AfriPulse
Nigeria’s electricity industry is confronting a major statutory and governance challenge stemming not from weak policy direction, but from an unresolved leadership gap at the Nigerian Electricity Regulatory Commission (NERC).
Although the Senate has confirmed six Commissioners to represent the country’s six geopolitical zones, no individual was nominated or confirmed as Chairman or Vice-Chairman, prompting experts to warn that the resulting vacuum carries significant legal implications that demand urgent attention.
It was gathered that there are strong indications that authorities may be considering elevating two recently confirmed Commissioners without designated portfolios — Dr. Fouad Olayinka Animashaun and Aisha Kanti Bello — into the positions of Chairman and Vice-Chairman after their confirmation. However, such a step would be unlawful, energy expert and law lecturer, Prof. Yemi said
“The Electricity Act, 2023 does not permit the upgrading or redesignation of a Commissioner into the office of Chairman or Vice-Chairman without a new presidential nomination and a fresh Senate confirmation specifically for those roles.
“Any attempt to do so would be ultra vires and contrary to Sections 35, 36, 40, and 41 of the Act, rendering the action legally invalid. No presidential memo, administrative instrument, or directive from the Secretary to the Government of the Federation can rectify this defect,” he said.
Under the Act, NERC is structured with clearly defined and distinct statutory offices — Chairman, Vice-Chairman, and Commissioners — each with separate legal responsibilities.
These positions are not interchangeable as the Chairman is explicitly designated as the Chief Executive and Accounting Officer, while the Vice-Chairman carries an established leadership function. Commissioners, by contrast, exercise collective regulatory authority but do not hold executive powers.
According to energy and legal expert, the Senate confirmation applies strictly to the specific office for which a nominee is approved and cannot be extended to another role.
It was gathered that as it stands now , NERC currently has no Chairman, no Vice-Chairman, and no legally recognised Acting Chairman or Acting Vice-Chairman.
While the Commission exists as an institution, it currently lacks lawful executive leadership and therefore cannot validly direct or bind participants in the electricity market. This is not a procedural oversight but a serious governance flaw with immediate legal and operational consequences.
Without a duly nominated and Senate-confirmed Chairman or Vice-Chairman, no Commissioner, regardless of seniority or experience , may lawfully assume those functions.
The professor who bared his mind on the issue, said any orders, Directives, Regulations, or binding instruments signed by a Commissioner purporting to act in such capacity would be legally void, and licensees would be entitled to disregard them without consequence.
“Administrative measures such as presidential directives, internal circulars, or SGF memos cannot lawfully bestow executive authority. Neither the President nor any administrative body has the power to convert one Senate-confirmed office into another. While administrative portfolios may be assigned after confirmation, such arrangements carry no statutory weight and cannot replace the constitutional requirement of Senate confirmation,” he said.
The leadership crisis at NERC , according to him is preventable, but its persistence poses serious risks.
To resolve the issue lawfully, he said only constitutionally recognised options are available to President Bola Ahmed Tinubu. “He may nominate a Chairman and forward the nomination to the Senate for confirmation. Alternatively, one or two serving Commissioners may be required to resign and then be freshly nominated as Vice-Chairman or as Chairman and Vice-Chairman, subject again to Senate confirmation. No other route is supported by law.
“Until one of these lawful measures is taken, NERC will remain without a valid executive head, leaving the electricity sector exposed to regulatory paralysis, heightened litigation risk, investor uncertainty, and potential reputational harm to the Federal Government,” he said.
Experts warned that the situation has moved beyond theory, urging swift, transparent, and lawful presidential intervention i to restore legal order, institutional credibility, and confidence in Nigeria’s regulatory framework.
Source: Authorityngr.com | Read the Full Story…
