Nigeria’s Communications Minister Adebayo Shittu has been widely quoted as declaring that President Muhammadu Buhari will have the final say on issues arising from the $5.2billion fine imposed on South African telecommunications giant, MTN Nigeria, by the National Communication Commission (NCC). The company’s management has admitted to the infractions for which it was being sanctioned, all it’s asking for is a reprieve in the form of reduction of the huge fine and the time lag for it to pay up the sum that might be allowed.
It is over a week now that the minister has been credited with that statement. Since no denial has come from him, it could be taken that he did affirm that the president would have to put his mouth before the MTN debacle could be settled.
It must quickly be stated, and with all emphasis, that the minister is wrong. He is dead wrong, on several fronts.
To drag the president into a matter as little as affecting a private enterprise operating in the country, diminishes the authorities of the President and the Presidency. The statement also renders infantile the presence of the minister as the supervising authority on matters of communication business in the country, just as it is a gross disservice to NCC as the statutory regulatory body empowered under the law to treat cases as in the instant case affecting MTN, and has acted appropriately within its laws.
The South African company incurred the fine after committing deliberate infractions against the laws of Nigeria.
The fine is supported by the law under Sections 11-18 of the Nigerian Communications Commission (Registration of Telephone Subscribers) Regulations, 2011 (the “regulations”), further to the NCC’s general powers to make regulations as espoused in Section 70 of the NCA, 2003. Section 13 of the regulations provides that a licensee must capture and register the biometric data and personal information of all subscribers within a certain ‘subscriber registration period’. Subsection 3 of the said Section 13 also states that licensees are mandated to deactivate any subscriber who does not register within the subscriber registration window as may be prescribed by NCC. However, if the company leaves any unregistered subscribers on its network, it is liable to pay a fine of N200,000 on each of the unregistered SIM cards.
The NCC, on October 27 2015, imposed the record fine on MTN for failing to comply with the directives of the Commission. MTN had refused to comply, despite receiving a 12 month warning on the importance of ensuring that only SIM cards with valid SIM registration details should be active on telecommunications networks. According to the NCC, the fine issued to the telecommunication company is imperative for addressing their clear disregard for the law.
The relevant penalty sections of the NCC Act state as hereunder listed:
(1) Any licensee who fails to capture, register, deregister or transmit the details of any individual or corporate subscribers to the Central Database as specified in these Regulations or as may be stipulated from time to time by the Commission is liable to a penalty of N200,000.00 for each subscription medium.
(2) A licensee who activates any Subscription Medium without capturing, registering and transmitting the personal information to the Central Database commits an offence and shall on conviction be liable to a fine of N200,000.00 for each unregistered activated Subscription Medium.
20.—
(1) Any licensee who activates or fails to deactivate a subscription medium in violation of any provision of these Regulations is liable to a penalty of N200,000.00 for each unregistered but activated subscription medium .
For these reasons, it is easy to conclude that the penalty imposed by NCC on MTN is well within the bounds of the law.
Is it worth the risk?
The Nigerian Communications Act makes specific provisions for revocation of a licence and lists failure to make payment of a penalty as a potential ground for revocation of a licence. The conditions are listed below:
45.—
(1) The Commission may, by declaration suspend or revoke an individual licence granted under this Act in any of the following circumstances—
(a) the licensee has failed to pay any amount or fine required by or imposed pursuant to this Act or the individual licence;
(b) the licensee has failed to comply with the provisions of this Act or its subsidiary legislation or the terms and conditions of the individual licence ;
(c) the licensee has contravened the provisions of any other written law relevant to the communications industry ;(d) the licensee has failed to comply with any instrument issued, made or given by the Commission ;
(e) if the licensee—
(i) is unable to pay its debts within the meaning of that expression as defined in the Companies and Allied Matters Act,
(ii) enters into receivership or liquidation,
(iii) takes any action for its voluntary winding-up or dissolution or enters into any scheme of arrangement (other than in any such case for the purpose of reconstruction or amalgamation upon terms and within such period as may previously have been approved in writing by the Commission) or if any order is made by a competent court or tribunal for its compulsory winding-up or dissolution ; or
(f) the suspension or revocation is in the public interest.
Just as MTN is grappling with fine over unethical business practices and breach of Nigerian laws, so it is for the big South African company in Uganda. A commercial court in Uganda had also imposed a $622,000 fine on the MTN group after it was found guilty of employing rough business tactics to sabotage another local company, EzeeMoney Limited.
Henry Adonyo, the presiding judge had ordered MTN Uganda to pay Shs800m ($239,520) in general damages for loss of business and Shs1.5b ($449,100) to EzeeMoney as punitive damages, saying it would deter uncompetitive business tactics.
The MTN group has appealed against the fine in Uganda, just as it has requested of Nigerian authorities over the $5.2billion imposed by the NCC. The Uganda case put together with Nigeria’s makes MTN looks like a serial abuser of the laws and regulatory practices of its host countries, and it is in this light that the Nigerian authorities must treat MTN’s infractions against the NCC regulations and directives.
Nigeria must take very critical view of the consequences of MTN ‘s deliberate neglect of the NCC directives on the country’s security, especially in these desperate times when it has been discovered that criminal elements such as the Boko Haram terrorists sect, kidnappers and armed robbers used those unregistered SIM cards for their nefarious activities in the country. MTN’s action was a serious infraction against the security of the country and no serious government treats lightly, the actions of anyone or body corporate that can undermine the good health and security of the nation.
It must be stressed, therefore, that the minister’s declaration about the president intervening on the matter was unwarranted. We call on President Buhari to distance himself and insulate the Presidency from such pettiness. It is unthinkable to expect that as big as Nigeria’s Dangote Group is in the business world would attract the personal attention of US President Barack Obama should the company run afoul of the country’s laws or her operational regulations. It is also doubtful that it would happen in the MTN’s home country in South Africa. So, if it will not happen anywhere in the developed world, it must not happen in Nigeria. It is, indeed, not the direct responsibility of the minister to handle such issues. The NCC has engaged MTN very rightly, and it must be left as the lawful institution to see the matter through.
The reprieve that MTN is asking for should also be clearly defined. Any reprieve that will be granted must be only in terms of the convenience about timeline of payment, not a reduction of the value of the fine.
Any plea by MTN for a reduction of the $5.2billion fine must be rejected, for two critical reasons. (1) The fine is set by law, not by the authorities of the NCC, and so no individual can adjust the figures except otherwise determined by a court.
(2) Despite that any administrative mechanisms to negotiate the fine will be an abuse of the extant law regulating the registration of the subscribers, no action must be taken to suggest that the huge fine was deliberately thrown up in anticipation that it would be negotiated downward. That could also lead to another source of abuse that will make nonsense of the anti-corruption crusade of the Buhari administration.
In effect, MTN and other multinational companies operating in the country must be told in clear terms that Nigeria will no longer tolerate anyone who decides to ride roughshod on our laws. And this is a good case to make that strong statement.
Daily Independent.
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