EmekaAkabogu is a maritime lawyer and Principal Partner of Akabogu& Associates. In this exclusive interview with Shulammite ‘Foyeku; he speaks on the new cabotage compliance strategy recently unveiled by the Nigerian Maritime Administration and Safety Agency (NIMASA). He also speaks on the rift between the National Inland Waterways Authority (NIWA) and the Lagos State government over the Appeal Court’s judgement on the control of inland waterways in the State among other issues.
Last week, the Nigerian Maritime Administration and Safety Agency (NIMASA) unveiled a new compliance strategy for implementation of the 14-year old largely ineffective Cabotage Law. Do you see this making any major difference in achieving the objectives of the law?
Whether it will make a difference or not is really dependent on NIMASA because the failure of the cabotage implementation up till now has been because of NIMASA not really because of the law. NIMASA over the years has had no will to simply implement the latter of the law. What they have come up with simply is that they will no longer grant waivers relating to certain categories of officers. Now for those categories of officers, yes it makes sense that there is no point having foreigners for second officers but I really don’t see any significant impact that would have given that ordinarily most of the time, those categories of officers are indigenous. For the companies which are coming into the country say temporarily and working for a very short period of time, how that will apply we need to see. I think that the more significant area of focus should be relating to granting of waivers to ships itself. If NIMASA is serious, the new compliance strategy should not have been limited to a number of officers; it should have covered none granting of waivers to certain types of ships particularly tanker vessels involve in operating along the coast. If they had insisted and said they would no longer grant any waivers for now to such tanker vessels that would have had an impact. But as far as they keep granting waivers to tanker vessels, all these other ones, their impact will just be minimal and more of noise as opposed to real impact. The real impact is by limiting the granting of waivers to tanker ships. If they are serious, that is what they should do.
What do you consider the greatest challenge confronting implementation of the cabotage law 14years after?
The challenge is simple. It is simply enforcement. What is enforcement? Enforcement is for example, a ship comes into Nigeria waterways operating within cabotage defined area. It is not a Nigerian ship, it is granted a waiver to operate yet, it does not fall under the category of ships which should be granted waivers. It is granted a waiver simply because from an enforcement point of view, the enforcers have been compromised. So as far as that is happening, you will find that cabotage will not work. And who enforces it? It is NIMASA. NIMASA has the enforcement officers and the executive powers on which to grant waivers. So the reason why cabotage has not worked is because NIMASA has been unwilling to enforce the latter of the law simply because they either have been compromised or have been lacking the political will to enforce the law. We don’t need any new law or additional money to enforce cabotage. All you need is to ensure that people obey the latter of the law. The enforcement officers whom they have across the zones should obey the latter of the law. When enforcement officers originally come with the strong intention and desire to obey and enforce the law but when they start getting signs from the management that such enforcement may be varied or waived in some cases, they too will begin to get themselves compromised and begin to look for ways to cut corners. So cabotage failure up till now is only at the doorstep of NIMASA. Incompetence and vested interest are two major reasons why NIMASA has not been enforcing cabotage.
Why has progress eluded the maritime sector or hasthere been any difference from the status quo?
No, there has been no difference. Absolutely no difference, it has been the same old thing unfortunately. I cannot see any indicator which shows that there is an improvement between 2015 and 2017. If we are going by statistics, then if anything it has gone worst. If you look at the amount of cargo that came into the ports in the last two years compare to 2013 and 2015, you will see that there has been a significant fall. If you look at the revenue being generated by the agencies, you will see that there is also a drop. If you look at the level of efficiency across board, there is a deficit and areas where there would have been some improvements have been marred in conflicts. So across board, you will not be able to put your hand on anything which can indicate improvement in the indices for measuring efficiency of the maritime industry operations. Nothing at all, so my best review would be that things have remained the same.
The Lagos State government and the National Inland Waterways Authority (NIWA) have been at loggerheads over the Appeal Court judgment on control of inland waterways in the state. Why the confusion over the judgment?
I don’t think there ordinarily needs to be confusion over what is happening. What has happened is that both agencies are taken advantage of some wordings of the constitution and omission to serve their interest. The NIWA Act and the Constitution of the Federal Republic set out navigable waterways for Nigeria and it is over these navigable waterways that NIWA has jurisdiction. These navigable waterways are waterways which are under the exclusive list of the constitution. These are meant to cover some international waterways and interstate waterways. This action originated because it was brought by dredgers against the Lagos State government, NIWA and NIMASA relating to multiple charges. At the federal high court, the judge had ruled that Lagos State government has no power over inland waterways because one of the things that Lagos State government actually did was that it was not only levying charges on dredgers and other persons, it actually set up what is called the Lagos State Waterways Authority Act. It is unthinkable that the State government would make a law that is designated as an Act and the Lagos State government was thoroughly excoriated by Justice Tsoho of the Federal High Court in his judgment because what they were doing was considered to be the height of impunity. The Appeal Court essentially set out what is said to be the position which is that Lagos State government does not have jurisdiction over international and interstate waterways to the extent that those waterways have been specifically designated in the constitution as being under the exclusive list. However, because there is no mention of intra-state waterways in the constitution under the exclusive list, to that extent, Lagos State government may make law relating to intra-state waterways. That was the ruling of the Court of Appeal.
Is it possible to have different interpretations to a ruling?
I don’t think that different interpretations are being given and when the law is clear, that should not happen. The Court of Appeal mentioned specifically that the constitution does not make any provision granting the exclusive list for intra-state waterways. So because the constitution did not provide for intra-state waterways, Lagos State government is free to legislate and regulate on intra-state waterways. But the question is, the waterways on which the dredgers are operating are they inter- or intra-state? If they are deemed to be intra-state waterways, then Lagos State is entitled to levy on them. However, if they are not, then it is the federal government. If you look at the NIWA Act and also the constitution, they actually set out an exhaustive list of those navigable waterways which have been designated as inter-coastal and inter-state. If the waterways in which these dredgers are operating do not fall under what we have in the list, then it is means the Lagos State government is free to regulate them. But if we look at it practically, what are those waterways the dredgers are operating? Most of them are operating along the lagoon, it can never be the waters of the lagoon which are in the nature of inter-coastal that can be intra-state. It can’t. I don’t know which waterways in Lagos State that can be deemed to be intra-state, which means they originate inside and ends in Lagos State. So the dredgers find themselves in a situation where most of the places they are operating fall under the jurisdiction of the federal government. I think the challenge here is that the Court of Appeal ruled that the Lagos State government has power over intra-state waterways but there is no definition anywhere not in the constitution or the NIWA Act what intra-state as opposed to inter-state waterways are. So until such clarity is sought, that confusion will remain.
What will you advise dredgers and boat operators to do under this circumstance? Who should they obey?
If the dredgers are working within the interstate and indeed most of the waterways which dredgers operate in Lagos are actually interstate, international or coastal. So to that extent, the dredgers really have to obey the federal government because the state government does not have a right over interstate and inter-coastal waterways and these are the waterways most of the dredgers operate in within Lagos. The Lagos State government is simply exercising impunity. I feel they should be protected by the police. The police should be the one who comes and say look this judgment is clear and the areas where you people are operating are interstate. That is just the solution. They must try to seek the support and the corporation of the law enforcement agent, which in this case, is the police who will protect them from their operation. That is the only way they can operate, otherwise, they will still be subjected to those multiple charges as far as Lagos State government insists.
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