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Viewing cable 09ABUJA88, NIGERIA: 2009 INVESTMENT CLIMATE STATEMENT
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| Reference ID | Created | Released | Classification | Origin |
|---|---|---|---|---|
| 09ABUJA88 | 2009-01-16 06:45 | 2011-08-25 00:00 | UNCLASSIFIED | Embassy Abuja |
VZCZCXRO8446
PP RUEHMA RUEHPA
DE RUEHUJA #0088/01 0160645
ZNR UUUUU ZZH
P 160645Z JAN 09
FM AMEMBASSY ABUJA
TO RUEHC/SECSTATE WASHDC PRIORITY 5029
INFO RUEATRS/DEPT OF TREASURY WASHDC PRIORITY
RUEHOS/AMCONSUL LAGOS 0652
RUEHZK/ECOWAS COLLECTIVE
RUCPDOC/DEPT OF COMMERCE WASHDC
RUCPCIM/CIMS NTDB WASHDC
UNCLAS SECTION 01 OF 11 ABUJA 000088
SIPDIS
DEPARTMENT FOR EB/IFD/OIA
DEPARTMENT PASS TO USTR AGAMA
TREASURY FOR PETERS, IERONIMO, HALL
DOC FOR 3317/ITA/OA/KBURRESS AND
3130/USFC/OIO/ANESA/DHARRIS
E.O. 12598: N/A
TAGS: EINV ETRD EFIN ECON OPIC KTDB USTR NI
SUBJECT: NIGERIA: 2009 INVESTMENT CLIMATE STATEMENT
REF: STATE 123907
¶1. The following information is Nigeria's 2009 Investment Climate
Statement.
Overview
--------
¶2. With an estimated population of over 140 million, Nigeria is
Africa's most populous nation. It offers investors a low-cost labor
pool, abundant natural resources, and potentially the largest
domestic market in sub-Saharan Africa. Despite these advantages,
much of that market potential is unrealized. Impediments to
investment include inadequate infrastructure, corruption, an
inefficient property registration system, an inconsistent regulatory
environment, restrictive trade policies, and slow and ineffective
courts and dispute resolution mechanisms.
¶3. To succeed, investors must understand the Nigerian business
environment and engage in problem solving with local staff, Nigerian
partners and government officials. Potential investors must cope
with poorly maintained infrastructure and arbitrary policy changes.
Security is of special concern due to high crime and repeated cases
of hostage taking and attacks on oil installations in the oil-rich
Niger Delta region. Inadequate law enforcement compounds the
country's high crime rate, and sporadic outbreaks of communal
violence due to ethnic and religious conflicts continue.
¶4. Military rule ended with the inauguration of a civilian
administration in May 1999. Nigeria conducted its third general
elections in April 2007 resulting in a civilian to civilian hand
over of power from former President Olusegun Obasanjo to President
Umar Musa Yar'Adua. The elections were however, characterized by
gross irregularities. A large number of the electoral victories in
the April 2007 general elections are currently being challenged in
various electoral tribunals and courts in the country. Results of
the presidential election were challenged as well, with the Supreme
Court ruling in December 2008 to uphold President Yar'Adua's
election. The courts have overturned the announced results in a few
cases, including some governorship results, and at least forced
re-runs in a few others.
¶5. The Nigerian government (GON) embarked on a reform program in
late 2003 christened the National Economic Empowerment and
Development Strategy (NEEDS). The present administration of
President Yar'Adua has assured that the economic reforms will be
sustained. Yar'Adua's economic vision is embedded in his "Seven
Point Agenda" focusing on power and energy, food security and
agriculture, wealth creation and employment, mass transportation,
land reform, security, and education system. However, an economic
blueprint for achieving these objectives has not been drafted by the
GON. Freedom of expression and of the press is observed, in most
cases, though most publications practice self-censorship regarding
sensitive issues. There was, however one incident this year when
several of the senior editors of a newspaper were arrested
reportedly in response to a story about the President's health; one
private TV station was briefly closed over a similar story. In
addition, two editors of online publications were detained (not
clear in response to which story) but not charged, and soon
released. Nonetheless, human rights violations have been reduced
from the time of military rule, although the country's human rights
record remains poor. Controls over foreign investment have been
loosened, and earlier decrees inhibiting competition or conferring
monopoly powers on public enterprises have been repealed or amended.
Despite these actions, policymakers' protectionist bent remains
strong. Trade policy is inconsistent, and the GON prohibits the
importation of many goods, ostensibly to foster domestic
production.
Openness to Foreign Investment
------------------------------
¶6. The GON continues to solicit foreign investment and has
implemented various reforms towards attracting it.
¶7. Legal Framework: With a few exceptions, the Nigerian Investment
Promotion Commission (NIPC) Decree of 1995 allows 100% foreign
ownership of firms outside the petroleum sector, where investment is
limited to existing joint ventures or new production-sharing
agreements. Industries considered crucial to national security,
such as firearms, ammunition, and military and paramilitary apparel,
are reserved for domestic investors. Foreign investors must
register with the NIPC after incorporation under the Companies and
ABUJA 00000088 002 OF 011
Allied Matters Decree of 1990. The decree prohibits the
nationalization or expropriation of foreign enterprises except in
cases of national interest.
¶8. Nigerian laws apply equally to domestic and foreign investors.
These include the Securities and Exchange Act of 1999, the Foreign
Exchange Act of 1995, the Money Laundering Act of 2003, the Banking
and Other Financial Institutions Act of 1991, and the National
Office of Technology Acquisition and Promotion Act of 1979.
¶9. Privatization: The Privatization and Commercialization Act of
1999 established the National Council on Privatization, the
policymaking body overseeing the privatization of state-owned
enterprises (SOEs), and the Bureau of Public Enterprises (BPE), to
implement the program. BPE has focused on privatization of key
sectors, including telecommunications and power, calls for core
investors to acquire controlling shares in formerly state-owned
enterprises. The GON repealed or amended decrees that inhibited
competition or conferred monopoly powers on parastatal firms. From
1999 to 2007, BPE raised over $4 billion by privatizing and
concessioning more than 140 enterprises, including cement
manufacturing firms, banks, hotels, and vehicle assembly plants.
Since President Yar'Adua's inauguration no large or substantive SOEs
have been privatized. The Infrastructure Concession Regulatory
Commission (ICRC) was inaugurated in 2008 with the goal of
identifying greenfield infrastructures for concessioning.
¶10. With the passage of the Power Sector Reform Bill in 2005, a
power sector regulator, the Nigerian Electricity Regulatory
Commission (NERC) was created with responsibility for tariff
regulation and economic and technical regulation of the electricity
supply industry. Since its inception, the NERC has issued twenty
nine licenses to independent power producers in the electricity
industry. By the end of 2008 three IPP plants were operational. A
major hurdle facing the IPPs is the insufficient supply of natural
gas to power the plants.
¶11. The privatization of Nigeria's Power Holding Company of Nigeria
through the Electric Power Sector Reform Act of 2005 (PHCN --
formerly the National Electric Power Authority or NEPA) has moved
slowly. The eventual privatization of the successor companies was
frustrated by the lack of interest by potential investors due to the
deplorable state of power sector infrastructure. In May 2008 the
GON established a coordinating office at PHCN headquarters; a Board
of Directors, headed by the Minister of Energy for Power; and
appointed a vice chairman to jointly oversee the rehabilitation of
the power infrastructure and provide proper transfer of employees,
assets, liabilities, rights and obligations of the holding company
to the various successor companies. At this writing, the GON has
decided not to divest all generation, and to maintain ownership of
the National Transmission Grid.
¶12. The GON has substantially opened Nigeria's telecommunications
sector. The Telecommunications Act of 2001 authorizes the Nigerian
Communications Commission (NCC) to issue licenses to existing and
prospective service providers. Five enterprises, including Etisalat
which commenced operations in 2008 and NITEL, have licenses.
Globacom won mobile, fixed, and international gateway licenses as
Nigeria's second national operator in mid-2002. According to the
NCC, the estimated total number of phone lines (both mobile and
fixed line) in Nigeria at the end of September 2008 was 57.07
million with a teledensity of 40.77. This is an improvement from
the December 2007 figure of 41.97 million lines and teledensity of
29.98. In July 2007, three carriers in the 800MHz spectrum band
were awarded to Visafone Communications in a competitive auction
process that included GiCell Wireless Limited, Multilinks
Telecommunication Limited, and TC Africa Telecoms Network Limited.
Also in March 2007, four licenses for a 10MHz lot in the 2GHz
spectrum were issued to Alheri Engineering Co. Limited, Celtel
Nigeria Limited, Globacom Limited, and MTN Nigeria Communications
Limited.
¶13. The NCC commenced the unified licensing regime in May 2006,
awarding the first batch of unified licenses to four
telecommunication service providers. The unified license permits
telecommunications companies to offer services across the board in
telecommunications, including fixed line, wireless, data services,
etc. This marks the end of the five-year exclusivity incentive
granted the mobile telephone licensees in 2001.
¶14. Telecommunications deregulation has led to the issuance of
licenses for fixed wireless networks, internet services, and VSAT
(very small aperture terminal) satellite telecommunications
ABUJA 00000088 003 OF 011
equipment services. However, the GON's hefty fees and
infrastructure deficiencies such as inadequate power supply slow the
impact and implementation of these technologies.
Conversion and Transfer Policies
--------------------------------
¶15. The Foreign Exchange Monitoring Decree of 1995 opened Nigeria's
foreign exchange market. In February 2006, in accordance with its
plan to liberalize the foreign exchange market, Nigeria adopted a
Wholesale Dutch Auction System (WDAS) which gives banks more control
of the foreign exchange market, though the Central Bank still
retains its supervisory role over the market.
¶16. Foreign companies and individuals can hold non-naira
denominated accounts in domestic banks. Account holders have
unlimited use of their funds, and foreign investors are allowed
unfettered repatriation of capital. For naira denominated accounts
there is a $4,000 quarterly Personal Travel Allowance for foreign
exchange and a $5,000 quarterly Business Travel Allowance per
individual. Foreign exchange for travel is usually issued in cash
by commercial banks while some authorized dealers also issue
pre-paid credit cards that can be used on ATM machines worldwide.
Purchase of foreign exchange for business purposes such as importing
equipment and raw materials, and also paying school fees abroad has
to be routed through authorized dealers i.e., banks. This can only
be done with proper documentation such as filling out the Form M,
presenting copies of the certificate of incorporation of the company
etc.
¶17. The NIPC guarantees investors unrestricted transfer of
dividends (net a 10% withholding tax). Companies must provide
evidence of income earned and taxes paid before receiving
remittances. Money transfers usually take not more than 48 hours if
the necessary documentation is provided. All transfers are required
by law to be made through banks, because banks are the only licensed
foreign exchange agents.
Expropriation and Compensation
------------------------------
¶18. The GON has not expropriated or nationalized foreign assets
since the late 1970s.
Dispute Settlement
------------------
¶19. Investment Disputes: Nigeria's civil courts handle disputes
between corporate bodies and the GON as well as between Nigerian
businesses and foreign investors. The courts occasionally rule
against the GON; however, the settlements in these cases are not
always expeditiously paid. Nigerian law allows the enforcement of
foreign judgments after proper hearings in Nigerian courts.
Plaintiffs receive monetary judgments in the currency specified in
their claims.
¶20. Legal System: Nigeria has a complex three-tiered legal system
composed of English common law, Islamic law, and Nigerian customary
law. Most business transactions are governed by "common law" as
modified by statutes to meet local demands and conditions. At the
pinnacle of the judicial system is the Supreme Court, which has
original and appellate jurisdiction in specific constitutional,
civil, and criminal matters as prescribed by Nigeria's constitution.
The Federal High Court has jurisdiction over revenue matters,
admiralty law, banking, foreign exchange, other currency and
monetary or fiscal matters, and lawsuits to which the federal
government or any of its agencies are party. The Nigerian court
system has too few court facilities, lacks computerized document
processing systems, and poorly remunerates judges and other court
officials, all of which encourages corruption and undermines
enforcement. Debtors and creditors rarely have recourse to
Nigeria's pre-independence bankruptcy law. In the Nigerian business
culture, businessmen generally do not seek bankruptcy protection.
Even in cases where creditors obtain a judgment against defendants,
claims often go unpaid.
¶21. The public increasingly resorts to the court system and is more
willing to litigate and seek redress. However, use of the courts
does not automatically imply fair or impartial judgments. In the
World Bank's publication, Doing Business 2009, which surveyed 181
countries including Nigeria, it reported that GON efforts have led
to some improvements in the way business is conducted, especially in
dealing with construction permits, but more needs to be done.
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Regarding the enforcement of contracts Nigeria was ranked 90 out of
181 countries surveyed, a slight improvement compared with its
ranking of 93 out of 178 countries in 2008. In addition, the
report revealed that contract enforcement required 39 procedures and
457 days, the cost of which averaged 32 %of the value of the
contract; in comparison to contract enforcement in OECD countries
that required 30.8 procedures, spanning 462.7 days at a cost of
18.9% of the claim; and sub-Saharan African countries that require
39.4 procedures, 659.7 days, and 48.9% of the claim.
¶22. Alternative Dispute Resolution: The Arbitration and
Conciliation Act of 1988 (the Arbitration Act) provides for a
unified and straightforward legal framework for the fair and
efficient settlement of commercial disputes by arbitration and
conciliation. The Act established internationally competitive
arbitration mechanisms, fixed proceeding schedules, provided for the
application of the UNCITRAL (United Nations Commission on
International Trade Law) arbitration rules or any other
international arbitration rule acceptable to the parties, and made
the Convention on the Recognition and Enforcement of Arbitral Awards
(New York Convention) applicable to contract enforcement, based on
reciprocity. The Act allows parties to challenge arbitrators and
provides that an arbitration tribunal shall ensure that the parties
are accorded equal treatment, and that each party has full
opportunity to present its case.
Performance Requirements/Incentives
-----------------------------------
¶23. Nigeria regulates investment in line with the World Trade
Organization's Trade-Related Investment Measures (TRIMS) Agreement.
Foreign companies operate successfully in Nigeria's service sector,
including telecommunications, accounting, insurance, banking, and
advertising. The Securities and Exchange Act of 1988, amended in
1999 and renamed the Investment and Securities Act, forbids
monopolies, insider trading, and unfair practices in securities
dealings.
¶24. To meet performance requirements, foreign investors must
register with the Nigerian Investment Promotion Commission,
incorporate as a limited liability company (private or public) with
the Corporate Affairs Commission, procure appropriate business
permits, and (when applicable) register with the Securities and
Exchange Commission. Manufacturing companies are sometimes required
to meet local content requirements. Expatriate personnel do not
require work permits, but they are subject to "needs quotas"
requiring them to obtain residence permits that allow salary
remittances abroad. Larger quotas are allowed for professions
deemed in short supply, such as deepwater oilfield divers. U.S.
companies often report problems obtaining quota permits.
¶25. The GON maintains many different and overlapping incentive
schemes. The Industrial Development/Income Tax Relief Act No. 22 of
1971, amended in 1988, provides incentives to pioneer industries
deemed beneficial to Nigeria's economic development and to
labor-intensive industries, such as apparel. Companies that receive
pioneer status may benefit from a nonrenewable 100% tax holiday of
five years (seven years if the company is located in an economically
disadvantaged area). Industries that use 60 to 80% of local raw
materials in production may benefit from a 30% tax concession for
five years, and investments employing labor-intensive modes of
production may enjoy a 15% tax concession for five years.
Additional incentives exist for the natural gas sector, including
allowances for capital investments and tax-deductible interest on
loans. The GON encourages foreign investment in agriculture, mining
and mineral extraction (non-oil), oil and gas, and the export
sector. In practice, these incentive programs meet with varying
degrees of success.
¶26. Technology Transfer Requirements: The National Office of
Industrial Property Act of 1979 established the National Office of
Technology Acquisition and Promotion (NOTAP) to facilitate the
acquisition, development, and promotion of foreign and indigenous
technologies. NOTAP registers commercial contracts and agreements
dealing with the transfer of foreign technology and ensures that
investors possess licenses to use trademarks and patented inventions
and meet other requirements before sending remittances abroad. In
cooperation with the Ministry of Finance, NOTAP administers 120% tax
deductions for research and development expenses if carried out in
Nigeria and 140% deductions for research and development using local
raw materials.
¶27. NOTAP recently shifted its focus from regulatory control and
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technology transfer to promotion and development. With the
assistance of the World Intellectual Property Organization, NOTAP
has established a patent information and documentation center for
the dissemination of technological information to end-users. The
office has a mandate to commercialize institutional research and
development with industry.
¶28. Import Policies: Tariffs provide the GON its (distant) second
largest source of revenue after crude oil exports. Frequent policy
changes and uneven duty collection make importing difficult and
expensive and create severe bottlenecks. Nigeria's dependence on
imports aggravates the situation. In September 2008, the GON
announced a new tariff policy beginning in 2008 to2012, which marked
its second attempt at harmonizing its tariff with its West African
neighbors under the ECOWAS Common Economic Tariff (CET) regime,
which include five tariff bands.
¶29. The new tariff policy reduces the number of banned tradable
imports from 44 to 26 items, and there is a reduction in tariff on a
wide range of items. The GON also reduced the applicable duty rate
on the fifth tariff band from 50% to 35%. Tradable imports that
remain banned in the new tariff policy include frozen poultry, pork,
beef, cassava, pasta, fruit juice in retail packs, toothpicks,
soaps and detergents, refined vegetable oil, beer and
non-alcoholic beverages , some textiles, and plastics. ECOWAS CET
negotiations were expected to have been concluded by January 2008,
but this was not achieved. It is hoped that with the reduction of
the tariff on the 5th tariff band proposed by Nigeria from 50% to
35%, there will be progress in the negotiations. The fifth tariff
band covers mostly luxury goods.
¶30. The Nigerian Customs Service (NCS) and the Nigerian Ports
Authority (NPA) have exclusive jurisdiction over customs services
and port operations. Nigerian law allows importers to clear goods
on their own, but most importers employ clearing and forwarding
agents.
¶31. Many importers under-invoice shipments and engage in currency
arbitrage to minimize tariffs and lower their landed costs. Others
ship their goods to ports in neighboring countries, after which they
are transported overland. The GON began a destination inspection
regime in January 2006, which had earlier been shelved on four
different occasions since 2002. Under the destination inspection
scheme, goods destined for Nigeria's ports would be inspected at the
point of entry rather than at the point of shipment. Guidelines for
the new scheme were announced, and three companies were awarded a
seven-year contract to act as inspection agents at Nigeria's
seaports, border posts, and airports. The companies are Cotecna,
SGS, and Global Scan. The exclusive contract will expire by 2012,
if Nigerian Customs officials have completed training on the new
scheme and on the handling of the scanning machines, which would be
handed over to the NCS at the expiration of the contract.
¶32. Shippers report that efforts to modernize and professionalize
the NCS and the NPA have reduced port congestion and clearance times
including mandatory 48 hour clearance, particularly at Lagos' Apapa
Port, which handles over 40% of Nigeria's trade. This is
particularly the case for container traffic. Nevertheless, bribery
of customs and port officials remains commonplace, and smuggled
goods routinely enter Nigeria's seaports and cross its land borders.
¶33. Export Incentives: Most export incentives have been abolished,
though the government is reviewing reinstating some selected
incentives.
¶34. Although highly underused, the Nigerian Export-Import Bank
provides commercial bank guarantees and direct lending to facilitate
export sector growth. The bank's Foreign Input Facility provides
normal commercial terms of three to five years (or longer) for the
importation of machinery and raw materials used for generating
exports.
¶35. Agencies meant to promote industrial exports, remain burdened
by uneven management, vaguely defined policy guidelines, and
corruption. Nigeria's high production costs because of inadequate
infrastructure also leave Nigerian exporters at a disadvantage.
¶36. Government Procurement: The GON awards contracts under an
open-tender system, advertising tenders in Nigerian newspapers and
opening them to domestic and foreign companies. Procurement has
become slightly more transparent, but corruption persists in the
awarding of government contracts.
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¶37. Procurement for capital projects is often subject to
over-invoicing, which permits improper payments to private and
public sector officials. Many U.S. companies claim they are
disadvantaged in obtaining GON contracts, even when they appear to
have the best bids in technical and financial terms. Unsuccessful
U.S. bidders sometimes allege collusion between foreign competitors
and key GON officials.
¶38. The Bureau of Public Procurement, the successor agency to the
Budget Monitoring and Price Intelligence Unit (BMPIU) after the
enactment of the public procurement legislation in May 2007 acts as
a clearinghouse for government contracts and procurement, and
monitors the implementation of projects to ensure compliance with
contract terms and budgetary restrictions. Procurements above N50
million (about $380,000) are subject to full "due process," as the
process is called. It is expected that the public procurement
legislation would also be passed at the lower tiers of government.
¶39. Visa Requirements: Investors sometimes encounter difficulties
acquiring entry visas and residency permits. Foreigners must obtain
entry visas from Nigerian embassies or consulates abroad, seek
expatriate position authorization from the Nigerian Investment
Promotion Commission, and request residency permits from the
Nigerian Immigration Service. Investors report that this cumbersome
process can take from two to 24 months and cost from $1,000 to
$3,000 in facilitation fees.
Right to Private Ownership and Establishment
-------------------------------------
¶40. In accordance with the NIPC Decree of 1995, the GON supports
competitive business practices and protects private property.
Protection of Property Rights
---------------------------
¶41. The GON recognizes secured interests in property, such as
mortgages. The recording of security instruments and their
enforcement are subject to the same inefficiencies as those in the
judicial system. In the World Bank's publication, Doing Business
2009, Nigeria was ranked 176 of the 181 countries surveyed for
registering property, requiring 14 procedures and 82 days at a cost
of 21.9% of the property value. According to the report, property
registration in OECD countries requires an average of 4.7
procedures, 30.3 days, and a cost of 4.5% of property values, while
in sub-Saharan African countries it requires an average of 6.8
procedures, 95.6 days, and a cost of 10.5% of property value.
¶42. Fee simple property rights are rare. Most property is
long-term leases with certificates of occupancy acting as title
deeds. Transfers are complex and must usually go through state
governor's offices. In Abuja, the Federal Capital Territory
government cancelled and began a process of reregistering all
property allotments, refusing to renew those it deemed not in
accordance with the city's master plan. Buildings on these
properties have frequently been demolished, even in the face of
court injunctions. Therefore acquiring and maintaining rights to
real property are a major challenge.
¶43. Nigeria is a member of the World Intellectual Property
Organization (WIPO) and a signatory to the Universal Copyright
Convention, the Berne Convention, and the Paris Convention (Lisbon
text). The Patents and Design Decree of 1970 governs the
registration of patents, and the Registry of Trademarks, Patents and
Designs in the Ministry of Commerce and Industry is responsible for
registering patents, trademarks, and designs. Once conferred, a
patent conveys exclusive rights to make, import, sell, or use a
product or apply a process. The Trademarks Act of 1965 gives
trademark holders exclusive rights to use registered trademarks for
a specific product or class of products. The Copyright Decree of
1988, subsequently amended in 1992 and 1994 and later codified as
the Copyright Act Chapter C 28 Laws of the Federation of Nigeria2004
is based on WIPO standards and U.S. copyright law, and makes it a
crime to export, import, reproduce, exhibit, perform, or sell any
work without the permission of the copyright owner. However under
the Copyright Act, owners of copyrights do not register their works,
rather, they notify the Nigerian Copyright Commission. Nigeria's
copyright statutes also include the National Film and Video Censors
Board Act and the Nigerian Film Policy Law of 1993.
¶44. In 1999 amendments to the Copyright Decree incorporate
trade-related aspects of intellectual property rights (TRIPS)
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protection for copyrights, except provisions to protect geographical
indications and undisclosed business information. Among the various
GON agencies there is confusion regarding proposed legislation which
is expected to put all intellectual property agencies under a single
and uniform authority. Concomitantly a private bill that would
establish an Industrial Property Commission is being considered by
the National Assembly. This private bill would amend the Patents
and Design Decree to make comprehensive provisions for the
registration and proprietorship of patents and designs, amend the
Trademarks Act to improve existing legislation relating to the
recording, publishing, and enforcement of trademarks, and provide
protection for plant varieties (including biotechnology) and animal
breeds. However, there are also competing plans by the Ministry of
Commerce and Industry and the Ministry of Justice to send similar
bills to the National Assembly for consideration. This is ongoing
division has lasted since at least 2006.
¶45. The GON has signed the WIPO Internet treaties but has yet to
ratify them. The Nigerian Copyright Commission claims, however,
that it is already implementing the terms of the treaties.
¶46. Patent and trademark enforcement remains weak, and judicial
procedures are slow and subject to corruption. Relevant Nigerian
institutions suffer from low moraQ, poor training, and limited
resources. A key deficiency is inadequate appreciation of the
benefits of IPR protection among regulatory officials, distributor
networks, and consumers. The over-stretched and under-trained
Nigerian police have little understanding of intellectual property
rights. The new tariff policy released in September 2008 empowers
the Nigerian Customs Service (NCS) to seize pirated works and
prosecute offenders. Though the NCS has received some
WIPO-sponsored and USG-sponsored training, it admits that the
technical capacity of its officers need to be enhanced for it to be
able to combat piracy effectively.
¶47. Companies do not often seek trademark or patent protection, the
enforcement mechanisms of which they consider ineffective.
Nonetheless, recent efforts to curtail abuse have yielded spotty
resulQ. The Nigerian police and the Nigerian Copyright Commission
in conjunction with the Economic and Financial Crimes Commission
have raided compact disc replicating plants, enterprises producing
and selling pirated software and videos, and a number of businesses
have filed high-profile charges against IPR violators.
¶48. Most raids involving copyright, patent, or trademark
infringement appear to target small rather than large and
well-connected pirates. Very few cases have been successfully
prosecuted. Most cases are settled out of court, if at all. Those
adjudicated in court are handled primarily by the Federal High
Court, whose judges are generally familiar with intellectual
property rights law.
Transparency of the Regulatory System
--------------------------------
¶49. Nigeria's legal, accounting, and regulatory systems are
consistent with international norms, but enforcement is uneven.
There are sometimes opportunities for public comment and input into
proposed regulations.
¶50. Professional organizations set standards for the provision of
professional services: e.g., accounting, law, medicine, engineering,
and advertising. These standards are usually consistent with
international norms. No legal barriers prevent entry into this
sector.
¶51. Taxation: In general, Nigeria's tax laws do not impede
investment, but the imposition and administration of taxes is highly
uneven and lacks transparency. Tax evasion is common, and
individuals and businesses often collude with relevant officials to
avoid paying taxes. Nigeria has signed double taxation agreements
with several countries, including Great Britain, France, the
Philippines and Japan. The GON imposes a 7.5% tax rate on
dividends, interest, rent, and royalties when paid to a bona-fide
beneficiary under a tax treaty.
¶52. Multiple taxes are a problem for businesses at state and local
levels. Companies within concurrent state and local jurisdictions
may be expected to pay several taxes and levies.
Efficient Capital Markets and Portfolio Investment
-------------------------------------
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¶53. The Nigerian Investment Promotion Commission Decree of 1995
liberalized Nigeria's foreign investment regime, which has
facilitated access to credit instruments provided by financial
institutions. Foreign investors who have incorporated their
companies in Nigeria have equal access to all financial instruments.
Some investors consider the capital market, specifically the
Nigerian Stock Exchange (NSE), a financing option, given commercial
banks' high lending rates and short maturities of debt instruments.
¶54. Trading on the NSE witnessed significant declines in value
since March 2008 due to a combination of factors which includes the
freeze on margin loans by local banks, and panic by inexperienced
investors resulting in huge sales of shares, and the exit of foreign
portfolio investors and hedge funds due to economic and financial
crisis in their home countries. Market capitalization opened at
over 10 trillion naira at the beginning of 2008, but closed at 6.7
trillion naira on December 5, 2008. The Nigerian Stock Exchange All
Shares Index opened 2008 at about 58,000 points but fell to 30,653
points on December 5, 2008. The exchange operates nine branches
nationwide, and the volume of shares listed continues to rise due to
new companies listing their shares on the stock exchange. The
introduction of the contributory pension system in late 2005, GON's
divestment of equity in parastatal companies as well as initial
public offerings (IPOs) and issuances of additional shares by listed
companies have contributed to the exchange's growth. The NSE
continues to expand its membership and investor pool. Currently,
214 equities are listed on the exchange.
¶55. Government debt instruments are available. Since the inception
of the civilian government in 1999, the federal government has
issued bonds of various maturities ranging from 2 to 20 years aimed
at restructuring its domestic debt portfolio from short-term to
medium and long-term instruments. Five state governments issued
bonds to finance development projects; however, other states have
shelved their plan to raise funds from the capital market in light
of the global financial crisis and the stock market decline. The
Nigerian Securities and Exchange Commission (SEC) has issued
stringent guidelines for states that wish to raise funds on capital
markets, such as a credit assessment conducted by a recognized
credit rating agency. The credit rating agencies recognized by the
SEC are Agusto and Co., and Global Credit Rating (GCR) of South
Africa.
¶56. Banking System: As of December 2008, twenty-four commercial
banks were operating in Nigeria. In 2007, Standard Bank of South
Africa, through its Nigerian subsidiary, Stanbic Bank, acquired
majority interest in IBTC Chartered Bank. This led to the merger of
both Stanbic Bank and IBTC Chartered Bank. A merger between Bank
PHB and Spring Bank will be completed in 2009. Industry experts
speculate another round of consolidation in the short term through
mergers and acquisitions.
¶57. Health of the Banking System: In October 2008 the Central Bank
Governor and Nigerian Deposit Insurance Corporation announced that
all Nigerian banks were healthy despite the global financial crisis.
Private sector experts expressed less optimistic opinions and
questioned the accuracy of the CBN and NDIC announcements.
Political Violence
------------------
¶58. Social unrest, religious and ethnic strife, and crime affect
many parts of Nigeria. In the oil-rich Niger Delta region, decades
of official neglect, persistent poverty, as well as dislocations and
environmental damage caused by energy projects have aggravated
socioeconomic unrest. Sabotage and vandalism of pipelines and other
installations and kidnapping of Nigerian and expatriate oil workers
are regular occurrences. Many of these criminal activities are
designed to extort cash from foreign operators.
¶59. The Niger Delta Development Commission (NDDC) has a mandate to
implement social and economic development projects in the Delta
region, but the NDDC has been ineffective. State and local
governments offer few social services and Niger Delta residents
continue to seek direct payments and other assistance from oil
companies. Some have implemented their own socioeconomic
development programs to assist local communities, but many
communities consider the company programs inadequate. In 2009, the
federal government established the Ministry for the Niger Delta, to
oversee Niger Delta development projects. The position of Minister
was filled in December 2009; however, the Ministry had not yet begun
its official functions at year's end.
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¶60. In November 2008 an alleged manipulation of local government
elections resulted in civil disturbance in the north-central city of
Jos culminating in the loss of over 400 lives. In February 2006,
riots targeting Christians in response to the publication in Denmark
of cartoons considered to disparage the Prophet Muhammad took place
in the north-eastern city of Maiduguri with reprisal attacks against
Muslims in the south-eastern city of Onitsha. The violence led to
the death of over thirty people. Vigilante groups in various parts
of the country have exacerbated violence.
Corruption
----------
¶61. Domestic and foreign observers recognize corruption as a
serious obstacle to economic growth and poverty reduction. Nigeria
has received some positive news on the corruption front.
Transparency International in 2008 noted Nigeria's improvement from
being the 18th most corrupt country to 58th in its Corruption
Perceptions Index. Moreover, in its overall corruption rankings
with the least corrupt country rated as number one, Nigeria improved
from 147 to 121 in 2008. Despite improvements in the Transparency
International rankings, reassignment of large numbers of key
personnel in the Economic and Financial Crimes Commission (EFCC) and
a lack of progress on high-level corruption cases have brought into
question the government's commitment to fighting corruption.
¶62. The Corrupt Practices and Other Related Offences Act of 2001
established an Independent Corrupt Practices and Other Related
Offences Commission (ICPC) to prosecute individuals, government
officials, and businesses accused of corruption. Over 19 offenses
are punishable under the Act, including accepting or giving
gratification, fraudulent acquisition of property, and concealment
of fraud. Nigerian law stipulates that giving and receiving bribes
are criminal offences and, as such, are not tax deductible. Despite
the legislation, ICPC investigations have resulted in less than
fifteen convictions since 2001, and corruption remains endemic.
¶63. The Economic and Financial Crimes Commission was established to
prosecute individuals involved in financial crimes and other acts of
economic sabotage. The EFCC has been most successful in prosecuting
low-level internet scam operators. Some high profile convictions
have taken place, such as the prosecution of the former governor of
Bayelsa State, and the former Inspector General of Police; however,
the sentences handed down have been relatively light. However,
there are renewed doubts regarding the seriousness of the EFCC to
arrest and prosecute corrupt public officials since the change in
its leadership in December 2007 and redeployment of personnel in
July 2008. In May 2007, Nigeria was admitted into the Egmont Group
of Financial Intelligence Units (FIUs). The Paris-based Financial
Action Task Force removed Nigeria from its list of Non-Cooperative
Countries and Territories in June 2006. The resignation of the
first Director of Nigeria's Financial Intelligence Unit in November
2008 has contributed to concerns over the direction of Nigeria's
battle with corruption. Nigeria is a pilot participant in the
Extractive Industry Transparency Initiative, which seeks to ensure
audits of Nigeria's oil accounts. Nigeria is a signatory to the UN
Anticorruption Convention, but has yet to ratify it.
Bilateral Investment Agreements
-------------------------------
¶64. Investment Agreements: While a Trade and Investment Framework
Agreement (TIFA) has been signed with the United States, a bilateral
investment treaty (BIT) is not in place. The President of Nigeria,
however, has expressed interest in negotiating a BIT with the U.S.
Nigeria has bilateral investment agreements with the United Kingdom,
Germany, Belgium, South Africa, Italy, Argentina, Egypt, South
Korea, China, Jamaica, Sweden, Switzerland, Turkey, Uganda, France,
Taiwan, Netherlands and Romania.
OPIC and Other Investment Insurance Programs
-------------------------------
¶65. The U.S. Overseas Private Investment Corporation offers all its
products to U.S. investors in Nigeria.
Labor
-----
¶66. Over the past decade, Nigeria's skilled labor pool has declined
as vocational and university educational standards have plummeted,
mainly because of poor funding. Given the low employment capacity
of Nigeria's formal sector, over half of all Nigerians work in the
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informal sector and agriculture. In the formal sector, companies
involved in businesses such as banking and insurance possess an
adequately skilled workforce (often trained abroad, in private
institutions, or at the better-funded universities). In the
manufacturing sector, workers often require additional training and
supervision, but there are too few supervisory personnel to ensure
that this is done well. Labor-management relations in some sectors,
especially in the country's profitable oil and gas industries, are
strained.
¶67. The Right of Association: Nigeria's constitution guarantees
the rights of free assembly and association and protects workers'
rights to form or belong to trade unions. Several statutory laws
nonetheless restrict the rights of workers to associate or
disassociate with labor organizations. Since the establishment of
the single trade federation system in 1978, non-management senior
staff has been prohibited from joining government-recognized trade
unions. Although the Trade Union Congress and the Congress of Free
Trade Unions are regarded as influential labor federations, the two
senior staff associations are denied seats on Nigeria's National
Labor Advisory Council (NLAC). A bill to amend the law is working
its way through the National Assembly.
¶68. Nigeria's single central labor federation, the Nigeria Labour
Congress (NLC), comprises twenty-nine industrial unions. According
to figures provided by the NLC, total union membership at the end of
2002 was 4 million. Less than 10% of the total work force is
unionized, and except for a few workers engaged in commercial food
processing, those in the agricultural sector, which employs the bulk
of the work force, are not organized.
¶69. Collective Bargaining: Collective bargaining occurred
throughout the public sector and the organized private sector in
2007 and 2008, but public sector employees have become increasingly
concerned about the GON's commitment to the collective bargaining
process in resolving conflicts. According to the NLC, the GON's
failure to implement agreements threatens to "devalue the enviable
record of dialogue, consultation, and mutual trust that has
characterized the relationship between the GON and the NLC since
1999."
¶70. Collective bargaining in the petroleum industry is relatively
efficient compared to other sectors. Except for a longstanding
unresolved dispute over the industry's use of contract labor, issues
pertaining to salaries, benefits, health and safety, and working
conditions tend generally to be resolved quickly through
negotiations. Organized labor's efforts to address broad political
issues, however, have resulted in industrial actions, such as
general strikes over fuel prices that continue to affect industry
produQivity.
¶71. Workers under collective bargaining agreements cannot
participate in strikes unless their unions comply with the
requirements of the law, which includes provisions for mandatory
mediation and referral of disputes to the GON. The law provides the
GON the option of referring matters to a labor conciliator, an
arbitration panel, a board of inquiry, or the National Industrial
Court (NIC). Although the law forbids employers from granting
general wage increases to workers without prior government approval,
the law is not often enforced. Strikes in both the private and
public sectors occur frequently.
¶72. The Nigerian labor minister may refer unresolved disputes to
the Industrial Arbitration Panel (IAP) and the NIC. Union officials
question the effectiveness and independence of the NIC in view of
its refusal to resolve disputes stemming from the GON's failure to
fulfill contract provisions for public sector employees. Union
leaders criticize the arbitration system's dependence on the labor
minister's referrals.
¶73. Child Labor: Nigeria has ratified the International Labor
Organization (ILO) convention on the elimination of the worst forms
of child labor. The 1974 Labor Decree and the 1979 Constitution
prohibit forced or compulsory labor and restrict the employment of
children under the age of 15 to home-based agricultural or domestic
work for no more than eight hours per day. The Decree allows the
apprenticeship of youths as of the age of 13 under specific
conditions.
¶74. Despite this, Nigeria's weak economy has forced many children
into commercial activities to enhance family income. The 2005
UNICEF State of the World's Children report estimates that 39% of
children aged five to 14 were involved in child labor (not
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necessarily exploitative) in Nigeria. Similarly, a 2003 study
conducted by the Nigerian National Bureau of Statistics in
conjunction with the ILO estimated as many as 15 million children
were working in Nigeria, with as many as 40% of them at risk of
being trafficked for forced labor.
¶75. Acceptable Conditions of Work: Nigeria's 1974 Labor Decree
provides for a 40-hour workweek, two to four weeks of annual leave,
and overtime and holiday pay for all workers except agricultural and
domestic. No law prohibits compulsory overtime. The Decree
establishes general health and safety provisions, some of which are
specific to young or female workers, and requires the factory
division of the Ministry of Labor and Employment to inspect
factories for compliance with health and safety standards.
Under-funding and limited resources undermine the agency's oversight
capacity, and construction sites and other non-factory work sites
are often ignored. Nigeria's labor law requires employers to
compensate injured workers and dependent survivors of laborers
killed in industrial accidents, but the Labor Ministry has been
ineffective in identifying violators and has failed to implement ILO
recommendations to update its inspection program and reporting of
accidents.
¶76. During 2007 the ministry conducted 110 child labor inspections,
410 regular labor inspections, and four comprehensive inspections.
In 2006 the ministry also trained approximately 120 labor inspection
officers on child labor laws; trained 80 officers to perform
inspections in high-risk activities in agriculture, mining, and the
informal sector; and trained 20 officers to perform rapid assessment
surveys in these critical sectors.
Foreign Trade Zones/Free Trade Zones
-----------------------------------
¶77. To attract export-oriented investment, the GON established the
Nigerian Export Processing Zone Authority (NEPZA) in 1992. NEPZA
allows duty-free import of all equipment and raw materials into its
zones. Up to 25% of production in an export processing zone may be
sold domestically upon payment of applicable duties. Investors in
the zones are exempt from foreign exchange regulations and taxes and
may freely repatriate capital.
¶78. Of the five export processing zones established under NEPZA,
just two, in Calabar and Onne, function properly. In 2001, both
were converted into free trade zones, thereby freeing them from the
export requirement. As a result, investment is quickly moving into
Calabar, almost exclusively in industries that add value to imports.
Another free trade zone, the Tinapa Free Trade Zone owned by the
Cross River state government was commissioned during the first
quarter of 2007, and several shops and bank branches are operating
there. Oil and gas companies use the Onne free port zone as a
bonded warehouse for supplies and equipment and for the export of
liquefied natural gas. Recently, the GON has encouraged private
sector participation and partnership with the federal government and
state and local governments under the free zones scheme. This has
resulted in the establishment of specialized zones, such as Lekki
and Olokola which are under construction.
Foreign Direct Investment
-------------------------
¶79. According to data from the United Nations World Investment
Report of 2008, in 2007 the stock of foreign direct investment (FDI)
in Nigeria was estimated at $62.79 billion, which accounted for
37.6% of GDP. Total FDI Inflow was $12.45 billion in 2007 and
accounted for 69.6% of gross fixed capital formation. The $12.45
billion FDI inflow is mostly concentrated in the oil industry. This
figure represents 80% of total FDI in West Africa and 23.5% of total
FDI in Africa (including North Africa) and places Nigeria as the top
recipient of FDI in Africa. Some FDI is channeled into
telecommunications and manufacturing, but the total remains small
relative to oil sector investment.
¶80. This cable was coordinated with ConGen Lagos.
PIASCIK