NIMASA is handicapped in enforcement – Akpobolokemi

The Director-General, Nigerian Maritime Administration and Safety Agency (NIMASA), Mr. Ziakede Patrick Akpobolokemi, spoke at a one-day Capacity Building Workshop for Maritime Journalists, organised recently by the Maritime Reporters’ Association of Nigeria (MARAN) in conjunction with NIMASA at the MARAN Secretariat/International Maritime Press Centre, Atlantic House, Wharf Road, Apapa, Lagos. Akpobolokemi was represented at the event by the NIMASA Legal Adviser and Board Secretary, Mr. Matthew Egbadon.
Excerpts: 

On NIMASA Act 2007.
The NIMASA Act was passed in 2007 and provides for the establishment of the Nigerian Maritime Administration and Safety Agency (NIMASA) with the object of, inter alia, “regulate and promote maritime safety, security, marine pollution and maritime labour” (Section 1 (ii)). Presumably, marine pollution means “prevention, reduction and suppression of marine pollution”.
Section22 (1)(q) of the Act gives NIMASA the mandate to “establish the procedure for the implementation of Conventions of the International Maritime Organisation and the International Maritime Labour Organisation and other international conventions to which the Federal Republic of Nigeria is a party on Maritime Safety and Security, Maritime Labour, Commercial Shipping and for the implementation of Codes, Resolutions and Circulars arising there from” Section 22 states the main functions and duties of NIMASA Aside from the general mandate regarding the implementation of international treaties referred to in the preceding paragraph, the Agency has, inter alia, a mandate to perform port and flag state duties (m), provide maritime security (p), and search and rescue services (f), regulate and administer certification of seafarers (c), regulate construction of ships (e), and inspect ships for the purpose of maritime safety and maritime security, maritime labour and prevention of marine pollution (2) (a).

Of particular interest are the following powers, mentioned in Section 23(5)a,b,d, and h. By virtue of these powers, the Agency receives reports of commission of crimes, may stop, enter and board vessels, inspect and search vessels and detain any vessel within the Nigerian Maritime Zone.
The “Nigerian Waters” and “Nigerian Maritime Zone” are defined in Section 64 as to include “include inland waters, territorial waters or waters of the Exclusive Economic Zone (respectively together or any combination thereof)”.
Section 24 establishes that “In the performance of its functions and the exercise of its powers, the Agency, shall where appropriate consult with the government, commercial, industrial, consumer and other relevant bodies and organizations and in particular, the Nigerian Navy”.
In addition, the Agency is saddled with the responsibility of the Administration and Enforcement of the provisions of the Cabotage ACT 2003.

What happens when there is an infraction of any of the provisions of these Acts? 
The NIMASA Act is silent on the powers of the Agency to prosecute.
But it is important to state that for any infraction of the Cabotage Act, the Coastal and Inland Shipping Cabotage (Detention of Ships Regulations) 2006 made copious provisions for the detention of any vessel that is found to have breached any of the provisions of the Cabotage Act.
Now to the Merchant Shipping Act of 2007. While it is the responsibility of the Agency to implement all the provisions of the Act, the Act does not make any provision empowering the Agency to prosecute in case there is any infraction of the Act.
In fact S. 405 of the Act provides: “No prosecution for any offence under this Act, except in respect of offences relating to discipline and order on board a ship shall be instituted, or if instituted shall be continued without the consent of the Attorney General of the Federation.”

On NIMASA’s enforcement capacity. 
NIMASA recognised its limitation in the enforcement of its mandate particularly when there is an infraction of the provisions of its enabling laws. The Agency has therefore done the following:
• Entered into memorandum of understanding (MoU) with the Nigerian Navy (MoU) The MoU was signed in April 2007. This has led to the deployment of a detachment of the Navy to NIMASA called the Maritime Guard Command. The partnership between the NN and NIMASA has enabled physical detention of vessels that are found to have breached any provisions of the enabling laws i.e, NIMASA Act, MSA Act and the Cabotage Act. Needless to state that this partnership has had its own challenges.
• Unavailability of platforms It is common knowledge that the Agency’s operations require its officers to be able to move from one place to another within the maritime domain. Over the years, the Agency lacked the necessary platforms (vessels) to enable it “effectively” police the Nigerian waters. This has necessitated the compelling need for the Agency to enter into a PPP arrangement with a Private Service Provider to provide platforms for the use of the Agency’s staff. The acquisition of these platforms will enable the Agency discharge its responsibilities in the following areas: effective maritime patrols to ensure security in the maritime domain; check midstream discharges with the concomitant impact on revenue generation; detect incidents of pollution of waters; carry out its search and rescue responsibility; and, enforce the provisions of the Cabotage Act.

On protection of Nigerian marine environment.
The protection of the marine environment from ship pollution is a fundamental mandate of the Agency. Towards the enforcement of the relevant conventions, the Agency has just gazetted 12 sets of regulations covering all areas of marine pollutions from .ships. The essence of the regulations is to promote the Polluter Pays Principle in the administration of our marine environment.

Still on NIMASA’s inadequate enforcement capacity.
The challenge posed by the inadequate enforcement capacity of the Agency in the performance of its duties is enormous. There is a compelling need for all stakeholders to take urgent steps towards addressing these challenges. It is our conviction that the starting point would be to give the Agency express power to prosecute offenders for breaches committed under all the enabling Acts.