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

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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.

See part one here

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.