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Anti-Piracy: How ‘Suppression of Piracy and Other Maritime Offences Act 2019’ will work profitably—Mike Igbokwe

Maritime Lawyer, Mike Igbokwe SAN

As stakeholders
in the maritime industry expect remarkable change and positive economic impact
with the new ‘Suppression of Piracy and Other Maritime Offences Act 2019,’
signed by President Muhammadu Buhari on June 24, 2019, renowned Maritime Lawyer
and Senior Advocate of Nigeria, Mr. Mike Igbokwe, says the task of proper
implementation of the provisions of the Act must be taken seriously from start
to completion.

In this
interview, Igbokwe says: “… I must say that the change may not just come just
because we have a legislation in place. It can only come if the authorities
that have been empowered to take different steps in the enforcement of the
provisions of the Act will sit up and begin to play the roles that the
legislation had imposed on them.”  Whilst he urges the primary agency
of government, the Nigerian Maritime Administration and Safety Agency (NIMASA) mainly
saddled with the responsibility of enforcing the law, to build capacity enough
to handle this huge task, Igbokwe also prays to see very supportive cooperation
from the Attorney General of the Federation (AGF) who has been bestowed the
ultimate power to prosecute all offences under the Act.

In his succinct
interpretation of the provisions of this Act, Igbokwe also called on all the
enforcement agents of government as provided in the Act, to be meticulous in
carrying out investigations with respect to piracy and other maritime offences,
to ensure that facts are investigated and established before arrests and
detentions of persons and vessels are made, as the law also makes provision for
redress for operators and crew, should there be a case of unlawful arrest and
detention or arrest or detention without reasonable grounds.

Igbokwe gives
very robust reviews and insights on all necessary issues authoritatively as the
drafter of the otherwise popular Anti-Piracy Bill.
How will the
Suppression of Piracy and Other Maritime Offences Act 2019 change the maritime
industry in Nigeria?

What you expect
to see is a lot of changes in terms of arresting, prosecuting, and convicting
of pirates and armed robbers at sea, who had been having a filled day for such
a long time in Nigerian Waters and the territorial, maybe even up to the
Exclusive Economic Zone and in the Gulf of Guinea, including of course, the High
Seas, because Nigeria did not have an up-to-date legislation or legal framework
to deal with the menace of piracy and armed robbery at sea and other maritime
offences. So, I want to see a positive change. But I must say that the change
may not just come just because we have a legislation in place. It can only come
if the authorities that have been empowered to take different steps in the
enforcement of the provisions of the Act will sit up and begin to play the
roles that the legislation had imposed on them. By that, I mean law enforcement
agents and of course, Nigerian Maritime Administration and Safety Agency
(NIMASA) because special roles have been given to them to play and we are happy
about that. For instance, if  you look at Section 5 of the Act, it
makes it very clear that subject to the provisions of the Constitution and the Administration
of Criminal Justice Act, that relates to the powers of prosecution by the
Attorney-General of the Federation , the prosecution of all offences under the
Act can be undertaken or shall be undertaken by three categories of persons:
(1) the Attorney-General of the Federation (2) Any Law officer so designated
from the  Attorney-General of the Federation’s Office (3) The Agency,
that  is NIMASA, with the consent of the
Attorney-General of the Federation.

What about the
delineation of the powers of prosecution, and consideration of cooperation?

I must say this
clearly, because that is one of the things I put there based on the desire of
NIMASA, because it was discovered that not being able to prosecute some of
these offences and waiting for the Attorney-General of the Federation to
prosecute these offences may delay the process or proceedings, (not just in
terms of getting the prosecution quickly done), but also in terms of getting
those cases quickly determined. The reason being that the Attorney-General of
the Federation has his hands full, as the Chief Law Officer of the Federation
and also as the chief Legal adviser to all  these government agencies and ministries
(MDAs), his hands are full. Let me give you an instance, if  the EFCC did not have
statutory prosecutorial powers and had not been prosecuting financial and
economic crimes, and had been depending on the office of the Attorney-General
of the Federation, it may not have achieved as much success as it has achieved today
in fighting economic and financial crimes. It was thought that if NIMASA also
had such powers of prosecution and would not fully depend on waiting for the
Attorney-General of the Federation to prosecute piracy and other maritime
crimes, , NIMASA will make a lot of difference in suppressing the menace. But
the rider there is that NIMASA can only exercise the power to prosecute the
crime with the consent of the AGF. So, I pray that it will not be frustrated by
any AGF that is on seat, because if any AGF  refuses to grant NIMASA that consent, NIMASA
will not be able to prosecute the crimes.  I hope any AGF that comes into office would
kindly, grant NIMASA the requisite consent to enable it prosecute the maritime
criminals, bearing in mind that NIMASA is capable of properly prosecuting the
maritime criminals, being the one that understands the maritime sector more than
his office.

Any concerns
about capacity to perform on this task?

NIMASA and other
law enforcement agencies that would implement the Act, must build capacity to
implement its provisions. It is not enough to have these powers stated in the
Act. In fact, all the powers granted to NIMASA in terms of enforcement are so
enormous, but it must start now to build capacity. I am prepared to help in
this regard. I have done so much work in this area and being the one who
drafted the original Bill that was sent in for enactment by the National
Assembly, definitely, I am in a good position to assist in that regard. It is
time for NIMASA to actually get all their staff in the enforcement unit to be
trained, to build capacity to properly play its role in the implementation of
the Act so that they will know what their duties under this Act are. They will
know what their powers under this Act are. They will also know the implications
of the Act on NIMASA and on themselves, and be able to do this thing very well,
so as not to run into mucky waters or be faced with litigations that would be
disastrous or may delay the achievement of the legislative intention in the Act
or cause them to lose money. I will give you an instance. There is a provision
in Section 12 , Subsection 4 of the Act which states: “ A
Pirate  Ship , Aircraft or property seized or forfeited due to an act
of piracy, shall be subject to the rights  of third parties acting in
good faith, provided that where the seizure of a ship or an aircraft on
suspicion of piracy had been effected without reasonable
grounds,  the relevant authority deploying the law enforcement or
authorised official making the seizure is liable to pay damages to the party
whose aircraft, ship or property was illegally seized, for any loss or damage
caused by the seizure or forfeiture.”

What it means is
that before NIMASA or any of these relevant authorities or enforcement agent  will arrest or detain a ship or aircraft or
deploy any enforcement agents, it must ensure that it has properly investigated
the complaint or suspicion and that it has sufficient facts and reasonable
grounds under the law, to proceed and not just arbitrarily seize the ship or
aircraft. It is important because you see so many people especially operators complaining
that some law enforcement agents have been arresting and detaining their
vessels and crew, illegally and wrongfully for a long time.

Can this Act
accommodate people who had earlier complained of illegal arrest and detention
on claims of piracy?

Complaints can
only be accommodated pursuant to the Act if the acts complained against took
place after the Act took effect, that is from the date it was signed, but would
not cover cases that had happened earlier because the Constitution does not
allow a legislation to have retrospective effect.

For this, the President
signed the Act on June 24, 2019. This again is some respite for ship owners and
crew, whose were arrested and detained and their ships seized. Of course, if
the Navy or the Airforce, NIMASA or Marine Police become aware that if they
wrongfully arrest or detain a ship or aircraft without reasonable grounds, the aggrieved
person has a right to go after them for damages for loss they suffered, they
will sit up and avoid frivolous sezures.

In as much as the
law is out to deter and suppress piracy, unlawful acts against ships and
shipping and other maritime crimes, it also gives some protection to those who
are in that sector; the ship owner, the aircraft owner, if they find themselves
in a situation where their vessel or aircraft has been wrongfully arrested and
detained. The reason is that shipping is capital intensive and very expensive. Every
day that you detain a ship, costs are running; diesel, crew wages, insurance
and it is prevented from sailing to the next port to discharge its cargo.

How soon do you
think this Act will impact on the War Risk Insurance demand and other costs?

I believe that
with this Act now, especially when the enforcement is so clear and efficient to
deter pirates and armed robbers at sea, you will see  confidence of security being restored in
Nigerian waters. The moment that is done, you will also see a situation where,
I believe, that the War Risk Insurance will no longer be demanded. Nigeria, as
a result of the fact that it was almost becoming another Somalia in terms of
the menace of piracy, the economy and the maritime sector have suffered a lot
for a very long time because a lot of the ships coming into Nigerian waters
were asking for very stringent conditions, which of course were costs that were
being passed to the ultimate consumer, because the cargo owner or whoever pays
would pass it on to the buyer, ultimately. Then of course, costs of imported
goods are going higher, costs of shipping things to Nigeria, also going higher.

Again, the amount
of money that ship owners and operators, even in the oil and gas industry have
been spending on providing security, either Naval or Police,  will also be eliminated if not drastically
reduced the moment our waters become safe as a result of the fact that with the
proper implementation of this Act,  those
maritime criminals  have been chased out
of Nigerian waters through an effective implementation of the Act.

To be continued!

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