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Nigerian Communications Commission (NCC):Disregard for the Rule of Law, Issuance of Contentious and Illegal Licenses, and Revisit of More than N500BN NITEL Robbery

May 9, 2009

Dear Sir/Madam: This is the third part of the recent series of my letters on the NCC. , The first was “The Great NITEL Robbery: Estimated Loss N500Bn” of 11th January 2009. The second was “Nigeria gsm Extortionist Tariff and the Quality of Service (QoS): NCC lies and the Dangers” of 11th March 2009. There are indications that action is being taken by appropriate authorities on the revelations in those letters and I hope and pray that the serious allegations, including those in this letter are pursued to logical conclusions as the crimes perpetrated are more than the Halliburton bribery scandal, the National Identity contract Scam and the Oil Block sales scandals all rolled into one.

The goodwill NCC initially enjoyed from Nigerians and the International Community was the transparency and openness that characterized the open bid for the gsm license in 2001. Those of us who knew the officials of the NCC however suspected that the initial efforts of these officers at wooing public trust was a smokescreen and diversion like 419 criminals do to gain the confidence of unsuspecting Nigerians and enable them perpetrate the greatest heist and plunder of a public institution ever in Nigeria’s history and turn the powers of NCC to issue Telecommunications Licenses into nothing more than hawking the licenses to some privileged few at personal premiums or fortunes to themselves and we have been proved right.
Nigerians wonder why no other Major licenses issued by NCC were subjected to open bid.

For example the 3G licenses were by open bid in other parts of the world and it was a good opportunity to attract new investors to Nigeria also. This goal the fraudulent NCC officials pay lip service to. Why then were the 3G licenses issued under the counter without an open bid? Nigeria would have made billions of Naira if the open bid had been adopted. If Oil blocks have been awarded the same way the 3G licenses were given out there would have been great hue and cry in the country. Are officials of the NCC sacred cows? The so called Unified Access License is a National Carrier License by another name. Why was it not by Auction or Open Bid as the National Carrier License which Globacom won by open bid and NITEL was made to pay same amount because it was the existing Authorized Carrier? NCC has taken it upon itself to package a document give it a name regardless of whatever conflict it may have with existing licenses, and hawk it as a license to meet their selfish demands and those of some individuals or groups.

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What Nigerians do not know is that Nigeria, in effect, now has 11 National Carriers not to mention 8 others who are National Long Distance Operators or many more who are called transmission providers or metropolitan optic fiber providers. It should be noted that South Africa with larger land mass than Nigeria that needs more telecommunications carrier or transmission infrastructure licensed her Second National Carrier less than a year ago. Before then South Africa had only one National Carrier and that was Telkom SA. So my assertion that NCC is hawking or touting licenses is justified. Before NCC resorts to disseminating falsehood that Unified Access Providers are not National Carriers they should examine Schedule 2, Condition 24 (section 24.1 – 24.7) of the scope of work of the Unified Access Provider and tell Nigerians the difference between that and the scope of work of a National Carrier.

The next issue that I expect the addressees of this letter to look into is the validity of the Unified Access Service Provider licenses in view of the exclusivity period granted the two National Carriers i.e. the Nigerian Telecommunications Limited and Globacom. This is the main reason why NCC never wanted NigComSat to take off as all the Carrier licenses NCC has hawked or touted will have to compete with NigComSat.

It is also disturbing that NCC in flagrant disregard of the Rule of Law has ignored the Laws of the Federation of Nigeria 2004 Chapter W5: Wireless and Telegraphy Act. While this Act recognizes the NCC as “Commission” in matters relating to telecommunication, there is however a major departure from NCA 2003. With the WTA2004 the NCC can only issue Regulations with prior approval of the Hon Minister vide section 9(1). This invalidates the various Regulations and Licenses that NCC has been issuing since after WTA 2004 came into force. The Instrument that NCC relies on to date and Inserted in its Regulations and licenses is WTA 1990. It is now clear why NCC prevents the download of WTA 1990 from its website while presenting it as its guiding instrument but refuses to acknowledge or present for download WTA 2004 on its website.

The most unpatriotic action of the NCC is the total refusal to harness other Federal Government investments which are underutilized. As far back as 1996/1997 at meetings on Interconnection with Ernest Ndukwe present as the then Chairman of the Association of Telecommunications Companies of Nigeria (ATCON) I told those in attendance in plain language that those who thought NITEL was difficult for protecting its financial interest could approach the Nigerian Railway Corporation (NRC) or Nigerian National Petroleum Corporation (NNPC) to use their spare transmission capacities instead of trying to use that of NITEL free of charge.

Nigerians do not know that before deregulation NRC and NNPC were major players in telecommunications with NITEL only that NITEL was the only body offering it as commercial service to the public. In fact after deregulation NRC could have commercialized its transmission capacity and it could have been making more money from it than from its rolling stock. Former President Obasanjo directed that PHCN be licensed as a carrier too because it also has extensive transmission capacities but instead of harnessing all these Ernest Ndukwe led NCC would rather prefer to hawk new licenses because of selfish interests while mouthing subscribers’ interest as cover. Only the uninformed majority are deceived. You cannot deceive ALL of the People ALL of the time. NCC will claim that harnessing other Federal Government infrastructure in telecommunications will not give a level playing field to private investors. What then is the private public partnership? In China and several European countries telecommunications companies fully owned by the public or Governments are working happily with the networks of private investors.

The Disregard for the rule of Law by the NCC was amplified in the arrogant disregard of a Presidential Directive by the NCC to issue a license in 2007 to NigComSat. In any other sane democracy the Governing Board of the NCC would have been disbanded IMMEDIATELY. In 2007 WTA 2004 was the law in force. In the WTA 2004 while NCC issues licenses for Wireless Apparatus all regulations are to be approved by the Hon Minister. We all know that the ordinary meaning of Regulation which includes Rule or Law is precedent to Licenses which means certify, certificate or authorize. Anyway the NCC has gotten away with a slap in the face of the President of the Federal Republic of Nigeria and proud of it. I should make it clear that I am not a lawyer but ignorance as they say is no defense in law.

I still maintain that the Nigerian Telecommunications Limited (NITEL) lost more than 500 billion Naira from the fraudulent interconnection Agreement deliberately initiated by the NCC knowing fully what the consequences will be i.e. the bankruptcy of NITEL which was achieved. When MTN and ECONET launched their gsm services in 2001, they each had ONLY ONE Mobile Switching Center(MSC) located in Lagos It was NITEL carrier LEASED CIRCUITS FOR POINT TO POINT SERVICES AND NOTHING TO DO WITH THE INTERCONNECTION OF NETWORKS that were used to connect their MSC to their base stations in ALL cities where they showed presence. Also through INTERCONNECTION NITEL CARRIED their calls ALL OVER NIGERIA. This continued as they expanded their MSC and Radio Base Stations over the years, For ALL THESE THEY DID NOT PAY NITEL A KOBO. Meanwhile MTN and ECONET (and its successor companies) kept submitting fraudulent bills most of which NITEL cannot verify and by NCC regulation NITEL was still forced to pay them.

I will now show that the Bankruptcy of NITEL was a premeditated and deliberate act of Commission by NCC and the GSM Operators
1.    Between 1994 and 1997 Rtd. Gen. Olanrewaju as Minister of Communications spent most of his time in office in ensuring a fair and equitable Interconnection agreement between NITEL and Private Telecommunications Operators (PTO}. During this same period Engineer Ernest Ndukwe was the Chairman or President of the Association of Telecommunications Company of Nigeria (ATCON) that was vehemently opposing any agreement that does not allow PTO to use NITEL network free of charge or to subsidize the PTO. The Agreement Negotiated by Gen Olanrewaju received Presidential Approval because of Ndukwe’s group vehement opposition before Gen Olanrewaju gave NITEL the go ahead to implement the Agreement.
2.     In July 2001 just before the gsm operators began operations in August 2001, the equitable Interconnection Agreement Rtd. Gen, Olanrewaju spent over 3 years to negotiate and arbitrate and which was already in use was replaced by a fraudulent Interconnection agreement, By this period Ernest Ndukwe, has become EVC of NCC and spearheaded the substitution of the 1997 that had Presidential Approval with the 2001 fraudulent Interconnection agreement that FEC did not consider at a time NCC was still subjected to Ministerial Control.

3.    Even to properly implement the Fraudulent Agreement the parties must be able to monitor traffic passing through each others Network NITEL set up VI Interconnection Center purposely for this. In 2001 when the gsm operations began and NITEL provided ALL THE LEASED CIRCUITS THE OPERATORS WERE USING AND COULD STILL LINK THEM TO VI Ernest Ndukwe’s NCC decreed that the operators should be Interconnected at whatever point they wanted whether NITEL can monitor traffic at these points or not. NCC also decreed that Invoices submitted by the operators must be settled whether NITEL is able or unable to certify the Invoices. This is in complete negation of basic accounting rules and Federal Government Financial Regulations. This permitted the gsm Operators to submit several questionable invoices to NITEL for settlement.

4.    The NCC through Ernest Ndukwe also deliberately manipulated the National Assembly into the surprising approval of the fraud. Section 108(4)(C) of NCA 2003 states: “tariff rates shall not contain discounts that unreasonably prejudice the opportunity of other providers. But Nduke knew that all over the world Interconnection is based on discounts which were also the basis of the 1997 Agreement. The only condition for Interconnection as decided by litigation in Europe is that the dominant operator should offer its services to new entrants at cost. Profit is a known percentage margin of cost which is then removed to keep to decided court cases in Europe any other method is arbitrary and this was the method Ndukwe manipulated the National Assembly to adopt and cannot stand in any court of Law. Even the Agreement that MTN signed with Telkom SA the equivalent of NITEL in South Africa was based on discounts and a copy has been given to one of the Law enforcement Agencies in Nigeria. But the American Law even permits the Dominant Operator reasonable profit but NITEL was offering its network to the New Operators at about 10% below cost. This the legal Adviser to NITEL Knew before he switched over to NCC and engineered this obnoxious clause.

5.    Also Section 108(4)(b) of NCA 2003 states: ‘tariff rates shall be cost oriented and, in general, cross subsidies shall be ELLIMINATED” Ndukwe Knew that his arbitrary costing in the fraudulent 2001 Agreement Already in force was actually heavily subsidizing new operators and he needed this clause as protection. But one wonders how Nigerian Law makers can approve elimination of a subsidy that the NCA 2003 did not recognize. This is the real paradox of Lawmaking in Nigeria.
6.    Unfortunately for Ernst Nduke and his Manipulation of the National Assembly, the Central Bank of Nigeria stumbled on the CAPITAL FLIGHT the fraudulent Interconnection Agreement was causing NITEL and NIGERIA. This Day Edition of August 6, 2003 Carried the Story MTN Moves to Douse Concern Over Forex Outflows. This was CAPITAL FLIGHT Started just Over One year after MTN Started Operations in Nigeria and Even before the NCA2003 act was passed. Unfortunately however Central Bank was not in a position to understand the FRAUD going on. Even two years later on March 18, 2004, the Punch Newspaper also reported that “MTN remains on top of forex market” It is only a fool that will think that MTN and Others Invested IN Nigeria. It is merely the money drained from NITEL by the Interconnection Fraud that was RECYCLED.

It is sad that even the National Assembly of Nigeria can be manipulated by a handful of people to destroy Nigeria Economically. Reverend Father Kuka was right when he was reported as saying that Criminals have taken Over Governance in Nigeria and a few of them are in the NCC as could be seen from the forgoing.

I should seize this opportunity to warn the members of the National Assembly to beware of the cliché “Number Portability” that the NCC is now banding around. It will not solve the present poor quality of service and will only be used to shield criminals when Registration of SIM Cards becomes compulsory. Number Portability can only be implemented by Law and not Regulation as NCC is attempting to do. What Number Portability implies is that a subscriber can leave a network permanently for another network and retain the number he was using in the former network. The criminally related issue is what happens to his telephone records while he was on the previous network as the operator of his previous network can destroy his records once he changes network. Presently in Nigeria there is no Regulation or Law on how long telephone records can be kept. Telephone record is a major tool in crime detection all over the world. If a law is not passed and Number Portability is introduced a criminal who has committed treason, murder or any other crime knows he can change networks retain his number and his records on the previous network tying him to the crime would be destroyed because that network will no longer fell responsible to keep his records. The Murder of former attorney general of the federation could have been easily traced if SIM card registration had been in place as the analysis for all the calls to and from the cell site nearest to his house in Ibadan around the time he was killed would have revealed a lot. The unpatriotic set of NCC officials we now have should not be allowed to protect criminals with Number Portability without a law mandating the telephony operators to keep telephone records for a specific length of time whether the number has left that network or not.
The question some people are asking is who am I? I served Nigeria in NITEL for 30 years and rose from Pupil Engineer in the Defunct P & T to the General Manager (Operations) in NITEL. From 1994 until I was forcibly retired in 2000 I was the leader of NITEL ad hock technical team handling Interconnection issues with NCC. My principled stand on not allowing NITEL to be bankrupted once earned me illegal detention in NCC premises for refusing to sign a document detrimental to NITEL’s Finances without Management approval. I was released only when I traced my MD Prof Bajoga on phone as he was outside Abuja and he insisted that I was right that even he could not authorize me to sign the document without first discussing the issue with NITEL Management.

I could have suffered loss of promotion for the same reason but for Prof Bajoga. The only two patriotic officers in Nigeria that I know could have saved NITEL from the Financial Rampage of Ernest Ndukwe’s friends are Patrick Uchiduino and Professor Bajoga both former Managing Directors of NITEL because they have been experienced Network Operators. But because the “Criminals” have taken over Governance in Nigeria we now have FAILED NITEL CONTRACTORS and inexperienced Network Operators as Head of Telecommunications Regulation in Nigeria.

May God Save Nigeria! My sympathy only goes to Professor Dora Akunyili, because the whole cesspit is now directly under her Chair.
Yours sincerely,

Yours faithfully,
Engr. Solomon. Ogunjide Ogundele
7, Alabiamo Street, Bodija, P. O. Box 7689,IBADAN
E-mail: [email protected]; Tel: 0805-4068903

Hon. Michael Kaase Aondokaa, (SAN) Attorney-General & Minister of Justice
Hon Prof. D. Akunyili, Minister of Information & Communication
Mrs. Farida Waziri, Chairman, Economic and Financial Crimes Commission
CC:    President Umoru Yar A’dua,   
Vice President, Jonathan Goodluck,
CC:    Senate President, Hon. David Mark;
    Speaker of the House of Representatives, Hon. Dimeji Bankole;
You may wish to note the observations and comments above and bring to the attention of the Honourable Members of the Senate and the House of Representatives please.


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