos State Successes a Reference Point

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Ukutt recalls that Lagos State had recorded court successes in cases they saw the Federal Government were trying to usurp their constitutional rights.

He notes that there was a time the Federal Government enacted Urban and Regional Planning Act which vested the Federal Government with the right to regulate Town Planning within the Federation but Lagos State saw that the Federal Government were overreaching their powers and went to court.

Ukutt says ”  I was in the Supreme Court that day in 2002 when the Vice President, then Attorney General of the State argued that brief. He said Urban and Regional Planning matters fall under Residual List. It is only the State that can regulate it. 

“The Supreme Court upheld the judgement and said Federal Government, you can’t regulate even though you have a law. They pronounced that that law is null and void to the extend of its inconsistency with the Constitution. That is why Lagos State today, if you look at issues of Property and Town planning approval and building control, there is a lot of money they make from it.”
 What is more, the Lawyer recalls that there was an issue in Tourism, which Lagos State went to Supreme Court and challenged the  Federal Government against regulating hotels since it falls under Residual List. 

He notes that the Supreme Court had ruled in favour of Lagos State with emphasis that the only thing the Federal Government can regulate is issue of Tourist Traffic Visa.

Ukutt adds “That is why Lagos State Government has been able to regulate Hotel occupancy among others and they make good money from it.

” The Federal government also enacted NIWA Act that controls all the rivers in the country. Lagos State went to court and said you can’t. The Court held that the Federal Government cannot regulate interstate water and the one within the State. That is why Lagos State has Inland Water Service Authority and they are making money from it.”

The Legal Practitioner Insists that once the State takes that path, they will not only succeed in controlling the fate of 24 hours electricity in her hands but will have an avenue to receive revenue than the one that she earns from Federation Account. 
With the State Government putting in place a new Ministry in the State; Ministry of Power and Petroleum Development coupled with all time high 2021 capital budget of N3 billion for the Office of Senior Special Assistant to the Governor on Power, many look forward to the option the State Government will take in addressing her power challenges.

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