legal regime for the regulation of ict in nigeria
TRANSCRIPT
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1CHAPTER ONE
1.0 INTRODUCTIONInformation and communication technology in more ways than one reflect the
innate nature of man to satisfy his thirst for comfort. These technologies are
basically aimed at improving on the art of sharing information through very
creative ways without the limitations of geographical boundaries. Indeed, the
rapid advancement of technology propels the social welfare, for better or
worse. Information and Communication Technology (ICT) is increasingly
becoming fundamentally critical to the development of our societies and
economies. Access to the internet and telephones is expanding rapidly
knitting together markets, people and communities as it grows, facilitating the
worldwide exchange of knowledge and services.1
In the 1980s, countries began to recognize the increasingly important role of
the Information and Communication Technology sector for economic growth.
Such economic growth was made possible by new inventions in
telecommunication, data and information sharing through the internet,
satellite and wireless services especially in the financial sectors of such
countries. The rapid development of information and communication
technology infrastructure paved way for huge government involvement. As a
result, in primarily developed nations, policies evolved to introduce
1http://www.carapn.net/21445231-information-and-communication-technology-target-2015-
backgrounder.pdf[Accessed April 3 2011]
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2competition albeit, often limited in scope, in an effort to inject dynamism
into the sector, spur innovation, increase choice, enhance availability, and
lower tariffs.2
With the very fast pace of development of information and communication
infrastructure within many complex societies such as Nigeria came the
proliferation of certain problems often associated with ICT operations. These
were issues ranging from monopoly to invasion of privacy, cyber crimes,
consumer exploitation and unequal access to such technologies. It is
undeniably clear that Information and Communication Technology causes
todays many social ills like cyber-bullying and privacy intrusion.
Law plays a huge role in trying to regulate the operations of these new
technologies within the society in order to curb its excesses. Law, being an
instrument of the society, is principally concerned with the determination and
recognition of societal standards of conduct. Through this, law strives to spell
out what conducts are to be regarded as standard acceptable behaviour and
otherwise unacceptable behaviour. Governments all over the world have
recognized the importance of ICT to the development of their societies. Such
governments have also recognized the huge need to provide some form of
regulatory framework to streamline the excesses and flaws that arise from the
ever developing ICT sector.
2http:// rru.worldbank.org/Documents/PublicPolicyJournal/053smith.pdf [Accessed April 3 2011].
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3Notwithstanding the highlighted importance of the regulation of Information
and Communication Technology, the development of information and
communication technology regulation in Nigeria has for a long time received
very little attention.3 As the contemporary world gradually emerges into a
global village, increasingly networked (no longer by asphalt) with the
bridges of satellite, wireless links, fibre optics and the likes with the growing
realisation of the socio-economic significance of ICT as the basic
infrastructure, it has become clear that increased attention must be geared
towards developing of a viable ICT industry in Nigeria.4 One very obvious
way to guarantee such growth and development is through the legal and
institutional regulation of the industry.
This project shall therefore principally aim to examine the legal regime for the
regulation of ICT in Nigeria, its successes and challenges. In doing so, it
seeks to examine the meaning of Information and Communication
Technology, its evolution and the evolution of its regulation, its operation
especially in Nigeria, the international legal instruments and the legal and
institutional framework put in place in Nigeria. The work shall point out the
inadequacies of the legal and institutional framework, its successes and
challenges.
3
Adewopo, A., The Foundation Of Telecommunication Regulations: The Nigerian Experience (1999) UJLJ,Vol. 7, p.117 at 117
4Ibid., p. 118
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41.1 THE MEANING OF TERMS AND RELATED
CONCEPTS
1.1.1 TECHNOLOGYTechnology is a general term for the processes by which human beings
fashion tools and machines to increase their control and understanding of the
material environment. The term is derived from the Greek words tekhn,
which refers to an art or craft, and logia, meaning an area of study; thus,
technology means, literally, the study, or science of crafting.5
The most general definition of technology is the application of science or
knowledge to commerce and industry. Many fields of science have benefited
from technology, as well as commerce and industry over the many centuries
of human history. Perhaps the earliest known use of technology was in the
Stone Age when the first knife or shovel was made from a piece of stone or
obsidian. Technology has obviously come a long way since then. The
development of simple tools from wood or shards of rock show some of the
first applications of knowledge to create technology to solve a problem. The
discovery of fire, which provided a way to cook food and create heat and
light, was also a step along the road of technology. These technological
developments allowed people to accomplish tasks more easily and quickly.
5Merritt, Raymond H. "Technology," Microsoft Encarta 2009, (Redmond: Microsoft Corporation), 2008.
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5As knowledge increased, history entered into the Bronze Age.6 The
introduction of the wheel allowed people greater ability to travel and
communicate.
Advances continued just as rapidly into the Iron Age where people developed
the ability to work with harder metals than copper and tin. They developed the
art of smelting iron and removing it from ore found in the earth. The Iron Age
allowed for rapid increases in many branches of technology. Weapons
making, development of tools that benefit civilization and greater ability to
perform tasks, such as manufacturing and transportation, are just a few of the
technological developments of the Iron Age.
While each Age builds on the developments of the previous ones, new
knowledge is obtained along the way. This new set of knowledge and the
knowledge base of the past allow for new applications to the needs of
society.7
1.1.2 INFORMATIONInformation has been defined8 as
1. Knowledge derived from study, experience, or instruction.2. Knowledge of specific events or situations that has been gathered or
received by communication; intelligence or news
6The Bronze Age shows the evolving ability of man to work with metal and the ability to form stronger
tools.7 http://www.yourdictionary.com/library/technology.txt [Accessed April 4 2011].
8Ibid
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63. A collection of facts or data: statistical information.4. The act of informing or the condition of being informed;
communication of knowledge: Safety instructions are provided for
the information of our passengers.
5. Computer Science Processed, stored, or transmitted data.6. A numerical measure of the uncertainty of an experimental
outcome.
Within the field of information science9, information is defined as the
knowledge contained in the human brain and in all electronic and written
records.
1.1.3 COMMUNICATIONCommunication is the sharing of ideas and information. While many people
think of communication primarily in oral or written form, communication is
much more. A knowing look or a gentle touch can also communicate a
message loud and clear, as can a hard push or an angry slap. Communication
is thus defined as10
:
1. The act of transmitting,2. A giving or exchanging of information, signals, or messages as by
talk, gestures, or writing
9
Information science is the scientific study of information: how it is created, transmitted, encoded,transformed, retrieved, measured, used, and valued.
10http://www.yourdictionary.com/library/information.txt [Accessed April 4 2011].
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73. The information, signals, or message4. Close, sympathetic relationship5. A means of communicating; specifically, a system for sending and
receiving messages, as by telephone, telegraph, radio, etc.
6. A system as of routes for moving troops and material7. A passage or way for getting from one place to another8. The art of expressing ideas, esp. in speech and writing9. The science of transmitting information, esp. in symbols
This definition suggests that there can be several different types of
communication, falling into the categories of non-verbal or verbal11.
NON-VERBAL COMMUNICATION
Non-verbal communication involves exchanging information or transmitting
data without the use of words. There are many examples of non-verbal
communication everywhere in the world.
While you may not stop to think about it, a red light or a stop sign is a clear
form of non-verbal communication. No one is physically telling you to stop,
but you see that symbol or signal and know immediately what is expected of
you.
11
Lievrouw, Leah A. "Communication," Microsoft Encarta 2009, (Redmond: Microsoft Corporation), 2008 .
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8Likewise, body language and facial expressions are also examples of non-
verbal communication. Over the years, numerous research studies have been
done to suggest that babies respond to smiling faces the world over, and that
when a person sees someone else smile, he may become a bit happier as well.
Thus, while understanding non-verbal communication may require some
knowledge of the cultural and social meanings behind the symbols and signs
used, some types of non-verbal communication are instinctual and no
teaching is necessary.
VERBAL COMMUNICATION
The system of verbal communication has become quite complex, with unique
languages each having millions of words.
Unlike non-verbal communication, in order for verbal communication to be
meaningful, there must generally be a readily accepted understanding of the
meaning of a series of sounds. In other words, sounds and words alone aren't
sufficient to communicate: the person transmitting the message and the person
receiving the message generally must have a cultural background or shared
knowledge that allows them to understand what those sounds have come to
mean.
However, even some oral or verbal communication can be intuitive. For
example, animals use verbal communication all the time to transmit messages
to each other. Birds sing, some bugs chirp when mating, hounds bark to alert
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9the pack on a hunt, and even whales sing, although scientists aren't 100
percent certain what those songs mean.
The fact that language was one of man's earliest developments, and the fact
that there are similarities among languages and that animals also engage in
oral communication, all suggest that although some shared cultural
understanding is necessary, the specific act of verbal communication may be
innate.
MEANS OF COMMUNICATION
Over time, the methods and means used to communicate have expanded
greatly. In early records, hieroglyphics and primitive cave paintings were used
to communicate information and transmit messages. Oral stories and
traditions were also passed down through generations and eventually many of
these stories also came to be written down in some cultures.
The use of carrier pigeons, followed by Morse code and telegraph technology
expanded the reach of communication, making it possible for people to send
messages over longer distances.
Today, communication has expanded and is easier than ever before.
Television allows messages to be communicated quickly and instantly to
millions of viewers worldwide, and viewers can watch events such as political
elections unfold in real time.
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10Perhaps nothing has changed communication so much as the Internet. While
television and radio provided one-way communication, the Internet allows for
the two-way exchange of information and lets people throughout the world
send data instantly and share ideas immediately. Video chat, instant messages
and even voice-over-IP telephone systems make it possible to connect with
and communicate with more people than ever before.
1.1.4 TELECOMMUNICATIONThe concept simply means electronic communication. Therefore, it involves
instances where devices and systems are used to transmit electronic or
optical signals across long distances. Telecommunication is therefore the
transmission of information, over significant distances, for the purpose of
communication. In earlier times, telecommunications involved the use of
visual signals, such as beacons, smoke, semaphore telegraphs, signal flags,
and optical heliographs, or audio messages via coded drumbeats, lung-blown
horns, or sent by loud whistles, for example. In the modern age of electricity
and electronics, telecommunications now also includes the use of electrical
devices such as telegraphs, telephones, and teletypes, the use of radio and
microwave communications, as well as fibre optics and their associated
electronics, plus the use of the orbiting satellites and the Internet.
Telecommunications enables people around the world to contact one another,
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11to access information instantly, and to communicate from remote areas. 12
Telecommunications usually involves a sender of information and one or
more recipients linked by a technology, such as a telephone system, that
transmits information from one place to another.
Telecommunications devices convert different forms of information, such as
sound and video, into electronic or optical signals. Electronic signals typically
travel along a medium such as copper wire or are carried over the air as radio
waves. Optical signals typically travel along a medium such as strands of
glass fibres. When a signal reaches its destination, the device on the receiving
end converts the signal back into an understandable message, such as sound
over a telephone, moving images on a television, or words and pictures on a
computer screen.13
These telecommunication devices operate on several systems. These systems
are all independent of the other but all aim at transmitting data and
information across long distances. These systems include telegraph,
telephone, radio, television, global position and navigation systems (GPRS),
personal computers, voice over internet protocol (IP) etc.
Telecommunications systems deliver messages using a number of different
transmission media, including copper wires, fibre-optic cables,
12
http://www.en.wiki pedia.org/wiki/telecommunications [Accessed April 4 2011].13Frieden, Robert. "Telecommunications," Microsoft Encarta 2009, (Redmond: Microsoft Corporation),
2008
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12communication satellites, and microwave radio. Wire-based (or wire line)
telecommunications provide the initial link between most telephones and the
telephone network and are a reliable means for transmitting messages.
Telecommunications without wires, commonly referred to as wireless
communications, use technologies such as cordless telephones, cellular radio
telephones, pagers, and satellites. Wireless communications offer increased
mobility and flexibility. In the future some experts believe that wireless
devices will also offer high-speed Internet access.14
1.1.5 INFORMATION AND COMMUNICATION TECHNOLOGYInformation and communications technology or information and
communication technology, usually called ICT, is often used as an extended
synonym for information technology (IT) but is usually a more general term
that stresses the role of unified communications and the integration of
telecommunications (telephone lines and wireless signals), intelligent building
management systems and audio-visual systems in modern information
technology. Information and Communications Technology consists of all
technical means used to handle information and aid communication, including
computer and network hardware, communication middleware as well as
necessary software. In other words, ICT consists of IT as well as telephony,
broadcast media, all types of audio and video processing and transmission and
14Ibid
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13network based control and monitoring functions.15 The expression was first
used in 1997 in a report by Dennis Stevenson to the UK government16
and
promoted by the new National Curriculum documents for the UK in 2000.
The termICTis now also used to refer to the merging (convergence) of audio-
visual and telephone networks with computer networks through a single
cabling or link system. There are large economic incentives (huge cost
savings due to elimination of the telephone network) to merge the audio-
visual, building management and telephone network with the computer
network system using a single unified system of cabling, signal distribution
and management. This in turn has spurred the growth of organizations with
the term ICT in their names to indicate their specialization in the process of
merging the different network systems.
In this era of global integration, information and communication technology
(ICT) becomes indispensable and embedded in everyday activities. The
promises of ICT seem limitless. It can provide governments, businesses, and
citizens with access to relevant information and allow them to communicate
to make informed decisions and enable more efficient processes and services
to address various economic, social, financial, and educational needs. As a
sector, Information and Communication Technology has contributed to the
15
http://www.wikipedia.org/wiki/information-and-communication-technologies [Accessed April 4 2011].16http://web.archive.org/web/20070104225121/http://rubble.ultralab.anglia.ac.uk/stevenson/ICT.pdf
[Accessed April 2 2011].
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14creation of the most rapidly growing industries, such as electronics, business
process outsourcing, and telecommunication and internet services. As an
infrastructure, ICT is seen as an enabler of economic growth and
competitiveness based on the uptake and utilization of ICT in business and
society.17
1.1.6 INTELLECTUALPROPERTYIntellectual property, very broadly, means the legal rights which result from
intellectual activity in the industrial, scientific, literary and artistic fields.18
These legal rights are known as intellectual property rights. Intellectual
property is a general term that covers all the separate rights like copyright,
patent, industrial designs, trademarks and trade secrets which a holder enjoys
as a consequence of the exercise of his or her human intellect.19
Intellectual property law has as its primary object the protection of a certain
class of property intellectual property. This is suggestive of the fact that
there are several classes of property.
PROPERTY
The concept of property has special importance to the organization of society.
In general, the most important feature of property is that the proprietor or
17Asian Development Bank, Information and communication technology for development: ADBexperiences,( Philippines: Asian Development Bank), 2010, pp1
18Intellectual Property Organization (WIPO), Intellectual Property Handbooks: Policy, Law and Use,
(Geneva: Wipo Publication), 2
nd
ed., 1993, p.319Nasir, J. M., Trade Secrets and/or Confidential Information as It Relates To Intellectual Property
Law(2003) CJLJ, Vol. 6 No. 6, p.27 at p.28
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15owner may use his property as he wishes and that nobody else can lawfully
use his property without his authorization.20
The key entitlement one may
have in relation to property is the right to possess it exclusively the corollary
of which is the right to exclude others from accessing it21. This right of
exclusivity is a hallmark of property. Thus, property has been defined22
as
the right to possess, use and enjoy a determinate thing (either a tract of land
or a chattel). Property can be divided into different classes based on its
characteristics. The most important is that of real property and personal
property.23
Real property, according to English legal tradition, is the land and anything
firmly attached to it, such as buildings and the permanent fixtures of those
buildings, and the minerals beneath the surface of the land.24
On the other
hand, Personal property is anything that can be owned other than real
property. Real property can be turned into personal property if it is detached
from the earth. Similarly, personal property can be attached to the earth and
become real property. Perennial vegetation, such as trees, shrubs and grass,
which does not have to be seeded every year, is usually treated as part of the
real property. When trees and shrubs are severed from the land, they become
20Nasir, J. M., Common Licensing Agreement Terms In Intellectual Property (1999) JPPL, Vol. 3, No. 3,
p.139 at p.14021
Andrew, F. C., Intellectual Property and Intangible Assets: Legal Perspective(2005)IPRIAOP,No. 1/05,p. 1 at p. 9
22
Blacks Law Dictionary, (U.S.A. West Publishing Company, 8
th
ed. 2004) p. 125223Barnes, A. J, Laws For Business, (New York: McGraw Hill), 2000, p.567
24"Property," Microsoft Encarta 2009, (Redmond: Microsoft Corporation), 2008.
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16personal property.25 Personal property is usually classified as either
tangible property orintangible property.
Tangible property, also known as corporeal personal property, is any kind
of property that can be seen, weighed, measured, felt, or touched, or is in any
other way perceptible to the senses, such as furniture, cooking utensils, and
books In other words, property that has physical form and characteristics is
referred to as tangible personal property.
Intangible property is that property that has no physical presence. These
intangible personal properties are usually also known as chose in action. A
chose in action is propriety right in personam. An action is said to be in
personam when its object is to determine the rights and interests of the parties
themselves in the subject-matter of the action.26
Despite its growing importance, intellectual property remains a challenging
area of law. This is because, unlike the laws of real property, the laws of
intellectual property create rights between individuals that are vested in
abstract objects being objects that, inherently, are difficult to define.27
Intellectual property rights are usually associated with intangible properties. A
common way of classifying those intangible assets that constitute Intellectual
Property is as all those things which emanate from the exercise of the human
25
Barnes, A. op cit., p. 56826Blacks Law Dictionary, Op cit., p. 1254
27Andrew, F. C., Op cit., p. 4
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17brain, such as ideas, inventions, poems, designs, microcomputers and Mickey
Mouse28
. This classification is consistent with the notion that the subject
matters constituting Intellectual Property are primarily derived from human
intellectual activity hence the word intellectual in the title. The particular
human intellectual activities that commonly result in most Intellectual
Property are innovation and creativity.
Recent advances in scientific and technological innovation have rapidly
transformed the world, creating new industries, displacing and altering older
ones, and recalibrating business and commercial activity in many ways. This
has led to investments, developing new technology and advancing other
creative activities. The resulting intellectual capital has become a valuable
asset class.
1.2 HISTORICAL EVOLUTION OF INFORMATION ANDCOMMUNICATION TECHNOLOGY
29
The birth of computers and information technology goes back many centuries.
The development of mathematics led to the development of tools to help in
computation. Blaise Pascal, in 17th century France, was credited with
building the first calculating machine. In the 19th century, the Englishman
Charles Babbage, generally considered the father of computing, designed the
28Phillips, J., and Firth, A., Introduction to Intellectual Property Law, (London: Butterworths), 3rd ed., 1995,
p.3.29This would attempt to trace the historical evolution of the systems that enable the communication and
information technologies operate.
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18first "analytical engine." This machine had a mechanical computing "mill"
and, like the Jacquard loom of the early 19th century, used punch cards to
store the numbers and processing requirements. Ada Lovelace worked on the
design with him and developed the idea of a sequence of instructionsa
program. The machine was not complete at Babbage's death in 1871.30
Almost a century later, the ideas re-emerged with the development of electro-
mechanical calculating machines. In 1890, Herman Hollerith used punch
cards to help classify information for the United States Census Bureau. At the
same time, the invention of the telegraph and telephone laid the groundwork
for telecommunications and the development of the vacuum tube. This
electronic device could be used to store information represented as binary
patternson or off, one or zero.31
The first electronic digital computer, ENIAC32
(Electronic Numerical
Integrator and Computer), was developed for the U.S. Army and completed in
1946. Von Neumann, a Princeton mathematics professor, developed the idea
further. He added the idea of a stored computer program. This was a set of
instructions stored in the memory of the computer, which the computer
obeyed to complete the programmed task.
30http://ccis.athabascau.ca/html/courses/comp210/CourseSample/chap01/section1.htm [Accessed April
10 2011]31
Ibid32
The ENIAC's design and construction was financed by the United States Army during World War II. The
construction contract was signed on June 5, 1943, and work on the computer began in secret by theUniversity of Pennsylvania's Moore School of Electrical Engineering starting the following month under
the code name "Project PX".
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19The major activities that expedited the information age can be attributed to the
following:
A. In 1820s Charles Babbage invented the ever first computer calledBabbage machine. It was based on mechanical gears & discs. This was
the first step of human mankind towards computer.
B. From 1890 to 1900, abundant and rapid development of electricity.In 1928, electron movement thesis came that opened various aspects
towards pristine fields. Invention of electronic equipments fuelled the
revolutionary scenario of IT.
C. In 1943, transistor was developed.D. In 1948, ENIAC, the first computer of modern age was invented by
US; it was based on Vacuum Tubes.
E. In 1958, transistors were used with the advantage of less powerconsumption and been more accurate. Computers accommodated 100s
& 1000s of transistors.
F. Integrated circuits (ICs) replaced transistors. They evolved during last35 years and have now become multi tasking, sophisticated algorithm
design based chips.
During this period of evolution, several technologies were developed. These are
Data Processing & storage by computers, 33Communication technology,34
Memory technologies (Laser disc & CD-ROM.)
33These are in the form of silicon based Integrated circuit technology.
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20The Main thrust of Communication Technology came from development of
computer technology and defence requirements. The internet was started as
small project (ARPANET) to communicate within the defence requirements in
1970s.35
Optical fibre technology in communication is used today so that information
must not be lost even to a smaller extent.
Satellite technology & internet use has been wide spread. The evolution of
satellite communication began with the exploration of space and space
travels36
. In 500 years, when humankind looks back at the dawn of space
travel, Apollo's landing on the Moon in 1969 may be the only event
remembered. As a result, weather forecasting has undergone a revolution
because of the availability of pictures from geostationary meteorological
satellites - pictures we see every day on television. All of these are important
aspects of the space age, but satellite communications has probably had more
effect than any of the rest on the average person. Satellite communications is
also the only truly commercial space technology. The launch of
communication satellites over the past few decades reflects the growth of
communication technology. Such satellites in orbit helped improve the
capacities of television, metrological services, telecommunication and indeed
34Communication technology is made possible by Optical fibre communication resulting fibre optic link around
the globe.35http://www.opendb.net/element/19287.php [Accessed April 10 2011]36
http://history.nasa.gov/satcomhistory.html [Accessed April 10 2011]
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21making the world a global village. The chronology of communication satellite
evolution is as follows;37
1956 First Trans-Atlantic Telephone Cable: TAT-1 1957 Sputnik: Russia launches the first earth satellite. 1960 1st Successful DELTA Launch Vehicle 1961 Formal start of TELSTAR, RELAY, and SYNCOM Programs 1962 TELSTAR and RELAY launched 1962 Communications Satellite Act (U.S.) 1963 SYNCOM launched 1964 INTELSAT formed 1965 COMSAT's EARLY BIRD38 1969 INTELSAT-III series 1972 ANIK: first Domestic Communications Satellite (Canada) 1974 WESTAR: 1st U.S. Domestic Communications Satellite 1975 INTELSAT-IVA: 1st use of dual-polarization 1975 RCA SATCOM: 1st operational body-stabilized comm.
satellite
1976 MARISAT: 1st mobile communications satellite 1976 PALAPA: 3rd country (Indonesia) to launch domestic comm.
satellite
1979 INMARSAT formed.37
Ibid38
first commercial communications satellite
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22 1988 TAT-8: 1st Fibre-Optic Trans-Atlantic telephone cable
The transition from an agricultural society to an industrial society took
centuries, but the change from an industrial society to an information based
one is happening in decades. The main engine for the change has been the
computer. Just as the industrial society was based on manufacturing, the
information society focuses on the use of information as a resource. The
information age and the increase in knowledge workers began in the 1960s,
made possible by the rapid evolution of information technology over the last
half century. Many of the jobs that will be available in five years have not yet
been invented. New jobs are replacing the old manual labour and clerical jobs,
and reducing the large administrative bureaucracies of earlier years.
The ability to record, synthesize, and use information has helped to simplify
work processed and to increase productivity. The computer has enabled
automation of the plants that manufacture the products people consume.
Industrial robots and large-scale automation of manufacturing processes has
enabled widespread access to affordable goods. The use of technology to
lever performance has led to the re-engineering of business. Computer
technology enabled the move from mass production to mass customization.
For example, if you want to remodel your kitchen, you can go to a store and
works with a computer that will help you design your kitchen; see what it will
look like and how much it will cost. This is Computer Aided Design (CAD).
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23With virtual reality (VR) software, you can move around in your proposed
kitchen. When you are satisfied with the design, the computer will develop
the list of pars, produce the design drawings, and so on. In some applications,
this customized-design information is then fed into the manufacturing system
(Computer Aided Manufacturing) of automated factories.
The rapid growth of telecommunications and its merging with computer
technology has enabled us to use our computers to communicate world-wide.
The infrastructure to allow computers to connect with each other was already
in place when the personal computer started to become widespread. The
parallel growth of telecommunications has been described as having the
roads, garages and maintenance infrastructure in place when the first mass-
produced cars rolled off the assembly line at the Ford plant. Information
technology can be sued in useful, frivolous or harmful ways.
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24CHAPTERTWO
2.0 SCOPE OF INFORMATION AND COMMUNICATIONTECHNOLOGY OPERATIONS IN NIGERIA
Information and Communication Technologies (ICT) has brought about
unprecedented improvements in the world's economic, political and social
systems. This has led to the development of new goods and services with
attendant significant positive impact on our way of life, such as no other
technology has done before.39 For instance, the Nigerian information and
communication technology sector is one which has, over the years, attracted a
lot of attention via government and foreign investment. The subsector can
currently be credited with grossing for the federal government a huge
percentage of the national Gross Domestic Product (GDP)40
by attracting
huge direct foreign investments.
It must however be noted that the ICT subsector of the Nigerian economy had
not always received the attention it receives today. The development of a
technical industrial or service sector in particular and ICT issues in general
were not front-burner issues. More basic infrastructure issuesparticularly
ground-transport networks, electrical-power generation and distribution, and
the availability, extent, and exploitability of water suppliesoccupied (and to
a large extent continues to occupy the central thrust of governance) the time,
39http://www.aucitmc2010.gov.ng/index.php?view=article&catid [Accessed May 8 2011]
40Atojoko, S., Investment Hot Spots, TELL magazine no. 1 (January 10, 2011), p.10
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25attention, and funds of all budgetary and fiscal policies of the government.
Coupled with this is the pressing issue of population explosion and cost of
living41
.
In realization of the above and the dire need for Nigeria to bridge the digital
divide and be positioned as a major player in the global information society,
the Federal Government of Nigeria embarked on some major initiatives to
enhance ICT development and industry in the country. Prior to 1999,
development in the ICT sector of Nigeria was very low. The federal
government therefore embarked on major reforms in the ICT sector which
included42:
the launch of a new National Telecommunications Policy inSeptember, 2000 with National Communications Commission as
the major regulator of the sub sector;
development and launch of National Policy on InformationTechnology
43in 2001 and National Information Technology
Development Agency (NITDA) was established to implement the
policy; co-ordinate and regulate information technology
development in the country;
41Burkhart G. E and Older S., The Information Revolution In The Middle East And Africa, (California: RAND),
2003, p. ix42
http://www.aucitmc2010.gov.ng/index.php?view=article&catid [Accessed May 8 2011]43Vision statement: To make Nigeria an IT capable country in Africa and a key player in the Information
Society by the year 2005, using IT as the engine for sustainable development and global competitiveness.
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26 the launch of National Space Policy and National Space Research
and Development Agency (NARSDA) was established to
implement the space policy and the Nigerian Satellite programme;
promulgation of the National Broadcasting Commission Degree andestablishment of National Broadcasting Commission (NBC) for the
implementation of the National Mass Communication Policy with
particular reference to broadcasting;
NigComSat, a public private partnership was established in 2006 tomanage and operate the first geostationary communication satellite
in Sub- Saharan African i.e. The Nigerian Communication Satellite
(NigComSat-1);
establishment of Nigeria Internet Registration Authority (NIRA) in2006 to increase Nigeria's presence in the cyberspace; and
Establishment of a national Internet Exchange Point (IXP) in 2007in Nigeria to keep local internet traffic local and reduce the cost of
internet service within the country.
2.0.1 TELECOMMUNICATIONThe Nigerian telecommunications market has undergone radical change over
the
Past few years driven primarily by the introduction of a combination of
several measures.
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27Originally, there was the mono-product public utility which was essentially
built around the plain old telephone (POT) the cablegram services offered by
the Post and Telegraph (P & T), and later the telex and international services
offered by Nigerian and External Telecommunications (NET). This was
followed by the establishment of the Nigerian Telecommunications Plc
(NITEL), the sole carrier and owner of Nigerias only Public Switches
Telephone Network (PSTN)44. NITEL had been unable to meet the telecomm
requirements of the major sectors of the economy, typified by oil and
banking, which had led to players in these sectors investing in and providing
alternative means of communication for their business activities. TheNigerian
government in recognition of this fact had taken steps to liberalize its telecom
sector so as to make it efficient and internationally competitive. The
liberalization process culminated in the privatization via the sale by the
government of 40% of its interest in NITEL shares to technical partners, and
an additional 20% to the Nigerian public by September 1999.
The liberalization of the telecommunications industry began with the
promulgation of the National Communications Commission Decree. The
main reasons for the deregulating the Nigerian telecom industry, within the
44Adewopo, A., The Foundation Of Telecommunication Regulations: The Nigerian Experience (1999) UJLJ,
Vol. 7, p.117 at 118
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28context of National Communications Commission Decree No. 75 of 1992,
could be summarized as follows45
:
1. the inability and unwillingness of government to continue tosubsidize the public telecom company (NITEL)
2. the need to spread some of the burden of running telecom servicesto the private sector
3. a growing demand for more efficient and enhanced modernfacilities especially by the business community
4. the generally poor service delivery, and a slow growth of theinfrastructure, access by rural populations, and quality of service
5. The global trend towards liberalization of telecom services towardsa free market economy.
The deregulation of the sector in the late 1990s ushered in a new dawn in the
telecommunications sector as the number of telephone lines increased.46 The
coming in force of the Nigerian Communications Commission Decree, in
creating the foundation for the telecommunications regulation, established a
Nigerian Communications Commission (NCC).
The process of the deregulation of the telecom sector began in the late 1980s
with the commercialization of the operations of the state enterprise for the
purpose of enhancing its efficiency. However, a greater deregulation of the
45
Folasade, A., trade liberalization and technology acquisition in the manufacturing sector, Nairobi: AERC,2002, pp.43
46Eni, H., On The Digital Train, TELL magazine, no.21 (may 21, 2007), p.37-38
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29sector was effected by the promulgation of the National Communication
Commission (NCC) Decree of 1992. The position upon deregulation was that
telecom services were divided into 2 wide categories - one part for the
exclusive preserve of NITEL, whilst the other allowed for private sector
participation. In other words, NITEL would continue to have a monopoly in
the following activities:
1. Exchange and Trunks2. International services
In effect, the role of NITEL had been reduced to that of an operator and no
longer a regulator or adviser to government on telecomm. Further
deregulation of the sector was effected by the amendment made to the Decree
in 199847. Prior to this, only Nigerians by virtue of section 10(a) of the Decree
could participate in telecommunications activities. However, by the
amendment, the criteria for being licensed as an independent service provider,
as spelt out in Section 10 (as amended), stipulated that No person shall
operate a telecom service in Nigeria unless the person:
a.
is registered as a body corporate under the Companies and Allied
Matters Act 1990
b. Is licensed as a telecom service operator under the provisions of theNCC Decree.
47Nigerian Communications Commission (Amendment) Decree No. 30 1998 Commencement 30th
September 1998
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30The 1998 decree was subsequently amended by the coming into force of the
National Communications Commission Act48
which simply provided thus49
:
No person shall operate a communications
system or facility nor provide a communications
service in Nigeria unless authorised to do so
under a communications licence or exempted
under regulations made by the Commission under
this Act
It is thus instructive to note that there is a prohibition ab initio of any form of
unlicensed telecommunications services and operations in Nigeria50.
As a consequence of its regulatory functions, the National Communications
Commission successfully auctioned the Second Generation51
, digital mobile
licences in 2001, which most Nigerians believe ushered in the real revolution
witnessed in the sector52
. MTN Nigeria, Econet Wireless Nigeria, Mobile
Telecommunications (M-Tel) and the mobile unit of Nigerian
Telecommunications Limited (NITEL), emerged winners. Globacom Nigeria,
the only wholly indigenous telecommunications firm, won a licence as the
48Act No. 19 2003, commencement 8th day of July 2003.
49Section 31(1) NCC Act 2003 - Requirement for licences.
50Adewopo, A, The Foundation Of Telecommunication Regulations: The Nigerian Experience (1999) UJLJ,
Vol. 7, p.117 at 12951
The second round of licences granted to PTO and FWA operators in 2001 after the liberalization of thesector.
52Eni, H., op cit., p. 38
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31second national operator in 2002. NCC has also licensed a number of Fixed
Wireless Access (FWA) operators.
Nigerian Telecommunications Ltd (NITEL), the Pioneer and Government
owned have a limited Fixed Line infrastructure. It has a present capacity of
about 700,000 lines (about 450,000 currently functioning). Private
Telecommunications Operators (PTOs) include Intercellular, Multi-Links,
Reliance (Reltel), Starcomms, Cellcom, among others. These operators
provide Fixed Wireless Access and account for about 250,000 telephone
subscribers. Data services such as Short Message Service (SMS) and Wireless
Application Protocol (WAP) are offered by the Global Systems for Mobile
communications (GSM) networks53. Some of these GSM networks have
roaming agreements with other international networks. The Private
Telecommunication Operators (PTOs) such as Starcomms, Reliance
Telecoms (Reltel), And Intercellular etc. also provide limited mobility
telephones.
Percentage mobile phone growth between December 2001 and December
2002 was 59% and mobile subscribers increased from a mere 500,000 in 1999
to 85 million in 2011, making Nigeria one of the worlds fastest growing
53MTN Nigeria, Reltel, Etisalat and Globacom are the major GSM operators.
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32mobile (GSM) market. More than 80% of the subscribers are in the urban and
metropolitan areas.54
2.0.2 BROADCASTING/SATELLITE OPERATIONSThe landscape of the Nigerian broadcasting industry cannot be complete
without the mention of the Nigerian Broadcasting Commission Act55 which
established the Nigerian Broadcasting Commission in line with the National
Mass Communication Policy. The key highlight in the functions of the
Commission is as stated in the Act56 to the effect that:
The Commission shall have responsibility of
receiving, processing and considering
applications for the establishment, ownership or
operation of radio and television stations,
including:
1.cable television services, direct satellitebroadcast and any other medium of
broadcasting,
2.Radio and television stations owned,established or operated by the Federal,
State or Local Governments.
54
Atojoko, S., op cit., p. 1055National Broadcasting Commission Decree No. 38 of 1992, Act Cap. N11, L.F.N. 2004
56Section 2(b)i & 2(b)ii, NBC Act.
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33The commission, by virtue of its wide powers as provided by the establishing
law, is the only body recognized by law within Nigeria to regulate and control
the broadcasting industry. To this effect, section 2(2)provides that:
No person shall operate or use any apparatus or
premises for the transmission of sound or vision
by cable, television, radio, satellite or any other
medium of broadcast from anywhere in Nigeria
except under and in accordance with the
provisions of this Act.
The NBC has licensed a couple of radio and television broadcasting stations
to operate several wave lengths. Some of these are federal owned while others
are state or private owned stations. The Nigerian Television Authority (NTA)
is one perfect example of a broadcasting station owned by the federal
government and created by law57.
2.0.2.1 Nigerian National Satellite ProgrammesThe national Television and radio broadcasts are transmitted via satellite. A
prerequisite for the effective management of any development is essentially
our ability to monitor the environmental status ands its variations in both time
and space. Earth observation, communication and navigation satellites play a
vital role in the collection and dissemination of information, in a very timely
57Nigerian Television Authority Act, Cap. 329, L.F.N. 1990 Act, Cap. N136 L.F.N. 2004
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34manner providing crucial inputs required for carrying out operationally viable
strategies. Consequently, Nigeria developed a couple of satellites. These were;
A. NigeriaSat-1:The first Nigerian satellite, a microsatellite called NigeriaSat-1, was
successfully launched into low earth orbit on 27th September 2003. To date,
NigeriaSat-1 has captured high quality images, using the six cameras on board
the satellite, and demonstrated good commercial value. The launch has
generated wide spread national attention and stimulated countrywide space
and GI awareness, especially among stakeholders and users of satellite data
for GI acquisition for socio-economic activities in Nigeria. Similarly, decision
makers have shown a great interest and have been highly optimistic about its
application potentials. The fact that data from NigeriaSat-1 is timely
accessible and entirely owned by Nigeria has stimulated research and
development by many relevant institutions of government and the private
sectors in Nigeria. Further benefits of the availability of real-time data from
NigeriaSat-1 include58
:
i.
Opportunity for sharing knowledge and solving the problems of
digital divide in Africa.
58
Abiodun, A., Space Technology and its Role in Sustainable Development, Presented at the AnnualMeeting of the British Association for the Advancement of Science, University of Leicester, 2002,
Leicester, U.K.
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35ii. Ground sampling distance (GSD) or spatial resolution of32m with
an economic swath width of 600km; it has a minimum of five years
life span.
iii. Great potential for broad spectrum of data acquisition for theNational Geospatial Data Infrastructure (NGDI), an initiative for
GI-based economy that will improve the quality of life of Nigerians
and alleviate poverty.
B. Nigerian Communication Satellite [NigcomSat1]As a follow-up to the successful launch of NigeriaSat-1, the government of
Nigeria began the implementation of a Nigerian Communication Satellite
called NigcomSat-1. The project was originally intended to provide the
bandwidth requirement to address the telephony, broadcasting and broadband
needs of the country. NigComSat-1 includes 40 hybrid transponders with 15
years life spans and coverage of the African continent, Middle East and part
of Europe and was eventually launched in 2006/2007. Some of the
implications of NigcomSat-1 to socio-economic development in Nigeria
include the following:
i. To enhance the capabilities of Nigerian engineers and scientist inthe design, manufacture, operation and maintenance of
communication satellite through strategic partnership with technical
partners.
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36ii. To provide a platform for operation of a public services
telecommunication networks in Africa providing linkages to
educational institutions, regional organizations, and government in
Africa, to facilitate developmental activities.
C. African Resource Management Satellite Project [NigeriaSat-2]:This is a joint satellite programme of South Africa, Nigeria and Algeria and
Kenya forming the cornerstone of the African Resource Management (ARM)
Satellite Constellation, laying the foundation of sustainable technology
development in
Africa. The ARM initiative was proposed by South Africa and supported by
Nigeria as documented in a joint space technology project proposal between
South Africa and Nigeria. The countries involved would collaborate in
building capacity to support space programmes in Africa. Such a programme
would benefit Nigeria in advancing the realization of the objectives of its
space policy. The space segment of the system will consist of identical
satellites to be built together by participating African engineers. Each satellite
will have a high-resolution payload with a 2.5 meters resolution in
panchromatic mode and a 5m resolution in multi-spectral mode in 6 spectral
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37bands. The satellites will be phased to operate in constellation and will be
accessed through the integration of the individual ground stations.59
2.0.3 INTERNET DATA COMMUNICATIONAlthough a relatively new sector within the Nigerian economy, internet data
communication has been a world acclaimed tool of communication for
decades. The electronic digital computer made its first appearance in Nigeria
in 1963, in connection with the analysis of the 1962/63 national census data.
The promulgation of the indigenization decree in 1977 which set apart some
categories of industrial activity exclusively for participation by Nigerian
nationals, while stipulating a minimum of Nigerian interest in others led to the
influx of indigenous vendors in the computer business and a keener
competition in the industry. This created more aggressive marketing policies
and a resultant increment in the number of computer installations in the
country.
The turn around in the internet service industry began with the approval by
the Federal Executive Council (FEC) of Nigeria of the National Information
Technology Policy in March 2001. The National Information Technology
Development Agency (NITDA) was subsequently established in April 2001
to implement the Policy. The Information Policy served more like objective
59Mostert, S., Akinyede, J. O. and Adeniran, S.A.,. Joint Space Technology Project Proposal between South
Africa and Nigeria, AREMS, 2003.
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38principles and a vision which the Nigerian government was committed to
pursuing.
Being a service industry with potential of attracting foreign direct investment,
the federal government established the Nigerian Internet Registration
Authority (NIRA) to serve as the body charged with the responsibility of
registering and licensing all Internet Service Providers (ISPs). The number of
licensed ISPs and investment in the sector in the last 8-9years also increased
tremendously, the Nigerian Internet population has therefore witnessed
tremendous growth with a boost from 2,418,679 users in 2005 to an estimated
number of about 10million Internet users in 2008. The figure currently stands
at over 24 million users.60 To cap it all up, the federal government established
a national Internet Exchange Point (IXP) in 2007 to keep local internet traffic
local and reduce the cost of internet service within the country.
Regardless of all these efforts, the most dominant feature of the Nigerian
internet sector is the establishment of the Public Service Networks (PSNet) by
the National Information and Technology Development Agency (NITDA) in
pursuance of the National Information Technology Policy. This PSNet
addresses the major problem of ICT infrastructure, and serves as a pipe for
ICT services. It consists of a Very Small Aperture Terminal (VSAT)61
sited
in the State Capital. This VSAT will provide Internet access for that central
60
http://www.aucitmc2010.gov.ng/index.php?view=article&catid [Accessed May 8 2011]61small satellite terminal used for digital communications, from 1 to 3 meters (3.3 to 10 feet) in diameter,
capable of managing digital transmissions of up to 56Kbps.
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39location and all other locations connected to this centre using Broadband
Wireless Access (BWA) technology. The various sites around the country are
then connected to each other through a Virtual Private Network (VPN).
Nine states (9) have already been completed in the 1st Phase of the project.62
2.1 IMPACT OF INFORMATION AND COMMUNICATIONTECHNOLOGY ON THE SOCIO-ECONOMIC
DEVELOPMENT OF NIGERIA
The growth of information and communications technologies is changing the
way economic and social development occurs in most countries. New ICT
related tools have been known to make institutions and markets more
productive, enhance skills and learning, improve governance at all levels, and
make it easier for services to be accessed.63 Information and communication
technology (ICT) has been regarded as the source for the social and economic
empowerment of any country especially a developing country like Nigeria
and has remained the catalyst of growth for developed countries. Virtually all
government services could be initiated and delivered through ICT and since
these ICT tools are efficient and reliable, they are today functioning as
promoters of good governance in most countries. To realize her vision of
62Ajayi G. O., NITDA and ICT in Nigeria, 2003 Round Table on Developing Countries Access to Scientific
Knowledge, The Abdus Salam ICTP, Trieste, Italy63Opera, S., and Ituen, I., Nigerias ICT sector: Growth, gains and challenges, PUNCH Newspaper,
(Tuesday, 10 May 2011)
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40becoming one of the top 20 global economies in the year 2020, good
governance through ICT hold the ace for Nigerias Vision 2020 program.64
The impact of ICT to the development of Nigeria can be assessed through its
impact on the various sectors of the socio-economic wellbeing of Nigeria.
These sectors are the economy, education, health care, governance,
agriculture etc.
2.1.1 Implications for EducationThe critical issues in basic education have been Access, Equity, Quality
and Management. The development of ICT accelerates the attainment of
full access. Access can be enhanced because it is not that you can physically
build schools in every village before you can have access to information.
Rather even in homes, there can be exchange of information between teacher
and pupil through ICT facilities. Likewise for equity, the information being
passed to the urban schools will be same as information reaching the rural
schools through the full implementation of school mapping and micro
planning. Quality can be maintained uniformly through ICT thus overcoming
the limitations of locations, terrains etc.65
Thus cost of education in terms of
delivery is considerably reduced. For example, one excellent teacher can be
made to teach a number of children at the same time rather than scouting for
64Nwelih E., and Ukaoha K. C., ICT Strategies for Consolidating Good Governance in Nigeria, Pakistan
Journal of Social Sciences, 2010, pp.22765
ICTS And The Attainment Of Universal Access To Education: An Address By The Executive SecretaryUBEC, Dr Ahmed Moddibo Mohammed, On The Occasion Of The 1st Public Sector ICT Infrastructure
Forum Meeting, Held On Wednesday, July 2nd, 2008
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41the equivalent number of such teachers. Teacher capacity is also enhanced.
The entire workforce needed to educate the populace will be reduced and
deployed to other sectors of the economy. This will create a multiplier effect.
The National Policy on Computer Education stipulates the various
objectives to be obtained at these levels. At the primary level, the objectives
are to enable the pupils to:
a. Use the computer and thereby acquire basic skills such as using thekeyboard, accessing and editing file at the operating system level.
b. Use the computer to facilitate learning; andc. Develop rudimentary skills in the use of computer for text writing,
computation and data entry activities.
ICT can be used as a tool to support teaching both in content and
methodology. It can be used while marking assignments, collecting data,
documentation, conducting research and communicating. ICT serves as
medium through which teachers can teach and learners can learn. It can be in
form of drills, simulations, practice, exercises and educational networks. ICT
can be used in handling school records like time tabling, attendance, fee
collection, examination results and general communication which is
commonly referred to as database management.
The Federal Ministry of Education has put in place a Policy on National
Education Management Information System (NEMIS). In addition, computer
education curriculum for all levels of basic education have been developed,
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42launched and distributed to schools. FEDERAL MINISTRY OF
EDUCATION has ensured the deployment of VSAT in Unity schools
nationwide. FEDERAL MINISTRY OF EDUCATION has encouraged
private initiative in the implementation of one computer per child in some
basic education schools. FEDERAL MINISTRY OF EDUCATION has
further made computer/ICT studies to be one of the core and compulsory
subjects in basic education.
2.1.2 Implication for the EconomyThe operations of the various components of ICT operations in Nigeria have
had a massive impact on the economic wellbeing of the nation. A classic
example is how it has impacted the manufacturing industry thereby creating
jobs and employment opportunities. The reach of ICT is evident in virtually
all sectors of the economy, from oil and gas, to manufacturing, agriculture,
banking etc. for instance, the ATM services that allow for withdrawal of cash
from designated points helps to ease the bank service delivery thereby making
banking more assessable to the citizenry.
Economic activities in the last few decades have witnessed very impressive
growth especially in sectors such as banking and telecommunication. Millions
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43of young school leavers and professionals have been empowered
economically thereby increasing the economic base of the nation.66
2.1.3 Implications for Good GovernanceThe term governance is wider than government and refers to the process of
decision-making and the process by which decisions are implemented. Good
governance could be consolidated in Nigeria through a lot of strategies.
Example of well thought applications around the world show that ICT when
applied to governance can help to:67
a. Reduce poverty by creating a more skilled workforce andincreasing the penetration of aid and subsidies to the underserved
b. Provide basic needs by improving the quality of healthcare,providing educational opportunities, planning for basic service
delivery and helping to improve agricultural productivity and
commerce
c. Improve public administration by facilitating informed decisionsmaking, managing the burden of informed decisions making,
managing the burden of foreign debt, revitalizing local economies,
improving policing and safety, improving public administration and
efficiency, facilitating regional, national and sub-national
coordination and communication, improving the quality of public
66
Adewopo, A, The Foundation Of Telecommunication Regulations: The Nigerian Experience (1999) UJLJ,Vol. 7, p.117 at 118
67http://www.unescap.org/pdd/prs/projectactivities/ongoing/gg/governance.pdf[Accessed may 11 2011]
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44services and facilitating better post-conflict reconstruction and
administration. Etc
2.1.4 Implications for AgricultureAlthough petroleum continues to dominate the public finances and foreign
exchange resources of Nigeria, the sector is, in reality, an enclave economy
employing less that 100,000 Nigerians directly in production.
Knowledge is a major need for farmers. It can empower them to make
informed decisionsfrom selecting seed variety to selling their produce in
the market. Knowledge, however, can only be useful if it is credible and
reliable, packaged in a format that target users can understand, and delivered
to a wide audience in a timely manner. On-the ground realities in developing
countries show that a gap exists between credible research-based information
and the extension system, which serves as an information intermediary to
farmers. The challenges lie in the extension services ability to provide timely
feedback to research organizations and in the research systems ability to
transfer new knowledge to the extension system.68 Rural communities have
the need to exchange and exploit information and knowledge more effectively
using ICT to improve livelihoods and reduce their vulnerability to market
price fluctuations, global changes, natural disasters, pest and disease
occurrences etc. Access to ICT is thus used to enhance the social capital of
68www.adbi.org/files/2004.12.08.cpp.rice.knowledge.paper.pdf[accessed may 11 2011]
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45rural communities and strengthen farmers and rural organizations to increase
the ability of farmers to learn from other farmers and formal knowledge
sources.
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46CHAPTER THREE
3.0 THE REGULATION OF INFORMATION AND COMMUNICATIONTECHNOLOGY
Regulation is the act or process of controlling by rule or restriction; such rule
or order, having legal force, usually issued by an administrative agency69
. The
notion of regulation usually and fundamentally involves the creation of laws on
one hand and creation of institutions on the other. The rational behind this
fundamental necessity is the fact that there must exist an administrative organ of
government charged with the responsibility of enforcing certain standards which
themselves are a creation of law70. In other words, regulation is an integral
aspect of the development of any market economy. It usually seeks to protect
investments in business, the growth and stability of the corporate market
economy and the promotion of industrial stability. In order to do this, the state
establishes a monitoring agency charged with wide responsibilities aimed at
achieving certain objectives.71 Regulation is not an end in itself. Rather it is the
vehicle to attain, and subsequently sustain, widespread access, effective
competition and consumer protection. To this end, regulation is a continuing act
which cannot be done away with so long as such subject matter exist needing
regulation.
69Blacks Law Dictionary, (U.S.A. West Publishing Company, 8th ed. 2004) p. 1311
70For instance, the I.T. policy of Nigeria as goals gave birth to the establishment of Nigerian Information
Technology Development Agency (NITDA)71Owasanoye, B., some aspects of monitoring and enforcing corporate regulation under the Companies
and Allied Matters Act (1996) CJLJ, Vol. 2, No. 2, pg. 24 at pg.24
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47The liberalization and introduction of competition in any market economy often
requires strategic policies and regulations that establish an effective regulator,
and dismantle implicit barriers (such as the potential influence of the incumbent
telecommunications operator over the regulator).72
For instance, prior to the telecommunications sector reforms undertaken in many
countries during the last two decades, information communication services were
largely provided under monopolistic conditions, either by state entities or, to a
lesser extent, by private companies. Often the operator and regulator for
information and communication technology services was the government;
therefore, no regulatory independence existed. This classic model of supply
generally concentrated policy-making, regulatory, frequency management and
network operating responsibilities in a single entity73
. This model worked well
for many years in the more developed economies. However, the model did not
work as well in developing countries where networks were generally restricted to
urban areas and more accessible to middle/high income consumers. Cross-
subsidization kept local prices low for the wealthy, but did not generate
sufficient income for infrastructure investment, and low-income consumers were
subject to long waiting lists and poor quality of service.74
72Adewopo, A, The Foundation Of Telecommunication Regulations: The Nigerian Experience (1999) UJLA,
Vol. 7, p.117 at 11773
This was the case in Nigeria where the Nigerian Telecommunications Company (NITEL), prior to the
National Communications Act of 1992, was created as an independent regulator.74
Peter S., Subscribing to Monopoly: The Telecom Monopolist's Lexicon, Public Policy for the Private Sector,September 1995. http://rru.worldbank.org/Documents/PublicPolicyJournal/053smith.pdf [Accessed April
19, 2011]
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48The aims of regulation are very extensive, but this goes without saying that the
proliferation of ICT services often calls for the need to check and control its
operations so as to maximize benefit and ensure equality and fairness. To this
end, regulatory reforms must always include measures aimed at75:
1. Creating independent entities to oversee the introduction ofcompetition in the market and establishment of regulatory mechanisms
for issues such as interconnection, licensing, and tariff rebalancing etc.
2. expanding and enhancing access to ICT networks and services, and3. Promoting and protecting consumer interests, including universal
service and privacy.
3.1 RATIONALE FOR THE REGULATION OF INFORMATIONAND COMMUNICATION TECHNOLOGY
Regulatory intervention, among other reasons, has become very necessary to
safeguard consumer interests, to maintain an effective competitive marketplace,
and to foster the long-term development of the ICT sector. Effective regulation
has resulted in many benefits, such as greater economic and technological
growth, increased investment opportunities, better quality of service, lower
prices and higher penetration rates. The level of regulatory intervention will
vary from country to country, and will depend on various factors, including the
level of ICT service maturity, the legal and regulatory framework, and the
75Guermazi, B and David S., Creating the Right Enabling Environment for ICT, e-Development: From
Excitement to Efficiency, The World Bank (2005), pg. 13.
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49regulatory issues arising from new technologies and services.76 Below are some
of the major issues which regulation must always seek to address.
3.1.1 CYBER CRIMESCybercrimes are crimes involving the use of a computer, such as sabotaging or
stealing electronically stored data.77 The phrase cybercrime is composed of two
principal words; cyber and crime. A reference to cyber is a reference to
anything that relates to computers and the internet. However, a reference to
crime has much more implications. Crime is defined as an act that the law
makes punishable, the breach of a legal duty treated as the subject matter of a
criminal proceeding.78 This definition is suggestive of the fact that a cyber-
crime is any act which is done with the aid of a computer, prohibited by law that
attracts some kind of punishment when breached. The implication of this would
seem to be that before any act can be categorized as cybercrime; such act must
be clearly spelt out in a statute and defined as a crime. However, it must be
stated that in Nigeria there is an acute shortage of laws which spell out which
conducts can be classified as cybercrimes.
Sadly, practitioners and users of ICT are generally confronted each day with
legal issues arising from the deployment of ICT. Cyber crimes and internet
related crimes are realities. As ICT gets more advanced so will the crimes and
other misdemeanours using ICT. Interestingly, so will the law courts be called
76
http://www.ictregulationtoolkit.org/en/Section.1254.html [Accessed March 3 2011]77Blacks Law Dictionary, (U.S.A. West Publishing Company), 8th ed. 2004 p. 399
78Ibid., p. 398
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50upon to adjudicate on these issues but without existing laws?79 It is therefore not
surprising that clear cases of computer and cyber crimes in Nigeria were tried
under the Advanced Fees Fraud Act80
because there are no laws on cyber or
computer crimes in the country. Equally interesting is the position of the
Nigerian law on digitally generated evidence.81
Cyber crimes can therefore be considered as those acts which are prohibited by
law and are nonetheless committed using computers and information technology.
In other words, cyber crimes can also be called computer crimes. Computer
crime can broadly be defined as criminal activity involving an information
technology infrastructure including82;
1. illegal access or unauthorized access;2. illegal interception that involves technical means of non-public
transmissions of computer data to, from or within a computer system;
3. data interference that include unauthorized damaging, deletion,deterioration, alteration or suppression of computer data;
4. systems interference that is interfering with the functioning of acomputer system by inputting, transmitting, damaging, deleting,
deteriorating, altering or suppressing computer data;
79Umar, N., The need for ICT and Cyber laws for Nigeria, Daily Trust Online, (February 16 2011),
http://news.dailytrust.com/index.php/index.php?option=com_content&view=article&id=20060:the-need-for-
ict-and-cyber-laws-for-nigeria&catid=20:law-pages&Itemid=126 [Accessed March 23 2011]80
ADVANCE FEE FRAUD AND OTHER FRAUD RELATED OFFENCES ACT 2006, with commencement date of 5th day
of June 200681
Nigerian courts refuse to admit computer generated evidence on some technical grounds and where such
evidence are admitted they are treated as secondary evidence82Okonigene, R., and Ehimen, A., CYBERCRIME IN NIGERIA, Business Intelligence Journal, January, 2010 Vol.3
No.1, pg. 93 at pg.95
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515. Misuse of devices, forgery (ID theft), and electronic fraud.
These activities more often than not lead to other activities that can cause more
harm to the society. Activities such as cyber-terrorism, cyber-fraud, cyber-theft
etc are some examples of these activities. It is thus mandatory for there to exist
some kind of framework that curbs and reduces the effect of these ills on the
society. Governments are therefore often pressured to put in place institutional
and legal regulatory measures to check these excesses. Most of these pressures
are asserted by the international community. The United Nations through the
United Nations Institute of Training and Research (UNITAR), presenting
recommendations to the member nations of the United Nations, urged members
to adopt certain laws to enhance cyber security.
3.1.2
LICENSING AND TARIFF CONTROLS
The requirement for issuance of licence is a tool of regulation aimed at
controlling activities of operators in any sector. Licensing involves issuing a
permit by a competent authority, conferring the right to do some act which
without such authorization would be illegal, or would be a trespass or a tort83
. A
licensing structure offers the parties the opportunity to draw the line between
permitted and excessive uses with much greater clarity. A very clear example of
this is the provision of section 31 of the National Communications Act84 which
stipulates thus:
83Blacks Law Dictionary, (U.S.A. West Publishing Company, 8th ed. 2004) p. 287
84Nigerian Communications Commission Act No. 19 2003, Laws Of The Federation of Nigeria (L.F.N.)2004
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52(1) No person shall operate a communications
system or facility nor provide a communications
service in Nigeria unless authorised to do so
under a communications licence or exempted
under regulations made by the Commission under
this Act.
This singular provision gives the National Communications Commission, being
the sole regulator of the telecommunications, the power to regulate the
telecommunications sector by way of granting licences to operators. The Act
goes further to make it a criminal offence for any one to operate
telecommunications operation in Nigeria without a permit.85
Licences could also be a regulatory tool to disallow a certain kind of practice and
prohibit any form of conduct that may be detrimental to societal wellbeing. The
National Broadcasting Corporation86 (NBC) in accordance with its statutory
functions of granting licences to broadcast stations87 has been limited in its
powers and shall therefore not grant a licence to a religious organization or a
political party.88
These operator licences are of different classes and often require some basic
standard requirements. The requirements or conditions for the grant of an
85Section 31(2) NCC Act: Any person who acts in breach of sub-section (1) of this section commits an
offence and is liable on conviction86
Established by the National Broadcasting Commission Decree No. 38 of 1992, Act Cap. N11 L.F.N. 200487Supra., section 9(1)
88Supra., section 10
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53operating license are usually contained in regulations which the regulating
authority is empowered by law to make. The benefits of licensing as an
instrument of regulation are many folds. Some of these benefits include:
1. Allows the government to have effective control and knowledge of alloperators within any sector without which no form of uniformity and
regulation can be achieved.
2. Provides a platform to set standards of operations and ensure the highquality of service provided. A perfect example of this is the role of the
Standards Organization of Nigeria which is created by law89 and
empowered90 to investigate all manufacturing industries operating
within Nigeria and ensure that products manufactured within such
industry or factories comply with standards.
3. Licensing also aims at safeguarding consumer interests. For instance,under Nigerian Urban and Regional Planning Law
91, the
commission, board or authority,92 charged with the responsibility of
making and enforcing urban plans, in exercising its power93
to grant,
reject or revoke a development permit shall take into account matters
of over-riding public interest as provided for in section 27 (2), (3) of
the Land Use Act94
.
89Standards Organisation Of Nigeria Act, CAP. 412 L.F.N. 1990, CAP. S9 L.F.N. 2004
90Ibid., Section 5(1)a o
91Nigerian Urban And Regional Planning Decree No. 88 1992 Act Cap. N138 L.F.N. 2004
92
Ibid., Section 27(1)-(5)93Supra., Section 41(b)
94L.F.N. 1990, Cap 202
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54Tariff control is another mode of regulation. However, the control of tariffs is
very much associated with the issuance of license of operation. This is because
any regulatory body with the authority to regulate tariff is in most cases also
authorized to issue permits. Both forms of regulation can thus be said to be co-
extensive. Tariff simply means any schedule of charges especially as charged
on consumers and users of a product or service. The rational behind the power to
control tariff as a regulatory measure is always to safeguard consumer interests.
Therefore, regulatory laws always make it mandatory for the power to review
and approve tariffs to vest in the regulatory authorities. A classic example of this
tariff control power is provided for in section 108(1) of the National
Communications Commission Act95
to the effect that;
Holders of individual licences shall not impose
any tariff or charges for the provision of any
service until the Commission has approved such
tariff rates and charges except as otherwise
provided in this Part.
Without this supervisory and approval powers of any regulatory body, such tariff
rates could well be put so high as to stifle competition and massively take
advantage of consumers or even reduced to an extent where it exterminates
competition. To this effect, tariff rates must always be set on the basis of certain
principles. These may include the fact that:
95Supra
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551. tariff rates shall be fair and, for similarly situated persons not
discriminatory
2. tariff rates shall be cost-oriented3. tariff rates shall not contain discounts that unreasonably prejudice the
competitive opportunities of other providers
4. tariff rates shall be structured and levels set to attract investmentsThe power of tariff control can even be pushed a little further. A couple of
regulatory laws even provide that the regulatory authority can determine how
such tariff can be calculated and computed. The National Electricity
Regulatory Commission which is a creation of the Electric Power Sector
Reform Act96
is further empowered to reasonably determine terms and
conditions prescribing the use of a tariff methodology.97
This means that not
only shall the commission determine the tariffs which the electricity distributors
shall charge customers but shall also determine the methodology by which such
tariffs shall be arrived at.
3.1.3 TECHNICAL STANDARDS AND SAFETYInformation and Communication Technology like other technical services
inhibits some kind of dangers when not properly used. Most of the ICT
infrastructure usually emits dangerous signals and radiation which is capable of
causing serious harm to human health. In order to put a check to these safety
96Act no. 6 of 2005, commencement 11
thmarch 2005.
97Supra., section 71(1)
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56issues, it is expected that regulatory authorities would set technical standards by
which all operators must comply. This is ideal especially considering that in a
business and capitalist motivated environment; huge ICT corporations would do
anything just to get an economic and financial edge thereby ignoring public
health and safety.
In furtherance of the safety issues, regulatory authorities must therefore make
regulations spelling out the technical standards and safety standards for
operators. The issue of standards and safety formed some of the major objectives
of the International Telecommunications Union (ITU) of which Nigeria is a
member. The ITU as an international telecommunication regulator had set
certain technical standards of which all member nations must comply with.
Consequently, amongst the functions of the National Communications
Commission is the formulation and management of Nigerias inputs into the
setting of international technical standards for communications services and
equipment.98
These technical standards for telecommunication operators were
enacted into the Telecommunications Networks Interconnection Regulations99
and expressed in Regulation 15 which bothers Interconnection PRINCIPLES
APPLICABLE