How the Anti-Piracy Act should work in implementation- Mike Igbokwe

Mr. Mike Igbokwe SAN

In the concluding part of the interview with the revered Maritime Lawyer, Mr. Mike Igbokwe SAN, he gives more insights on requirements for a successful implementation of the Anti-Piracy Act, which is expected to be a game-changer for the better, for the maritime industry in Nigeria. Igbokwe talks on where and how funding would be made available for the operations involved in the implementation of the Act, as well as security agencies of government that are qualified and so drafted to be a part of this very important function of safe-guarding the maritime industry.

What important insights should guide the implementation of the Act for success?
I must also say that it is one thing to have a good law and it is another thing to actually have the results the Legislature intended. Unless we properly implement the Act, we cannot get the progress needed in curbing the menace of piracy and other maritime crimes in our waters. Then, there must be the Political Will to do enforce the provisions of the Act, determination and monitoring of the progress of the enforcement. Let there not be that day in Nigeria where any law enforcement agent or relevant authority or agency that has been empowered to implement the provisions of this Act, would be called one day either from one top office or the Presidency or Ministry to say “we are interested in that pirate vessel or its crew or their case, please release them.” If we do that or allow that to happen, we would not make any progress on its implementation and it would be ‘business as usual’.  
There should be no interference with the agencies and the relevant authorities in the implementation of this Act, in the exercise of their powers and in the performance of their duties under the Act. They have been empowered by the National Assembly and they should be bold enough to go out there and implement the law because the law is there. That is their authority. They should not be afraid, but ensure they do what they need to do according to the Act but bear in mind that stepping outside the Act may sound in damages.
Another thing I want to point out is, there is an avenue for an ex parte application to be made to the Federal High Court for the arrest and detention of any person that has been reasonably suspected to have committed an offence under the Act.
Section 9 says: “ The Court may, pursuant to an ex parte application, grant an order for the detention of a suspect arrested under this Act , for a period  not exceeding 90 days, subject to renewal for a similar period until the conclusion of the investigation and detention.”
So, any enforcement agent or relevant authority can go to Court, apply for and  just like some of the powers granted to the EFCC,  get an order of Court ex parte to keep in detention for not more than 90 days, a suspect that has been arrested, pursuant to the provisions of this Act, until investigation into the offence, is completed. If the investigation has not been concluded at the end of the 90 days, it can apply to the Court for a renewal for another 90 days until the conclusion of the investigation and detention is dispensed with. Well, some people may say this is an abuse; why would you arrest someone if you had not yet completed your investigation? But the thing is that, the way and manner these piracy and maritime offences are committed are such that, it is highly impossible for you if you are an eye-witness of or you see someone who can identify someone who actually committed that offence, for you not to have reasonable ground before you arrest or you detain the suspect. If you have a reasonable ground to arrest, whilst you are conducting investigation or the report is made to you, you have up till 90 days to conclude it. If for instance 90 days is not enough for you to complete your investigation, then of course you can ask for THE Court for a renewal for another 90 days. The beauty of it is that you do not just send the person to court for prosecution without enough time for investigation and you have enough time of 6 months for thorough investigation If you know you do not have enough information or the facts are such that cannot secure conviction, it will be a waste of time and government resources to proceed with a prosecution. So, it behooves those who are to prosecute, to be sure that they have enough evidence, because, the way the court works is that, if you say someone committed an offence, no problem, but you have the burden to  prove his guilt beyond reasonable doubt, and if you cannot, he will be set free. That is one thing to take note of. Then of course, there is room for bail. 
Section 8 says: “Where a person is arrested on reasonable ground having committed any offence under Act, the relevant law enforcement agent or authorised official may direct that the person arrested be detained in custody for a reasonable period of time from his arrest. Now, person referred to in subsection 1, shall either be taken into custody or other measures be taken against him, in order to ensure his presence for such time as may be necessary to enable any criminal or extradition proceeding be instituted against him.”
Again, these powers are enormous, but one area where they have to be careful is when they are exercised in such a way as to breach the fundamental rights of those who are concerned, especially, the African Charter on Fundamental Rights and the fundamental rights provisions of the 1999 Constitution. 

What provisions are made for funding of this kind of task involving painstaking investigation and likely prosecution?

One thing I want to mention is that, there is a fund. In Section 19, that fund is to be known as ‘Piracy and Maritime Offences Fund, which would be used for the implementation of the provisions of the Act.
The beauty of it is that NIMASA shall under the supervision of the Minister of Transport, establish and maintain the Fund and it will not have to go cap-in-hand to the Federal Government with a view to getting money to implement the provisions of the Act. It is self-funded.

That fund would be sourced from the following:-
Money as may be in each year approved by the Federal Government for the implementation of the Act. So, this in my view could come from the budgetary allocation. Then, gifts, financial contributions by beneficiaries of the services of the maritime law enforcement agency under this Act.  Beneficiaries would include shipowners and operators or maritime labour that had benefitted from the implementation of the provisions by NIMASA and felt it should appreciate NIMASA’s efforts by contributing to the Fund. Another source of the Fund is 35% of the proceeds of the sales from any property seized and anything forfeited under the Act, including things used in the committing of the crime. For example, if a vessel is used for the commission of the maritime crime, that vessel is forfeited to the Federal Government, and if it is sold, 35 per cent of the proceeds goes into the fund. Then, contribution from the maritime fund under NIMASA Act. But the problem here is that the National Assembly did not indicate the quantum of the maritime fund that should go into this Fund. If it had said a certain percentage, it would have been clearer, but it just said contribution. So, in my view, the quantum of the contribution has been left to the discretion of the Director-General of NIMASA. Then, the last source of the Fund is contribution from the Cabotage Vessel Financing Fund (CVFF). Again, no percentage or amount of this Fund has been indicated by the National Assembly. It means that like the contribution from the Maritime Fund, the Director-General of NIMASA will have to use his discretion to determine what the amount will be. Since it is discretion and uncertain, the contributions from the Maritime Fund and Cabotage Vessel Financing Fund, will not be same annually. It is also noteworthy that there is no time limit for these two contributions from these two Funds administered by NIMASA, to be made The problem may be, first because this Cabotage Vessel Financing Fund had never been disbursed. Two, that those who have been contributing to it, the shipowners, have been complaining that it is their money, it may become controversial. But, the thing is that, if you ask me, I think the rationale behind this is to say after all, this is for the implementation of the Act is for the shipowners’ protection. So, if it is for their protection, there is nothing wrong in saying they should give back a part of the Cabotage Vessel Financing Fund that is for development of domestic shipping for their protection.. So, I think they will buy that. NIMASA should keep a good record of it. It is also important to know that the law enforcement agencies shall be responsible for the gathering of intelligence, patrolling the waters and investigating the offences provided for under this Act.

What is the composition of the Law Enforcement Agency, as provided by this Act, for the purpose of the enforcement function?

There is an omission, in that the National Assembly did not define or specify who the law enforcement agencies are. But, that omission is not from the drafter who carefully defined them, they removed them. So, who is the law enforcement and security agency is now left to construction. So, is NIMASA a law enforcement agent?  Is it a security agent? Does NIMASA not enforce laws as an agent of the Federal Government? So, can’t it claim to be law enforcement agent? My opinion is that NIMASA is a law enforcement agent of the Federal Government, but it is not a security agent of the Federal Government. Then, it can come under this, solely for the gathering of intelligence. NIMASA has vessels and patrols our waters with the Navy doing surveillance. Then, you can also talk of the Nigerian Navy, Marine Police, even Nigerian Army, and then the Civil Defence Corps.
There is a provision of the Act that says:  “in addition to subsection 3, the law enforcement agencies have power to partner with any other maritime stakeholder, West African neighbours and other Nigerian maritime stakeholders to provide the necessary education support, information, awareness, sensitisation towards the prevention and elimination of maritime offences and other unlawful acts. But this does not go far enough. It has delineated the nature of cooperation, partnering, sensitisation towards the prevention, elimination of maritime offences and other unlawful acts. But it did not really say in the area of investigation of the crime. That is where there may be over-lapping and struggle for superiority amongst the enforcement agencies. In as much as that is the situation, I must say that gathering of intelligence, patrolling the waters and investigation of crimes should be jointly done or solely done by those with the best capacities and wherewithal to do so. So, after investigating the crime committed, what do you do? Only the Attorney General of the Federation or an officer designated by his office and NIMASA, with the consent from the AGF can prosecute. Nigerian Navy does not have prosecutorial powers under the Act even though it can arrest, gather intelligence, carry out surveillance, arrest and detain suspects. So, it would investigate. But after investigating, it must now pass the evidence on to the AGF’s office, or if a fiat has been given to NIMASA by the AGF’s office, NIMASA will use their Lawyers to prosecute. It is also important to note that the Investigating Police Officer (IPO) or Investigating Officer will give evidence as the person who actually carried out the investigation.