Legal enablers

A review of the relevant infrastructure-related legislations in the transport sector identified the following key legal enablers for infrastructure development.

  • Federal Highways Act
  • National Railway Corporation Act
  • Nigerian Civil Aviation Authority Act
  • Nigerian Ports Authority Act
  • Nigerian Inland Water Ways Act

Federal Highways Act

The Act is investor-friendly as Section 2(4) empowers the Minister to engage other persons for the performance of functions set out in Section 2(1)-(3) of the Act. Furthermore, the Act does not conflict with the constitution, as section 2(9) fully recognizes the jurisdiction of the states to regulate the use of highways but asserts superiority of the Act over the laws of any state on the subject. The Act is also flexible enough and encourages sub-national participation.

The conflict area in the Act is in the enforcement of the penal enactments in the Act, i.e., Sections 5-18. Here, no provision is made as to specify the court that has jurisdiction to try offenders. The Act cannot be said to be an obsolete law, but there is the need for legislation to ensure and enforce regular maintenance of federal highways. The Act is also flexible for legislative openness, but there is a need to legislate on the duty of government to establish a Fund for and to ensure regular maintenance and reconstruction of the federal highways.

Nigerian Railway Corporation Act

Railways are listed in the exclusive list of the constitution. Section 5 provides for membership of the corporation in terms which seem to be aimed more at political patronage. The duties of the corporation spelled out in Section 15 and 17 are specialised. The Act under Section 28 and 29 prohibits construction or extension of rail lines without prior permission of the Minister, and also does not provide any express permission for private sector participation, except through the issuance of stock to meet its needs for finance under Sections 42 and 43.Again under Section 25, the Act prohibits litigation against the corporation for recovery of compensation. Section 69 provides that the scale of damages to be awarded for acts caused by the corporation is a mere ₦200 (equivalent of USD 1.25). All these factors make the Act less investment-friendly. While the Act is constitutional, the listing of railway transportation in the exclusive list of the constitution discourages sub-national participation going by the provisions of Section 29.

Generally, conflict is bound to arise if a state identifies a need for rail transport services within its territory but the Act imposes a restriction against it. Furthermore, the power to acquire land is subject to the Land Use Act, therefore conflicts are bound to arise in the implementation of the Act. The provisions of the Act have not been adapted to present realities and it is therefore out-of-date. The Act being subject to the National Assembly is open to amendment and could sufficiently address infrastructure development in Nigeria if properly revised.

Nigerian Ports Authority Act

The Nigeria Ports Authority (NPA) is established by Section 1 of the Act, and Section 2(i)(e) provides for executive directors of the authority though without specifying their number. Section 7 of the Act empowers NPA to manage, supervise and control or take part in the management, supervision or control of any company or undertaking under its purview. This Act also allows for sub-national participation based on the provisions of Sections 7 and 8(b) and 9.

The conflict area of this Act relates to acquisition of land and compensation pursuant to Sections 24 and 29(2) of the Act. The section places jurisdiction on the High Court exercising jurisdiction in the place where the land is located, while the Federal High Court does not have jurisdiction over land disputes.

The law is generally effective but being legislation on a subject which has international correlations, there will always be the need to stay abreast of international best practices, with a view to ensuring compliance. There are few or no restrictions in the Act; therefore, there is legislative openness for infrastructure development inherent in the Act.

National Inland Waterways Authority Act

Sections 13 and 23(i) of the Act limits participation by the private sector; under this Act, activities and functions of the National Inland Waterways Authority by any person other than the Authority is a punishable offence. The Act also prohibits persons from taking sand, gravel or stone from the waterways, making this legislation unfriendly to investment.

Waterways are not defined in the Act, except in section 10 which lists out sundry rivers across the country. Private participation in the activities listed in Section 23 is prohibited without limitation even when it is obvious that such activities are the major economic activities of the locals in the affected areas. The authorities are not equipped to perform all the functions listed in Section 23 without issuing licenses to the private sector. Again, the provisions 23(i) (a) of the Act are a limitation of the powers of the states under the Land Use Act. While the Act is not in conflict with the constitution, it does not encourage sub-national participation due to the restriction expressly imposed by Section 23.

As regards conflicts, the functions conferred on the Authority by Sections 8, 9 and 11 of the Act are covered by Sections 7, 8 and 30 of the Nigerian Ports Authority Act, in respect of many items. The absence of a proviso in either of the Acts on the exercise of these powers by either of the authorities is a potential source                                for conflicts.

The provisions are not obsolete except for the need to keep a close tab on best practices in other jurisdictions. The Act is open to amendment but its provisions are not easily open to construction which can enhance private participation and investment.

Nigerian Civil Aviation Authority Act

Section 1 of the Act establishes the authority and spells out its functions in Sections 7, 35 and 36. There is no express provision enabling the authority to concession any aspect of its functions to the private sector. The Act is constitutional. However, the Act does not permit sub-national participation, as it is listed in the Exclusive Legislative List.

Section 22 of the Act contains healthy provisions for land acquisition by the authority which removes or at least remits conflict, thus there is no legislative conflict. The law is not obsolete but there is need to ensure that it is in line with global best practices. Regarding legislative openness, there is no limitation inherent in the Act, but there is need for legislative flexibility to enable engagement of the  private sector.