On Wednesday the 29th of May 2019, the Federal Republic of Nigeria again swore in President Muhammadu Buhari for a second term in office. For many Nigerians, the administration’s return to power presents an opportunity for it to consolidate many of its reform agenda.
Muhammadu Buhari GCFR is a Nigerian politician currently serving as the President of Nigeria, in office since 2015. He is a retired major general in the Nigerian Army and previously served as the nation's head of state from 31 December 1983 to 27 August 1985, after taking power in a military coup d'état.
This piece argues that given the multifarious challenges that the new Nigerian Federal Competition and Consumer Protection Commission (FCCPC) already faces, i.e, from Nigeria’s status as a developing country, the commission can take advantage of the institutional openings presented by the new Nigerian regime, to advance its objectives.
Importantly, beyond the technical issues of the necessity of a competition culture, and resources, for the efficacy of the new Nigerian competition law, the broader administrative law context of Nigeria is also relevant. Here, the newly re-inaugurated Nigerian administration presents some key opportunities, the Nigerian agency can utilize.
Specifically, the generally accepted denominators of a successful competition law are the relevant social norms of competition; the requisite resources to sustain or galvanise the framework, when it is introduced, and the appropriate legal structures to interface with the enacted law to actualise the law’s objectives.
For example, concerning the social norms, the relevant social practices that priorities the acceptability of ‘competition’, as a market value, and necessitates its inclusion in the relevant markets, contribute highly to the success of a competition law. In the key jurisdictions where the law has flourished, the broad-based social acceptance of ‘competition’, as a desirable social value, and the norm by which the market ought to be regulated, greatly advances the purposes of the jurisdictions.
In the US, for example, the country’s anti-trust law was originally inaugurated on, and continues to be sustained by, a social acceptance of competition over the grip of ‘cartels’. Similarly, in other jurisdictions, the success of the regimes draws from the broad-based social acceptance of ‘competition’, i.e., over other forms of monopolistic tendencies, especially, by the relevant societal actors.
Concerning resources, the availability of the requisite human and financial resources, for the enforcement of a competition law, forms the bedrock of the efficacy of the law. Similarly, the appropriate legal framework refers to the complimentary ancillary rules and procedures that will assist the enforcer of a country’s competition law achieve its aim. A good example is the existence of plea bargaining in the US. However, beyond the above ‘technical’ requirements, for a competition law, other societal components are also relevant. They include the overall, broader, societal ‘space’ within which the adopted law of a country will operate, and the absence of corruption to ensure that the introduced law will be free of hijack and distortion.
The relevant broader social space or ‘culture’ refers to the broader social perceptions that guide the general attitudes of citizens towards the laws of a state (or how the citizens perceive the overall legitimacy of a state’s laws to be), and the absence of corruption refers to the bedrock or institutional ‘normalcy’, of a state, that guarantees the long-term success of its laws or frameworks.
In Nigeria, the condition of the above parameters, before the ascension of the current government, is documented. Especially, within previous regimes, a pervasive and institutionalised dissatisfaction, with the government, and the process of governing, existed in Nigeria.
A 2012 report submitted to the United States Congress by the Secretary of State John Kerry has alleged massive corruption at all levels of the Nigerian government.
Also, a concretised and largely unchallenged, grand, form of corruption was also the norm. The first (disaffection) flowed from the absence of genuine and targeted pro-poor programs, in the previous administrations (or the failures of the same where they existed), and the latter (corruption) arose from the complicity of the governments, in the vice of corruption, coupled with the manifest lack of punishment for corrupt figures where they were discovered.
However, with the current administration (while by no means perfect), a huge chunk of the regime’s popularity has arisen from its demonstrated willingness to interrogate the above status quo. Specifically, two areas where the government has been successful, include its pro-poor social agenda and the regime’s war on corruption.
In the first case, for example, following the regime’s inauguration, in 2015, the administration introduced various social measures to combat the almost institutionalised sense of inequality in Nigeria. Examples of measures introduced by the regime include the Nigerian Social Investment Program (N-SIP), consisting of the N-Power program; the Home-Grown School Feeding program, and the Conditional Cash Transfer scheme meant to assist petty traders, university graduates, NCE holders and less-privileged Nigerians.
Other schemes also include the Nigerian Industrial Revolution Plan—that established the Nigerian Industrial Policy and Competitiveness Advisory Council, constituted of the government and key private sector representatives at the highest levels of the country; agriculture sectoral initiatives—including the Nigerian Anchor Borrower’s program, operated by the Central Bank of Nigeria and kicked off to assist subsistent and industrial farmers improve their quality of living and reduce Nigeria’s dependency on imports, and the Special Presidential Committee on key commodities, set up to effectively strategise the Nigerian government’s efforts in the area. The government has also embarked on a wide range of infrastructural developments to foster a sense of inclusion amongst Nigerians and improve their lots.
In addition to the above, the current administration has also been aggressive against corruption; with the country’s anti-corruption agency recording at least nine hundred and forty-three anti-corruption cases between 2015- 2018. Particularly, during the period, erstwhile ‘powerful’ and ‘untouchable’ entities in Nigeria have been arrested, with some currently serving jail terms. The list includes serving senators of the federal republic of Nigeria; past governors of states and federal ministers; a serving chief justice of the federation; different judges; the chairman of the Nigerian Bar Association (NBA), and the heads of various governmental parastatals.
Other measures that have been also put in place by the administration to combat the menace of corruption in Nigeria include, the implementation of a Treasury Single Account (TSA); a whistleblowing policy; an Efficiency Unit of the government, and an Integrated Payroll Personnel System (IPPIS), implemented across the various governmental MDAs, to enhance the efficiency of the government and remove unjustified payroll entries from the government’s fiscal registers.
Admittedly, the above measures by the current Nigerian administration hardly touch directly on the technical prerequisites for the success of a competition law. But they open up significant opportunities which the new Nigerian competition law commission can utilise to advance its objectives.
Especially, the success of a competition law is informed by the political, social, cultural and institutional fertility of the forum into which the law is introduced. Furthermore, in Nigeria, owing from the nation’s ostentatious status as a developing country, the country already faces significant drawbacks, in its ability to operationalise a competition law. Therefore, both facts make the above ‘successes’ of the current Nigerian administration relevant.
The Nigerian agency can adopt the following measures to advance its objectives.
First, the agency can take advantage of the current good will of many Nigerians, to advance the formative message of the importance of a competition law for Nigeria. Particularly, the current Nigeran administration’s social programs have reduced (not eliminated) the previous, characteristic, suspicion of many Nigerians towards the government. This reality presents a distinct opportunity for the competition agency to position itself as a socially inclusive organisation, working in line with the Nigerian Federal Government, to better the welfare of Nigerians. A successful utilisation of the strategy, by the commission, will reduce its resource burdens.
For example, in the face of the current widespread social acceptance by Nigerians, more Nigerians will be willing to voluntarily obey the competition law, as espoused by the agency, and Nigerians will also be willing to distribute the information of the commission, thereby reducing its overall costs. Here, the agency can achieve the objective by recruiting popular Nigerian (entertainment) figures and community leaders to share the message of social and economic inclusion, through competition, and the commission can also take advantage of the prime role religion plays in the Nigerian society.
Second, the Nigerian competition commission can also utilise the current federal government’s ‘war’ on corruption to advances its mission. Specifically, the commission can couch anti-competitive practices as a form of corruption that disadvantages Nigerians.
Further still, the commission can also carefully select cases to prosecute, relying on the currently reduced chances of ‘hijack’ by corrupt judges on appeal, in Nigeria, to get its message out. (A similar strategy has been successfully adopted by the Nigerian EFCC, a comparable law enforcement agency). The competition commission can also take advantage of the anti-corruption policies of the current federal government and lobby for the extension of the same to anti-competitive practices. One such key policy is the Nigerian whistleblowers’ policy, set up by the Nigerian Federal Ministry of Finance (FMF), in December 2016. A key component of the whistleblowers’ policy is the Nigerian federal government’s attempt to undermine the secrecy that ordinarily advantages corruption in Nigeria, including by providing financial rewards (parts of the recovered booty) to informants.
Therefore, by relying on the already functioning Federal Government of Nigeria’s policy on whistleblowing, and especially its provision for financial rewards to whistleblowers, the Nigerian competition commission can integrate an otherwise problematically developed competition law tool, and leapfrog certain advanced jurisdictions (including the United States of America).
Competition law reform is a complicated form of legal engineering and the analyses typically focus on the existence of technical prerequisites for the success of regimes. However, in developing countries, issues beyond the above technical analyses are also relevant. In the contexts, interrogating broader questions of the overall societal and institutional ‘space’ of a competition law is crucial. This piece has highlighted specific opportunities that currently exist under the present Nigerian administration. The opportunities are non-traditional, but they are significant, and the Nigerian agency will be better off if it utilises them.
The writer Dr Bob Enofe is an international researcher in International and Comparative Competition Law