My Position On The Crisis At The National Communication Commission (NCC) - Dr. Bashir Gwandu, Ph.D
October 15, 2012

When I was approached by a reporter from a a newspaper to discuss my take on several issues going on at the National Communication Commission (NCC) I gave straight forward answers and would hope that the Nigerian people can benefit from my insight on these matters.

Below are the answers I gave to a reporter who had approached me by email with some questions:

1) It has been alleged that the NCC Board has recommended punitive actions against you over acts of misconduct as Executive Commissioner in NCC. What is your reaction to this?

Throughout the period I have been a Commissioner in NCC (now almost seven years), I have missed only one Board meeting which clashed with an important meeting of the ITU. In all the meetings I have attended, no decision of any ‘Punitive actions’ was taken against me by the Board. Indeed the meeting which I did not attend did not discuss any matter relating to me. I mentioned the above to state that if any such Board meeting was held without any input from me, it will be in clear breach of the Constitution of the Federal Republic (Section 36) which provides that every citizen of Nigeria (natural or corporate) has a right to receive fair hearing before any punitive action can be taken against the citizen.

I am however aware that some members of the Board resolved to write to the Minister on some false allegations of misconduct put forward against me by Dr. Juwah. The allegations were made in direct response to my disclosure of a major fraud and fraud-in-the-making at a meeting with the Vice-President where I was asked some questions. I was practically given 21 minutes (document came at 0939hrs for a 1000hrs meeting) to respond to the allegation contained in a submission of 94 pages.

I pointed out to the Board that the period given to me was too short. In any case, my written response which adequately addressed all the diversionary allegations was submitted about 40 days ago. It is important to note that as a citizen of Nigeria who has integrity, I have a duty to prevent a crime against the nation or prevent the commission of an offence by the NCC.

This is a case of (as said in Hausa) “if you do not know how to catch a thief, the thief will catch you”.

2) In the course of our investigation, one of the lines of allegations against you was that you had gone ahead to unilaterally reopen Cobranet, an ISP shut down by NCC over illegal occupation of frequency. What is your reaction to this?

The case of closing and opening Cobra-net happened more than 12 months ago, so it is not news. The Commission (which I am a member of) took no decision to shut down any company. It is a case of a Junior staff of the Commission going on rampage, shutting down companies without recourse to the provision of the Nigerian Communications Act 2003 and License Conditions, as well as Section 36 of the Constitution of the Federal Republic of Nigeria. I have also been told that the action was taken contrary the advice of our legal team.

The Law requires us to issue WRITTEN warning, notice, or Direction to our Licensees for any breaches, and Licensees are required to be given fair hearing or an opportunity to make a case against intended punishment, especially that there was no eminent harm that the Company was causing to anyone. The law also requires the NCC to consider the consumers who might have made pre-payments to the company, and take step to migrate them. Unfortunately, those Junior staff who carried such closures neither saw the need to consult me as Executive Commissioner, Technical Services nor the Commission (the Board of Commissioners), but just went ahead and shut down the company.

The Company representatives came to the Commission to complain and could not meet EVC who was said to have travelled and decided to come to me as the most senior officer that was present, Unlike those who shut down the company, I consulted other colleagues, and in consideration of the eminent harm to the company, its subscribers, and the country, as well as breaches of the Communications Act and the Constitution, I wrote the company authorizing them to activate their network to service their consumers (by the way, there is an official document detailing my response on this).

3) What is your reaction to allegations that the decision to reopen the company may have been allegedly induced by the ISP?

This is simply blackmail and I am hearing of for the first time from you 12 months after the incident. It is instructive to note that the allegation is only coming after I exposed a major fraud at a meeting with the Vice-President. You can cross check with the Licensee and I challenge anyone to prove that I acted under inducement.

4) It was also alleged that during the last punitive action whereby various range of fine were imposed against four GSM operators over poor quality of service, you have allegedly told top officials of some of the affected companies not to pay the fines? What is your reaction to this allegation?

Again this is cheap blackmail that has not been substantiated. As regulators we have to be balanced, fair and reasonable. Whilst I do not claim that Quality of Service (QoS) today is in any way acceptable, I opposed the sanction against the operators imposing a penalty of N1.17billion, because I believe that the way and manner the fines were applied was not in conformity with the QoS Regulations. I have made my position clear in a Memo. It is important to note that as the main arrowhead of the Quality of Services (QoS) Regulation, I made provision for the penalties, and was not prompted by anyone to include them in the Regulation. Thus, it is clearly improbable that I will include the penalties and the tight rules if I do not want them to be used.

I insist that NCC has no power other than what it derives from the law and therefore NCC must not work by intimidation but by compliance with the rule of Law. Please note that following the law is a key indicator of regulatory excellence. I remain convinced that the N1.17billion fine was not strictly in conformity with the QoS Regulations and that there is need to ensure that the Regulations are applied properly. I am certain that if the QoS Regulation is applied properly better quality services will result. By the way, long-serving senior staff of NCC can testify you that I have been literally fighting to get the QoS Regulation approved for many years and surely I do not know anyone more committed to QoS improvement in Nigeria than me.

5) It was also alleged that you were "smuggled in" for a second term as Executive Commissioner of NCC as you did not get a Senate confirmation for the position which allegedly constitutes a statutory breach? What is your reaction to this allegation?

In all my life I have never been smuggled into anything. I am a strong believer in merit and excellence, and by God’s grace I know I was considered on the merit before I was appointed an Executive Commissioner. God has shown those people who do not want me here that his power supersedes their machinations and the good will always reign supreme against evil, and the truths shall always, and eventually, prevail over lies and mis-information.

To further answer your questions, I have quoted Section 8(1) and 8(4) of the Nigerian Communications Act 2003.

8. –(1) Subject to subsection (2) of this section, all Commissioners to be appointed after the coming into force of this Act shall be appointed by the President in accordance with section 7 of this Act, from the 6 geo-political zones of Nigeria subject to the confirmation by the Senate.

(4) Subject to sections 11(3) and 11(4) of this Act, each Commissioner shall serve for a term of 5 (five) years from the date of his appointment at the expiration of which the President may renew his term for a further period of 5 years and no more.

Please note that whilst Section 8 (1) mentioned that the appointment is subject to confirmation by the Senate, Section 8(4) vests the power of renewal of term solely on the President. You may wish to consult the Chief Law Officer of the Nation (Attorney General of the Federation) or the Solicitor General of the Federation and I am sure they will confirm to you that I did not need Senate confirmation under the current provisions of the law.

But let me add that I have never for once thought it would be difficult to secure a senate confirmation. I have confidence in our Senators and as long as they are looking for people that will serve this country well in the area of my expertise, I will for the foreseeable future, qualify and meet the required standard to be an Independent-minded Regulator.

6) Another allegation is that as a representative of the Nigerian government in ITU, you have championed positions that were alleged to conflict with that of the country at the UN agency responsible for coordinating the global telecoms industry? What is your reaction to this?

It is unfortunate that I am being persecuted for bringing benefits to Nigeria. My response to this is that, I have my functions under the Act as provided for in Sections 4(v) and 23(c). It will certainly be improper for persons with no authority under any written law to take over the statutory functions of the Commission. Indeed, Section 25 (2) of the Act clearly forbids this. I wrote the papers that were submitted for Nigeria in line with my statutory function of representation in this technical area, and those papers were strictly in line with the vision of Government (see paper 16 of ITU WRC which is publicly available for comparison). Unlike others, I could not oppose my own write-ups, or the vision of government, it is absurd. All papers that were submitted were in conformity with the vision of Government as contained in the vision-20-2020 documents. People should go and read them. I was also able to deliver results for Nigeria which has never been matched by anyone in the 145-year history of the ITU. My interventions have resulted in Nigeria getting spectrum that should generate billions of dollars in revenue (part of which is now being sold at ridiculous prices), and I worked to ensure that Nigerians were elected to ITU positions that we merit as a country. I categorically state that if anyone has submitted papers to ITU canvassing a position for Nigeria that I opposed, I want to have such papers or their ITU assigned-number so I can respond as appropriate.

7) Is the allegation that there was an altercation between you and an Assistant Director of NCC over your request to gain access to information relating to MTS transactions?

I enjoy the respect of staff of the Commission and will have no need to have altercations with any member of staff. The MTS matter is a matter for Dr. Juwah and not for me. When it gets to my office or it is tabled at any forum where I came make contributions, I will air my opinion.

8) Is it factual that you have allegedly taken some of the steps above and some more to undermine the current leadership of NCC to foster your interest to occupy the position of the EVC of NCC as was alleged?

When people want to conceal main issues, and facts, they resort to cheap blackmail. I am part of the leadership of the Commission. It is a Regulatory Commission with Commissioners given statutory independence (even from Ministers) to take decisions and execute their functions. (See Section 25(2) of the NCA 2003) There is good reason for that, as the Commission is sitting between powerful interests. We must withstand pressure and do what is right for the country. No one Commissioner can decide for the Commission and call it decision of the Commission. The NCA 2003 says it is the Board that will decide (Section 5) and the CEO has the duty to ‘primarily’ execute ‘decisions of the Board’. The nature of our work is similar to an appellate as the Commissioners can differ on decisions but the majority decision is the Commission’s decision. If you go to other countries like the USA, Executive Chairman cannot take decisions without a vote.

Look, I had never seen or spoken to Dr Juwah until he came to NCC as the EVC. I have no reason to fight him. Some may say the man came programmed. These types of allegations have been leveled against me by the same cycle of people over many years because I am standing in the way to stop them from undermining the country for selfish gains. Such blackmail will not deter me from executing my functions as provided for by the law, and I am not going to be intimidated, period.

via: Nasir  El'Rufai