Impact Of Regulations On Private Sector Participation In The Nigerian Space Industry

NigeriaSat-1 COSMOS Launcher (Aboard Chinese Long March 3B carrier rocket, from the Xichang Satellite Launch Centre in China). Source: nasrda.gov.ng

At the just-concluded World Space Week Townhall meeting organized by LearnSpace Foundation in conjunction with the space clubs of Federal University of Technology, Akure, and Obafemi Awolowo University, the Director-General of the National Space Research and Development Agency (NASRDA), Dr Francis Chizea, remarked on the importance of having the private sector involved in Nigeria’s Space endeavours. This comes after Space X’s historic launch and subsequent transportation to space of America’s NASA astronauts, symbolizing a blissful and working union between the public and private space sectors in the United States of America, as well as the importance of such collaboration. The launch lends credence to Dr Chizea’s assertion of the importance of private sector participation and partnership in the Nigerian space sector.

 

The NASRDA Act recognizes this importance, stating in Section 6(e) that the function of the Agency includes the implementation of “strategies for promoting private sector participation in the space industry.” The Act subsequently provides a platform for the private operations in Section 9 of the Act, which refers to the Agency’s power to grant licenses to body corporates regarding issues in Section 6(k); that is, the Agency’s function to “be the repository of all satellite data over Nigeria’s territory and accordingly, all collaborations and consultation in space data related matters in Nigeria.” The mention of “Satellite Data” clarifies that the licenses granted are regarding satellite remote sensing operations. 

In furtherance of the platform for private sector participation, Section 9 discloses further that the Agency shall not grant such license unless it is satisfied that the activities of the licensee will not jeopardize public health, and the safety of persons or properties, is consistent with the international obligations of Nigeria; and shall not impair the national security of Nigeria. Other provisions for the grant of a license include, among others, requirements to prevent contamination of outer space or interference with the space activities of others, to dispose of a payload after the termination of operations, or to insure against third-party liability. Finally, the NASRDA Act provides for [the] obligation of the Agency to “maintain a register of Space Objects,” which shall include “particulars of such space objects as the Agency considers appropriate to comply with the international obligations of the Federal Republic of Nigeria.” However, as Frans Von Der Dunk puts it, “While the NASRDA Act thus established the basic competence of the Agency to issue licenses as well as the general framework for compliance with the major international obligations of Nigeria pursuant to, in particular, the Outer Space Treaty, the Liability Convention, and the Registration Convention, it still left more detailed questions in this regard unanswered.” 

One of the holes left unplugged in the NASRDA Act is that it only makes provision (albeit generally) regarding private participation and not private partnership. It could be argued that paragraphs (e) [development and implementation of strategies for promoting private sector participation in the space industry] and (m) [undertaking of such activities as are necessary or expedient for the carrying out of the functions of the Agency and promotion of space science and technology in Nigeria]  of Section 6 of the Act provide an omnibus outlet for any future public-private partnership. However, it is submitted that these provisions are too vague to ensure efficient partnerships, if at all. 


Exemplarily, one of the legal reasons for NASA’s partnership success is the following provision in NASA 1958 Act: “In the performance of its functions, the Administration is authorized … to enter into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary in the conduct of its work and on such terms as it may deem appropriate, with any agency or instrumentality of the United States, or with any State, territory, or possession, or with any political subdivision thereof, or with any person, firm, association, corporation, or educational institution.” This type of agreement is referred to as a Space Act Agreement (SAA). They uniquely empower NASA to work with any entity, public or private, that enables fulfilment of the Administration’s mandate. SAAs are fundamental to NASA’s ability to tap into the vast benefits of a private partnership. They are instrumental to NASA’s successful partnership with private entities as they enable NASA to enter into concrete agreements with any such entity it wishes to partner with. This specificity ensures optimal results.

Furthermore, in terms of mere private participation, the Act only provides a framework for private participation in satellite remote sensing areas, vesting space operations in other fields solely in the government, by implication. In the era where Space X is transporting NASA astronauts to and from space, this legal limit is somewhat outdated.
Additionally, everything regarding private participation in the Act is contained only in section 9 of the NASRDA Act. An individual section of the Act is grossly insufficient to regulate the intricacies of private participation in the space sector.  In this regard, recognizing the complexity surrounding private involvement, the US enacted the Commercial Space Launch Act in 1984 to facilitate the private enterprise of the commercialization of space and space technology, as well as the Commercial Space Act in 1998, and the Commercial Space Transportation Competitiveness Act in 2000, all in a bid to regulate the private space scene in the US. 

The Act also fails to address the issue of third-party liabilities. These arise via the operation of Article VI of the Outer Space Treaty, which provides that a state party is internationally responsible for the actions of its citizens in space. Ideally, provisions are made such that before licenses are granted, as a precondition, entities requiring such license must pay a certain sum as insurance against any future liability which the Federal Government may incur on its behalf. The absence of this program will drive the Agency’s reluctance to promote any non-governmental entity in the space sector. 

Also, in the National Space Policy, private sector participation or partnership is neither referred to in the policy statement nor objectives. This is in stark contrast to the United States of America’s National space policy, which mentions its second principle as follows: “A robust and competitive commercial space sector is vital to continued progress in space. The United States is committed to encouraging and facilitating the growth of a U.S. commercial space sector that supports U.S. needs, is globally competitive, and advances U.S. leadership in the generation of new markets and innovation-driven entrepreneurship.” It is clear that relative to the US, Nigeria, via its space policy, has not given many opportunities to the private sector. This perhaps explains the lack of a detailed program for private participation and partnership in the Nigerian space act. 

In conclusion, it is unarguable that for the realization of a blossoming private sector in the Nigerian space sector, reasonable care, focus, and attention must be given to the private sector to ensure optimal effectiveness of a private habitat in the Nigerian space scene. It is gladdening to note that in the 2015 draft regulations to the NASRDA Act, issues regarding third-party liability as well as the expansion of “licensable” activities to include, in principle, any activity in outer space involving a space object are addressed. However, while it is a step in the right direction, it leaves a lot to be desired concerning private sector participation and partnership in Nigeria.

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New Report: The 2020 Edition of African Space Industry Annual Report is now available. It presents data and analyses on projects, deals, partnership and investments across the continent. It also provides analyses on the growing demand for space technologies and data on the continent, the business opportunities it offers and the necessary regulatory environment in the various countries.

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