The Nigerian tourism industry in the last few years has been clog and hampered by issues of law, rights of control, regulation and taxing between the tiers of government. The initial lack of clarity on the constitution vis-à-vis states and federal government administrative organs of tourism led to so many conflicts between these tiers of government.
Industry practitioners were the worst for it as they are forced to engage with both the local, state and the Federal Government for them to operate effectively. Because of this lack of clear cut guidelines and demarcations on the positions of these tiers of government and their roles in the tourism industry, practitioners were forced to navigate through different landmines in order not to truncate their business activities.
In 2017, the case between the Attorney General of the Federation and the Lagos State government at the Supreme Court gave an unequivocal ruling on this. Despite this, the problem of tourism industry and the issue of regulation and taxes are not fully clear.
The Supreme Court was asked to clarify whether matters pertaining to tourism fall under the exclusive legislative list of the Constitution of the Federal Republic of Nigeria 1999;
The apex was asked whether the Lagos State House of Assembly and the Lagos State Government can enact and promulgate laws on matters within the exclusive legislative list; whether the Lagos State House of Assembly and the Lagos State government can enact and promulgate laws which directly conflict with the provisions of an existing law of the National Assembly and if it can supersede the National Assembly law.
The Supreme Court delivered its Judgment in support of the Lagos State government stating that the NTDC Act went beyond its powers as stated in the Exclusive Legislative List of the Constitution which is to regulate “tourist traffic”. This effectively challenged the constitutionality of the NTDC’s powers to unilaterally regulate and control of hotels and tourism in Nigeria. The court therefore validated the respective laws of Lagos State.
The Chairman, Board of Trustees of Federation of Tourism Associations of Nigerian (FTAN), Chief Samuel Alabi, a lawyer, revisits these challenges on these problems in the tourism industry and gave a clear pathway on the way forward.
Despite this landmark ruling four years ago, tourism is still hampered by the issues of policies and effective control. There is still no clear cut answer on the best way to move the tourism industry forward. Operators are still bugged by multiple taxations. The tiers of governments with private sector operators still need clearly and effectively demarcated boundaries of operation and areas of synergy and cooperation among the tiers of government. The lack is stifling the growth of tourism in country and even the apex tourism body, the Nigerian Tourism Development Corporation (NTDC) is not too sure its footing on the issues of statutory responsibilities.
Chief Samuel Alabi believes currently the industry is coming back from death after the fatal blow it was dealt with by the COVID-19 pandemic in 2020: “The current state is better than 2020, but worse than 2019. We are all aware of the deadly blow dealt on the sector by COVID-19. We are just getting out of it at a millipede speed. Unfortunately, we still have uncertainties as it relates to strain of the pandemic, the Delta variant. I can tell you that we are gradually coming out of the crisis, but we still have a long way to go.
He tackled the understanding between the roles of the different tiers of government as regards of tourism administration and control in Nigeria.
He said: “Sometimes in 2013, in the heat of a certain level of misunderstanding between the Federal and Lagos State Government, there was some court action that ended up at the Supreme Court in which the apex court made a pronouncement as regards to the issues of regulation and collection of levies and classification of hospitality outfits in the country. The case dragged on until 2017 when the Supreme Court gave a verdict on the case. Let me quickly clarify to you that the Supreme Court’s decision of 2017 only confirmed the constitutional provisions of the 1999 constitution. You know people are quick to make comparison with what is happening in Ghana, the Gambia and some other countries in the world. But they have forgotten that each country has its own grand norm which is the constitution. It is the constitution of the country that specifies the type of government of the day that would be run.
“For instance, the Gambia and Ghana are unitary governments. They are not operating a federal system of government.
“The remarkable difference between a federal system of government and a unitary system of government is the division of legislative powers. In the federal system of government, some powers would be reserved exclusively with the federal legislative arm, while some items would be left for both levels of government: state assemblies and federal legislative arms to legislate on. However, where there are conflicts, the law of the federal level will prevail over the law of the state.
“Then we have the lists that not stated at all. They are not listed; the constitution is silent. It means that is residual. Those non listed item are meant for states.
“So, in the unitary system of government, there is no such, legislation will come from the centre. All the other provinces will be passing by-laws based on the enabling law at the centre . But in the federal system of government, to extent of its permissible powers granted to that level of government, that level of government can pass a valid law.
“Bringing it home and under the 1999 constitution, there was nowhere the issue of tourism, and let me quickly add the issue of culture was mentioned, because that is future conflict, was mentioned in the exclusive legislative list. It is equally not mentioned under the concurrent legislative list. Therefore, those two items are residual in nature. They are basically within the power of a state to legislate, regulate on issues, matters and activities relating to those items.
“Therefore in the heat of dual registration campaign the Nigerian Tourism Development Corporation (NTDC) and the Lagos State ministry tourism, I was the president of FTAN at that time. The NTDC encouraged the then Attorney General of the Federation to file an action against the Attorney General of Lagos State in respect of concurrent registration of hotels or tourism establishment by the Lagos State government. We all knew then where the case would end because of the stipulation of the constitution. So, quite naturally, in accordance with the tenet of the constitution, the Supreme Court ruled in favour of Lagos State by saying the regulation of tourism business is a residual matter and therefore left for states to regulate.
“The Federal Government in the case tried to make allusion to ‘tourist traffic’ because tourist traffic is on the exclusive legislative list, but the court pointed that cannot be tourism. We all know what tourist traffic is. Tourist traffic involves tourist visas, people coming into Nigeria, that is tourist traffic. Therefore, if anybody is coming into Nigeria, Lagos State has no time to contend with the Federal Government that they are going to issue visas. So, that still remains in the ambit of the Federal Government’s control.
“From the day of that judgment, it is now clear that have exclusive right to regulate tourism. May I also add that the issue of taxation was not mentioned there. The Supreme Court did not validate any tax, because what was before the court was power to regulate tourism sector.
“Of course, reading from there, the Lagos State government came up with ingenious laws. They changed it from sales tax to hotels and restaurant consumption tax, changing the sales tax that was meant for all the sectors and limiting it to hotels occupancy and consumption tax law in view of the previous appellate court decision nullifying sales tax.
“So, as we have it now, tourism is a state matter and that was given in the of Hotel Owners and Managers Association (HOMA) against the Attorney General of the Federation and the Attorney General of the Federation and recently in the case between the Rivers state government and the Attorney General of the Federation where the Federal High Court clearly stipulated that VAT being an extension of hospitality business tax cannot be collected by the Federal Inland Revenue Service (FIRS).”
While the Supreme Court ruling helped to galvanise the Lagos State government into formulating a road map for tourism development in the state, other states tend to be looking at the Federal Government for direction. This has not helped the course of tourism as the industry is almost non-existent in most states.
He said: “You see, any time I hear people talking like this, what really comes to my mind is that these people misconstrue hotels as the sole sector of tourism. Tourism is a site affair. If you remove your mind from the standardization of hotels, you will see that there is no basis that states at their own levels should not grow their products.
“That is a matter of political policies not a matter of law. A right could be given by a father to a son to inherit a particular property; the child may not take over the property. So, you cannot now blame the father for not doing the right thing.
“Nigerians are making a mistake. The mistake is that we are used to military regime where power devolves from centre down the line. It is not so. This is a civilian administration that is guided by the constitution.
“Education is a typical example of the devolution of power. Ghana, the Gambia and Nigeria all belongs to ECOWAS. The National House of Assembly of Ghana does not control the education of Nigeria. So also Nigerian government, no matter how powerful it might be, it is not controlling that of the Gambia. Yet, we all sit for the same WAEC. That same WAEC is known internationally as of the same standard and of the same body. The level of the lecturers or the competence of the lecturer in the Gambia, or their classrooms may not be like Nigeria, may not be like Sierra Leone, and may not be like Lagos. The fact is that at the end of it all there is a moderation that all of them consented to or willingly make the certificate to be generally acceptable not only in their respective countries, but all over the world.
“What the Federal Government should do is to convey a meeting where all states will compare notes; where they will have general guideline that could be persuasive on states on how to jump-start, on how to grow tourism business in their respective states. But if anybody thinks somebody will sit in Area Three in Abuja and be controlling tourism in Maiduguri, controlling tourism activities in Sokoto State, controlling tourism activities in Ogun, it cannot work. Tourism is a business of site. It is not a business of online. It is a thing that must be consumed and it best left with the state government.
“The drafters of the 199 constitution didn’t make mistake in not including tourism because they know quite well that one man in Area Three in Abuja, there is no way he can control all the tourism activities in Nigeria.
“I also hinted at the initial stage culture is equally not on exclusive legislative list. I’m sure if HOMA seriously feels that there should not be intervention from the NCAC, sure we are going to win because it is not on the exclusive list. Culture is peculiar to different persons in Nigeria. In fact in some states, culture might be different in like 10 places depending on the ethnicity of those concerned. How can it now be on the exclusive legislative list? How can it now be controlled from the centre? The answer is surely no and it should be treated as such.”
On the current efforts by some states to grow tourism Alabi said: “Let me talk about Lagos State because I operate in Lagos State. I can say that Lagos has justified the return of jurisdiction to them. Just last month of thereabout, the Lagos State Tourism Master-plan was unveiled. So, that is one. Also, a lot of things have been done by the Lagos State government to boost tourism. Whether other states are now copying them is what I don’t know because it is now a state affairs and Lagos State has done a lot to show that tourism is fully developed in Lagos State.”
On the bill by NTDC to correct the lapses of the current NTDC act, the FTAN BoT chairman said: “I read the bill ‘The Nigerian Tourism Development Authority…’ they didn’t call it corporation, and I asked myself, who counseled them to do that, because tourism now, at the Federal level, is now Federal Capital Territory (FCT) affairs. The Federal Capital Development Authority (FCDA) should be bold enough to fight the NTDC and join the National Assembly to stop further allocation to the NTDC because the money rightly belongs to FCDA department of tourism. Tourism is no longer federal affairs. It is state or FCDA as we know it.”