Article by Olamide Sholabomi
Nigeria’s Federal system makes it necessary to share governmental powers amongst the different tiers of government. The basis for the exercise of legislative powers between the Federal government and state government has been laid down by the 1999 Constitution of the Federal Republic of Nigeria. The relevant provisions as regards the legislative competence of the different tiers of government are contained in Section 4 of the 1999 Constitution, which shares legislative powers amongst the different tiers of government; Part I of the Second Schedule which provides for the Exclusive Legislative list and Part II of the Second Schedule which provides for the Concurrent legislative list.
Section 4 (3) of the Constitution vest in the Federal legislature exclusive competence to make laws in respect to the matters stated in the exclusive legislative list. The effect of this being that any law made by the state legislature in respect to the matters listed in the exclusive legislative will be null and void. Section 4 (4) and (7) of the Constitution vest in both the federal legislature and the state legislatures the power to make laws in respect to matters in the Concurrent legislative list. The presence of a concurrent legislative list will most likely cause a conflict between the federal government and the state government, particularly when both the state and federal government exercise their legislative powers in respect to a matter which they both have competence. The question which would then arise will be which law will apply? This likely conflict was envisaged by the constitution and the Constitution has therefore sought to resolved this by the provisions of Section 4 (5) of the Constitution which provides that “If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void”
Electricity as a subject matter of legislative competence can be found in the concurrent legislative list, specifically Items 13 and 14 of the Concurrent Legislative list. This therefore means that in respect to the regulation of electricity in Nigeria, the responsibility and competence to make laws in respect to electricity matters in Nigeria is vested in both the federal and state governments. It is however important to point out that these powers do not particularly coincide. The Constitution clearly delineates the instances and extent to which either the state or federal can make laws in respect to electricity.
The powers of the Federal government to make laws in respect to electricity is clearly espoused by Item 13 of the concurrent legislative list, which establishes the scope of the National Assembly’s powers in respect to electricity. Item 13 (a) provides that The National Assembly may make laws for the Federation or any part thereof with respect to electricity and the establishment of electric power stations. This particular provision of the constitution vest in the National Assembly the power to regulate the establishment of electric power stations. Item 13 (b) vest in the National Assembly the power to make laws and regulate the generation and transmission of electricity in or to any part of the Federation and from one State to another State. The scope of this power is in respect to the generation and transmission throughout the Federation and from state to state. Item 13 (c) vest in the National Assembly the power to make laws in respect to the regulation of the right of any person or authority to dam up or otherwise interfere with the flow of water from sources in any part of the Federation. This section might not specifically point to the regulation of electricity but this provision is relevant to the Nigerian power sector as one of the major sources of electricity in Nigeria is hydro powered (Kainji Dam). Item 13 (d) vest in the National Assembly regulation of the participation of the Federation in any arrangement with another country for the generation, transmission and distribution of electricity for any area partly within and partly outside the Federation. This provision is not farfetched as the regulation of matters involving foreign investment and cooperation should be done by the National Assembly. Item13 (e) provides that the National Assembly will have the power to make laws in respect to the regulation of the right of any person or authority to use, work or operate any plant, apparatus, equipment or work designed for the supply or use of electrical energy. This basically means that the grant of licences to individuals and corporations who are working in the power industry will be done pursuant to a law made by the National Assembly. The effect of this being that a state house of assembly cannot make any laws in empowering a state agency to the grant of licences to any person or authority who seeks to use, work or operate any plant, apparatus, equipment or work designed for the supply or use of electrical energy in Nigeria.
Section 14 of the Concurrent legislative list provides for the scope of the powers vested on the State Houses of Assembly in respect to electricity. Item 14 (a) provides that the House of Assembly may make laws for the State with respect to electricity and the establishment in that State of electric power stations. This particular provision clearly limits the powers of the House of Assembly to make laws in respect to electricity within the state as no law made by a state house assembly in respect to electricity have any effect outside that state. Item 14 (b) of the Concurrent Legislative list provides that the House of Assembly will make laws in respect to the generation, transmission and distribution of electricity to areas not covered by a national grid system within that State. This particular provision only enables the state supplement the efforts of the Federal government and to regulate grids not under the regulation of the Federal government. Item 14 (c) of the Concurrent legislative list provides that the establishment within that State of any authority for the promotion and management of electric power stations established by the State. This provision points to the fact that the state government has the power to make laws in respect to the maintenance of power stations established by such state.
From the provisions of the Items 13 and 14, it can be concluded that in as much as both the Federal and State governments have legislative competence over electricity matters their responsibilities and competence in respect to this area has been clearly delineated by the constitution. However, this does not mean that a Federal and State law cannot exist side by side, it is possible for a state law and Federal law to exist on electricity in as much as they still fall within the scope of the powers vested by the constitution as held in Attorney General v. Aberuagba (1985) 4 SC 288, 328. It was also held in Ex Parte Nelson (No 1) (1928) 42 CLR 209 that where the federal law does not expressly abrogate the state law but recognises that it can exist side by side with the federal law, there is no inconsistency.