By Folarinwa M. Aluko
The overwhelming majority of drone users are law- abiding. They are creators, professionals, and hobbyists with every incentive to operate within the law. Those who intend to misuse drones, whether for criminal or otherwise unlawful purposes, are unlikely to register, seek permits
Economists describe the Cobra Effect as a policy failure where an intervention, designed
to solve a problem, ends up worsening it. To reduce the population of dangerous snakes,
the Colonial Government in India once paid bounties for dead cobras. Soon,
enterprising citizens responded by breeding cobras to claim the reward. Seeing the
abuse, the Colonial government discontinued the policy and the now-worthless snakes
were released by the breeders into the wild, leaving the country with more cobras than
before.
Nigeria’s current drone regulatory framework risks producing a similar outcome. The
Regulations are a mixture of control provisions built with layered approvals, high-level
security vetting, and significant fees. It is a regime that burdens those already inclined to
obey the law thereby discouraging lawful compliance, reducing access to technology and
externalizing the cost of regulation onto the public.
The Civil Aviation Act 2006 constitutes the primary legislative framework governing
civil aviation in Nigeria. It establishes the Nigerian Civil Aviation Authority as the
statutory regulator of civil aviation and vests in it the responsibility for the regulation of
air navigation, aircraft operations, and aviation safety within Nigerian airspace. The
Nigerian Civil Aviation Regulations (Nig.CARs) are made pursuant to this statutory
authority and derive their validity from it.
The regulatory regime governing Remotely Piloted Aircraft Systems (RPAS) in Nigeria is
expressly set out in Part 21 of the Nigerian Civil Aviation Regulations, 2023, reflects a
safety-oriented system concerned with airspace management, operational risk, and
accountability of operators.
NigCARs Part 21 provides a comprehensive framework for certification, registration,
operations, internal security safeguards and surveillance of RPAS including provisions
on applicability (21.1.1), registration and marking (21.3), operational limitations
(21.1.1.5), and operator certification. The scope of this framework is clearly defined. It
regulates the classification of RPAS, mandates registration and marking requirements,
prescribes operational standards, and establishes certification obligations such as the
RPAS Operator Certificate (ROC). While these features mirror elements found in other
jurisdictions, the introduction of the Nigerian Effect creates outcomes that are worse
than the problems sought to be addressed.
The difficulty lies in the philosophy and architecture of the Regulations. While Part 21
incorporates security requirements within the aviation safety framework, these
provisions are limited to operational and system-level safeguards. They do not extend to
the imposition of external national security clearance as a universal precondition for
civilian drone operations.
The Civil Aviation Act establishes the Authority as a safety
regulator. The Regulations can only elaborate and not extend that mandate by
converting or transforming routine civilian drone operation into a matter requiring
security vetting.
The involvement of ONSA in routine drone operations suggests a system that has drifted
from safety oversight into generalized control without a clearly articulated legal basis.
This raises a familiar question in administrative law: whether the creation of regulatory
requirements outside the scope of or without clear statutory grounding is an exercise of
lawful authority or executive overreach? Where such requirements lack clear statutory
foundation, they risk being declared ultra vires and of no effect as subsidiary legislation
and administrative practices must remain within the scope of the enabling statute.
Moreover, the conflation of Aviation Safety Regulations with National Security
Oversight raises questions of institutional competence. Aviation regulators are designed
to assess operational risk, airspace management, and safety compliance. Security
agencies, by contrast, are structured to address threats of a fundamentally different
nature. Collapsing these functions into a single approval process risks weakening both
objectives.
The implications of this structural misalignment extend beyond administrative law and
into constitutional territory. Drone technology is no longer an exotic tool. It is
embedded in everyday creative and commercial activity. Filmmakers, journalists,
content creators, surveyors, and entrepreneurs rely on it to produce, document, and
communicate. A regulatory regime that converts daily interactions into a high-level
security matter risks crossing the threshold from regulation to infringement.
Section 39 of the Nigerian Constitution guarantees the right to Freedom of Expression.
A framework that treats low-risk creative use as a matter of national security imposes a
practical restraint on expression. It operates as a practical restraint with effects
comparable to a formal restriction. Delays, costs, and uncertainty combine to reduce
activity, particularly among independent creators who lack the institutional capacity to
navigate complex approval systems. While no right is absolute, restrictions on rights
must be legal and justified. The constitutional validity of such restrictions ultimately
turns on proportionality, whether the regulatory burden imposed is reasonably justified
by the risk it seeks to address
Another source of conflict is with the right to own property, provided in Section 44 of
the Constitution but better articulated in Article 14 African Charter on Human and
Peoples Rights. A drone is, at its core, personal property. While generally speaking,
airspace is regulated and cannot be privately appropriated, the right to use one’s
property for lawful purposes is fundamental. Regulation conditions that limit the use of
private property, especially in the absence of clear statutory grounding, operate as a
constructive limitation on property rights. A regulation that introduces disproportionate
measures relative to the risk sought to be redressed is a limitation on the rights of the
citizen.
The economic implications follow naturally. Drone technology supports entire segments
of Nigeria’s emerging economy. It is central to digital content creation, film production,
real estate marketing, agricultural mapping, and a range of other services. When entry
into this ecosystem is conditioned on high fees, extended processing timelines, and
security clearance, the regulatory framework effectively raises barriers to trade. Larger
entities may absorb these costs; smaller operators cannot. The result is a market skewed
against the very actors driving innovation.
The issuance of operational clearances for ordinary drone use by a national security
institution reflects a misallocation of regulatory function. It diverts security
infrastructure toward low-risk civilian activity, while simultaneously introducing delay,
cost, and uncertainty into sectors that depend on speed and accessibility.
Privacy is often invoked to justify such restrictions, but the argument is less persuasive
than it appears. In Nigerian law, expectations of privacy in public spaces are generally
limited. Where privacy concerns arise, they are already addressed through existing legal
mechanisms, tort law, criminal provisions, and sector-specific regulations. The attempt
to regulate privacy indirectly through aviation controls conflates distinct legal domains,
leading once again to executive overreach.
Privacy, in many respects, is residual and context-specific. The creation of expansive
regulatory bodies with compliance fees risks shifting the focus from protection to
administration, and from safety to revenue generation. Drone regulation, layered on top
of this, becomes part of a broader pattern of regulatory expansion without clear
boundaries.
Against this backdrop, the Nigerian approach stands in contrast to the dominant
philosophy in other jurisdictions. In the United States, the Federal Aviation
Administration has adopted a system built around identification and accountability.
Registration is inexpensive, and mechanisms such as Remote ID ensure that operators
can be traced. The emphasis is not on preventing operation, but on ensuring that those
who operate can be held responsible if necessary.
In the United Kingdom, the Civil Aviation Authority has taken a risk-based approach.
Regulation is calibrated to the level of risk posed by the activity. Low-risk operations are
lightly regulated; higher-risk operations attract more stringent requirements. The
system distinguishes between context and conduct, rather than imposing uniform
constraints.
Nigeria’s framework, by contrast, leans toward permission-based control. It asks
whether an operator should be allowed to fly, rather than ensuring that operators are
identifiable within a system of accountability. Where compliance is simple and
affordable, most users comply. Where compliance is complex and costly, many opt out.
This leads us to a central paradox.
The overwhelming majority of drone users are law- abiding. They are creators, professionals, and hobbyists with every incentive to operate within the law. Those who intend to misuse drones, whether for criminal or otherwise unlawful purposes, are unlikely to register, seek permits, or submit to regulatory oversight. A system that imposes heavy burdens on compliant users while offering little deterrence to non-compliant actors is regulating the wrong population.
The cost structure reinforces this problem. Layered fees covering registration,
certification, and operational permits turn compliance into a financial calculation. For
many small operators, particularly in the creative sector, the costs are prohibitive. The
predictable outcome is regulatory inefficiency not compliance. Regulation, in this
context, has become a barrier to entry and not a mere administrative tool.
Unfortunately, the reliance on weight as a primary regulatory trigger illustrates the
limits of the current approach. While a 250-gram threshold aligns superficially with
international standards, weight alone is an imperfect proxy for risk. A lightweight drone
equipped with advanced imaging capabilities may raise concerns comparable to heavier
equipment. Conversely, a heavier drone operated in a controlled environment may pose
minimal risk.
A framework that relies heavily on weight without incorporating contextual factors such as location, proximity to people, and purpose of use, will inevitably produce blunt and irrational outcomes. A classification that is not rationally connected to the risk it seeks to regulate raises questions of proportionality within administrative law.
The cumulative effect is most visible in the creative industry. Drone technology has
democratized visual storytelling. It allows independent creators to produce high-quality
content, compete globally, and tell local stories with global reach. A regulatory environment that introduces friction at every stage: cost, approval, uncertainty, undermines this progress. Creativity depends on immediacy and experimentation. This bureaucratic system erodes both.
Nigeria needs a more coherent framework that treats registration as a tool of
identification and authentication rather than control. Low-risk, private use at limited
altitudes could be accommodated through free or minimal registration, encouraging
compliance rather than deterring it. Oversight would remain within the NCAA, with
security agencies engaged only where specific and demonstrable risks arise. Regulation
should shift from a weight-based model towards a risk-based model consistent with
principles of proportionality and rational classification in administrative law, taking into
account the context of operation rather than relying on a single metric.
Such an approach would align with our legal jurisprudence and practical reality. It
would respect Constitutional Guarantees while maintaining safety. The regulations
would also support economic activity while preserving accountability. The objective is to
regulate behavior rather than suppress it.
The moral of the Cobra Effect is that poorly designed regulation does not eliminate
problems. It reshapes them and creates worse problems. Nigeria’s current drone
framework is doing precisely that. By making lawful compliance difficult, it may
encourage the very institutional disruption it seeks to prevent, while constraining a
sector that should be allowed to grow.
A regulatory system should not seek to control a technology. It should seek to enable its
safe and productive use. Until that shift occurs, Nigeria’s approach will remain a
solution in search of a problem and a constraint on innovation in a world that is rapidly
moving forward.
Folarinwa Aluko is a Legal Practitioner and Partner in the Firm of Trumann Rockwood
Solicitors. He can be reached at [email protected]
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
