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Economic and Development Policy-Making in Nigeria

Published online by Cambridge University Press:  13 February 2012

Elimma C Ezeani
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Abstract

The difficulties in effective engagement with the global trade environment, especially given the rules-based system of world trade applicable to member states of the World Trade Organisation, are a constant subject for academic and political discourse, particularly when developing countries are involved. One consideration is however often overlooked: the internal constraints which must be faced in these countries along with their added obligations to comply with modern liberalization processes. This article studies these constraints by identifying the challenges facing one of sub-Saharan Africa's largest economies in constructing a stable legal framework for trade and development, which meets domestic needs and complies with the demands of the global market environment.

Type
Research Article
Information
Journal of African Law , Volume 56 , Issue 1 , April 2012 , pp. 109 - 138
Copyright
Copyright © School of Oriental and African Studies 2012

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References

1 After gaining independence from the British colonial government in 1960, Nigeria saw a brief period of civilian rule from 1960 until 1966 when the military first intervened in Nigerian politics. Still under military rule, the bloody Nigeria-Biafra civil war took place from 1967 to 1970. There were military interventions, mostly by means of coups d'état, on 15 July 1966, 29 July 1966, 29 July 1975 and 13 February 1976. The military eventually handed power to a civilian led government in 1979. In 1983, the military returned again and remained in power until 1999, under successive military coups.

2 See WTO “Trade policy review: Report by Nigeria”: WT/TPR/G/147, 13 April 2005 at 6.

3 See WTO “Trade policy review Nigeria: Report by the secretariat”: WT/TPR/S/147, 13 April 2005 at ix. The most recent WTO trade policy review of Nigeria reiterated these statistics noting that, while they employ few people, oil and gas make up over 90% of exports and 80% of government revenue. The review also found that “although the petroleum sector dominates the economy, agriculture is more important to most Nigerians as it represents over half of employment”. See WT/TPR/S/247/Rev.1, 1 August 2011 at paras 1 and 9.

4 The company's shareholders include the national petroleum company and foreign multinationals also engaged in the crude oil sub-sector: Nigeria National Petroleum Corporation, 49%; Shell Gas BV, 25.6%; Total LNG Nigeria, 15%; and ENI International (NA) NV, 10.4%. Other gas projects by Chevron Nigeria Ltd and Exxon Mobil are expected to increase the contribution of the gas sub-sector in the future.

5 See FCO Analogbei “Trade reforms and productivity in Nigeria” (Central Bank of Nigeria paper, 31 Dec 2000) at 160–61, available at: <http://www.cenbank.org/OUT/PUBLICATIONS/OCCASIONALPAPERS/RD/2000/ABE-00-9.PDF> (last accessed 7 December 2011).

6 See id at 161. By the mid 1970s, increases in international crude oil earnings to the country brought euphoria, but with damning consequences. The previous trade restrictions, geared towards improving local industries, boosting the agricultural sector and encouraging the growth of infant industries, were relaxed.

7 See generally Analogbei “Trade reforms and productivity in Nigeria”, above at note 5.

8 The Nigerian Enterprises Promotion Act is no longer in force. However its essential provisions have remained, but with an allowance for more foreign direct investment, under the current Nigerian Investment Promotion Decree No 16 and Foreign Exchange (Monitoring and Miscellaneous Provisions) Decree No 17, both of 1995.

9 See the act in vol XVIII cap 303 Laws of the Federation of Nigeria (LFN) 1990. The areas reserved exclusively for Nigerians included bread and cake making, hairdressing, garment manufacture, travel agencies, departmental stores and supermarkets.

10 See Pepple, AS “The new business investments regulations: Implication and the dilemmas of compliance” in Ayua, IA (ed) Structural Adjustment and Nigerian Development; A Third World Angle; Nigerian Current Legal Problems vols 4 and 5, 1996–98 (2000, NIALS) 159 at 165–66Google Scholar.

11 Highlighting the observations by Dr Okigbo noted below at note 15.

12 CBN Twenty Years of Banking in Nigeria (1979, CBN), quoted in Analogbei “Trade reforms and productivity in Nigeria”, above at note 5 at 162.

13 Compare with Ebeku, K “Niger Delta oil, development of the Niger Delta and the new development initiative: Some reflections from a socio-legal perspective” (2008) 43/4Journal of Asian and African Studies 399CrossRefGoogle Scholar. The problems of governance and the conflicts in the region are examined in Akpan, NS “Governance and communal conflicts in a post-democratic Nigeria: A case of the oil-producing Niger Delta region” (2010) 2/3Journal of African Studies and Development 65Google Scholar.

14 “Oil boom era (1971–77)” OnlineNigeria, available at: <http://www.onlinenigeria.com/economics/?blurb=490> (last accessed 30 November 2011). The period referred to is 1971–81.

15 See Okigbo, P “SAP and financial intermediaries (1)” (31 August 1987) The Guardian (Nigeria) at 7Google Scholar.

16 Ogunleye, B “Why SAP was adopted, by Sanusi” (5 September 2001) The Guardian (Nigeria) at 27Google Scholar.

17 Ibid.

18 SAP was ostensibly terminated in 1993 but its hardships endured beyond the exit of its initiating government, the regime of the former military leader, President Ibrahim Babangida.

19 See Alegimenlen, OA Odiase “Structural adjustment and Nigerian development; A third world angle” in Ayua, (ed) Structural Adjustment and Nigerian Development, above at note 10, 28 at 45Google Scholar.

20 Id at 38–9.

21 Id at 36.

22 See for example Achime, N “A case against SAP” (15 March 1989) National Concord (Nigeria) at 3Google Scholar; Sogolo, G “The blessings of SAP” (1 May 1989) The Guardian (Nigeria) at 9Google Scholar; Ogundele, B “Whatever happened to SAP?” (25 October 1991) The Guardian (Nigeria) at 13Google Scholar.

23 See Mosley, P “Policy-making without facts: A note on the assessment of structural adjustment policies in Nigeria 1985–1990” (1992) 91 Journal of African Affairs 227Google Scholar.

24 Okigbo “SAP and financial intermediaries (1)”, above at note 15.

25 By 1995 Nigeria owed US$ 35.6m; as at 1985 it had been US$ 18.9m. See Nigeria Debt Management Office reports at: <http://www.dmo.gov.ng/oci/edebtstock/docs/External%20Debt%20Outstanding%20(1983-2004).pdf> (last accessed 30 November 2011).

26 See “Nigeria: June 1998” (WTO press release, 16 June 1998), available at: <http://www.wto.org/english/tratop_e/tpr_e/tp75_e.htm> (last accessed 30 November 2011). The WTO Agreement was signed on 15 April 1994.

27 See Ikpeze, NI, Soludo, CC and Elekwa, NN “Nigeria: The political economy of the policy process, policy choice and implementation” in Soludo, C, Ogbu, O and Chang, H-J (eds) The Politics of Trade and Industrial Policy in Africa: Forced Consensus? (2004, Africa World Press / IDRC)Google Scholar, available at: <http://web.idrc.ca/en/ev-71263-201-1-DO_TOPIC.html> (last accessed 7 December 2011).

28 See “Reviewing the WTO treaty” (editorial) (28 October 2004) This Day (Nigeria) at 11, quoting the then information minister, Prof Jerry Gana.

29 WTO Agreement, art XVI(4).

30 See Nwuche, C (deputy speaker, Nigeria House of Representatives) “Nigeria and the World Trade Organisation” (speech) (6 March 2002) The Guardian (Nigeria) at 70Google Scholar.

31 See Adeyemo, A “Should Nigeria pull out of WTO?” (8 October 2005) Nigerian Tribune at 12Google Scholar.

32 See the decision of the Nigerian Supreme Court in Abacha v Fawehinmi (2000) 6 NWLR pt 660 at 288 confirming that “an international treaty entered into by the government of Nigeria does not become binding until enacted into law by the National Assembly”.

33 WTO Agreement, art XVI(4). See generally P Usoro's commentary on the paper titled “The legal status of WTO and the new maritime legal regime” (delivered at the maritime seminar for judges organized by the Nigerian Shippers' Council / National Judicial Commission, Abuja, Nigeria, June 2008), available at: <http://www.paulusoro.com/publications/Commentary%20on%20The%20Legal%20Status%20of%20WTO%20etc%20by%20Dr%20Omo-Eboh(%20v1).doc> (last accessed 30 November 2011).

34 Vol V cap 68 LFN 1990; Decree No 48 1992; Decree No 42 1999.

35 Cap 436 LFN 1990.

36 Vol XIX, cap 344 LFN 1990.

37 TRIPS is annex 1C of the WTO Agreement.

38 Note the note to art 1(3) of TRIPS: “When ‘nationals’ are referred to in this Agreement, they shall be deemed, in the case of a separate customs territory Member of the WTO, to mean persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in that customs territory.”

39 In the India-US basmati rice dispute, India challenged the US government grant of a patent to a US company (RiceTec Inc) which allowed the company to label its cross-breed product of basmati and American long grain rice “basmati”, a name hitherto used to refer to a variety of the rice plant grown in India and Pakistan. The US Patent Office eventually upheld India's assertions that the “basmati” rice had been in the public domain as it has always been cultivated in India. See the application history of patent No. 5663484, available at: <http://www.google.com/patents?id=eiMnAAAAEBAJ&printsec=abstract&zoom=4&source=gbs_overview_r&cad=0#v=onepage&q&f=false> (last accessed 7 December 2011).

40 The National Office for Technology Acquisition and Promotion oversees the registration and transfer of foreign technology in Nigeria, including responsibility for ensuring that foreign technology imported into the country is not overpriced or obsolete. See generally the National Office of Industrial Property Act, vol XVII cap 268 LFN 1990.

41 Vol Vc cap 87 LFN 1990.

42 Id, preamble.

43 Id, sec 3.

44 The act has not been amended to reflect Nigeria's membership of the new WTO.

45 The WTO Anti-dumping Agreement is under annex 1A of the WTO Agreement.

46 Sec 9 of the Nigerian act refers to the price at which the goods are sold in the ordinary course of trade, subject to necessary adjustments including conditions and terms of sale, taxation etc. In the view of the author, there is a difference between the two provisions: the “value” of goods may not necessarily be reflected in the price of the goods. For example, goods may be valued at £50, but sold at a cheaper price, say, “£50 for two” in the course of a promotion. A very common example is this: a bottle of US marketed washing liquid which usually contains 1 litre of the detergent is normally sold at $2; during a promotion a bottle has an extra litre but is to be sold at the price of one litre, a fact clearly stated on the bottle. Invariably, the goods are offered for sale in Nigeria at their “value” which is interpreted as the market equivalent of more than $4 per bottle.

47 WTO Anti-dumping Agreement, art 2(2).

48 The SCM Agreement is under annex 1A of the WTO Agreement.

49 See SCM Agreement, art 1(2).

50 The Agreement on Agriculture is under annex 1A of the WTO Agreement.

51 See Customs Duties (Dumped and Subsidised Goods) Act, sec 3.

52 See WTO Anti-dumping Agreement, arts 5, 6, 9, 11, annexes I and II; and SCM Agreement, arts 11–17 and 19.

53 See WTO Anti-dumping Agreement, art 5(1).

54 Vol XXIII cap 434 LFN 1990.

55 Vol XXIII cap 435 LFN 1990.

56 Id, sec 1.

57 Exempt are objects of art, explosives and pyrotechnic products, arms, ammunition, weapons, implements of war, animals, household and non-commercial products. See the Nigerian export prohibitions list in the Customs, Excise Tariff etc (Consolidation) Decree No 4 of 1995. The government however also periodically lists prohibited export or import items; these lists are available at: <http://www.customs.gov.ng/ProhibitionList/import.php> for imports and <http://www.customs.gov.ng/ProhibitionList/export.php> for exports (each last accessed 7 December 2011).

58 See Pre-shipment of Exports Decree, sec 1.

59 See id, sec 13.

60 Sec 1 provides for pre-shipment inspection of imports; sec 4 vests the appointment of investigating agency powers in the head of state; and sec 5 provides for general administration by the CBN.

61 See Pre-Shipment of Imports Decree, sec 1(5). The list of excluded goods is obviously open.

62 The WTO PSI Agreement is under annex 1A of the WTO Agreement.

63 TRIMS is under annex 1A of the WTO Agreement.

64 The provisions of the NIPC Decree have been extended to cover petroleum resources under an amendment (Decree No 32 1998).

65 NIPC Decree, secs 17, 19 and 20.

66 Id, sec 21.

67 FEMMP Decree, secs 2 and 7.

68 Id, sec 8.

69 Id, sec 15.

70 Id, sec 5.

71 See Eze, OCNigeria and the World Trade Organisation (2004, Nigerian Institute of International Affairs) at 49Google Scholar.

72 See generally Privatisation and Commercialisation Decree, sec 11.

73 See generally id, part III.

74 See generally id, secs 13 (privatization) and 14 (commercialization).

75 See id, second schedule.

76 See id, part II, first schedule.

77 See id, part I.

78 Ibid.

79 See CC Soludo “50 years of central banking in Nigeria: The journey so far and the road ahead” at 23, available at: <http://www.cenbank.org/cbnat50/papers/wadd.pdf> (last accessed 30 November 2011).

80 Banks were required to have a minimum capital base of 25 billion naira.

81 CC Soludo “50 years of central banking” above at note 79 at 29 (emphasis original).

82 Id at 5.

83 Ibid. See also Gunu, U “The impact of the banking industry recapitalisation on employment in Nigerian banks” (2009) 11/3European Journal of Social Sciences 486Google Scholar. Other efforts at development policy initiatives adopted by the banking sector under the supervision of the CBN at the time include: granting licences for the purposes of microfinance; and entrepreneurship development centres for the purpose of assisting private entrepreneurship activities.

84 Id at 29.

85 See T Beck, R Cull and A Jerome “Bank privatization and performance: Empirical evidence from Nigeria”, available at: <http://arno.uvt.nl/show.cgi?fid=95647> (last accessed 30 November 2011).

86 Sec 5.1.2 (1 March 2006).

87 See Governor, CBNSanusi's, SL interviews with The Financial Times (London) (21 June 2009)Google Scholar, available at: <http://www.ft.com/cms/s/0/406e8650-ea69-11de-a9f5-00144feab49a.html#axzz1fqnq0Fjh> (last accessed 7 December 2011).

88 See generally Okike, ENM “Corporate governance in Nigeria: The status quo” (2007) 15/2Corporate Governance: An International Review 173Google Scholar; and Ogbechie, C, Koufopoulous, DN and Argyropoulou, M “Broad characteristics and involvement in strategic decision making: The Nigerian perspective” (2009) 32/2Management Research News 169CrossRefGoogle Scholar.

89 See Governor, CBNSanusi's, SL remarks in “Why we fired Akingbola, Ibru, Ebong, others – CBN Governor Sanusi Lamido Sanusi” (15 August 2009) The NationGoogle Scholar, available at: <http://www.nigerianmuse.com/20090814214307zg/sections/spotlight-focus-on-issues/why-we-fired-akingbola-ibru-ebong-others-cbn-governor-sanusi-lamido-sanusi/> (last accessed 30 November 2011).

90 See “One year of Sanusi reforms” (24 August 2010) The Vanguard (Nigeria)Google Scholar, available at: <http://www.vanguardngr.com/2010/08/one-year-of-sanusi-reforms/> (last accessed 30 November 2011).

91 See the Governor Sanusi's interviews in The Financial Times, above at note 87.

92 See the CBN press release on AMCON after it received its third reading at the Senate: “AMCON bill passes third reading in the Senate … Sent for harmonization”, available at: <http://webcache.googleusercontent.com/search?hl=en&safe=active&gs_sm=s&gs_upl=3235l3235l0l4063l1l1l0l0l0l0l62l62l1l1l0&q=cache:iGvSSS505nEJ:http://www.cenbank.org/Out/2010/pressrelease/gov/Press%20Release%20-%20Third%20reading%20for%20AMCOM%20Bill.pdf+CBN+press+release+on+AMCON+after+it+received+its+third+reading+at+the+Senate&ct=clnk> (last accessed 12 December 2011). The AMCON bill was signed into law in July 2010.

93 See K Ighomwenghian “NSE gains 1.7 percent after AMCON bill gets presidential assent” (26 July 2010), available at: <http://allafrica.com/stories/201007261387.html> (last accessed 30 November 2011). See also the Nigerian Stock Exchange report on trading activities for July 2010, available at: <www.nigerianstockexchange.com/news/pdfs/Annual%20Reports.pdf> (last accessed 7 December 2011).

94 See Alford, D “Nigerian banking reforms: Recent actions and future prospects” Social Science Research Network Working Papers (19 April 2010) at 14 and 20Google Scholar.

95 BOFIA, secs 31 and 32.

96 Cap 59, LFN 1990.

97 Id, secs 63 and 244–45.

98 Id, secs 279–80.

99 Id, sec 267(6).

100 Id, sec 262.

101 Id, sec 283.

102 Id, sec 311. The petition can be brought by a member, an officer or former officer, creditor, the Corporate Affairs Commission or “any person”, at the court's discretion.

103 Id, sec 7(c). The Commission is established under part I of the act, which it administers.

104 Note also that the Securities and Exchange Commission has its own Code on Corporate Governance of which banks which are listed as companies on the Nigerian Stock Exchange are expected to take cognizance.

105 Shareholder action is only recent in Nigeria; it is hoped that similar action as shown by the shareholders of Cadbury Nigeria in their suit against the management and auditors of the company, which saw the removal of its managing and finance directors in 2006, will be the practice across the private sector, instead of intervention by an official organ of government.

106 At the Federal High Court, Lagos, FHC/L/297C/2009 (judgment of 8 October 2010) Chief Mrs Cecilia Ibru, MD of the Oceanic Bank, received a suspended jail term of 18 months (to serve six) and was to forfeit 199 assets worth over a 190 m naira.

107 The forfeited assets in the case above were to be handed over to AMCON.

108 See further Ezeani, EC “Carpe diem! Developing countries and global trade in services” (2007) 2/3AE&E Business and Commercial Law NewsletterGoogle Scholar available at: <http://www.aeandelegal.com/dynamicdata/flash/AE&E%20Business%20&%20Commercial%20Newsletter%20-3-2007.doc> (last accessed 12 December 2011).

109 GATS is annex 1B of the WTO Agreement.

110 BPE Privatisation Handbook (2000, BPE) at 75Google Scholar.

111 Successful expressions of interest for consultancy in the current privatization programme of the successor companies of the national electric company, previously known as the National Electric Power of Nigeria, now Power Holding Company of Nigeria, have been by African Finance Corporation, CPCS Transcorp, Goldman Sachs / Stanbic IBTC, IPA Energy, Lazard / UBA and Standard Chartered Bank.

112 See the Export Prohibition Act, vol VIII cap 121 LFN 1990; Import Prohibition Act, vol X cap 171 LFN 1990. The Customs, Excise, Tariff etc (Consolidation) Act, vol VI cap 88 1990 prohibits the exportation of maize (corn) and grain sorghum for the purposes of trade.

113 Inaugurated on 16 August 2001, the body had been previously established in 1994 but was largely inactive.

114 See Federal Government of Nigeria Industrial Policy of Nigeria: Policies, Incentives, Guidelines and Industrial Framework (2003, Federal Ministry of Commerce and Industry)Google Scholar.

115 See “Nigerian textile factories may close after import ban lifted” (1 December 2010), available at: <http://www.bloomberg.com/news/2010-12-01/nigerian-textile-factories-may-close-after-import-ban-lifted.html> (last accessed 30 November 2011); Ugwoke, F and Chima, O “Govt lifts ban on textile materials, toothpicks” (29 November 2010) This Day (Nigeria)Google Scholar, available at: <http://allafrica.com/stories/201011300682.html> (last accessed 30 November 2011).

116 See Meeting Everyone's Needs (2004, Nigerian National Planning Commission) (NEEDS document) at viiiGoogle Scholar.

117 An effort addressed under the Economic and Financial Crimes Commission.

118 See NEEDS document at ix.

119 Id, part one, chap 3 at 22.

120 It was estimated that this socio-economic programme will cost the country about $4.5bn in 2007 which was expected to come from oversees development assistance and, subsequently, about $1.5bn from foreign direct investment. See id, part four, chap 11 at 116.

121 These include energy emergency, agriculture and food security, wealth creation and poverty alleviation, land reform, security of lives and property, human capital development including compulsory education for children, and transport development including improved mass transit.

122 To see the policy through, “experts have declared that the country will require about N32 trillion worth of investment in the next 10 years, from 2010 to 2020”; see Ailemen, T “Vision 20 – 2020: Presidency strategizes for implementation” (19 June 2010) Daily ChampionGoogle Scholar, available at: <http://allafrica.com/stories/201006210422.html> (last accessed 30 November 2011).

123 See “ECOWAS common external tariff now effective” (7 October 2005) Nigeriafirst, available at: <http://allafrica.com/stories/200510070509.html> (last accessed 9 December 2011).

124 Ibid.

125 See Okeke, R “Nigeria: Manufacturer's claim ECOWAS tariff will be damaging” (20 March 2005) The Guardian (Nigeria)Google Scholar, available at: <http://www.afrika.no/Detailed/8698.html> (last accessed 9 December 2011). Opposition to the immediate implementation of the policy was also expressed by Nigerian manufacturers under the umbrella organization, the Nigerian Association of Chambers of Commerce, Industry, Mines and Agriculture. Their opposition was based on the view that Nigeria's poor social infrastructure and high cost of production puts the other ECOWAS member states at a distinct advantage in producing cheaper and, hence, more exported goods than Nigeria. See “The ECOWAS common tariff” (editorial) (30 July 2006) This Day (Nigeria), available at: <http://allafrica.com/stories/200607311026.html> (last accessed 8 December 2011).

126 See title 1, US Trade and Development Act 2000 Public Law 106-200.

127 The US Department of Commerce has information on AGOA and eligibility requirements for countries and products available at: <http://www.agoa.gov/index.html> (last accessed 8 December 2011).

128 See further Momoh, S “Why Nigeria is yet to take advantage of AGOA” (30 May 2011) Business DayGoogle Scholar, available at: <http://www.businessdayonline.com/NG/index.php/entrepreneur/entrepreneur-news/22233-why-nigeria-is-yet-to-take-advantage-of-agoa> (last accessed 9 December 2011). For an earlier general assessment of AGOA, see C Van Grasstek “The African Growth and Opportunity Act: A preliminary assessment” (2003, report for UN Conference on Trade and Development): UNCTAD/ITCD/TSB/2003/.1.

129 See generally the NEPAD framework document (October 2001), available at: <http://www.nepad.org/system/files/framework_0.pdf> (last accessed 9 December 2011). Information on NEPAD's activities is available at: <http://www.nepad.org> (last accessed 9 December 2011).