As had been previously mooted, a key feature of Federalism is the constitutional division of State powers; particularly where a country runs a constitutional democracy. In Nigeria, specifically, the Constitution is supreme and any law which is inconsistent with same is to the extent of its inconsistency; null and void. Therefore, law making and the law making process must be done with the Constitution in mind.
A thorough review of Section 4 of the Constitution reveals that only the National Assembly (the Federal Legislature) can make laws on any of the matters stated in the Exclusive Legislative List. The National Assembly is also empowered to make laws on matters in the Concurrent Legislative List, to the extent specified under each item.
The National Assembly may also make laws as it may be specifically empowered to so do in the substantive sections of the Constitution. Each State House of Assembly (State Legislature) may make laws in connection with items listed in the Concurrent Legislative List; also only to the extent specified under each item. Each State House of Assembly is also exclusively empowered to make laws where (a) a matter falls outside both the Exclusive Legislative List and the Concurrent Legislative List and (b) the Constitution does not specifically empower the Federal Legislature to make laws on same.
It is pertinent to note the provision of Section 4(5) of the Constitution in particular, which specifies that if any law enacted by a House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and the other law shall to the extent of the inconsistency, be void. A key issue here is the validity of the law made by the National Assembly in the first place; an issue many people do not consider when arguing the principle of covering the field or arguing the invalidity/ abeyance of a House of Assembly made law because of the existence of a Federal made law. Hence, an important element is that the Federal made law must first be validly law, in the sense that the Federal Legislature must be empowered to make same.
The effect of Section 4(5), therefore, is that where the Federal and State Legislatures come up with a law each to regulate the same subject matter precedent would be given to the Federal Legislation; only to the extent, however, that it validly made the law.
As regards the foregoing, the Nigerian Constitution places electricity generation, transmission and distribution on the Concurrent Legislative List. Although, both the Federal and State legislatures share legislative powers in respect of matters contained in the Concurrent Legislative List, the powers of the federal legislature to make laws in respect of matters listed in the Concurrent Legislative List, is limited to those items specifically listed in the first column of Part II. With regard to the Power Sector, Paragraphs 13 and 14 of the Concurrent Legislative List respectively make provisions in that regard.
Paragraph 13 specifically provides that the National Assembly could make laws from the generation and transmission of electricity in or to any part of the Federation and from one State to another State. Further, the National Assembly is empowered to make regulation in relation to the right of any person or authority to dam up or otherwise interfere with the flow of water from sources in any part of the Federation. Additionally, the National Assembly is empowered to make laws relating to the participation of the Federation in any arrangement with another country for the generation, transmission and distribution of electricity for any area partly within and partly outside the Federation.
Added to the foregoing, the National Assembly may make laws for the promotion and establishment of a national grid system and the regulation of the right of any person or authority to use, work or operate any plant, apparatus, equipment or work designed for the supply or use of electrical energy.
Paragraph 14, however, specifies that a House of Assembly may make laws for the State with respect to electricity and the establishment in that State of electric power stations. Each State House of Assembly is also empowered to make laws for the generation, transmission and distribution of electricity to areas not covered by a national grid system within that State. Further, the Constitution empowers the establishment within that State of any authority for the promotion and management of electric power stations established by the State.
The effects of the combined reading of items 13 and 14 of the concurrent legislative lists and Section 4 of the Constitution, are that the states can only legislate upon and take corresponding action in relation to the generation, transmission and distribution of electricity to areas not covered by a national grid system within that State and that no state can make laws on the foregoing issues, to the extent that the federal government has made a comprehensive law(s).
The ordinary effect of the foregoing, therefore, is that to the extent that there is the transmission grid and the Electric Power Sector Reform Act which covers issues from generation, transmission and distribution and supporting regulations, component Nigerian States/ States of the Federation, cannot act inconsistent with those laws and build their own distribution or transmission systems without going through the Nigerian Electricity Regulatory Commission (NERC).
State governments may, however, properly legislate on electricity matters in areas where the national grid system does not cover. For more information on the electric power sector in Nigeria, you may review the text, the Nigerian Electric Power Sector by Ayodele Oni.