Lagos State government’s decision to initiate measures to take over responsibility for the regulation and distribution of electricity within its territorial jurisdiction from the Nigerian Electricity Regulation Commission (NERC) is a step in the right direction. Speaking in Lagos at the Third Lagos Real Estate Market Place Conference and Exhibition organised by the Lagos State Real Estate Regulatory Authority (LASRERA), the commissioner for energy, Mr. Olalere Odusote, said towards the realisation of this objective, the executive had sent a bill for the repeal of the Lagos State Electricity Law of 2018 to the state House of Assembly. This is ostensibly to plug loopholes in the extant law and introduce innovations to create a more suitable legal framework for the electricity sector in the state.

As the most populous state in the country as well as its commercial nerve-centre, Lagos indeed needs enhanced power supply. Improved electricity in the state will have positive spinoffs on her economic growth while also tremendously boosting national economy productivity.

It is noteworthy that successive governments in the state since the commencement of this dispensation in 1999 had made persistent efforts to enhance power supply to her citizenry. For instance, the administration of Asiwaju Bola Tinubu between 1999 and 2007 initiated the country’s first Independent Power Project (IPP) in collaboration with Enron/AES, a venture which in its first phase generated 260MW of electricity from Lagos to the national grid, but meant to be dedicated to the state. Unfortunately, the progression to the second phase of the project, which was supposed to generate 540MW of electricity from a land-based station in Morogbo, Badagry, could not take off as a result of disagreements with the Federal Government over constitutional issues of ownership, control and regulation.

On its part, the administration of Mr. Babatunde Raji Fashola between 2007 and 2015 concentrated on the provision of off-grid IPPs through which it took major public facilities such as the state secretariat, Alausa, public schools, hospitals and some other facilities off the national grid, with the state directly supplying electricity to them. If the Mr. Babajide Sanwo-Olu administration succeeds in actualising its proposed plan, it would have further institutionalised the process started by Fashola.

However, the role of the states in providing adequate electricity for the people is not an issue that should preoccupy Lagos State alone. If more states can effectively play their part in this regard, it will have a salutary effect on the dismal power supply situation in the country and help in better realising her tremendous but largely untapped economic potential.

Despite the privatisation exercise undertaken in the power sector, electricity supply in Nigeria remains haphazard, inadequate and inefficient. The re-structuring of the sector, which has not brought about the desired gains, resulted in the unbundling of the defunct Power Holding Company of Nigeria (PHCN) into six electricity power generating plants (GenCos) and 11 electricity power distribution companies (DisCos), although the Federal Government retained control of the Transmission Company of Nigeria (TCN). It has, however, turned out that the privatisation process was botched as many of the companies that bought over the power facilities lacked the capacity to effectively fulfill their roles. Although the country has an installed capacity of 12,522 MW, it is hardly able to generate more than 4,000MW most of the time, even after the privatisation.

The sector thus continues to be characterised by poor customer service, indefensibly expensive bills and dubious estimated billing, among others. Consequently, the Federal Government directed some private banks in conjunction with the Asset Management Company of Nigeria (AMCON) to take over the ownership and management of five DisCos in Kano, Ibadan, Benin, Kaduna and Port Harcourt reportedly on the brink of insolvency.

As attempts to reposition and find solutions to the protracted problems of the power sector continue, it is time for state governments to step up and play their expected roles in the running of the sector. All too often, the impression has been created that the states are constitutionally incapacitated from being partners in the management of the power sector because of the defects of our admittedly over-centralised constitution. However, some constitutional experts have pointed out that the fault is more with the complacency and lack of imagination and political will on the part of most states than any constitutional lapse. They stress that the constitution essentially provides for both the federal and state governments to run the power sector concurrently. For instance, Section 13(b) of Part 11 of the Second Schedule to the 1999 Constitution (As Amended) confers on the National Assembly the responsibility to make laws for the entire federation or any of its constituent parts with respect to “(i) electricity and the establishment of electric power stations; (ii) generation and transmission of electricity in or to any part of the federation and from one state to another”.

However, in Section 14(b) of Part 11 of the Second Schedule to the Constitution, the State Houses of Assembly are charged with the responsibility of “(i) electricity and the establishment, in that state, of electric power stations; (ii) generation, transmission and distribution of electricity to areas not covered by a national grid system within that state; and (iii) the establishment within that state of any authority for the promotion and management of electric power stations established by the state”. Contrary to these provisions of the constitution, it has been argued, under the 2005 Electricity Power Sector Reform Act, that all regulations concerning electricity are made centrally for all states and local government councils. Thus, the Act provides, for instance, for the establishment of the Rural Electrification Agency (REA), an agency under the control of the Federal Government, to provide, promote and support rural electrification programmes. But these are supposed to be under the purview of state governments since the latter are responsible for off- grid electricity.

We concur with Professor Yemi Oke, an expert in Energy/Electricity Law of the University of Lagos, who in an article in 2017 argued that “as the electric power sector develops, state governments will set up State Electricity Regulatory Commissions as is the case in countries like India. Their job will be to license private companies to get involved in off-grid electricity generation, transmission and distribution. To achieve a regular supply of power for economic development, federal and state governments must act as collaborators, not as competitors. A good place to start would be to nullify provisions of the Power Sector Reform Act 2005 that are in conflict with the Constitution”.

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