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!