The Challenges of Implementing the Cabotage Act by Igbokwe

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Mike Igbokwe SAN is one of the best Maritime Law experts in Nigeria, who has dedicated a substantial part of his practice into solving knotty maritime legal issues as it affects the Nigerian maritime sector. This is the story of his life and contribution to national development as profiled by Publisher, Mustapha Ogunsakin. Excerpts:

A portrait beautifully displayed at the reception of his office dispels any doubt about his passion. The letters of the portrait romantically describe a ship in the feminine. It reads: “A ship is called a she because there is always a great deal of bustle around her. There is usually a gang of men about; she has a waist and stays; it takes a lot of paint to keep her good looking; it is not the initial experience that breaks you, it is the upkeep; she can be all decked out; it takes an experienced man to handle her correctly, and without a man at the helm, she is absolutely uncontrollable. She shows her topsides, thaws her bottom, and when coming to port, always head for the buoys.”  Welcome to the world of Mike Igbokwe SAN, arguably the foremost maritime lawyer in Nigeria.

Ever since he was called to the Bar on August 17, 1984, Igbokwe has always known that he would go into commercial practice. To achieve this, he joined the firm of H.A Lardner as a pupil lawyer post-call and trained under the master. The late Lardner was one of the in his day. Young Igbokwe showed dedication to work and the humility to learn. He soon became the Assistant Head of Chambers. It was from this chambers that he moved on to set up his own firm.

The level of preparation always determines the height of success. To prepare him for the great task ahead, he went back to the university in 1999 to obtain a Diploma in Maritime Law. At this level, the courses he took included Admiralty Law, Marine Insurance, Incidents of Navigation, and International Trade Law. Igbokwe did not stop there; he went ahead to study at the Master of Law level, majoring in Maritime and Commercial Law at the Lagos State University, in 2004.

This was the same year that he was conferred with the prestigious rank of Senior Advocate of Nigeria, the highest rank in the practice of Law in Nigeria. It also marked 20 years and a month that he was called to the Bar.

As a Maritime Lawyer expert, he is not satisfied with the way the industry is run in Nigeria. He believes that the maritime industry has a lot of potentials that the country as a nation has not tapped into. “There is no reason why by now (10 years after the enactment of the Cabotage Act), the indigenous shipping industry should not have so grown and dominated coastal and inland shipping and regional shipping that its ship owners and operators should not have been able to compete with the highly subsidized foreign ship owners and operators in deep-sea shipping,” he says.

He should know. Igbokwe was one of those who assiduously advocated and worked for the enactment of the Cabotage Act, 2003. The Act has a lot of provisions for the empowerment and growth of the indigenous ship owners, crew, shipbuilders, repairers, financial institutions and operators. In 2007, he authored and published Nigerian Maritime Cabotage and Law: The Case and Advocacy, which is still the most comprehensive book on the subject today.

He says: “The benefits in the Cabotage Act have not been realized fully or at all by the indigenous shipping industry mainly because there has been, among other things, unnecessary political interference with the implementation of the Act. There has been no or enough political will and determination and patriotism to implement the Act fully and penalize or prosecute the violators of the offences created therein. In fact, foreign ship owners have come to believe that the Cabotage Act is a mere revenue-yielding Act. Ministerial waivers of non-compliance with the three conditions of Nigerian ownership, Nigerian construction and Nigerian crewing of vessels before they can participate in cabotage trade; what ought to have been for short times, had become a permanent feature where they had at all been issued.

“So, rather than being restricted, foreigners have, contrary to the law, been allowed to dominate cabotage trade whilst Nigerian seafarers are unemployed and lack facilities for training. Nigerian ship owners are run out of the coastal trade for lack of contracts and inability to secure finance with low interest for ship acquisition. The Indigenous Ship Owners Association of Nigeria has even recently stated that its members had become ‘endangered species’ who were better off during the pre-Cabotage Act days than after the enactment of the Cabotage Act.”

For a long time, a Bill for the amendment of the Cabotage Act had been and still is before the National Assembly, but it has not been enacted into an Act. Igbokwe believes that the obstacles to the full implementation of the Act should be removed and Nigerian Maritime Safety and Administration Agency (NIMASA), with the full support of the Federal Ministry of Transport and the Federal Government, implement the Act without fear of intimidation from any quarters and prosecute offenders in order to tell the world that the Cabotage Act is not just to raise revenue for Government. To him, the statutory lifespan of ministerial waivers must be stuck to and implemented.

“However, all hope is not lost because the current Director-General/CEO of NIMASA appears prepared to enforce the provisions of the Cabotage Act, NIMASA Act and Merchant Shipping Act in line with the statutory functions of the Agency. If he does so, I believe the maritime industry will change for the better and all would benefit,” he said further.

He added: “If you look at our waters, there are so many abandoned ships or wrecks constituting dangers to safe navigation and risk of pollution of the marine environment but they are not being removed even though the NIMASA Act and Merchant Shipping Act (MSA) have empowered NIMASA as the Official Receiver of Wrecks to remove and dispose of them. What needs to be done is that NIMASA should be allowed to execute its statutory functions under its enabling Act as imposed on it by the National Assembly and the National Assembly through its oversight functions, should see to it that NIMASA performs the functions and duties it gave NIMASA under the relevant Acts of the National Assembly without any political interference or hindrance and with the necessary tools.

“Thirdly, our waters have become notorious for piracy, armed robbery and crude oil theft at sea which menace had left several crew members dead, wounded or maimed, their moneys and personal effects stolen and caused increment in the premium of insurance on cargo and ships imported into and visiting Nigerian waters and ports. Due to the fact that current Nigerian laws are not up to date and not all relevant current international treaties regulating and for the suppression of unlawful acts against the safety of maritime navigation and piracy have been domesticated in Nigeria, NIMASA instructed me to prepare a Bill which has been titled Piracy and Other Unlawful Acts At Sea (and other related Offences) Bill. NIMASA and I got the International Maritime Organisation (IMO) involved, which sent us a Consultant to work with us at the end of which with his input, the draft Bill prepared by me, was subjected to comments by maritime stakeholders in Lagos and Port-Harcourt by NIMASA. After collating their views and incorporating the relevant views into the final Bill sent to NIMASA, the Bill had been sent to the Federal Ministry of Transport for onward transmission to the National Assembly for enactment, but up till now, the Bill has not been sent to the National Assembly for enactment into Act.

“Some of the consequences of this situation are that armed robbers continue to have a field day in our waters just like pirates on the High Seas around our waters with impunity. Even when arrested by the Nigerian Navy and handed over to the police for investigation and prosecution, they cannot be prosecuted under the offences created in the relevant international treaties because the provisions of these treaties are said not to be enforceable under section 12 of the 1999 Constitution and so Nigeria and its international image continue to suffer. What needs to be done is that the Bill should be sent to the National Assembly and passed into Act without any further delay so that its provisions can be implemented to stem the menace of piracy and armed robbery and unlawful acts against safety of navigation at sea and those arrested investigated and prosecuted under it in order to deter others. Moreover, I am of the opinion that the Government Agencies should be allowed to prosecute offences created by the National Assembly under their enabling Acts or Acts that they implement just like the EFCC and ICPC do.”

Another area of challenge in the maritime sector Igbokwe is not satisfied with is in respect of participation in negotiations of maritime treaties, their ratification or accession and also domestication by our country. “Treaties are for the updating of and the promotion of uniformity to meet international standards, rules and laws and avoiding differential laws, rules and treatments by different nations in respect of the same international subject-matters or issues. However, it is either our nation does not participate at all or even when we participate, our representatives are not persons well-grounded in the subject-matters and how the treaties would affect our national interests. Some representatives are merely interested in collecting estacode and they see attendance at international maritime treaty conferences for the preparation and negotiation of the draft treaties as holidays and so go on shopping when serious issues are being debated by representatives of other nations.

“Even after the maritime treaties have been made, Nigeria is either slow or reluctant about ratifying or acceding to them usually because it then dawns on us that the provisions of the treaties are not favourable to us, whereas we lost the opportunity to participate in their making and at canvassing positions favourable to our national interests. So, you have a situation where Nigeria has either not ratified or has ratified but has not domesticated some maritime treaties and its maritime laws are not up to date or up to current international standards. Some of these maritime treaties are the International Convention for the Safe and Environmentally Sound Recycling of Ships (Hong Kong), 2009; Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea; The Nairobi International Convention on the Removal of Wrecks 2007; United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules) 2009; Maritime Labour Convention 2006 and the Suppression of Unlawful Acts Convention and its Protocols.

“I am of the view that as a matter of urgency, the Federal Government through the Federal Ministry of Transport should set up a Committee to look into all maritime treaties not yet ratified or acceded to or domesticated and work on their ratification/accession and domestication so as to update our maritime laws. A standing treaty negotiating body made up of experienced officials from the Federal Ministries of Transport, Environment and Justice and Nigerian Maritime Law Association, which can also co-opt experienced officials from other Federal Ministries and associations, should be established immediately to take charge of, represent Nigeria and participate in maritime treaty negotiations and sending different persons at different times as it is the case, should be avoided. Bills for the domestication of ratified/acceded maritime treaties should be quickly prepared and sent to the National Assembly which should fast-track their enactment into Acts. If done, Nigeria’s image in the international maritime community would be highly enhanced.”

Happily married with three children, Igbokwe is a Christian and a faithful church worker who oversees the Benevolence Department that caters for the needy and the poor in his church. He is also the Founder and Chairman, Mike Igbokwe (SAN) Foundation Ltd/Gte, which caters for the needy and alleviates poverty in Nigeria.

Culled from the book: “For the Love of their Nation- Lawyers as Agents of change in Nigeria”

 

 

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