Monday, July 20, 2009

NCC and the 2.3 GHz controversy

I HAD to restrain myself from joining the fray for long and prayed that the matter would be quickly resolved. This was a difficult decision for me. Hardly a day passes when I don't read falsehood concerning the controversial sale of the 2.3 GHz Frequency band, and have the itch to put pen to paper. Finally, my patience ran out a few days ago. It was because of an alleged report from the Attorney General, Mike Kaase Aondaaka endorsing the purported sale of the broadband by the Nigerian Communications Commission, NCC.

According to the report published in The Guardian of July 14, 2009, the AGF had written to President Umaru Yar'Adua on June 2 this year, explaining that the NCC did not breach any law or Act in its handling of the sale. This was news to me. I believe this development took the conflict to an utterly preposterous level. Why? It offered a seal of approval for the illegality perpetrated by the NCC and would encourage other agencies to flout directives from their ministers, with the conviction that any disagreement or conflict on the matter would be referred to the AGF for judicial interpretation. This is a dangerous precedent.

But let me not get ahead of myself; first, the facts of the matter. In May this year, the NCC placed an advert in a few newspapers, calling for bidding for the 2.3 GHz Frequency Spectrum from interested buyers. The Frequency Spectrums are limited and scarce resources which are essential for services in the telecoms and broadcast industries. Globally the allocation of frequency spectrums is done by the International Telecommunications Union, while matters of spectrum management and allocation in Nigeria are handled by the National Frequency Management Council, NFMC which has the Minister of Information and Communications as Chairman. Section 28 of the Communications Act 2003 states clearly that NFMC shall ''carry out bulk Trans-Sectoral allocation of spectrum to statutory bodies that are authorised by enabling laws to allocate spectrum to end-users and receive and allocate returns and statistics on spectrum allocation to end-users from the statutory bodies specified...''. But in this very sale, Ndukwe's NCC acted suo moto! And since the 2.3 GHz Spectrum was never allocated by the Council, the licensing was a nullity ab initio. As we speak, the Minister has challenged Ndukwe to produce the minute containing the resolution to sell off the broadband to no avail.

Aside this, the Controversial NCC advertisement gave interested buyers of these scarce national resources just five days to pay up and have the money cleared in its account. This was clearly in contravention of the Public Procurement Act, which stipulates that the advertisement for Federal Government property should be placed for a minimum of two weeks. This is to ensure that such deals are widely publicised and thus every Nigerian has the opportunity to bid for them if they wish to. The NCC advertisement was obviously in contradiction of the letter and spirit of the Public Procurement Act.

But that was the least of the 'offence' of the NCC in this matter. One of the major reasons why the controversial sale was a 'no no' is because the spectrum was not even NCC's to give out. The allocation of Frequency Spectrum was solely the function of the NFMC, and not even the Minister could bypass this important Council in the licensing rounds. The NCC claimed that the approval was given by the immediate past Minister of Information and Communications, John Odey. But the NFMC had debunked that in a letter, stating that the NCC had not been given its expressed approval, and the Commission was expected to refer back to it before making any plans to sell the frequency spectrums. Of course, NCC did not do that, and was trying to sell the Frequency Spectrums through what appeared to be a backdoor deal. It is no wonder then that the sale drew the ire of stakeholders in the telecoms industry, and a petition was sent to the minister.

It was all these that rankled Akunyili and made her to order Ernest Ndukwe, the Executive Vice Chairman of the NCC to halt further actions on the controversial sale. A simple directive, which Ndukwe flouted with impunity, and instead began a war of calumny against the Minister in the media. The honest attempt by Professor Dora Akunyili to resolve the matter has met a brick wall. For instance, at a meeting in May this year with stakeholders, a number of decisions were reached, chief of which was that NCC's sale of the 2.3 GHz frequency bands be cancelled, and new process which meets the principles of fairness, transparency and openness be conducted. At that meeting were Professor Akunyili, the Minister of State, Alhaji Aliyu Bilbis, Ndukwe Chairman of the NCC, Alhaji Ahmed Joda and others. That directive too was also flouted by Ndukwe's NCC.

If Akunyili is given to washing dirty linen in the public, she would have engaged Ndukwe in a fight but she didn't. Instead the former NAFDAC DG respectfully brought the matter to the attention of the President. She did so on June 10.

The purported working paper which the AGF allegedly sent to the President was on June 2, which means that the AGF took position on the matter without hearing the minister's take on it. Assuming the report is true, then the Attorney General has broken one fundamental principle of law, which is fair hearing. That raises a poser, why was Aondaaka in a hurry to pass judgement, so to speak, on matter he was not very familiar with, without listening to both parties involved?

This apparent gang up against Akunyili goes deeper than the AGF's office. In that same report in The Guardian, it was stated that Akunyili's predecessor, Odey wrote a letter to the AGF, explaining that the 2.3 GHz band was exclusively allocated to telecommunications in the table of frequencies. Obviously this was meant to strengthen NCC's position.

When I drew this to the attention of my friend who is a telecoms expert, he laughed. He explained that there was nothing like exclusivity in allocation of frequencies. According to him, "there is no allocation of specific frequency bands for telecommunications by the ITU. Radio frequency bands are allocated for various services by the ITU, and are subject to acceptance and adaptation by individual countries, which determine which band should be used for what services".

This indicates that those campaigning against the minister are willing to turn logic on its head to score cheap points. But they fail each time they try because the truth will always overcome. It gladdens my heart that in all of these, no one has suggested that the Minister has personal interest in the matter. They only accused her of being too tough and strict. But that is what you get when you live up to the principle of due process, and it is not a mantra you chant when it is convenient. That is what you get when you put your foot down and insist that the right thing is done, even if the whole world is against you. And that is what you get for being Dora Akunyili.