CHIMEREMEZE NWACHUKWU, LLB

8th Sep, 2023 : 9;16am

I just finished writing a research paper about data protection in Nigeria in line with the introduction of the Data Protection Act 2023 where I can recall actively using the words law, regulation, policy, rules, directives, guidelines, pathway, structure, interchangeably a bid to pass my idea across. I also remember one of my recommendations to my supervisor being exactly the point that the topic of this work is trying to address which is that these items must not be used interchangeably as even though they show similarities in their general context, their characteristics would show that they are more different than they are similar. This short attempt to draw a distinction between these legal instruments in consonance with the context of their appreciation and usage especially in the Nigerian Legal System.

The definition of these legal instruments provides us with a clear insight as to what context they should be used and consequently points to an accurate guide as to their implementation. A policy is generally defined as a guiding directive on the stance of the government on a subject matter. It is seen as an ideological reference and would usually set out the goals or course of action of the government. They may influence how laws are applied, or they may help you to understand the laws. Usually, policies appear in a distinct documentation different from acts or statutes made by legislation[1] but as a Nigerian phenomenon, they are usually embedded into a law passed by the parliament on that subject matter. They are the conclusions following interactions and engagement between government agencies and government agencies[2] and the public which are lifted unto the legislation to give a guiding principle towards the construction of the law by the lawmaker, often referred to as objectives of an act[3]. The next attempt would be to define legislation, Simply put, legislation is laws that are made by the legislature[4], and they are often referred to as acts or statutes. A law would usually create rights, responsibilities, and where necessary institutions for the implementation of such rights and responsibilities for instance the latest legislation in Nigeria, The Data Protection Act 2023 creates a commission that will manage and enforce the provisions of the Act. Finally, the term regulation means administrative rules that are used to implement the law or rules,[5] Regulation offers certain provisions made to make people comply and behave in a certain manner usually in consonance with the general intention expressed in a law and to ensure its success. It is usually wielded by the executive as it stands as a more concise approach to how it intends to carry out its duties of execution of a law as prescribed by the constitution.

         It is then proper to look at the characteristics of each of these items and how such impacts their enforcement We would begin with regulation. The most important characteristic of a regulation is their creation, they are not essentially acts of the parliament as they are mostly made by executive arms through the medium of delegated legislation.[6] They are mostly rigid but often reviewed to align with the government’s present approach to how to enforce the law.[7] Most often there are internal mechanisms for giving out penalties and fines following the breach of their provisions.[8] Next is legislation, being laws made by legislature in a federal system such as Nigeria, they are usually rigid, they may not specify a clear authority for the enforcement of its provisions as such duties would usually lie with the police or any consequently relevant agency of government making them usually appear more loose in administrative mechanisms that the regulation. A policy is often informal as it is a loose legal instrument mechanism. It is usually flexible and sometimes even unwritten. In the Nigerian situation, we have them as objectives of an act and when they are written in such manner, they carry with them a toga of enforceability except where expressly denied such enforceability.[9] In summary, the usual difference between each of these legal instruments is t the presence of specifics and details in addressing a subject matter.

Essentially, each of these terms plays various roles in society especially when their enforcement mechanisms, source, and management are observed. That being the case they also share similarities. It can even be said that they are children of themselves. A policy is the parent guide to the approach to a subject as it offers a primary outlook, the legislation (acts and statutes) being a child of such guide which sets out the framework to allow for the achievement of the goals of such guide and the finally the regulation which creates measures for the effective implementation and enforcement of the ideals of the framework established by legislation. It would not then be surprising to see that there exists some sense of overlap in their enforcement as they ideally represent the government’s stand on a subject matter collectively. This is healthy for the development of laws, allowing for adequate synchronization, and would only pose a problem if they are in conflict with each other, In Nigeria, some laws provided by legislation would usually allow for a priority clause[10] to ensure for the smooth operation of the law but where they do not it causes a problem to the effective administration of laws as each agency would usually want to carry out their directions on a subject matter[11] and the problem gets worse where such regulations are in conflict with each other, bringing to question of who is in charge of enforcement on a subject and consequently abuse because when an intention is not guided abuse is inevitable.[12]

         It is the opinion of the writer that we ensure that all policies in Nigeria are written and go a step further to separate policy documentation from laws of legislation which we call ‘objectives of the act’, as policies are supposed to be flexible and should not be put to the lengthy process of statutory amendment before they can be adjusted as this stalls the effectiveness of such legal instrument. The executive should ensure that Nigerians are made available with policy documentation and laws as much as possible to enable citizen participation in such policy formulation and also to enable adequate research to be made to avoid the introduction of legal instruments that are in conflict with existing ones.

[1] Policies are usually developed by a Government Department, for example the Department for Environment, Food and Rural Affairs (Defra), to achieve their objectives. Documentation on government policies is publicly available through the UK Government website (www.gov.uk/government)

[2] ETU, ‘The Policy and law making process’ (Etu.org, n.d) < https://www.etu.org.za/toolbox/docs/govern/policy.html> Accessed 22 August 2023

[3]  The Data Protection Act of Nigeria 2023 outlines the objectives of the act in Section 1

[4] In Nigeria today, following the provisions of the constitution as seen in section 4(2) of the Constitution of the Federal Republic of Nigeria, the legislature is burdened with the responsibility to make laws for the peace, order and good government of the federation.

[5] Willis Harris, ‘What is the main difference between law, rules, regulations and policy? What are their similarities and differences?’ (Quora,com, 2023) < https://www.quora.com/What-is-the-main-difference-between-law-rules-regulations-and-policy-What-are-their-similarities-and-differences> Accessed 22 August 2023

[6] The NDPR 2019 by NITDA

[7] See the CBN Regulations for Banks and Financial Institutions on various segments change to ensure a better approach to the subject matter of the regulation.

[8] Regulations would often enable a panel or an institution to carry out and enforce the penalties and fines stated out for the breach of its provisions.

[9] Part III of the CFRN is non justiciable by virtue of section 6(6)c  CFRN.

[10] The Nigeria Data Protection Act creates a priority clause if its provisions conflict with the Data Protection Regulation 2019 by NITDA.

[11] There is a conflict between the Administration of Criminal Justice Act (ACJA) and the Economic and Financial Crimes Commission (EFCC) Act about plea bargain in Nigeria. The ACJA attempts to make comprehensive provisions to guard against the abuse of plea bargaining, while the EFCC Act does not provide for the nature and type of plea bargain. This has resulted in outrage and condemnation of the practice of plea bargaining in Nigeria. Despite the conflict, the EFCC has continued to use plea bargaining as a means of combating corruption in Nigeria.

[12] The Second Schedule of the Constitution of the Federal Republic of Nigeria 1999 outlines the exclusive and concurrent legislative powers of the Federal and State Governments, respectively. The Constitution limits the powers of the Federal Government to enact, impose, and collect taxes to the classes of taxes listed in items 58 and 59 of the Executive Legislative List . However, the Tax and Levies Act, which is a federal law, imposes taxes and levies beyond the scope of the Constitution. This has led to legal challenges and court rulings nullifying some of the taxes and levies imposed by the Federal Government.