How The National Information Technology Act, 2007 And Its Proposed Amendment Will Shape Nigeria’s Technology Space -By Oyetola Muyiwa Atoyebi & Caleb Echoga

Technology has undoubtedly permeated the Nigerian society over the previous two decades, particularly in the commercial sector. Technology can be seen in online banking, E-commerce, marketing, and other areas. According to Outram Cullinan & Company (OC&C) Strategy Consultants, between 2001 and 2014, Nigeria’s Information and communication sector (ICT), grew from less than 1 per cent of our Gross Domestic Product (GDP) to almost 10 per cent and has become a key driver of economic growth.[1]  

This article looks at the role of the National Information Technology Development Agency (“NITDA”) in the technology sector in Nigeria. In doing so, it shall examine the extant provisions of the NITDA Act 2007; touch on the Nigeria Data Protection Regulation 2019 (NDPR); consider the improvements made to the NITDA Amendment Bill 2020; compare NITDA as an agency to similar organizations in other jurisdictions; and discuss the role of lawyers in our technologically charged future.

Technology’s commonplace nature led to the creation of the National Information Technology Development Agency[2] (NITDA) to implement Nigeria’s information technology policy and coordinate general Information Technology (IT) development in Nigeria.

The agency was established by the Nigerian Information Technology Agency Act of 2007. The Act mandates the agency to, among other things:

• Create a framework for the planning, research, development, standardization, application, coordination, monitoring, evaluation, and regulation of Information Technology practices, activities, and systems in Nigeria and all matters related thereto and for that purpose, and which without detracting from the generality of the foregoing shall include providing universal access for Information Technology and systems penetration including rural, urban and under-served areas;

• Provide guidelines to facilitate the establishment and maintenance of appropriate information technology and systems application, and development in Nigeria for public and private sectors, urban-rural development, the economy and the government;

• Develop guidelines for electronic governance and monitor the use of electronic data interchange, and other forms of electronic communication transactions as an alternative to paper-based methods in government, commerce, education, the private and public sectors, labour, and other fields, where the use of electronic communication may improve the exchange of data and information; and

• Develop guidelines for the networking of public and private sector establishments.[3]

Section 2 of the Act establishes a governing board for the agency and the powers of the governing board consisting of:

• A Chairman
• A representative of each of;
• The Federal Ministry of Science & Technology;
• The Ministry of Communication;
• The Federal Ministry of Education;
• The Standards Organisation of Nigeria;
• The Nigerian Society of Engineers;
• Four persons to represent affiliate bodies of the Computer Professionals’ Registration Council of Nigeria;
• Two persons with cognate experience in Information Technology to represent the Academic Staff Union of Universities, and the Academic Staff Union of Polytechnics;
• Six persons who are experts in the area of Information Technology, appointed by the President from each of the six geo-political zones of Nigeria; and
• The Director-General of the Agency, who shall be the Secretary of the Board. [4]

The powers of the board include, but are not limited to, the formulation of the overall policy for the management of the agency, the management of the National Information Technology Development Fund established under the Act; and the appointment, promotion, termination, dismissal, and exercise of disciplinary control over the principal officers and senior staff of the Agency.[5]

A notable provision of the Act is the establishment of the National Information Development Fund pursuant to Section 12(1) of the Act.  Subsection (2) of that section provides that there shall be a levy of one per cent of the profit, before tax of companies and enterprises enumerated in the Third Schedule to the Act, with an annual turnover of Third Schedule N 100,000,000 and above, and such paid by the companies shall be tax-deductible. The levy is to be assessed and collected by the First Inland Revenue Service.[6] The Fund and the Agency’s accounts shall be exempt from income tax and all contributions to the Fund, and Agency’s accounts shall be tax-deductible.[7]

The Act also grants the Minister charged with the responsibility of matters relating to science and technology, the power to facilitate the establishment of Information Technology parks across the country. [8]

THE NIGERIA DATA PROTECTION REGULATION, 2019

Being aware of concerns regarding data protection, NITDA issued the Nigeria Data Protection Regulation (NDPR) in 2019.

The objectives of the regulation are, namely:

1. To safeguard the rights of natural persons to data privacy.
2. To foster safe-conduct for transactions involving the exchange of Personal Data.
3. To prevent manipulation of Personal Data.
4. To ensure that Nigerian businesses remain competitive in international trade, through the safe-guards afforded by a just and equitable legal regulatory framework on data protection, which is in tune with best practice.[9]

All personal data relating to Nigerian citizens and residents are subject to the regulation.[10] Personal Data as defined by the Regulation, refers to any information relating to an identified or identifiable natural person.[11]

Under the NDPR, there are new limitations on the collection and processing of personal data, and these activities must be conducted with a lawful purpose. [12] Implementing these limitations will affect data protection governance, information systems and security configuration.

As a result of the successful implementation of the National Digital Economy Policy and Strategy, the adoption of data platforms has significantly increased and our society has become more data-based. The publication of the Nigeria Data Protection Regulations (NDPR) in January 2019 as a supplemental legislation to the to the National Information Technology Development Agency (NITDA) Act 2007, has also increased awareness about the need for data protection and privacy.

Indeed, it is largely believed that it is for the above reasons that President Muhammadu Buhari, on February 5^th 2022, approved the establishment of the Nigeria Data Protection Bureau (NDPB), following a request made by the Honourable Minister of Communications and Digital Economy, Prof Isa Ali Ibrahim Pantami. [13]

THE NITDA AMENDMENT BILL (THE BILL)

Owing to the ever-evolving nature of technology and emerging global trends, the Director-General of the National Information Technology Development Agency (NITDA) Mallam Kashifu Inuwa Abdullahi, proposed a new bill for the National Information Technology Development Agency (NITDA) in March 2021, which will realign Nigeria’s digital economy, to the internationally attainable digital economy policy strategy and fourth industrial revolution.

Purpose of the Bill  

According to Section 1 of the Bill, the aim is to provide an effective, impartial, and independent regulatory framework for the development of Nigeria’s information technology sector and digital economy.[14]

The specific aims of the Bill include amongst others; the promotion and implementation of the government’s national information technology and digital economy policies and plans; encouraging and supporting projects that make digital services more accessible, inclusive, secure, and inexpensive; promote the deployment and use of indigenously created goods, services, and platforms for the development of the digital economy; promote and protect national interests, as well as the rights of citizens and  foreigners to ensure  safety and security, when using information technology and digital services, etc.

New Improvements by the Bill

The first noticeable improvement in the Bill is seen in the preamble which reads as follows: ‘A bill for an act to repeal the national information technology development agency act, no 28 2007 and enact the National Information Technology Development Agency Act to provide for the administration, implementation, regulation of information technology systems and practices as well as digital economy in Nigeria and for related matters’ as against the 2007 act, which only provided for the establishment of the National Information Technology Development Agency (NITDA) and related matters.

Secondly, the Bill has added more functions to the agency as seen in Section 5, which extends the functions of the agency, to include promoting the establishment and maintenance of requisite infrastructure and information technology systems, to support the development of digital services application in Nigeria. Additionally, Section 5(7) of the Bill provides for incentives to bolster the use of information technology, such as the establishment of information technology parks, promotion of innovation, startup initiatives, digital entrepreneurship, digital commerce, digital government services, privacy and trust.

Thirdly, the Bill has introduced a change in the composition of the National Information Technology Development Agency Board. In the Bill, the board will be headed by a part-time Chairman, as opposed to a Chairman as found in the current NITDA Act, 2007.  The Bill also removed the membership of experts from the 6 geo-political zones, and replaced it with 4 persons of integrity from 4 geopolitical zones, excluding that of the Director-General and Chairman.

Fourthly, Section 13 of the Bill maintains the establishment of the National Information Technology Fund. However, it goes ahead to provide a purpose for the fund – the advancement of the country’s digital economy objectives and related purposes. Companies whose annual turnovers are N100,000,000 and above are mandated to pay 1 per cent of their profits before tax into the fund.  

Fifth, Section 20 of the Bill empowers the Agency by regulation, to issue licenses for operators in the information technology sector and digital economy sector. Such regulation shall provide for licensing and authorization criteria, including renewal, suspension, and revocation conditions to promote free-market operation and competition amongst others. The following licenses are available under the bill; product license, service license, platform provider license.

A LOOK AT SIMILAR AGENCIES IN OTHER JURISDICTIONS

GHANA: Ghana has a similar agency, the National Information Technology Agency, Ghana. It is a public service organization mandated by the Ministry of Communications to implement ICT policies. As part of its mandate, it identifies, promotes, and develops innovative technologies, standards, guidelines, and practices among government agencies. Additionally, it ensures sustainable growth of ICT through research and development planning. It also includes technology acquisition strategies to help Ghana achieve the standard of becoming a technology-driven, knowledge-based, value-based economy as raised by the E-Ghana project, which will help the country generate economic growth and jobs via ICT and public-private partnerships.[15]

INDIA: National Informatics Centre (NIC), a technology partner of the Government of India, is under the Ministry of Electronics and Information Technology. The mandate of the department includes developing IT systems for the government, providing ICT infrastructure to the government, and providing advice on emerging technologies.[16]

A cursory look at the mandates above shows that across the developing world, countries have agencies like NITDA in place to better position themselves for a technologically advanced future.

ROLE OF LAWYERS IN INFORMATION TECHNOLOGY

As technology has grown in leaps and bounds over the last few decades, the need for lawyers to help unravel the legal knots of stakeholders in the information technology sector has also grown.

A clear definition of the role of a lawyer in information technology is difficult to come by as the IT sector is always in a state of change. Perhaps, a better way to understand the role of lawyers in information technology, is to describe the various activities that lawyers can carry out within the sector. These include:

1. Consulting and transactional work involving tech companies or companies that are looking for technological solutions.
2. Complying with the legal and regulatory requirements of a particular jurisdiction when it comes to technological solutions, products, and services.
3. Making sure that contracts and agreements are followed.
4. Acquiring operational licenses by interacting with government regulators.
5. Determining and managing potential legal risks.
6. Assuring the legal interests of clients are protected by technology agreements.

CONCLUSION

On the whole, it can be confidently said that Nigeria has, in line with global standards, taken steps to ensure that its digital economy and information technology development are up to today’s international standards. These steps, if effectively implemented, should put the country at the forefront of technological advancement.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN.

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.

Mr. Atoyebi has expertise in and a vast knowledge of Telecommunications, Media and Technology Law and this has seen him advise and represent his vast clientele in a myriad of high level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Caleb Echoga

Caleb is a member of the Technology Law Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Data Protection.

He can be reached at caleb.echoga@omaplex.com.ng

[1]  Outram Cullinan & Company OC&C Strategy Consultants, ‘Tech entrepreneurship ecosystem in Nigeria’ (2018). <https://www.occstrategy.com/media/1307/tech-eship-in-nigeria.pdf> Accessed 3 Feb. 2022.

[2] Section 1 of the NITDA Act, 2007.

[3] Section 5 of the NITDA Act, 2007.

[4] Section 2(2) (a-f) of the NITDA Act, 2007.

[5] Section 7(a)(b) and (c) of the NITDA Act, 2007.

[6] Section 16 of the NITDA Act, 2007.

[7] Section 13 of the NITDA Act, 2007.

[8] Section 19 of the NITDA Act, 2007.

[9] Regulation 1.1 of the NDPR, 2019.

[10] Regulation 1.2 of the NDPR 2019.

[11] Regulation 1.3 of the NDPR, 2019.

[12] Regulation 2.1 of the NDPR, 2019.

[13] Proshare, “President Buhari Approves the Nigeria Data Protection Bureau; Appoints Dr Olatunji as Pioneer Head.”, available at https://www.proshareng.com/news/Business%20Regulations,%20Law%20&%20Practice/President-Buhari-Approves-the-Nigeria-Data-Protection-Bureau–Appoints-Dr-Olatunji-as-Pioneer-Head/61164# assessed 7February 2022.

[14] Section 1 of the NITDA Amendment Bill, 2021.

[15] National Information Technology Agency, Ghana, “About Us” available at https://nita.gov.gh/about-us/ accessed on 3^rd February 2022.

[16] National Informatics Centre, “Mandate” available at https://www.nic.in/mandate/ accessed on 3^rd February 2022.