Law  

‘There is no comprehensive piracy law in Nigeria’

Hassan Bello

Adjudicating on admiralty or maritime matters was a herculean task for Nigerian judges as well as lawyers who appear before them until the Nigerian Shippers Council (NSC) decided to take the bull by the horns by way of organizing international seminars for judges. Today, the story has changed and more judges are now at home with contemporary issues on international transportation laws. The Executive Secretary of the NSC, Mr. Hassan Bello, in this interview with select journalist including Joseph Onyekwere gives an overview of their upcoming seminar. He, among other issues hinted that the agenda to push for piracy law in Nigeria is in the works, when the judges’ seminar for this year ends July 5.

After a long wait, the senate has finally passed the National Transport Commission bill. How will it impact on what the Council does?
How it would impact on the economy is even more important because the Commission is a multi-sectoral bill, which is structured to take care of economic regulation of the industry. When the port reform was introduced almost 10 years ago, there was a serious gap, where there was no economic regulator. This gap has threatened to roll back the gains of the reforms. If we have economic regulator across all transport chains, including aviation, marine, rail, road and inland waterways, there will be multiplier effect on the economy. The economic regulator is there to guarantee the efficiency of transportation. It will also guarantee healthy competition. Don’t forget that Nigeria is in competition with its neighbouring central and Western Africans ports. If we improve efficiency, we will gain more cargo and a lot of people will be employed too. Economic regulator will also ensure that there are conducive environment for investment. The government should guarantee the investment of investors, both local and foreign. So, the economic regulator is the referee in this game. The Nigerian Shippers Council has always been a regulator since 1978, when it was set up. It was not emphasized at that time because government was the operator of all transport system. But now, the private sector is there. So, there is need for us to have that regulator. If the capacity of the Shippers Council is enhanced, it would do its work more. Shippers Council would be the nucleus of the National Transportation Commission, but all the other agencies would also be part of it.

How will the intended Commission relate to the National Fleet Implementation Committee, of which you are the chairman?
One of the cardinal agenda of the committee is for Nigerians to own and operate ships. We are not reinventing the wheels. Nigeria had been trading for a long time. We once had the Nigerian National Shipping Line. What people don’t really understand is that there is a radical departure now. The fleet will be a private led national fleet and not that of the government as it was operating before. You need the private sector to come and lead. So government is not spending one kobo. The function of the committee is to look at the issues that would make it conducive for that initiative to grow. Introducing National fleet is not buying akara or bread. We need a sustainable national fleet that would operate because of the tremendous advantages. NIMASA can give the fleet national carrier status. Once that happens, they will have exclusive right to government cargo. You can imagine what the earnings of the fleet can do to our economy and the effect on our financial institutions. We have to address the economic management team. We are talking with Central Bank and the ministry of budget also.

You are the chairman of the committee, but there is a media report that you have not started sitting?
That is not true. We don’t invite people when we sit. We have met over 50 times. It is surprising for someone to say we have not been meeting. As a matter of fact, we have gone far. We have recommended the incentives necessary for us to develop these fleets. Very soon, you will start seeing concrete achievement of this committee.

What exactly informed your decision to organize international seminar for judges?
It is the need to bridge the knowledge gap. Since 1995, Nigerian Shippers Council realized that there was a kind of vacuum on the decision of judges on admiralty matters. The adjudication took a long time. Neither the judges nor the lawyers who practice before them were actually conversant with the very technical nature of admiralty law, by extension, international trade and other transportation laws. So, for us to have the internationality that is needed, we need to have a modern adjudicatory system. The judges must be able to adjudicate not just correctly, but timeously. Therefore, we intend to bridge this gap to educate and inform the judges on developments on international law so as to speed up cases. Hitherto, there were only few judges who were conversant with admiralty law or what we call maritime law. Because of this seminar, over 1000 judges have been trained and the international community has begun to realize that the decision of judges in Nigeria was becoming better. Admiralty law or maritime law was not taught in our Universities, neither was it a course in the law school and so, sometimes the decisions were not very good then. But now, the decisions of our judges are becoming better and are internationally acknowledged to be very good. There are also structural changes in maritime law and jurisprudence. You know that the federal high court has exclusive jurisdiction on maritime matters before it goes to the appeal court and the Supreme Court. So these are our targets, but they could be overlapping jurisdictions at the state high courts. And sometimes, judges of the state high courts are given appointment to the federal high court or promoted to the court of appeal. So, the whole thing is to update their knowledge on maritime laws.

A lot of people impute motive to things. Are you not a bit concerned that as an institution that would one time or the other appear before those judges, it is unethical to sponsor their training?
There is nothing like that absolutely. Nigerian judges know their responsibilities. We take the judiciary as a stakeholder just the same way we organize conferences for freight-forwarders, organize courses for shippers, administrators and many other stakeholders. The judiciary is a very important stakeholder and our relationship is nothing but official. It cannot be a thing of influence; after all, we have been taken to court and we got adverse judgments. Until now that you pointed it out, I have not thought of it. And other institutions also organize such courses too. The exercise is meant to update the knowledge of our judges.

You are in the 15th edition of this seminar. What is your appraisal of the event so far?
The seminar first of all updates the knowledge of our judges. Secondly, it influences and has created what I may call a judicial backup for our system. We have legislations that have come out of this seminar. The Homburg Rules, which is an international convention, has been ratified. This is as a result of what had happened in this seminar. Even the Cabotage Act was as a result of this seminar; reforms in the freight forwarding practice, leading to the council for regulation of freight-forwarders. So the seminar is not just a talk-shop. It takes a look at the whole maritime law, where various topics are discussed. It is a seminar specifically targeted at the judges.

What are the highlights of this year’s seminar?
We will discuss burning issues that are disturbing us, contemporary issues and we interact directly with the judges to know what their own challenges are. For instance, the issue of piracy in Nigeria is becoming a disturbing phenomenon. In Nigeria, we don’t have a leading law on piracy. The suppression of unlawful Act, which is supposed to be the main convention, is yet to be ratified by Nigeria. So, sometimes, we have to rely on municipal laws. Therefore, we will bring out a panel to discuss this issue of piracy. What we want is that after the seminar, there will be a law on piracy. We have assembled panels, made up of experts. The topic is piracy and armed robbery at sea: judicial interpretation and economic implication. There is always a nexus between the economy and the judiciary.

We have Dr. Kamal Deen Ali, who is Ghanaian Navy Captain and also a director, Centre for Maritime Law and Security, Accra, Ghana, who will provide the lead paper. And this would be commented, by the director general of Nigeria Maritime Administration and Safety Agency (NIMASA), director, legal services of the Nigerian Navy, the regional maritime Security Project officer of the International Maritime Organisation (IMO) and Mike Igbokwe (SAN), who is an expert on admiralty law. Our aim is to push for a comprehensive legislation on piracy because piracy has economic implication on Nigerian trade. We also have applicability of international treaties to Nigerian laws. This will be delivered by prof. Akin Oyebode, former dean, faculty of law, University of Lagos. There are some technical issues about domestication of international conventions. For instance, what we have right now are two conventions operating in Nigeria – The Hague rules and the Homburg rule, which is abnormal because the legislature did not accept the Homburg rules and The Hague rules side by side. There is almost confusion on what is to be done and prof Oyebode would be able to clear that issue. Those are the kind of issues that would interest the judges and stakeholders.

In assessing your previous seminars, you hinted that part of your success story was the enactment of the cabotage Act. In your own estimation, how far has that Act impacted on Maritime industry in the country?
We ought to be practical when we bring out legislation. We cannot legislate in vain. The cardinal issues on Cabotage are three – the ship must be built in Nigeria, it must be crewed by Nigerians and Nigerians must own it. This is a trade in brown waters similar to Jones Act as we have it in America. But in Nigeria, the infrastructure necessary to give life to Cabotage Act is not there. Unfortunately, we have not been able to provide ship-building yard for us to produce that ship. Until now, our nautical colleges have not been able to churn out qualified cadets. Ownership could be done, but the other two things are unable to manifest.

So we cannot implement a law that is not just there. I think we are grappling with the implementation. Cabotage law is a good law aimed at building the capacity of our indigenous shippers and employing our cadets, but the conditions necessary for the implementation of this law is not just there yet.

Having that in mind and also muting the idea of the piracy law, what are you going to do differently to ensure it does not suffer the same fate?
Piracy does not need infrastructure, which the Cabotage needs. What we need to do on piracy is to define what it means and bring it out of armed robbery and militancy and include enough deterrent. That is the main issue. If we do that, piracy would be properly defined and the sanctions are there, then there will be deterrent. The security architecture would be better defined after this seminar.

Apart from the issue of piracy, what other contemporary issues within the maritime industry are you focusing on?
We have the rights of a Cargo Owner at the Insolvency of the Carrier. We are taking the case study of the Hanjin Shipping experience, a big Shipping company that went down. What are the contractual obligations of everybody who is affected by it? Maritime is multifacet. There are so many parties and agencies involved. It is a myriad of rights and obligations. We also have an overview of the proposed liability regime for inland carriage of goods. This is very important issue. While we have international conventions on international waters, carriage of goods internally, there is no regulations and there is no liability regime. Everybody does whatever he or she wants. But Nigerian Shippers Council is trying to provide order. There must be some responsibilities and order. If you give your luggage to one of the luxury buses to take to Enugu and it got missing, who takes liability for that? Even on trains, what are the obligations if there is a breakdown and your cargo is not delivered?

How do you push the narratives that will come out of this seminar in order to have maximum impact?
We have an implementation committee for maximum impact and result. Immediately after the seminar, the committee looks at all the resolutions and then we discuss with the National Assembly and demand legislation.

Apart from the robust idea of organizing this seminar and the results that comes from it, how far have you been able to fulfill your mandate as economic regulator?
This is an important question and it has been very challenging. Once something is new, the action usually differs. The port reform had gone eight years when Nigerian Shippers Council was appointed. I always give example of people playing football in the park. You could do anything including scoring goal with your hands because there are no rules. But suddenly the referee appears to begin to blow the whistle. The most important thing is that the Nigerian Shippers Council has been recognized and slowly we are inching towards that. We are independent. We must maintain our independence from government and remain that referee that would sanction anybody, including the shippers, terminal operators, freightforwarders and Shipping lines.

What we want is the coming together. We want to introduce harmony. The first thing we did was to involve ourselves so much in introducing standard operating procedure at the ports because the port was just going without any rules. There are many agencies and everybody does what they liked. We need to banish corruption from the ports. It must block leakages because government was suffering hemorrhage in collection of its revenues and we have to introduce specific rules to check it. Most importantly, our ports must be able to compete, not only in Nigeria, but internationally. We have to introduce automation in port operations. We can’t have people going to the port all the time. We need a system, whereby one does not need to be in the port to clear his or her goods. Automation and technology are the light that would eliminate all the dark spots in the port and banish corruption.

You don’t need to arrest anybody. Those who can no longer operate in the old ways will comply, while those who cannot comply go away. Transportation must make its meaningful contribution to our economy. What it is doing now is not enough. We also have the rail revolution coming up. It will never be the same again for Nigeria. It will be a game changer because rail carries volumes and it is cheaper. It integrates the country serving the seaport and the inland port. That means we are diversifying our economy for exports and export is the way to go. We are opening up the system and once that is done, Nigeria will be a very strong economy.

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