By Ighomuaye Lucky. O
Nigeria’s electricity sector is facing a serious statutory challenge emanating not from policy failure but from a clear leadership vacuum within the Nigerian Electricity Regulatory Commission.
Following recent Senate confirmations, six Commissioners representing the six geopolitical zones are now in office. However, none was nominated or confirmed as Chairman or Vice-Chairman. This omission has immediate and far-reaching legal consequences that require urgent correction.
This was contained in a statement signed by a Professor of Energy/Electricity Law & Policy, University of Lagos, Prof. Yemi Oke, and made available to journalists in Benin City.
Professor Oke said there are credible indications of a plan to upgrade two Commissioners recently confirmed without portfolios, Dr. Fouad Olayinka Animashaun and Aisha Kanti Bello, into the offices of Chairman and Vice-Chairman after Senate confirmation.
He stressed that such a move is expressly illegal, adding that the Electricity Act, 2023 contains no provision allowing a person confirmed as Commissioner to be upgraded, redesignated, or converted into Chairman or Vice-Chairman without a fresh presidential nomination and fresh Senate confirmation for those specific offices.
Professor Oke noted that any such attempt would be ultra vires, inconsistent with Sections 35, 36, 40, and 41 of the Act, and therefore null and void in law.
According to him, no administrative designation, presidential memo, or directive from the Secretary to the Government of the Federation can cure this defect.
“The Act establishes NERC with clearly differentiated statutory offices of Chairman, Vice-Chairman, and Commissioners”. “These roles are not interchangeable”.
“The Chairman is expressly designated as Chief Executive and Accounting Officer, while the Vice-Chairman performs a defined leadership role”. “Commissioners exercise collective regulatory powers but do not possess executive authority. Senate confirmation is therefore office specific and legally conclusive, authorising a nominee to hold only the office for which confirmation was granted”.
He explained that against this background, the current reality is stark, noting that there is no Chairman, no Vice-Chairman, and no Acting Chairman or Acting Vice-Chairman recognised by law. “NERC therefore lacks lawful executive leadership”. “The Commission exists institutionally but is unable to lawfully direct or bind the electricity market”. “This is not a technical oversight but a fundamental governance defect with immediate legal and operational implications”.
Professor Oke explained that in the absence of a duly nominated and Senate confirmed Chairman or Vice-Chairman, no Commissioner, regardless of seniority or experience, may lawfully act in that capacity.
He said no Commissioner can validly sign Orders, Directives, Regulations, or binding instruments as Chairman, Vice-Chairman, or Acting Chairman, adding that’s any such instrument would be null and void, and licensees would be entitled to reject it without legal consequence.
The professor of law said administrative shortcuts such as presidential directives, internal circulars, or SGF memos cannot lawfully confer executive authority. Neither the President nor any administrative body may convert one Senate confirmed office into another.
“While portfolios may be assigned administratively after confirmation, they are internal arrangements that confer no statutory leadership authority and cannot bypass Senate confirmation”.
“Senate confirmation is office-specific and legally conclusive. A person confirmed as Commissioner is authorised to hold only that office, and such confirmation cannot be expanded or altered by administrative action. Any change in office that affects status, tenure, or statutory powers requires fresh Senate confirmation”.