20 September 2017

Nigeria: Brewing War Over Tourism

The decision of the National Assembly to make the federal government the sole regulator of the tourism industry has unsettled many governors who believe that the move is an encroachment on the powers of the states under the constitution‎.

Recently, the Senate initiated a process to repeal the Nigerian Tourism Development Corporation (NTDC) Act, 2004.

Basically, the Act provides legal and institutional regimes for the regulation of Nigeria's tourism and hospitality sector. Already, the process for its abolition has scaled through the second reading at the Senate. Currently, the bill has been transmitted to the Senate Committee on Culture and Tourism for consideration.

At its completion, the process will lead to the passage of the Nigerian Tourism Development Authority (NTDA) Bill, 2017. As part of the process to replace the NTDC Act, 2004, the Senate Committee of Culture & Tourism convened a public hearing in August to specifically enlighten and sensitise all stakeholders on the imperatives for the new tourism regime.

At the public hearing, the Chairman, Senate Committee on Culture & Tourism, Sen. Matthew Urhoghide, explained the decision of the upper chamber "to initiate a bill for an Act to repeal the Nigerian Tourism Development Corporation Act CAP N137 LFN 2004 and enact the Nigerian Tourism Development Authority (NTDA), 2017 (SB. 429)."

Prior to the NTDA Bill, Urhoghide said the NTDC Act, 2004 was the only existing law regulating tourism and hospitality in Nigeria. But according to him, the new bill seeks to repeal and enact a new law entirely. He, thus, said the subject-matter of the bill "is under the legislative purview of the National Assembly. Hence, the Bill does not violate any existing law in Nigeria."

Before delving into the content of the new bill, an inquiry into the country's tourism sector would help unravel the origin of the NTDC Act, 2004. In its current state, the NTDC came into being effectively in 1992. Under the administration of Gen. Ibrahim Babangida, the corporation was established by Decree No. 86 of 1991. Before the advent of the NTDC, the Supreme Military Council (SMC) had promulgated Decree No. 54 of 1976, which created the Nigeria Tourism Board (NTB), the country's first tourism regulatory body.

Even after Decree 54 of 1976 was promulgated, the successive military regimes had largely defined rules and regulations governing the country's tourism sector, which stakeholders believed, formed the core challenge bedeviling the sector till date. In 1982, for instance, the then Muhammadu Buhari regime started the Master Plan on Tourism Development in Nigeria. However, the country's first tourism development policy was not ready until 1990.

The implication of the policy was indeed huge. The policy, first, paved the way for the promulgation of Decree No. 86 of 1991. Subsequently, the policy prepared grounds for the establishment of the NTDC, which according to Degree 86, was saddled with the onus of regulating the sector from 1992. But due to military influence at the coneptualization of its policy, the tourism sector was perpetually under the purview of the federal government during the military era.

In the last four decades, the military thinking has been shaping the country's tourism industry, even after the country was transited to civil regime in 1999. After the transition, the same thinking was predominant in the tourism sector governance, though the 1999 Constitution limits the regulatory power of the federal government "to tourist traffic alone."

Also, in the on-going amendment of the subsisting tourism regime, the same thinking is dominant in the NTDA Bill which was first laid before the Senate on March 9, 2017 and now at the committee stage. Urhoghide, who sponsored the bill, had argued that the institutional structure "is yet to be regulated to compete favourably with other fast growing tourism destinations."

Almost all stakeholders agree that Nigeria's tourism sector is underdeveloped. In 2016, for instance, total contribution of travel and tourism to GDP was N1.86 billion. This figure was a far cry from a revenue $304.9 million that Rwanda generated from tourism and travel in 2014. Compared with its tourism potentials, what raked in annually is abysmally insignificant. But they never agreed to the initiative of the Senate to legislate on matters that borders on the jurisdictional powers of the constituent governments across the federation.

In essence, the NTDA Bill calls for aggressive tourism development, regulation and promotion by the federal government. Then, which level of government has the core responsibilities to develop, legislate and regulate on tourism and hospitality sector in Nigeria? Under whose legislative and executive functions does the control and management of tourism resources fall? Among others, these are the core questions the NTDA Bill attempts to resolve.

However, the content of the new bill, currently at the committee stage before the Senate, raises more questions than answers it intends to offer. First and foremost, Part II of the NTDA Bill seeks to establish the Nigerian Tourism Corporation (NTC), which it says, shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.

Section 15, also, outlines the core responsibilities the NTC will discharge if the new regime eventually sails through. According to the bill, the corporation shall develop and promote Nigeria as a travel and tourism destination; encourage the provision and improvement of tourism amenities and facilities in Nigeria; accredit, regulate and supervise tourism enterprises for quality assurance and implement all government policies related to tourism.

As proposed under Section 15 of the NTDA Bill, equally, the NTC "shall oversee the administration of the Tourism Development Fund (TDF) and ensure that the Fund is utilised for the required purposes; ensure collaboration with other public, private and international agencies and advise the federal government on policy issues relating to tourism generally."

Likewise, the new bill seeks to establish the TDF, which it says, shall generate funds from different sources intervention funds from the federal government and loans from banks. Under Section 26, the TDF shall provide funding for tourism development and tourism-related projects and programmes. Explicitly, the section further defines other sources of the Fund to include donations from states, area councils, public agencies, private organisations, multinational companies and individuals.

Section 28, specifically, provides for the establishment of Tourism Development Fund Management Board (TDFMB), over which it says, the President "shall appoint a Board of Trustees that administer and manage the Fund." Under Section 28(2), the board shall concern itself only with the control, investment and administration of the Fund, including the proceeds of securities issued on Fund Assets for the benefit and development of the tourism and hospitality industry.

Beyond the creation of the Fund and its board, the new bill proposes a tour operating company, which it says, shall be established "to operate tour services within and outside Nigeria. Also, the company shall have offices to operate in all the zones. The Corporation shall operate the company on a commercial basis." In all, the new bill has 45 sections and two schedules that set conditions for abrogating the NTDC Act, 2004 and the enactment of the NTDA Bill, 2017.

From all indications, however, the NTDA Bill offends two established legal instruments in Nigeria. First, different sections of the new bill contravene the Constitution of the Federal Republic of Nigeria, 1999 (as Amended). Unlike the tourism regimes under the military era, Item 60(d) of Part I of Second Schedule to the 1999 Constitution specifically states that the federal government shall regulate the country's tourist traffic pure and simple.

Consistent with this constitutional provision, the federal government lacks power or jurisdiction to discharge other responsibilities than managing and regulating tourist traffic in and out the federation. However, the term "tourist traffic" had once generated controversies of its own when the federal government challenged the power of the Government of Lagos State under the Babatunde Fashola administration to enforce its Hotel Occupancy and Restaurant Consumption Law, 2009; Hotel Licensing Law, 1983 and Hotel Licensing (Amendment), 2010.

In 2009, the Lagos State House of Assembly (LSHA) had exercised its constitutional power to license and regulate hotels in the state. Consequently, the assembly enacted the Hotel Occupancy and Restaurant Consumption Law. Primarily, the law imposes a 5% tax on consumption of goods and services in hotels, hotel facilities, event centres and restaurants among others.

Offended by this law, however, the federal government challenged the power and right of the Lagos State Government at the Supreme Court "to make laws on tourism, specifically where the National Assembly had already legislated on the same issue through the NTDC Act." The fact that the National Assembly had legislated on the same issue was not sufficient to throw out the law, which the state's lawmaking organ enacted.

Second, the NTDA Bill glaringly violates a precedent of the Supreme Court in a suit between the Federal Government and Lagos State. The suit borders on the power of the LSHA to legislate on matters relating to hotels, hotel facilities, event centres and restaurants within the state. In a unanimous decision in the suit between Attorney-General of the Federation and Attorney-General of Lagos State, the Supreme Court held that the constitutional powers of the federal government is expressly limited to tourism traffic in Nigeria.

Categorically, the court defined the term "tourist traffic" to avoid the ambiguity of constitutional interpretation. In consonance with the letter and spirit of Item 60(d) of Part I of Second Schedule to the 1999 Constitution, the court ruled that tourist traffic "means the ingress and egress of the tourists from other countries, that is, international visitors or foreigners."

Besides, the court ruled that tourist traffic connotes "an international visitor who travels to another country for the purpose of sightseeing, e.t.c. and who must thus obtain a visa to the said country, in this case, Nigeria, which calls for the exercise of the function of the Immigration Department of the Ministry of Internal Affairs as governed by the Immigration Act... "

Likewise, the court explained the power and the right of the federal government "to regulate tourist traffic in Nigeria." Under the constitution, the court ruled that such power "refers to the issuance of entry visas, the determination of tourist stay in Nigeria, general regulation of tourists' movement within Nigeria." Other than tourist traffic the 1999 Constitution empowers the federal government to regulate, Lagos State, like other states in the federation, reserves the sole power and right to regulate tourism within its defined jurisdiction.

The court, thus, affirmed the powers of the federating units "to make laws within a federation." It relied on a legal opinion canvassed in the work of Prof. Ben Nwabueze, SAN that federalism "is an arrangement whereby powers of government within a country are shared between a national and a number of regionalised governments in such a way that each exists as a government separately and independently from others operating directly on persons or property within the territorial area, with a will of its own apparatus for the conduct of its affairs.."

On this note, the NTDA Bill, 2017 may not stand any constitutional test if challenged in a court of competent jurisdiction on three grounds. First, the object of the new bill noticeably encroaches into other jurisdictional functions or responsibilities, on which only state lawmaking organs can legislate enshrined in the 1999 Constitution. Second, the bill offends the precedent of the apex court, which glaringly defines and explains the roles the federal government can play in all matters relating to tourism and hospitality sector. Third, the bill constitutes flagrant disregard to the powers of the State House of Assemblies, which the 1999 Constitution empowers to make laws for the peace, order and good government of their states.

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From all indications, however, the NTDA Bill offends two established legal instruments in Nigeria.

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