by Sanya Oni
I know a few Nigerians who would declare that the regulatory hammer which fell on MTN was overkill. That would be perfectly understandable in an environment where regulators are permanently on sleep mode and where those who are paid to protect us from the routine infractions by service providers have just about enough reasons to look the other way while we are being mugged. That would also partly explain the shock – and perhaps the bewilderment –expressed by many at what they considered as an “impossible” fine slammed by the telecoms regulator on the telecommunications firm last week.
Coming in the wake of a similar punitive fine on two of the nation’s leading banks – First Bank and UBA – both of which were slammed with N4.6 billion by the apex bank for running foul of the directive on the Treasury Single Account (TSA) – a new dawn for regulation may well be here already.
By the standards of our much abused and devalued naira, the N1.04 trillion $5.2bn) involved is certainly a lot of money. Even if the environment were to be less inclement, a punitive fine of nearly a quarter of the entire federal budget would come close to the proverbial pound of flesh. I therefore appreciate some of the feelings being expressed on the matter – particularly the context in a clime where regulations have come to mean nothing. After all, MTN isn’t a small fry, but a prolific goose that not only spins off revenue into the national treasury by way of taxes by the second, a major source of livelihood to hundreds of thousands of Nigerians. And so Nigeria, a country sorely in dire need of cash – particularly from Foreign Direct Investment cannot be seen to adopt such measures that would be perceived as “disincentive”!
The saga reminds of the old African folklore about the tortoise and his in-law. You know the story of the tortoise’s in-law who tied him to a tree by the market square on the discovery that he stole a family ornament? Passers-by who saw him tied to the stake early in the morning gleefully chanted that it served him right. By evening, the same passers-by on their homeward journey – on seeing the tortoise still tied up – were no longer persuaded that the punishment was fair. An in-law, they later reasoned, deserved better!
The lesson here is that nothing – more so in our shifting terrain of morality – is given; today’s much maligned sinner – can in different set of circumstances – become the sinned against – all things being permanently unequal!
In the case under reference, the hefty fine is supposed to be the big thing. Several questions – most of them merely variants of the same question – have done nothing else than to decry the regulatory action: ‘Where in the world is the telecom giant expected to raise that kind of money at this time?’ ‘Instead of the crippling fine, would it not better serve the public cause to ask them to deploy the fund to upgrade services?’
Even otherwise highly informed commentators have recommended punishments considered less disruptive – or more bearable – this ostensibly flowing from the assumption that the regulatory action was arbitrary – a case of killing an ant with a sledge-hammer!
It was as if no infractions took place! Or was it a case of witch-hunt?
Let me confess that yours truly was also alarmed when I first heard the amount involved. The challenge for me however, was not so much about the sum involved, but whether NCC was acting in a manner as to suggest arbitrariness. The inability to give the regulator the benefit of the doubt seems to me the point where most of the commentators missed it. A quick check by yours truly would reveal the premises of the regulatory action: It is located in Section 19 of the SIM Registration Regulations 2011. That section, to be clear, specifies a fine of N200,000 per unregistered SIM; and with 5.2million MTN SIM found to be in breach of the regulation, it was simply a question of doing the tally! Yes, the sentencing not only fitted snugly with the violation, it was at sync with the regulation!
So where is the ground for the so-called heavy-handedness?
The heavy regulatory action, we are told by the NCC did not even come out of the blues. On September 4, the chief of staff to the President reportedly hosted a high level meeting of telecom chief executives, the heads of the main security agencies – Office of the National Security Adviser (ONSA), the Department of State Security (DSS), Directorate of Military Intelligence, (DMI) and the NCC where the issue was exhaustively discussed. The context was the current security challenges particularly the issues of terrorism and kidnapping. There, the operators were duly informed that continued non-compliance with the directive to deactivate unregistered SIM cards would lead to the imposition of penalties or possible revocation of licences. They were to immediately reconcile the records of their deactivations against the list of invalid registrations earlier shared with operators by the NCC by September 7.
Question therefore is – would MTN disagree that it was in breach of the regulation? More worrisome however is that the NCC insists that the latest incident, rather than being an isolated case, is merely one out of a generalised “pattern of non-compliance with regulatory directives”.
I understand the temptation to bring extraneous issues into what is ordinarily a regulatory issue – particularly at this time when established law-breakers have been known to take shelter behind technicalities to escape the sanctions prescribed by law. We certainly know of the penchant by smart operators to mock our institutions given their traditionally tepid, weak-kneed approaches to enforcing regulations.
If I may be clear: my problem is finding accommodation for an out-of-control operator without risking irreparable damage to our national interest. For while the finding of guilt may or may not matter to MTN, the issues, to the extent that they touch on the business of our national security is hardly one can be trifled with.
So what to do? Ask MTN to go and sin no more? Would this not smack of an endorsement of blatant outlawry simply because big business is involved? How about procuring a lesser penalty to keep the golden goose alive as suggested by some? Would that not also be tantamount to arbitrariness?
Whichever the matter is resolved – it seems clear to me that the telecoms sector will never remain the same again.
- This Best Outside Opinion was written by Sanya Oni/The Nation