The Director-General of the Consumer Protection Council (CPC), Mr. Babatunde Irukera, was a partner at Simmons Cooper Partners (SCP), a firm involved in regulatory and public policy practice. He was called to the Washington State Bar and the Nigerian Bar. He has over 20 years of transnational commercial litigation and practice experience. Irukera spent over 10 years in the United States, engaging in complex commercial litigation and settlements. In this interview with Legal Editor JOHN AUSTIN UNACHUKWU, he speaks on the rights of consumers in Nigeria, CPC’s role, and competition law, among others.
How did you receive the news of your appointment as Consumer Protection Council (CPC) Director-General?
When I got wind of my appointment to the CPC, I started making protest calls but they were not successful.
Why protest calls?
I knew the incumbent DG, and we were supporting her in many ways. In fact, I was carrying on lateral conversations on how her tenure will be renewed. So, we had an excellent working relationship. Secondly, I was at the point where I thought that building the practice, taking advantage of our new network and the relationships we had built was the best thing to do. I thought it was time to make some money, and I saw there was a cause for the potential passage of a competition law, which was very good for me.
What were you involved in prior to your appointment?
I have been engaged with anti-trust work in Nigeria as far back as 2005. I had advised the National Electricity Regulatory Commission (NERC), when the law was initially passed, with respect to the ‘Competition’ provisions in there. I advised the Nigerian Communication Commission (NCC), while I was still residing in the United States and actually advised the then Attorney-General on the competition bill that was being drafted at that time with the Bureau for Public Enterprises (BPE), which was going to the National Assembly. I think it must have been us, who hosted the first anti-trust seminar with Lagos Business School. So, we published an annual chapter on competition blog worldwide.
Who are the ‘we’?
SimmonsCooper Partners (SCP). The firm currently publishes an annual chapter of the Competition Law in Nigeria. As far as I was concerned, if competition law was coming and the incumbent at that time was going to be the chief executive of the organisation and we were already supporting her, what that meant was that we were on a very fast track to being the key competition lawyers in this environment, which frankly, was one of the primary reasons I returned home in the first place. And so at this point, taking up such a role was the last thing on my mind, but here we are today.
So, what was the experience when you got into the council?
When I got into the Council, I became more convinced than ever that I shouldn’t have taken the job because what I found was an incredibly huge gap and I began to imagine the magnitude of the kind of work the Director-General must have done to even bring the council to the point where I met it.
What type of gap?
That would be knowledge, resource gaps and a total gap in capacity and skills. What I first had to do was to go back and engage the Federal Government. We had to explain to them the need to prioritise consumer protection in a way that truly delivers result to the people. Luckily we have an administration that is very keen on the issue. So, I got some attention all the way up to The Presidency. We had a series of conversations at that level and it was all focused on the real issues and there was an agreement on how to resource the council. We’re still working through that, because the infrastructure we met in place was really bad. These include physical infrastructure and soft (human capital) infrastructure. The other thing I was also asked to work on was the Competition and Consumer Protection Bill that was then pending at the National Assembly. However, by the time the bill was passed to the House of Representatives, it was a different version, but God did some work to ensure that it still had to go through harmonisation so that we can come up with a clean bill.
Where did this corrupt version of the bill come from?
The Senate got a team that worked with the House of Representatives, so significant modifications were made to the bill, based on the advice they received from their technical team and I suppose they also had inputs from all the other sectors – specific regulators and stakeholders, such as the NBA Section on Business Law (SBL) and so on. The differing points and modifications are not so significant, because in principle, it’s all headed in the same direction only with slightly different provisions. For instance, there are provisions, which address the essential regulatory conflict that could arise and more of that in the Senate Bill for harmonisation. Hopefully, we hope to be called up soon. The other thing I have also spent time doing is re-negotiating the Memorandum of Understanding (MoU) between the Consumer Protection Council and the NCC, the Central Bank of Nigeria (CBN), the NERC, the Nigerian Civil Aviation Authority (NCAA) and all the other sector regulators, because I looked at the existing relationship some of them have had in the past, and it seems very acrimonious and those which were not acrimonious, were just not operating at optimal. So, I took out time to meet the chief executives of almost all the regulatory authorities that includes the Standards Organisation of Nigeria (SON), the National Agency for Foods and Drugs Administration Council (NAFDAC) NITDA, NCAA, CBN, NCC, NERC and it’s been quiet a mileage. All of these have worked out very well and one thing that I think has been helpful to me is that I have quite some knowledge of this area, which is what I have done in most of my legal career.
What experience have you brought to the job of Consumer Protection Council (CPC) as Director-General?
I started my career in a bank as in-house counsel, which is what I did until I left for the United States (US). In the US, my law practice was more of immigration work. So, my work has always been about people somehow. Later, I moved into core litigation. I did some Federal criminal defence work, as well as some work on the law of discrimination, where I usually represented employees, who had been discriminated against. As I planned my return to Nigeria, I was still focused on public interest issues; those were the biggest jobs on my mind; jobs from large pharmaceutical companies, large tobacco companies, etc. So, I have been in this space and supported the Consumer Protection Council in some of its key investigations and interventions. I have also have helped the CPC in negotiating Memorandums of Understanding and assisted other organisations with respect to their own consumer protection policies. For instance, with regards to aviation consumer protection regulations, at the law firm I was working before my appointment – Simmons Cooper Partners (SCP) – I wrote most of the regulations and I led the team that worked on them. There, I had a good knowledge of the regulations as well as a good relationship with relevant agencies in the aviation sector. We also worked with the Cental Bank of Nigeria (CBN) in the development of their consumer protection framework.
Have you finished the work?
We are not at the end of it, but we have progressed significantly and then people in the CPC feel that there’s been a lot more interaction than what they have had in the past. I suspect that over the next few weeks, there would be a lot more clarity with all the things we have been working on, particularly from the perspective of our internal re-structuring, which is what we have spent most of this time doing. Also looking at market place interventions, we have also done quite a few things that are vital to the progress of the work we are doing.
Like what?
The first assignment I got up to was to engage the Nigeria Medical Association (NMA) and we have advanced significantly on developing a Patient’s Bill of Rights (PBR), which I think is a game changer and vital for the market.
What is the Patient Bill of Right?
What Patient Bill of Right seeks to achieve is that it would be a front document with a simple listing of the patient’s right to privacy, his/her right to information and for the doctors to truly and fully explain what’s is wrong with the patient, as well as the full implications of them. It also includes a right to a second opinion and generally give them some guidance on how to get that second opinion. After this, there would be a ‘backing document’ which will be a whole lot bigger than the front document. This will be given to the patients by the doctors for them to read through. This is just something like the Aviation Passenger Bill of Rights, which we also created for the aviation industry. The Patients Bill of Rights would be published in different languages and displayed in hospitals and medical centres. We have reached various advanced levels with these works and I think it was quite a breakthrough to get the leadership of the premiere professional association for doctors to agree to this partnership and how they have pursued this mutual objective has been very inspiring to me.
What hurdles did you scale to get to this point?
One of the key problems we identified was that the Medical and Dental Council of Nigeria, which is responsible for discipline, has not been constituted for a number of years. So, the CPC took it upon itself to engage the Presidency on this. We need to constitute it; it’s the organisation that’ll discipline erring doctors. This is a consumer protection issue for us.
The next thing was that as the Council became more active in trade and on social media, I realised there were not many people that had access to make complaints. So, we had to figure out a way to make sure that we got to people and that they can complain. Right now, from having may be 25 tweets in my life time before I took the job, I have been receiving tweets everyday concerning complaints. The CPC and I are copied on all complaints against diferent companies. A significant number of these complaints are being resolved because the companies now recognise that there’s a regulator, which gets a copy of these mails and complaints and which jumps in to ensure something is done.
How does the CPC intervene?
I have a team, but I do a lot of it myself. While some of these can be handled by any member of the Council, I still deal with issues that come directly to my mail. I deal with these myself. They include private messages and responding to private emails. I am beginning to see a few comments where people are glad to have their problems resolved. But what gives me the greatest joy is not just the number of complaints people are saying the Council has resolved, but how the council has become more versatile and the number of complaints the Council is resolving is on a steady rise. Once we are copied on complaints to manufacturers and service providers, we ensure that something is done immediately. So, we follow up with the progress of the resolution given by the product/service provider. In reality complaints should go directly to the manufacturers and service providers, while we step in.
How should aggrieved consumers file their complaints?
The Consumer Protection Council should not be the first place people go to complain because we have a contract with the service providers and the manufacturer of goods that in fixing their prices, the cost of the goods and/or services be factored into all of the final cost to retailers and consumers and sometimes what you are getting the government to do is to simply subsidise the business and when they don’t resolve these problems, all of it comes back to government. So, in reality, what we should do is to institutionalise a process where the companies themselves take responsibility for resolving a lot of these complaints and problems.
How is that working out?
With our intervention, I see that more manufacturers and service providers are stepping up to take up this responsibility and I think that this is a welcome development, because this process is the best way to institutionalise best practices. Building strong institutions continues to pose huge challenges for us in Nigeria and so, formally, this is the method to make sure that it doesn’t matter who comes here or what happens to the organisation, the market will operate in a new way because it has become institutionalised. That, for me, is one of the things that I am happiest about. Companies are beginning to take customer satisfaction more seriously and then consumers are also becoming a lot more discriminatory.
Many consumers and end users fall into traps in end user contracts, in which manufacturers and service providers shelve their responsibilities to consumers. How are you creating awareness on this?
We have a forum like the Lawyers in the Media (LIM) to help us. LIM has a huge role to play here. While there is a need for manufacturers and service providers to protect themselves in the contracts, they must do their business with the assurance that there will be no fallouts from the services or goods manufactured.
What do you mean?
They know their market better than the regulators. They also know when new laws and policies relating to their businesses are enacted, and how they would be enforced which is a good thing; because it does concern them, and they should also be seated at the table with lawmakers, policymakers and regulators, because they know the market better than any law maker or regulator. Take cable TV for instance. Before I came on board, I supported the Council with a lot of its investigation into DSTV complaints and one of the big issues was that they blamed installation problems on subscribers using the services of the wrong technicians and unapproved installers. I asked them what was the level of their service contracts and agreements with both the subscribers/consumers and the installers or technicians. I said: “How do you let them know about the agreement on usage, liabilities, indemnity, etc? You can’t be silent about the existence of these things and then claim it is their fault. The responsibility is on you to make them aware of it. It is that simple.” This is why we have been pushing for an increase in the responsibility of service providers and goods producers to, at least, put out information about the contract to consumers. This is very important and we are not taking it lightly.
How can complaints be reduced?
The end users must, at all times, understand what they are getting into. Therefore, if your product has limitations, if used in a certain way, you can’t hide that information at the back where a consumer or user is unlikely to see it. You must make adequate attempts to inform this user about this caveat and that includes placing it in a conspicuous location/position or even explaining to them at the point of purchase. This is your duty as a producer, distributor or service provider. You don’t wait until a complaint is made against your company and, then, you say to them ‘You should have read this, or you should have seen that or known that’, no you don’t do that. If we all do the right thing, we will not only have reduced complaints with products and services, but we will be forced to have better products and offer better services. The only obligation you owe a consumer is better products, better services and adequate information and even where you manufacture a product that is inherently dangerous, so long as the law allows you to distribute that product it is in that jurisdiction, it remains legal the only responsibility that comes with producing this so-called dangerous or harmful product, is the fact that you must inform the consumer of this fact! It is as simple as that. You cannot hide it from them and by doing this, you would have discharged your duty.
To what extent are you involving stakeholders in regulating the market?
There’s no way to make appropriate regulations for the market without engaging the market itself, and so we are working with stakeholders and lawyers to ensure we regulate right. First, there is a value chain here. Note that there’s a manufacturer’s position and there’s a retailer’s position. We need to engage both, as well as professional associations, such as the Chambers of Commerce, the Nigerian Medial Association (NMA), the Nigerian Bar Association (NBA) Section on Business Law and others, depending on the sectors we are focused on. Where we do not get them all on board, this may become problematic. The rights of everyone in the value chain must be taken into consideration and respected. We are interested in the service level agreement between the retailer and appointed distributor because the distributor is right when he says all I have are distributing rights and if there’s a defect I am not the one to fix it and he’s right, that’s a valid statement. That notwithstanding, we want to see a more beneficial agreement between the distributor and the principal manufacturer, so that there is an understanding on the side of both parties, one that takes sufficient responsibility to protect the consumer. As a consumer you should be able to go back to the distributor or the retailer for some sort of recourse.
How can we achieve these?
We are still working on the development of all this, and while we policy makers, regulators, manufacturers, distributors, retailers and some consumers are all at the table, there is hope that we will unanimously agree on what should be the best practice in these circumstances. If a computer turns out to be defective, a consumer would expect that there would be an existing understanding between the manufacturer, the distributor and the retailer about its return or how it would be taken care of. So, there must be an understanding among all the parties about how to get the best out of their products and services, while taking into consideration the interest of the consumer. When you address one piece of value change without addressing the rest, there will be a break in transmission and what really makes a market work well is that everybody understands his or her role in the chain. Everyone must have some level of security or assurances in how things would be.
How can a retailer adequately provide refund under this arrangement?
I don’t think a retailer will have much trouble providing a refund if he knows that he will get his money’s worth back all the way down to the manufacturer. He also knows that well, if it doesn’t happen in 10 or 20 days or whatever, the warranty is there. So, this information is also passed to the consumer that within a period of time, if something goes wrong with the product, they would be entitled to a repair or replacement. With this, the retailer is willing to take it on and ship it back or replace the product, right there in the store or send it back to the manufacturer. Once all of that is addressed, the consumer gets better products or services and then commerce moves even better.
