An Enthusiast's Journey with the Process of Enacting a Competition/Antitrust Legislation in Nigeria (Part 1)

Still basking in the euphoria of the eventual enactment of Nigeria's Federal Competition and Consumer Protection Act (FCCPA), let me try to capture my role in the process. This will be followed by some technical analysis in the coming days, especially trying to provide the circumstances behind the general orientation of the Bill and some specific 'controversial' provisions. Suffice it to say that not all recommendations flowing from the stakeholder’s engagement and technical advisory committee were adopted in the passed version. In the second part of this story, I'll try to recount the contributions of the various actors I interacted with in the process and how the final 'intrigue' - as much as is appropriate to disclose publicly - that produced the version of the Bill that has become law today.

Friends and associates who are aware of my passion and push for the Bill have been calling and sending in congratulatory messages. I'm sure many of the actors in this process have their stories so this is just a part of the whole story. Let me begin the story from the end and this is well summarised by this excerpt from my resume:

"Worked under two DFID programmes (ENABLE2 and GEMS3) as a short term technical adviser (on rolling contract basis between 2014 and 2017) to advise, train and galvanise stakeholders’ action towards the enactment of the Federal Competition and Consumer Protection Bill. I worked with other consultants to develop and implement an advocacy strategy in addition to forming a private sector coalition on the Bill. I provided ongoing analysis and training to the public sector (Federal Ministry of Industry Trade and Investment; Consumer Protection Council, National Assembly) and private sector stakeholders on the content of the Federal Competition and Consumer Protection Bill and its implications for their businesses and mandates. I collated inputs from the stakeholders and redrafted relevant sections of the Bill as occasion demanded. I wrote several articles and made several media appearances as part of the advocacy campaign. Our effort led to the passage of the Bill by the National Assembly. Prior to the foregoing, I was co-opted into the Committee set up by the Minister of Trade and Investment in 2014 to draft a Competition Policy for Nigeria. The Committee successfully delivered on the task. I was subsequently engaged by DFID-GEMS3 as one of two local consultants to support the Ministry and work alongside international experts to redraft the Competition Policy. I was also retained in the same team of international experts to conduct competition impact assessment on select sectors of the Nigerian economy (2014)"

Indeed, my 'romantic' history with the process of enacting a competition law in Nigeria started in my final year as an undergraduate in 2002. By some chain of events too long to narrate here, I came to know about the first Bill drafted by the Bureau of Public Enterprises (BPE). I then took it upon myself to write my undergraduate long essay (project) on competition law. It was a 'crazy' decision because we didn't have competition law in the curriculum. Nevertheless, my Supervisor was willing to take a chance on it. My first time of coming to Abuja was to visit the National Assembly and BPE to collect the Bill and other materials I could get, including another private member Bill in the House of Representatives. It was the era when online research among students was gaining popularity so I went online and got a few materials. Some old textbooks in the school library came in handy and the rest is now history. My topic? "Competition Law in a Transition Economy: An Appraisal of the Nigerian Federal Competition Bill 2002". Well, needless to say that I scored a distinction on the work,

I should say here that my interest in the subject at the time stemmed from my personal reflections on the questions of poverty, economic development and the role of the law as an arbiter between the weak and the powerful, and between the industrious and the slothful. They had to be a right way of opening up economic space for all citizens to participate and have a shot at improving their lives; and at the same time check distortions in the economic space. It was a matter of economic justice. For me, it's always been "the law for the common good"! The foregoing reflections have continued to be the underlying motivation in my career.

At the onset of my career, I took it upon my self to follow up on the process (which by now had about three different Bills). I continued to improve on the knowledge I gathered from the research for my undergraduate long essay and began to advocate for the Bill in my own little ways, including writing opinion pieces and policy briefs. In the course of my work in the National Association of Nigerian Traders (NANTS), my Boss who was also interested in seeing Nigeria enact a competition law, tasked me with the responsibility for developing a proposal for possible funding by one of our donor partners on advocacy for the passage of the Bill. It was in this process that I came across the website of CUTS International and subsequently got commissioned to contribute some chapters to the Country Research Report (CRR) as part of a project they were implementing in eight West African States. I worked with their Nigerian partner on the project (Consumer Empowerment Organisation of Nigeria, CEON) to deliver the entire project, and in the process benefiting from the various training workshops in Nigeria and elsewhere within the West Africa Region. I also made presentations on the research at the conferences convened in Banjul and Dakar as part of the Project. This also marked my exposure to the global and African competition law community, speaking alongside notable names as Eleanor Fox, Phillip Brusick, heads of national competition authorities in Africa and other renowned experts. Details of the project could be found here and the research report here. Specifically, I authored the following chapters on Nigeria: Progress Made Towards Operationalising Competition Regime. pp 147-149; Political Economy Constraints in Implementing Competition Regime. pp 150-154; Interface Between Sector Regulation and Competition in Select Sectors. pp 155-160; Alleged Cases of Anti-Competitive Behaviour. pp 161-166; Assessment of the Implication of Natural Monopolies on Competition. 175-178. This Project lasted between 2008 and 2010.

The second opportunity to formally engage the process of enacting the competition legislation came in 2009 when NANTS got a grant from DFID-ENABLE1 to carry out advocacy on the process. I had just resigned then so I was hired as a consultant to work on the assignment. Worthy to note that at this time, I had been following the writings of Dr. Nnamdi Dimgba (now Justice Dimgba of the Federal High Court) who holds a PhD in Competition Law from the UK and arguably the foremost authority in the field in Nigeria. So when the the grantees were considering recruiting foreign consultants to work with NANTS on the Project, I made a case for the inclusion of Dr Dimgba whom I understood had advised BPE on the Bill in the past. I wrote to him, introducing myself and the project we were about to embark on and he joined the team of consultants which included Mrs. Sampson from the UK and myself.

What followed was engagement of stakeholders from the private and public sectors as well as civil society, academia and the media. The first task was to explain the meaning of the law and the basic concepts to most of the stakeholders. Needless to say that the intervention could not achieve so much. Let me say here that the most important factors that stood against the process, as I have documented in some of my writings in the past, included: lack of proper understanding of the concept of competition law leading to unnecessary opposition even from lawmakers; outright opposition by certain business interests who understood what it meant but felt it was a threat to their business interest; turf war among government agencies, especially BPE, Federal Ministry of Commerce and Industry (now Ministry of Industry Trade and Investment) and at some point the Federal Ministry of Justice as to who should drive the process and lead the implementation of the law when passed (in fact, at some point, BPE and Ministry of Commerce had two different Bills); and lack of a solid base for sustained advocacy on the subject.

The next opportunity came in 2013/14 when the then Minister of Industry Trade and Investment, Dr Olusegun Aganga set up a four-man committee to draft a policy to support the draft bill that was already done at that point. I was invited by the Chairman of that committee to assist them in their work. Dr Aganga was very passionate about having both the Policy and the Bill passed. We produced the policy document but when the Minister received offer of support from DFID, some foreign consultants were hired to review and update the policy. Once again, DFID recruited me to join the team and we subsequently invited Dr. Dimgba to join us. Well, the Federal Competition and Consumer Protection Policy document was delivered by the team even though the Minister could not get it approved by the Federal Executive Council before the end of their administration.

At the inception of the 8th Session of the National Assembly in 2015, Rt. Hon. Yakubu Dogara (who emerged the Speaker of the House of Representative) reintroduced his version of the Bill which couldn't scale through the legislative process in the 7th Assembly. Working as a Senior Legislative Aide to Senator Athan Achonu at that time, it was easy to convince my Principal to sponsor the version of the Bill coming from the Executive which also could not scale through the legislative process in the 7th Assembly. So we had two different Bills on competition law in the House of Representatives and the Senate respectively from the early days of the 8th Assembly. Subsequently, Hon, Abonta Uzoma Nkem sponsored the the version from the Executive in the House of Representatives. One of the early results we achieved was to get the Speaker to support the version of the Bill from the Executive - remember, this Bill is now sponsored by Hon. Abonta as a private member Bill. I was at this time the short term technical adviser working for ENABLE2 and GEMS3 on the process. Apart from the fact that from a pure technical analysis, the version of the Bill coming from the Executive was more comprehensive (including having both competition and consumer protection aspects) we also exposed the two versions to the private sector and other stakeholders we were engaging with at that time and they all agreed that the version from the Executive should be supported. So this version formed the working document for our training, sensitisation and advocacy activities. Senator Achonu left the Senate through an Election Tribunal decision and subsequently Senator Any Uba sponsored same version of the Bill. So for the sake of historical accuracy, it is the version of the Bill produced by the Executive (led by BPE and with inputs from the Ministry Industry Trade and Investment, Ministry of Justice and the Consumer Protection Council) but sponsored by private members of the National Assembly as indicated above that has been enacted into law - of course, with substantial changes through the legislative process. It bears to note that the Speaker kept his interest alive in the process, even after he conceded to the adoption of the other version. Also important is the personal interest of the President of the Senate in ensuring that the Bill, which was included as one of the "priority bills" for economic reform under the National Assembly Business Environment Roundtable (NASSBER), scaled through the legislative process. So when people ask: what are the game changers that made it possible for the law to be passed this time around? I say: the level of political support, the presence of better understanding among the various stakeholders and sustained advocacy effort under the ENABLE2 supported Private Sector Coalition on the Competition and Consumer Protection Bill (with the Nigerian Employers Consultative Association, NECA, serving as the Secretariat ). Another critical factor was the tenacity of the present Director General of CPC, Mr. Babatunde Irukera who personally led his team in 'pestering' the National Assembly and the Presidency on the Bill. Worthy of note is the role played by the two former Directors General of CPC, the late Mrs, Ifeyinwa Umenyi and Mrs Dupe Atoki (with the now retired Director of Legal Services, Mr Ataguba) but unfortunately, the Bill did not make much progress in their time. Talking about advocacy, the process received a boost from from effort of Mrs Sola Salako-Ajulo whom we first brought in as a stakeholders representing consumer interest and subsequently doubled as a media consultant.

To be continued...