介绍:
IV. Regulation of Nigerian PPPs: The Infrastructure Concession Regulatory Commission Act (ICRCA)
The ICRCA provides the primary legal framework for private sector participation in infrastructure development and maintenance in Nigeria and is therefore the principal legislation for PPPs in Nigeria. The ICRCA is divided into two parts:
The first part vests government ministries, departments and other agencies of government with power to enter into contract with or grant concessions to the private sector for the financing, construction, operation and maintenance of any viable infrastructure.12 While the second part establishes the Infrastructure Concession Regulatory Commission (the ICRC), which is managed by a 12-member board that includes a part time chairman, the Attorney General of the Federation, the Governor of the Central Bank and a person from each of the six geopolitical zones of the country. The main function of the Commission is to take custody of every concession agreement or contract entered into by the government ministry or agency and monitor compliance with the Act and the efficient execution of any such Concession Agreements.13 The Act does not however provide for detailed rules on how the procurement of PPP contracts should be carried out. This is a yawning gap that is subsequently filled through policy statements.
Note that even though the Act only mentions “concession” it also applies to other forms of PPPs. However, despite the use of the word “regulation” in the title of the ICRCA, the law does not seem to confer actual regulatory powers on the ICRC. Under the ICRCA, the institution is, for instance, not allowed to perform any form of economic or technical regulation, nevertheless the ICRC presently assumes this responsibility ostensibly to fill the vacuum that would otherwise have arisen. This notwithstanding, the position of this paper is that legally and technically speaking, there is in real terms no effective regulator for PPP transactions in Nigeria. Apart from the fact that the very existence of the ICRCA is causing manifest confusion within the system, there are doubts that ICRC has the powers to carry out some of the “emergency” functions, which it has assumed. It would be interesting to test the extent of ICRC’s powers before a court, as this has not happened yet.
In the exercise of its regulatory functions, ICRC divides its powers into two categories: Pre- and post-contractual regulation. Accordingly, pre-contractual regulation relates to activities that occur prior to the signing of the concession agreement, which includes compliance with PPP procurement guidelines, and obtaining of political approvals. The post-contractual regulatory functions are activities that occur after the signing of the PPP contract, to ensure that the private sector partner is executing the project in accordance with agreed contractual provisions and extant laws. From the snapshot of the regulatory frameworks from different jurisdictions discussed above, it is clear that what ICRC refers to as pre-contract regulation is actually the functions carried out by dedicated PPP Units, which basically encompasses the assessment and validation of the technical, economic *324 and procurement aspects of the project. The post-contract regulatory functions are actually post-transaction-monitoring and enforcement usually carried out by independent sectoral regulators. A further analysis is done below:
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