LEGAL ENABLERS TO INCREASE PRIVATE SECTOR PARTICIPATION

A review of relevant infrastructure-related legislations for increasing private sector participation in infrastructure and developed provided a perspective on some of the key legal enablers for Public Private Partnerships as outlined below.

The primary focus was on Public Private Partnerships as regulated by the Infrastructure Concession Regulatory Commission Act (ICRC). The Commission was established to provide an enabling institutional, legal and regulatory environment within which the public and private sectors could partner to bridge the infrastructure gap in Nigeria. The ICRC Act empowers the Commission with the functions and powers to:

■       provide general policy guidelines, rules and regulations;

■       take custody of every concession agreement; and

■       ensure efficient execution of any concession agreement or contract entered into by the Federal Government.

The Act also provides for MDA’s (Ministries, Departments andAgencies) to enter into contracts with or grant concession to any duly pre-qualified private sector proponent for the financing, construction, operations and maintenance of any infrastructure that is financially viable or any development facility of government.

Another key regulation is the National Policy on PPPs (N4P), which provides MDA’s with operational guidelines for PPP project development. However, this policy and the ICRC Act have some limitations which include:

■       limited scope, with an emphasis on concession contracts to the exclusion of other PPP options;

■       lack of clarity on the Commission’s role as facilitator, as well as regulator of PPPs in Nigeria;

■       no powers conferred on the Commission to summon parties to a PPP contract in order to obtain information or intervene in runaway transactions; and

■       no provision for unsolicited bids or inherited legacy PPP projects.

The ICRC Act is vague and the guidelines as provided by the National PPP policy documents are not investment friendly. While the ICRC Act has no identifiable conflicts with the Constitution, in the area of conflicts with other laws, there are areas of difficulties between the provisions of the Act, and the Bureau for Public Enterprises and the Bureau of Public Procurement legislations regarding jurisdictions and definition of terms. The Act is presently somewhat outdated.