By Caroline Tokulah-Oshoma
Increasing rise in piracy in the Gulf of Guinea has become alarming. Until recently, the concern about piracy has been the Gulf of Eden operated by Somalia pirates; however, piracy has witnessed a drastic shift to the Gulf of Guinea. Armed robbery against ships and cargo theft has also risen uncontrollably within Nigerian territorial and internal waters. These activities pose a serious threat to national, regional and global security and economy.
Earlier this year, the Director-General of the Nigerian Maritime Administration and Safety Agency (NIMASA), Dr. Dakuku Peterside attended a major maritime security conference at the International Maritime Organization (IMO) Headquarters in London. The conference discussed the increasing high risk of piracy in the Gulf of Guinea with emphasis on piracy off the coast of Nigeria. The Head of Security for BIMCO, Jakob Larsen, noted that Nigeria holds the key to resolving maritime offences within the coast of Nigeria and this requires Nigeria to work with the international Navy. On the part of Nigeria, Dr. Peterside acknowledged that there is a high security risk of piracy in the Gulf of Guinea but stated that NIMASA and the Nigerian Navy are doing their best to help curb the problem
As part of curbing the problem of piracy, armed robbery against ships and other Maritime offences, the President assented to the piracy bill, sponsored by NIMASA titled; The Suppression of Piracy and Other Maritime Offences Act (SUPMOA) 2019. The Act gives effect to the United Nations Convention on the Law of the Sea (UNCLOS) 1982, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) 1988 and its Protocols.
This article discusses the SUPMOA 2019, notes some of the pitfalls and offers some recommendations.
II. Piracy, armed robbery and cargo theft in the Gulf of Guinea vis-a-vis Nigeria’s territorial waters
According to the International Maritime Bureau (IMB) 2019 Q3 report on piracy and armed robbery against ships covering January 1 – September 30, 2019, the Gulf of Guinea was reported to be the world’s most dangerous trade route and piracy hotspot in the world. The report noted that 119 incidents of piracy and armed robbery against ships occurred worldwide, with 95 ships boarded, 10 ships fired upon, 10 attempted attacks, and 4 ships hijacked. The Gulf of Guinea accounted for 43 of the actual attack and 10 attempted attacks, 86 percent of crew taken hostage and 82 percent of crew kidnappings worldwide. The report further revealed that of the nine ships fired upon worldwide, eight were off the coast of Nigeria.
Undisputedly, these statistics reflect that Nigeria is currently at the epicenter of piracy attacks in the Gulf of Guinea. This position is reinforced by the IMB Q3 report which shows that the Lagos seaport appears to have the highest number of incidents in the world so far in 2019, with 11 of the incidents reportedly occurring within Lagos port. Interestingly, the IMB Q3 report reveals that there was not a single incident of piracy in Somalia and in the Gulf of Eden from January 1 – September 30 2019. This clearly shows that the tide of piracy has indeed shifted to the Gulf of Guinea in general and Nigeria in particular.
Apart from piracy and armed robbery against ships, one other prevalent attack against ships within Nigerian waters is the theft of crude oil and other essential cargoes and properties. The IMB Q3 report revealed several incidents of actual and attempted cargo theft within Nigeria waters. For instance; on March 24, 2019, two armed robbers boarded an anchored tanker at Lagos secured anchorage area and stole oil cargo using hose pipes. Prior to this, on January 7, 2019, two armed robbers boarded an anchored tanker during STS operations in Lagos, the hoses were connected to the ullage ports of the forward cargo tanks to steal cargo, but an alarm was raised and the robbers escaped but on the July 25, 2019, 10 armed robbers boarded a berthed ship during cargo operations and stole the ship’s stores from the paint locker. On August 14, 2019, two robbers boarded a berthed Offshore Supply Vessel at Onne Port and stole the ship’s properties from the pump room. Some of the key driving factors behind armed robbery against ships and cargo theft within Nigeria waters include weak law enforcement, corruption, poverty and an unregulated oil market. Due to the high risk associated with Nigerian territorial waters, insurance providers now require ships coming to Nigeria to obtain extra cover / security. Unfortunately, this is an added significant primary cost to ship owners and charterers which makes Nigerian ports expensive and unattractive.
III. The suppression of piracy and other Maritime Offices Act (SUPMOA) 2019
SUPMOA 2019 was enacted at a time when the coast of Nigeria is being described as the new haven for piracy in the world, the “Somalia” of the present day by the international maritime community. The Act is timeous, innovative and far-reaching.
Purpose of the Act
The SUPMOA 2019 seeks to prevent and suppress piracy, armed robbery and other unlawful act against a ship, aircraft and other maritime craft, howsoever propelled, including fixed or floating platform.
Application of the Act
The act applies to any person on board a ship or aircraft navigating in, on or above the territorial and internal waters of Nigeria or on above international waters; or fixed or floating platform in, on or above the territorial and internal waters of Nigeria or on or above international waters. It also includes circumstances where the offender or alleged offender is found outside Nigeria but is in the territory of a State who is a party to other International Maritime Conventions.
Piracy defined
Section 3 of the SUPMOA 2019 provides the definition of piracy and practically adopted the definition provided under Article 101 of United Nations Convention on the Law of the Sea (UNCLOS) 1982. It provides that piracy consists of any; (a) Illegal act of violence, act of detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) In International Waters against another ship or aircraft, or against a person or property on board such ship or aircraft; (ii) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) Act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; and (c) Act of inciting or of intentionally facilitating an act described in subparagraph (a) or
(b) Flowing from the definition of piracy, it is evident that any acts of violence committed against a ship within the territorial or internal waters of Nigeria will not be considered piracy. It is pertinent to distinguish between piracy from armed robbery against ships. Armed robbery against ships is often misinterpreted and misconstrued as piracy, these two criminal concepts are categorized differently. While the crime of piracy takes place on the high seas (international waters) and must fulfill some essential elements, the crime of armed robbery against ships, on the other hand, takes place within the territorial and internal waters of a Coastal State i.e Nigeria. The offence of piracy is provided under Section 3 of SUPMOA, while the offence of armed robbery against ships is covered under section 4.
Section 4 provides that a maritime offence includes armed robbery at sea and any other act, other than piracy which is committed by any person or group of persons where that person or group of persons or their sponsors unlawfully within the Nigerian Maritime Zone or jurisdiction commit the following acts or offences such as hijacking of a ship, destruction of a ship, theft of cargoes on a ship, demanding ransom, receiving proceeds from the offences of piracy, permitting pollution of water from the ship, threat to life whether or not to solicit for ransom, providing false claim of a piracy and other maritime offences under the Act.
Prosecution
One aspect of the act that is commendable is the fact that it empowered NIMASA to prosecute offences under SUPMOA albeit with the consent of the Attorney General. Section 5 (1) provides that the Attorney General; any law officer so designated by the Attorney General; or the Nigerian Maritime Administration and Safety Agency (NIMASA) with the Attorney General’s consent are empowered to prosecute offences under SUPMOA.
Jurisdiction
As with other Maritime related offences, Section 5(2) of the Act gives exclusive jurisdiction to the Federal High Court to hear and determine any matter under the Act irrespective of other elements of the crime that may appear to be non-maritime related contained in the offence.
Punishment
Section 12 provides that any person who commits an act of piracy, armed robbery at sea or any other unlawful act under SUPMOA, whether or not the person was armed with a firearm or other weapon during the commission of the offence shall be liable on conviction to life imprisonment and payment of N50 million and in addition to restitution to the owner.
IV. SUPMOA 2019 pitfalls
The Piracy and Other Maritime Offences Fund
Section 19 of the Act provides that a fund known as the Piracy and Other Maritime Offences Fund (POMO Fund) shall be created by the Nigerian Maritime and Safety Agency (NIMASA). The POMO fund is to be used for the implementation of the Act and the Fund shall be credited from money approved by the Federal Government for the implementation of the Act; gifts, financial contributions by beneficiaries of the services of the maritime enforcement agencies; 35% of the proceeds of sales of any property seized and anything forfeited under the Act including instruments used in the commission of crimes and criminal activity under the Act; the contribution from the maritime fund under NIMASA Act; and contribution from the Cabotage Vessel Financing Fund (CVFF) under the Cabotage Act 2003. Furthermore, the POMO fund is to be managed by NIMASA.
It is hoped that the POMO fund will not suffer the same fate as the undisbursed Cabotage Vessel Financing Fund (CVFF) created under the Cabotage Act. Suffice to say that the POMO fund is to be disbursed judiciously for the successful implementation of the SUPMOA 2019.
Piracy definition
With the full adaptation of the definition of piracy under Article 101 of UNCLOS, the challenges associated with that definition were also adopted. For instance, section 4 of SUPMOA provides that for piracy to be established, the act must be committed for private ends or for personal gain. However, any acts that are politically motivated do not fall within the definition of piracy. This principle is flawed because in Nigerian political climate, political rivals could go as far as committing criminal act of violence against a ship or crewmen, unfortunately, it will not amount to piracy.
Failure to define a Ship
Another pitfall observed, is the failure of the Act to expressly define a ship or what constitute a ship. Similar lacuna was also created in the Cabotage Act 2003. The failure of the Cabotage Act to expressly describe an oil rig as a ship has been used by foreign shipowners as an avenue for contesting the statutory powers of NIMASA to levy its statutory fees on oil rigs employed by these shipowners in their drilling operations until the Court finally interpreted the act to include oil rigs that are propelled. The issue of what constitutes a ship could have easily been averted if the definition given by the Act was all-encompassing and sufficient to cover all ships like the Jones Act 1929 did. It is hoped that this lacuna will not affect the effective prosecution of offences under the Act.
Receiving proceeds from the crime under the Act
Section 4(g) of the SUPMOA 2019 provides that it is an offense to receive proceeds from the crime of piracy, armed robbery against ships and other maritime offenses at sea. The Act expressly lumped individuals receiving proceeds from the crimes under the Act and Corporate entities such as banks and other financial institutions. There is need to revisit this section because proceeds of crimes including maritime crimes usually find its way to banks and other financial institutions without the banks knowing the actual source of the funds. With the enactment of this Act, banks and other financial institutions are advised to upgrade their KYC tools and procedure.
Punishment
The Act under section 12 (1) provides that any person who commits an act of piracy, armed robbery at sea or any other unlawful act under the Act, whether or not the person was armed with a firearm or other weapon during the commission of the offence shall be liable on conviction to life imprisonment and a fine of N50 million and restitution. However, section 12 (2) also provides that if during the commission of armed robbery at sea, the offender was in possession of or had under his control any firearm, explosive or BRCN weapon, the offender will be liable on conviction to at least 15 years imprisonment. There is a need to revisit the punishment section because of the disparity and ambiguity.
Recommendation
The aim of SUPMOA 2019 is to prevent and suppress piracy, armed robbery and other unlawful act against ships, aircraft and other maritime craft. But these maybe difficult to achieve if the necessary tools are not put in place for the effective implementation of the Act. The following tools are recommended;
Establishment of a National Coast Guard
NIMASA has been empowered under the Act to enforce the SUPMOA 2019. However, NIMASA being a civil entity is not fully equipped to effectively carry out the enforcement of SUPMOA 2019. For this revolutionary Act to be effective and cure the menace of sea crimes, it therefore calls for establishment of a national Coast Guard empowered by law according to international maritime best practices. The role of the national Coast Guard is to safeguard the territorial and internal waters of a Coastal State while the Navy patrols the High Seas and protect the Costal State against external aggression. The time to establish a national Coast guard is now.
Funding
The Nigerian navy needs to be fully supported and funded and there should be a collaboration between the Nigerian navy and international navy in safeguarding the high seas around the coast of Nigeria and the Gulf of Guinea.
Creating Maritime Division Court
Maritime matters are of specialized knowledge as such, there is an urgent need to create a specialized divisional court to handle maritime matters presided over by trained maritime judges for the speedy dispensation of offenses under the Act. With NIMASA’s powers to prosecute albeit with the consent of the Attorney General, offences under the Act will be prosecuted swiftly, hence the need to have a maritime court readily available to dispense justice.
Conclusion
The Suppression of Piracy and Other Maritime Offences Acts (SUPMOA) 2019 is a much-needed intervention in the Nigerian maritime sector and for the security of Nigerian territorial and internal waters. With the Act criminalizing the offences of piracy, armed robbery against ships, cargo theft and other related maritime offences, Nigeria will be taken seriously in the international maritime community. Nigeria has taken the necessary steps not only to improve security within her territorial waters, this Act will also help to curb the menace at seas internationally.
Mrs. Tokulah-Oshoma is
an Associate at Olisa Agbakoba Legal (OAL).
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