by Opubo Nengia Esq. and Faith Agbator Esq.
INTRODUCTION
With the unhindered rise of unemployed youths and graduates, the need for more job creators (in form of entrepreneurs) rather than job seekers cannot be overemphasized.
In recognition of this undeniable fact, educational institutions have introduced skill acquisition programs in order to equip students with the necessary skills and the ability to critically think about other innovative sources of income finetune their skills to fruition. In like manner, the National Youth Service Corps (NYSC) further embraced the importance of skill acquisition through the emergence of SAED courses/programs taught to Corps Members at their various deployment camps.
In this context, governments have increasingly begun to focus on entrepreneurship as a means of creating quality jobs, boosting the wider economy’s productivity and growth, and delivering market-based innovations to possible developmental challenges. In fact, a study on the role of entrepreneurship and its benefits found that entrepreneurship has a significant long-term effect on increased productivity. Hence, entrepreneurship can be seen as a key driver for long-term economic growth.
Capital and/or funds however remain one of the major hindrances to start ups and maintaining these businesses. Hence, the need for a legislative framework, often complemented with other regulations, policies and programs in order to make it easier for startups and further encourage the involvement of investors.
A careful assessment of the Nigeria Start up Act 2022 does suggest that the Act intends on focusing more on Tech related startups as opposed to the multitudinous kinds of startups that exist.
DEFINITION OF START-UP UNDER VARIOUS JURISDICTIONS (Senegal, Tunisia, Italy and Nigeria)
Senegal defines startups as ‘innovative and agile companies that have a strong growth potential in search of a disruptive business model and financing mechanisms adapted to its specific characteristics in order to deploy its exceptional capacity for value creation
Tunisia on the other hand requires two cumulative criteria; a business model with a strong innovative dimension, particularly technological, and an activity with strong growth potential .
Under the Italian Startup Act, startups must have as exclusive or prevalent purpose: the production, development and commercialization of innovative goods or services of high technological value .
In Nigeria, “startup” means a company in existence for not more than 10 years, with its objectives being the creation, innovation, production, development or adoption of a unique digital technology innovative product, service or process . The Act however allows for other arrangements such as sole proprietorships and partnerships if their objects are innovation, development, production, improvement and commercialization of a digital technology innovative product, service or process ; it is a holder or repository of a product or process of digital technology, or the owner or author of a registered software ; it has at least one-third local shareholding held by one or more Nigerians as founder or co-founder of the startup.
In light of the above, having mentioned that the Nigeria Startup Act also allows sole proprietorships and partnerships within its contemplation of what startups are and those that can benefit from its incentives, they (i.e. sole proprietorships and partnerships) have to comply with s13(2)(b),(c) & (d) of the Nigeria Startup Act 2022 before they can be eligible for grant of startup label in Nigeria.
Where it is a company, in addition to the aforementioned conditions, it has to be registered as a limited liability company under the Companies and Allied Matters Act, and has to have been in existence for a period not more than 10 years from the date of Incorporation.
Now, whether this means that it has to be a company of not more than 10 years or it has to be a company registered as a limited liability company for not more than 10 years is to be determined in a scenario where a company was originally registered as an unlimited liability company for 6 years then re-registered as a limited liability company for 5 years. The issue for determination is whether such a company in the scenario is ineligible to be a startup because it is a company that has been in existence for 11 years (6+5) or whether it is eligible because despite being a company for 11 years, it has only been a limited liability company for just 5 years.
About the Nigeria Startup Act 2022
In a bid to promote and support the growth of start-ups in Nigeria, the Nigeria Startup Act 2022 was created. The Act is a revolutionary attempt by the government to create an enabling environment for the incorporation, growth and sustenance of technology-driven startups in Nigeria. It is a roadmap for start-ups in Nigeria, and it provides a clear guide on the necessary steps that need to be taken in order to develop and grow a start-up.
The Nigeria Startup Act is targeted at fostering the creation and development of an enabling environment for technology-enabled startups in Nigeria and for related matters .
It is a joint initiative by Nigeria’s tech startup ecosystem and the Presidency to harness the potential of our digital economy through co-created regulations. The Act is aimed at ensuring that Nigeria’s laws and regulations are clear, planned and work for the tech ecosystem. This, we believe, will contribute to the creation of an enabling environment for the growth of the ecosystem, as well as the attraction and protection of investment in tech startups .
The Act was signed into law by H.E. President Muhammadu Buhari on the 19th of October, 2022. Over 30 leaders in Nigeria’s tech ecosystem contributed to its drafting between June and September 2021 .
The Act is a very important document for start-ups in Nigeria, as it provides a clear roadmap on the necessary steps that need to be taken in order to grow a start-up. It also provides access to funding, incubation, and mentorship, which are essential for the growth of a start-up.
What incentives can Nigerian Start Ups take advantage of?
The importance of the Nigeria Startup Act can not be overstated and tied to its relevance are the numerous benefits it offers startups in Nigeria. The Nigerian Startup Act 2022 provides several potentials for startups to take advantage of, including:
Tax Incentives: The Act provides tax holidays and exemptions for startups, as well as tax credits for investors in startups. This can help reduce the financial burden on startups and make it easier for them to get off the ground.
Access to Funding: The Act creates a framework for the provision of funding to startups, including grants, loans, and equity financing. This can help startups access the resources they need to grow and scale .
Seeing as the Act provides for incentives for investors investing into these 'labelled' startups, there will be more drive for those who have the necessary financial means to fund these startups thereby creating a 'win-win' situation for everyone involved.
Export Incentives: It is available to enterprises engaged in export activities which are eligible under the Export (Incentives and Miscellaneous Provisions) Act. Also they have access to grants from the Export Development Fund, Export Expansion Grant and the Export Adjustment Scheme Fund.
Intellectual Property Protection: The act provides protection for the intellectual property rights of startups, ensuring that their ideas and innovations are protected from infringement and theft. Owing to the fact that intellectual property theft is a common plague in this age and time, the provision for this protection encourages people to establish their own startups rest assured that their business idea won't be taken advantage of.
Incubation and Acceleration Support: The Act provides support for incubation and acceleration programs, which can help startups gain access to mentorship, training, and other resources that can help them grow and succeed.
Networking and Collaboration Opportunities: The Act creates a framework for the development of a national startup ecosystem, which can help startups connect with other entrepreneurs, investors, and industry experts, and collaborate on new ideas and initiatives.
These among the many other incentives and opportunities exist under the provisions of the Nigeria Startup Act, 2022. The implementation and interpretation of these provisions however, are subject to those as will be given by the Nigerian government over time via the court, scholarly dissertation or even subsequent legislation.
Shortcomings of the Nigeria Startup Act, and solutions
The Nigeria Startup Act, which was enacted in 2022, aims to support and promote the growth of startups in Nigeria. Despite its positive intent, the Act is not without blemish. Here are some of the possible shortcomings of the Nigeria Startup Act and possible solutions:
1. The need for diversity: The scope of coverage of the Act is limited. The Nigeria Startup Act focuses mainly on technology startups, neglecting other sectors such as agriculture, manufacturing, and service industries. One might even suggest that it goes beyond neglect, as the name “Nigeria Start-up Act” is somewhat deceitful because a lot of persons would have the impression that the Act applies to all startups but that is not the case – it is limited to tech startups.
A possible remedy to this is that the government could extend the scope of the Nigeria Startup Act to include other sectors, not just technology, to ensure that all types of startups are given equal support and encouragement. However, seeing as there's provision for incentives for 'export' activities, one would wonder if that's a window for other industries or sectors to be covered by the Act.
2. Complex regulations: The process of registering a startup and obtaining the necessary licenses can be complex and time-consuming. This may discourage potential startup owners from following through with the process of registering one.
In a bid to remedy this problem, the government could simplify the registration and licensing process to make it easier for startups to launch and operate. This could be done by alleviating people of the burden of the bureaucratic process by streamlining it and reducing the number of steps involved.
3. Lack of infrastructure: Nigeria still faces many infrastructural challenges, such as unreliable power supply, poor road networks, and limited access to technology.
The government could invest in improving infrastructure to create a more supportive environment for startups. This could include upgrading power supply, improving road networks, and expanding access to technology.
4. Illiteracy: The issue of illiteracy still plagues our nation till date and this means that there's a limit to exposure of the average Nigerian with great ideas to this opportunity. There are illiterate Nigerians with great ideas outside technology and in other sectors.
Awareness programs, seminars and other enlightening programs especially among the rural demographic areas may be done to create awareness as to the availability of these opportunities for entrepreneurship.
5. Encourages lack of transparency: The Act, having provided certain requirements to be fulfilled before a startup can be granted startup label, it then further provides that it can only be granted if the Coordinator is satisfied . This provision of the law encourages lack of transparency, as it creates a loophole for a Coordinator who does not like any director in a company applying for startup label to reject their application for reasons known to only him/her, despite fulfilling the other requirements.
Rather, the law should have provided that the Coordinator shall grant startup label to applicants who have fulfilled the requirements as provided in the Act or any other law made by the National Assembly. This would ameliorate the situation by extinguishing impunity in the system. Coordinators who fail to comply should be exposed to legal consequences.
6. The President as Chairman of the Council: Despite the fact that one might argue that making the President of the Federal Republic of Nigeria the Chairman of the National Council for Digital Innovation and Entrepreneurship (NCDIE) shows the level of seriousness of the Act, it is not rocket science for another to imagine that it also creates a problem, as the President has numerous duties, both National, regional and International. Therefore, it would stifle progress if the Council cannot make critical decisions unless the President is present.
It is hereby recommended that competent persons should be appointed as the Chairman of the Council with a tenure of office (serving as the Chairman), expressly provided in the Act. This would aid in faster decision making, expunge impunity and also foster the actualization of the goals of the Act.
Conclusion
In conclusion, while the Nigeria Startup Act is a step in the right direction, it is not without its shortcomings. To fully realize its potential and achieve its goals, the government must take steps to address these challenges and create a supportive environment for startups in Nigeria as well create room for more diversity in the economy to reduce the advent of overdependence on a particular sector of the economy.
DISCLAIMER: This article is not intended to serve as legal advice and should not be considered as such. For legal advice, consult a Lawyer.
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