Nwagbara: Properly harnessed, managed ports concession would prosper Nigeria

Maritime lawyer and Managing Partner, Maritime & Commercial Law Partners, Chief Osuala Emmanuel Nwagbara, told SULAIMON SALAU, that there are inherent benefits that would be thrown up if the exercise is well-managed.

Maritime workers recently shutdown ports nationwide over alleged unfavourable portions of the Nigerian Ports and Harbours Authority Bill. What in your estimation are the core issues here?
The concerns of maritime workers is not new. They have expressed these concerns throughout the concession period up till now. What the Nigerian Ports and Harbours Bill has done is to update the operational, legal status and powers of the Nigerian Ports Authority (NPA) to be in line with what has happened in the last 11 years beginning from 2005-2006, when the ports concession took place. So, ports workers generally have always made this concerns known regarding issues like relieving the NPA of some of its supervisional responsibilities, like cargo handling responsibilities. It is also kind of rejecting traditional employees of the ports system like on-board security officers and tally clerks, among others and making them employees of standard operators. This is not good enough for the ports system because they still need lots of jobs for their teeming members. You would find out that the port system has always employed lots of on-board security men and tally clerks for every ship that comes in. A lot of people work on board the vessels and by their sides.

Before this time the NPA still retained and paid some class of workers like on-board security men and tally clerks, but if you have followed the recent event, the NPA at one point decided that it was no longer their responsibility to cater for labour. So, you find out that this issue still remains in the front burner. Since the ports concession is kind of legitimising what NPA is doing now, it appears that this is the area of concern for dockworkers. Now, it has the backing of the law for the NPA to say ‘we have hands off this.’ So you can see the concern of the dock workers that its going to lead to massive job loss. Even those that are in other positions in the NPA now have fears that once the Nigerian Ports and Harbours Authority Act gives all of these powers to NPA to concession, it could go on and retain just some skeletal services and that will lead to loss of employment.

What are the prospects of ports’ concession programme that should be considered?
Yes, we have to balance this with the benefits that the ports development programme will also bring. We also have to look at what level of prosperity would be ushered in, and by way of multiplier effect, how many employments it would create, as well as, how many opportunities would be created for the industry. All of these we have to balance to really appreciate why we should accept the concession, or say it should be tinkered.

I think all the parties concerned need to really work together and look at the issues again from a passionate point of view, and arrive at an acceptable position. There is no law that is sacrosanct, every law is open to be tinkered with at any point in time by way of amendment. So, if we spot anything that we can do at this point, it is not too late to do that.

But maritime unions claim they reached out to the National Assembly before now, but nothing was done to hear their views?
This is why in legislative procedure we have what is called lobbying. They don’t have to say we have reached out to them and seat back. They have to keep asking for it. That is the meaning of lobbying in legislative language, and in fact, what they are doing now trying to shut down the ports is part of lobbying to draw the attention of lawmakers that certain issues are still unresolved. So, we call on the Nigerian legislature to listen to the port workers and see what areas of concerns need to be addressed in this bill before it is passed by the House of Representatives.

Do you agree with claims that the bill poses security threats to the country?
We have emphasised that certain workers that carry out certain functions in the ports have impact on security and the economic wellbeing of the country. We have insisted that certain jobs should be done by Nigerians alone, and we have even gone further to say that you do not create a situation that will elicit conflict of interest between the country and that of private business community. Once this happens, the interest of the nation must come first.

For instance, we have said that where a company that is operating a terminal is also given the right to employ labour, it is not right for such a company to employ stevedore, where it is handling cargoes because the tendency is that national security can be compromised. This is because if I work for you and I see some security goods where I am supposed to raise the alarm, I may close my eyes because you are paying my salary, because of the fear that if I expose that I would be penalised. So, that is why we said that when it comes to stevedoring work, terminal operators should not be allowed to operate stevedore within their own terminal and that is part of the issues.

Do you think the bill can sustain the Executive Order on Ease of Doing Business at the Ports?
I would rather prefer you use the word promote or impel. And in that regard, I would say yes. Executive orders are subsidiary legislation, which complement existing laws and fill the gaps where they exist. This is thrown up in the executive orders signed by the acting President, Professor Yemi Osinbajo, in May 2017.  It is expected that the ports bill will drive the Executive Order on the Ease of Doing Business in the Port.

Could the concession programme have justified the need to further invite the private sector to do harbour operations at the ports?
Nigeria’s experience in ports’ concession is a mix of the good and the bad from both the concessionaires and the users of port services. Concessionaires have issues with the high cost of port operations and government policy summersaults, which impact negatively on their business. Port users complain of high cost of port services, inefficient port services, disorderly port environment, unpredictable government policies etc.

My honest assessment is that ports’ concessioning, if anything, has shown that when properly harnessed and managed would bring prosperity to this country.
Yes, I think it is needful to further invite the private sector to participate in port operations in Nigeria. But we have to take a critical look at the concession agreement. Issues of power in the port system is still a big problem. There should be independent power source. We need a ports power concessionaire. Labour issues still linger somewhat. Port access roads – there is need for both the tenant and landlord at the port to bear part of the responsibility for keeping the port access roads in good condition year-in, year-out. There should be provision in the future concessioning agreement that a certain percentage of royalties paid to the NPA should be paid directly into an account dedicated solely for the maintenance of port access roads. Also, a percentage of the profit of the concessionaires should be paid into the same dedicated account for the same purpose.

Obviously the new arrangement maybe incapable of accommodating all NPA workers. What can government can do to pacify them?
Government is the biggest employer of labour. Therefore, the concern of workers that the new arrangement will lead to loss of jobs is a genuine concern. In its constitutional responsibility to create employment, government is not expected to be driven by profit motive like a private sector operator, but that does not mean that government business should be run at a loss, or that government should keep inefficient hands. Government should factor into the present arrangement, a programme that would train and improve workers knowledge to equip them to take advantage of opportunities that would be created in a highly efficient and competitive business environment in the sector. Such training would equip the workers to take advantage of opportunities in the sector even after leaving paid employment. In fact, proper exposure to opportunities that abound within the ports’ services sector to an entrepreneur would promote the yearning for voluntary exit from employment. Running a successful private business gives a sense of fulfilment and pride. As a corollary, government employees should also embrace the idea of new business and new ways of doing business. Training in this area would conquer their fears that life after employment is dreadful and uninteresting.