Text of Mike Igbokwe’s comments on Dr. Kamal-Deen Ali’s paper on “Piracy and armed robbery at sea” during a maritime seminar organised for Judges in Abuja. The Senior Advocate of Nigeria (SAN) urged the Federal Government to come up with an Act against piracy and armed robbery at Sea a policy as recommended in the decade-old communique issued at the end of an International Conference on “Piracy and armed robbery”.
•Senior advocate seeks action
For various reasons, I received with great pleasure, the invitation of the Nigerian Shippers Council to comment on the above-captioned paper just delivered by Dr. Kamal-Deen Ali.
This is not only because I found the paper to have contained very robust and scintillating arguments on the challenges of interpretation and application of some relevant definitions in and provisions of the United Nation’s Convention on the Law of the Sea (“UNCLOS”) on Piracy and armed robbery or unlawful acts at sea by Courts, legal scholars, commentators, authors; but also because of the various work I had done in the advocacy for and sensitisation of the public on the essence of an up to date Nigerian law to curb and deter the menace of these crimes.
Moreover, as the Consultant engaged by Nigerian Maritime Administration and Safety Agency (‘NIMASA’) to draft and facilitate the enactment of, the relevant Bill for the domestication of the treaties covering piracy and armed robbery or unlawful acts at sea, I prepared a Bill titled ‘Piracy and Other Unlawful Acts at Sea(and Other Related Offences)’ to give effect to the relevant provisions of the ratified 1958 and 1982 UNCLOS relating to Piracy and of the International Maritime Organisation’s Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 and its Protocols , with inputs from the International Maritime Organisation’s (IMO) Technical Assistance Committee’s Consultant (Mr. Blanco).
The paper also gives me an opportunity to further highlight the stage at which Nigeria is in implementing the relevant treaties and updating its legal framework in its efforts to suppress or prevent piracy and armed robbery or unlawful acts at sea so as to curb, if not eliminate, the shipping havoc and adverse economic effects being caused by these crimes, in line with the mandate given to me by NIMASA, sensitise the stakeholders on the need to quickly enact the long over-due Act against piracy and armed robbery at Sea which maritime stakeholders in their communique at the International Conference on Piracy and Armed Robbery at Sea held at Sheraton Hotel and Towers, Abuja, from 28th to 30th April, 2008 (over 10 years ago!), recommended should be by a stand-alone Act.
I must commend Dr. Ali for his well-researched, industrious and incisive paper. His paper contains robust and brilliant arguments and expositions on the interpretation and application of some provisions of the UNCLOS dealing with Piracy which our Judges and Justices here present would find useful in deepening their knowledge, understanding, interpretation, application and enforcement of those provisions when in future they are confronted with determining charges for such crimes in their courts after the domestication of the relevant treaties by their States. The paper will also help lawyers, policy makers, prosecutors, law enforcement agents including the Nigerian Navy, Nigerian Air Force and Economic and Financial Crimes Commission and other stakeholders have a better understanding of those provisions and issues concerning their wording, interpretation and application, and facilitate their application whilst eliminating ignorance and errors in the performance of their statutory law enforcement duties. Moreover, I am of the opinion that it will also assist the National Assembly when the Bill on Piracy and Unlawful Acts at Sea or their Suppression comes before it for enactment into an Act, and the Presidency when it comes for Presidential Assent, in better understanding the subject and the provisions.
Dr. Ali traced the menace of piracy and armed robbery to maritime commerce and as crimes against humanity from the 17th Century and how States and the world had tackled them through customary international law and later on through treaties but concluded that the legal framework and judicial interpretation on these crimes had not been clearly defined and settled due to the complex issues of legal definition, interpretation and practical application of the relevant laws, to the facts. He posited that some of the complex issues are that in interpreting Article 101 of the UNCLOS, for piracy to be established, the place of its commission (‘locus delicti’) must be the High Seas or a place outside the territorial waters of a State (i.e. to say, outside 12 nautical miles from the baselines including the contiguous zone and the Exclusive Economic Zone), whereas similar act or crime within the territorial waters would amount to armed robbery (or unlawful act) at sea, which the coastal State would have exclusive jurisdiction over. In my view, this is the generally accepted position. However, he argues that taking ‘high seas’ as being the expression ‘a place outside the jurisdiction of any State’ in Article 101 of UNCLOS, is not supported by the textual analysis of Article 101 and the travaux preparatoires of the UNCLOS, which amounts to repetition and contemplates the Antactica region which is outside the jurisdiction of any State. I am with him on this position because such an interpretation would lead to an absurd or anomalous or pointless result and the Parliament or treaty maker is taken not to intend a statute or treaty to have consequences which are undesirable or absurd or anomalous or pointless whereas the World Court would usually rely on travaux preparatoires as an aid in construing the provisions of treaties.
Dr. Ali also argued that there must be actus reus (act of violence, detention or depravation) directed against a ship, goods on board the ship or persons (crew) on board the ship and not necessarily the stealing of cargo or property on board the ship for piracy to be established and advised that municipal law on piracy should be wide enough to include assault, injury or damage to property as acts of piracy and not as ancillary crimes. He supported the decision of the appellate District Court of Columbia, U.S.A. in United States v Ali illustrating that pursuant to Article 101(c ) UNCLOS, a Somalian playing a role in facilitating piracy as a ransom negotiator without physically participating in piracy, committed the crime of piracy because such an interpretation is a purposive interpretation that will discourage piracy. I agree partially because I disagree with his view that local laws should include assault, injury or damage to property as acts of piracy and not as ancillary crimes because of the canon of interpretation that words or expressions not stated in treaties should not be read into them and if the drafters of Section 101(c) of UNCLOS have so wanted, they would have specifically so stated.
Under Art. 101 UNCLOS, there must be 2 ships for the crime of piracy to be committed by one of them on the other and there needs not be an intention to plunder but just for private ends. So, I also concur with his view that with respect to attacks on offshore installations not regarded as ships and ship hijack by its crew or passengers, the attempts to fill the lacuna in Article 101 UNCLOS that there is piracy by the crew or passengers of a private ship (or aircraft) against another ship or aircraft (‘ship to ship rule’) and not the same ship, as revealed by the Santa Maria and Achille Lauro incidents, brought about the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 and its Protocols. This is why in order to have a comprehensive municipal legislation on piracy and armed robbery or unlawful acts at sea, both the provisions of UNLCOS on piracy and the provisions of SUA Convention and Protocols on the suppression of unlawful acts against safety of maritime navigation and fixed platforms on the continental shelf, should be brought together in a stand-alone Act. That was the style that Mr. Blanco and yours sincerely adopted in drafting the ‘Piracy & Other Unlawful Acts at Sea (and Other Related Offences) Bill.’
The difficulty with the meaning of the expression ‘private ends’ as reference to only economic or pecuniary or personal benefits or as including or excluding politically motivated acts in deciding when an act is piracy, was also brought out by Dr. Ali. I agree with him that economic or political ends or benefits were not stated in Article 101(a) UNCLOS by its drafters. This is because one should not read into the treaty, words (such as economic gain or political motive), which are excluded expressly or impliedly from it, but should interpret the words used in the section or Article by the drafter and give them their intended meaning and effect without more.
In the Interpretation Section 2 of the Piracy & Other Unlawful Acts at Sea (and Other Related Offences) Bill that I drafted and submitted to NIMASA and that it sent to the Federal Ministry of Justice through the Federal Ministry of Transport for review, I defined ‘Piracy’ as:
“‘Piracy’ includes any of the following acts by any person or group of persons namely:-
(a) any illegal acts of violence or 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) beyond the Nigerian territorial waters, against another ship or aircraft, or against persons or property on board such ship or aircraft; or,
(ii) against a ship, aircraft, persons or property in a place beyond the Nigerian territorial waters;
(b) any 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;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b) above.”
In Section 3 of the above Bill renamed ‘Suppression of Piracy and Other Maritime Offences Bill, 2017’ after its review by the Federal Ministry of Justice, the offence of piracy was defined as follows:
“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 any passenger of a private ship or private aircraft and directed-
(i) in International Waters against another ship or aircraft or against a person or property on board the ship or aircraft, or
(ii) against a ship, aircraft, person 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) of this section.”
I leave it to you or the National Assembly to decide whether if you or they agree with the views expressed by Dr Ali on the proper meaning and interpretation of Article 101 UNCLOS, any of the above two definitions of ‘piracy’ sufficiently covers the issues arising from Article 101 UNCLOS, or should still be amended to cover them.
I equally agree with Dr. Ali that in efforts to prevent and suppress piracy, the international community that regards it as a serious crime against humanity, allows States to exercise ‘universal jurisdiction’ whereby they can make laws and enforce piracy that neither relates to their territory or citizens. Based on the principle of ‘right of approach’ under customary international law, the principle in customary international law is that ships on the High Seas are subject to only States which flags they fly, but when the offence of piracy is suspected to have been committed on the High Seas, warships of coastal States can visit, interfere with and board merchant ships flying flags of other States. That is why for instance a US court would assume jurisdiction to try the Somalian ransom negotiator. Universal jurisdiction allows States to use their municipal laws to arrest and prosecute anyone or ship or aircraft suspected of committing piracy even if the ship used in committing the crime or that is attacked flies a foreign flag or its crew are foreigners. The implication of this is that as in African States that had not signed the treaties or where the treaties have not been domesticated as in Nigeria, the criminals would escape from justice since in the former case, such States owe no treaty obligations to or cannot exercise treaty rights against Contracting Parties and in the latter, the provisions of the treaty will not become enforceable. I am also of the view that the use by non-parties to the treaty, of municipal laws to enforce treaty provisions, would pose problems since parties to the treaty or their citizens can raise objections to such. This is because in international law, a treaty binds only State parties to it and has no effect upon the rights and duties of citizens either at Common Law or statute.
Dr. Ali also made a very vital point about the distinction between piracy and armed robbery at sea (‘sea robbery’) which some often miss. Sea robbery is robbery or acts similar to piracy which occur within the territorial waters or jurisdiction of a State (territorial waters, internal waters, ports and anchorages), whereas piracy occurs beyond the territorial waters of a State. You often hear attacks of ships and crew occurring within ports and anchorages being wrongly called ‘piracy’. I also agree with him that UNCLOS does not provide for armed robbery at sea which is why Contracting Parties to the SUA Convention and its Protocols, have resorted to them for criminalizing unlawful maritime acts within their territorial waters.
He also argued that because coastal States have exclusive jurisdiction over armed robbery at sea, they are entitled to use their local laws to criminalise unlawful acts against ships, crew and property within their territorial waters. However, in my view, some questions begging for answers readily arise in the case of Nigeria. Not having domesticated the treaties on piracy and unlawful acts, should Nigeria properly prosecute sea robbers under its Robbery and Fire Arms (Special Provisions) Act or other laws containing crimes bothering on unlawful acts or armed robbery at sea? If it should prosecute sea robbers under the Robbery and Fire Arms (Special Provisions) Act, which court should exercise jurisdiction on such sea robbery, the State High Court given jurisdiction under Section 9 of the Robbery and Fire Arms (Special Provisions) Act or the Federal High Court given exclusive jurisdiction by Section 251(g) of the 1999 Constitution over admiralty including shipping and navigation on the River Niger or River Benue and their affluents and on such other international inland waterway and all Federal ports? Can Nigeria prosecute such offences under the Terrorism (Prevention) Act, 2011and other Acts? Under Section 17 of the Miscellaneous Offences Act, it is an offence to sell or distribute crude oil or petroleum product in Nigeria or carry out without licence, an act required under the Petroleum Act. The penalties for its violation are life imprisonment and forfeiture to the Federal Government of Nigeria of any vessel or aircraft used in connection with the offence. One of the meanings of ‘act of terrorism’ in Section 2(c ) of the Terrorism(Prevention) Act, 2011 (as amended), is that it is an act which is deliberately done with malice, afterthought or which involves or causes an attack upon a person’s life which may cause serious bodily harm or death, kidnapping of a person, destruction of a fixed platform facility located on the continental shelf, or likely to endanger human life or result in major economic loss, seizure of an aircraft, ship or other means of public or goods transport and diversion. It is arguable that some of the acts of terrorism stated above may amount to unlawful acts against shipping and ships or cargo under the SUA Convention. However, the cases that my research revealed as ‘terrorism’ namely, Onwudiwe v. FRN (treason and terrorism), Dantur v. FRN (terrorism by intimidating citizens and causing death and injury in Jos), Ali v. FRN (conspiracy and possession of explosives and firearms contrary to Terrorism (Prevention Act) and Pius Ogbuawa v. FRN (treason and terrorism of an IPOB member); did not involve ships, shipping, crew, or fixed installations. No doubt, due to their gravity and the need for their expeditious determination, by the Practice Directions of the Federal High Court and the Court of Appeal, terrorism and kidnapping cases are given accelerated hearing and determination. But unlawful acts or armed robbery at sea in their true senses, cannot come within their provisions.
Moreover, although Section 15 of the Money Laundering Act, 2012 as amended makes piracy an offence punishable with 5 to 10 years imprisonment, yet the meaning of piracy is not stated in the Act contrary to Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria stating that no one shall be convicted of a criminal offence unless inter alia the offence is defined. It is observed that some of the treaties which Section 215(h) of the Merchant Shipping Act, 2007 (‘MSA’) provides that they, their protocols and their amendments relating to maritime safety and security shall apply are, the ‘Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 and the Protocol thereto’, which deal with unlawful acts or armed robbery at sea. Having ‘bits and pieces of provisions found here and there in the other laws of’ Nigeria would not be a proper way of constitutionally domesticating the treaties in respect of piracy and unlawful acts at sea in order for them to be legal and enforceable; the Conventions themselves must be enacted into law by the National Assembly.
The fact that the Protocol to the SUA Convention is more than one, makes Section 215 (h) MSA referring to the SUA Convention and its Protocol, misleading. It is submitted that as couched, (assuming without conceding that section 215(h) MSA is a proper way of domesticating SUA and its protocols, only the 1988 SUA Convention and its 2005 Protocol would have been incorporated by reference whereas, the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located in the continental shelf (SUA PROT) 2005 would have been left out even though Nigeria ratified it on 18 June 2015. By virtue of section 12 of the 1999 Constitution of the Federal Republic of Nigeria, no treaty between the Nigerian Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly. So, unless domesticated by being enacted into law by the National Assembly, the piracy provisions of UNCLOS and the SUA Convention and Protocols ratified/acceded to, by Nigeria cannot have force of law or be enforceable in Nigerian courts. It has been argued that the MSA does not contain any specific provision on the implementation of the SUA Conventions or features of punishment for the SUA Convention offences.
The Supreme Court has in The Registered Trustees of National Association of Community Health Practitioners of Nigeria & Ors v. Medical and Health Workers Union of Nigeria , held in respect of section 12 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and domestication of treaties that:
‘In essence, what the legislature meant or intended is that for a Treaty to be valid and enforceable, it must have the force of law behind it, albeit it must be supported by a law enacted by the National Assembly, not bits and pieces of provisions found here and there in the other laws of the land, but not specifically so enacted to domesticate it, to make it a part of our law. To interpret similar provisions as being part of the International Labour Organization Conventions just because they form parts of some other enactments like the African Charter, and Peoples Rights etc will not be tolerated’.
The Court also held that as the basis for the sought relief was the International Labour Organisation Convention, in which cases it was incumbent on the 1st appellant to place the evidence of the domestication of that law and its applicability to Nigeria, “the law being an international one, its proof of domestication in Nigeria is very important if any court in Nigeria is to invoke and apply it to any litigation before it. In so far as the I.L.O. convention has not been enacted into law by the National Assembly, it has no force of law in Nigeria and it cannot possibly apply. See Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 228 at pages 288-289.” Per Mukhtar JSC.
In Abacha v. Fawehinmi , the Supreme Court of Nigeria had also held that:
“Before its enactment into law by the National Assembly, an international treaty has no such force of law as to make its provisions justiciable in our courts…Domestic courts had no jurisdiction to construe or apply a treaty, nor could unincorporated treaties change the law of the land. They had no effect upon citizen’s rights and duties in common law or statute.”
It further held that unincorporated or undomesticated treaties might have an indirect effect upon the construction of statutes or might give rise to a legitimate expectation by citizens that the government, in its acts affecting them, would observe the terms of the treaty. The implication of these decisions of the Apex Court is that the procedure in Section 215(h) of MSA of ‘enacting’ by incorporating by reference, the SUA 1988 and its protocol and amendments, is not the proper way of domesticating treaties or the treaty in Nigeria.
On 24 February 2004, Nigeria ratified the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 (SUA). On 18 June 2015, Nigeria ratified the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, 2005 (SUA PROT) 2005 and the same day also acceded to the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA 2005). Nigeria has not ratified or acceded to the Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the continental shelf (SUA PROT). These acts are signs to IMO and the international community that Nigeria is ready to honour its international obligations under the treaties and Protocols on piracy and unlawful acts at sea. However, as interpreted by the Supreme Court in the Abacha and Registered Trustees of National Association of Community Health Practitioners of Nigeria & Ors cases supra, by Section 12 of its 1999 Constitution, (just like the UK and other Commonwealth countries), Nigeria applies in respect of bilateral treaties, the dualist principle that unless international law or treaty has been translated into national law, the former does not exist as law. It is then arguable from the interpretation of the said Section 12 that in respect of multilateral treaties (such as UNCLOS and the SUA Conventions) that Nigeria is a party to, the Monist principle that international law or treaty does not need to be translated into national law but is just incorporated and has effect automatically in national or domestic laws by ratification, applies. Since in international law, a State that accepts or ratifies a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, violates international law, by ratifying and not domesticating the UNCLOS and SUA treaties, Nigeria is violating international law, unless being a multilateral treaty, it is taken to have been automatically incorporated into its national law. Even under the Monist view, though Nigerian laws that contradict the UNCLOS and SUA Conventions remain in force, Nigeria will be unable to invoke its municipal law or Constitution as the reason for its non-fulfilment of its international obligations under the these Conventions. Under the Monist principle, international law does not need to be translated into national law because the act of ratifying an international treaty immediately incorporates it into national law and the treaty can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge can also declare a national rule invalid if it contradicts international rules because, in some States, the latter have priority. Going by the decision of the Supreme Court in JFS Inv. Ltd. v. Brawal Line Ltd , UNCLOS and the SUA Conventions on piracy and unlawful acts at sea being international agreements embodied in Conventions, they are autonomous and above domestic legislation of the subscribing countries including Nigeria and their provisions cannot be suspended or interrupted even by the agreement of the parties. Even though not directly the interpretation and application of piracy and armed robbery treaty provisions, the cases I have cited, throw light on the domestication of treaties and the enforceability of the provisions of treaties, which are relevant to the treaties on piracy and unlawful acts at Sea.
Dr. Ali also dealt with the new dimensions to piracy introduced by UN Security Council’s Resolution Nos 1846 and 1851 allowing ‘all necessary means’ to be adopted and the pursuit of pirates to Somali lands, ‘Navies’’ ‘catch and release’ policy of disarming and releasing arrested pirates and the agreement between the US and EU and Kenya, Seychelles and Tanzania, to prosecute suspected pirates in their States and the effects of the policies on them and issues arising from them. To my mind, these are special steps taken to deal with the Somali pirates menace who became serious threats to ships, shipping, crew, cargo and commerce and that was worsened by its failed Government. To him, unlike the Somali pirates’ system of ‘hijacking and hiding a ship until ransom is negotiated and paid’ (‘traditional piracy’), the Gulf of Guinea’s pirates’ style is the disabling of the ship’s equipment and taking control of the ship thereby endangering its safety (‘hybrid of traditional and insurgent piracy’). The latter presents more complexities including what Dr Ali called ‘mix jurisdiction’ in respect of the heads of crime and so multiple criminal investigation and prosecution and ‘inward and outward’ piracy being experienced by Nigeria, Benin, Togo and Ghana. However, to him, there are some peculiarities and modus operandi of these ‘inward-outward’ pirates and sea robbers affecting these Countries which the lawmaker must make provisions for in any piracy and sea robbery legislation namely: the likelihood of splitting of evidence and dispersing of witnesses and failure to cooperate amongst these States in prosecuting the offenders or sending evidence to prosecute them, difficulty in tracing the article (petroleum product) and proceeds of the crime due to quick transfers and sale at sea, of the products and the ship’s release, and the multiple nationalities of the offenders. I am of the view that due to regional and international treaties and arrangements on cooperation between these States on the arrest, detention, extradition and trial of these offenders, these challenges would be curbed if not eliminated.
In the Bill prepared by me with the input of IMO, sufficient provisions were made for such Regional and Inter-Agency cooperation, assistance, requests, extradition and even dispute resolution methods, between the States and their law enforcement agents due to the realization that the crimes of piracy and armed robbery at sea, are international and sometimes extra-territorial.
Nonetheless, despite his robust arguments and analysis of the legal interpretation and judicial application of the relevant provisions of UNCLOS, Dr. Ali did not refer to or analyse any case decided by any court in an African State to show the legal interpretation or judicial application of those provisions. Since he told us about the negotiated bilateral transfer agreements between the US and European States that paved way for the trial of suspected pirates in Kenya, the Seychelles and Tanzania, one would have expected him to have brought out through some of those cases, how the courts of those States interpreted and applied the UNCLOS provisions on piracy and SUA provisions on armed robbery at sea. Not even from Ghana (or Nigeria or Benin or Togo) did he bring out any decided case illustrating the legal interpretation and judicial application of those provisions as domesticated by any of the African States. But is Dr. Ali to be blamed for the paucity or insufficiency of decided cases by Courts in African States that have interpreted and applied the provisions when African States are either too slow or unwilling to ratify or domesticate the relevant provisions of these treaties, without which the suspects cannot be prosecuted before Courts and Judges will not have the opportunity of interpreting or applying the said provisions? Of course not.
As stated at the beginning of this commentary, the journey of Nigeria towards enacting a legal framework for the suppression of piracy and armed robbery at sea started with the decision taken at the International Conference on Piracy and Armed Robbery at Sea held at Sheraton Hotel and Towers, Abuja, from 28th to 30th April, 2008 (over 10 years ago!) where it was recommended that a stand-alone Act on the subject be enacted. As at 2015 when President Goodluck Jonathan left office, the Bill I drafted had been submitted to the Federal Ministry of Justice for review and onward transmission to the National Assembly for enactment. On my request on NIMASA to give me the current position of the enactment of the said Bill after I was invited to comment on Dr. Ali’s paper, NIMASA informed me that the Bill (now renamed ‘Suppression of Piracy and Other Maritime Offences Bill, 2017’), was approved by the Federal Executive Council in December, 2017 and it was now awaiting President Muhammadu Buhari’s endorsement to the National Assembly for necessary legislative action. Therefore, there is equally a dearth of decided cases in Nigeria on the issues of legal interpretation and judicial application of the provisions of those treaties or of maritime ‘piracy’ as is known outside the domestication of the treaties. I doubt if any African State that has ratified, but had not domesticated the treaties can have judgments on the legal interpretation and judicial application of the crimes since it is only when they had been domesticated that cases can start coming before their courts for the interpretation and application of their provisions.
I could not find any Nigerian judicial decision that directly deals with the legal interpretation and judicial application of the provisions or words similar to those of these treaties, which is not surprising because they had not been domesticated in Nigeria. However, I ran into some cases that are tangentially relevant to incidents of or relate to some issues of legal interpretation and judicial application of piracy and armed robbery at sea which I would share below.
Hilarious enough, my search of the law reports for recent cases on piracy or sea robbery or maritime unlawful act brought out ‘sea pirate’ in respect of defamation of character! It was the case of Nigerian Westminster Dredging and Marine Ltd v. Chief Tunde Smoot & Anor , in which the following was claimed inter alia:-
“A declaration that the petition of the plaintiff against the Defendant which contains the following “where it became obvious to Ramah Petroleum that we cannot without specific instructions from APC pay any money to them. They sought the services of one chief Tunde smooth to raid our vessels any time they are traveling on the waterways. This, Chief Smooth accomplishes with the aid of militant Ijaw youths. Ramah petroleum has despite the refusal of A.P.C. to request us to pay, continued to put pressure on us through Chief Smooth and his gang of pirates” amounts to defamation of character.”
Naturally, the case did not call for the interpretation or judicial application of the relevant provisions of either the UNCLOS or SUA Convention and Protocols on piracy or unlawful acts in determining that one putting pressure with his gang of pirates was defamatory.
Another example of judicial application of piracy in terms of hijacking of a ship by pirates is in Suit No. PHC/654/2010 ESL Integrated Services Ltd v. Oceanic Bank International Plc of 26 July 2010 (unreported), where the Defendant bank had through me brought a notice of preliminary objection challenging the jurisdiction of the High Court of Rivers State to hear and entertain some questions it posed by way of an originating Summons on the grounds that:-
The principal question asked and relief sought in the originating summons herein arises from, relates to and/or concerns or is connected with and is based on, extraterritorial piracy and hijacking of the vessel M/V ‘Yenagoa Ocean’ in Somalia by Somalian pirates which is a maritime safety matter governed by the IMO Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 and the Protocol thereto which Nigeria is a party to and the National Assembly has made applicable in Nigeria by Section 215(h) of the Merchant Shipping Act, 2007 which only the Federal High Court has and exercises jurisdiction on to the exclusion of any other Court as conferred on it by the Merchant Shipping Act, 2007, an Act of the National Assembly.
Further or in the alternative to 1 above:- 2. The incident of hijacking by pirates which the Claimant alleges is an act of force majeure having taken place in Somalia which is outside the area of this Court’s geographical jurisdiction or territorial jurisdiction, this Honourable Court lacks geographical or territorial jurisdiction to hear and determine this suit predicated on and arising from the said ship hijack by pirates.”
Part of the bank’s arguments was that: “The international treaty dealing with questions of hijack of ships by pirates is the IMO Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 and its (1st) Protocol(s) which Nigeria is a party to and has become applicable in Nigeria by Section 215(h) of the Merchant Shipping Act, 2007(‘MSA’) stating:
‘As from the commencement of this Act, the following Conventions, Protocols and their amendments relating to Maritime Safety shall apply, that is—
……………………………………………………………………………………………..
(h) Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 and Protocol thereto’;
In section 444 of MSA, the ‘court’ conferred with the jurisdiction of determining questions concerning the MSA which is an Act of the National Assembly, is ‘the Federal High Court or any other court having particular jurisdiction for the purposes of this Act’ whereas by Section 251(1) of the 1999 Constitution, the civil causes and matters stated therein which the Federal High Court has and exercises exclusive jurisdiction in, are ‘in addition to such other jurisdiction as may be conferred upon it by an Act of National Assembly’, such as the MSA which is an Act of the National Assembly. By section 270 of the 1999 Constitution, the jurisdiction of this Court to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue is ‘subject to the provisions of section 251’ of the 1999 Constitution.”
In the Court’s Ruling on 26 July 2010 agreeing with my submission, declining jurisdiction and striking out the case, E. Teetito J held as that:-
“A careful scrutiny of the principal first question submitted for determination and the corresponding first relief of the claimant shows that the force majeure on which this suit is based cannot be decided without touching on issues relating to the hijack of the vessel (M/V Yenagoa Ocean) by pirates in Somalia…
And as claimed by the claimant, the incident which it relies on to enforce the force majeure clause in Exhibit ‘A’, ESL 4 for the purposes of this suit is the hijack of the vessel. See the reliefs (especially the first relief), the affidavit in support particularly paragraphs 6, 10 and 13 thereof.
By the provisions of Section 215(h) and 444 of the Merchant Shipping Act, 2007 (MSA) which domesticated the IMO Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988 and its Protocol and Section 251(1) of the 1999 Constitution, it is the Federal High Court which has jurisdiction to determine issues concerning or arising under the Maritime (sic) Shipping Act. Thus this suit is not a simple on a simple breach of contract which this court can entertain as submitted by learned counsel for the claimant…I therefore agree with the learned SAN on this point that I lack the jurisdiction to hear this case.”
The 3rd case of Frank Opoku Anim v. Federal Republic of Nigeria , had to do with illegal bunkering or carriage of stolen crude oil, hijacking of ship and typical treatment of crew members by pirates or sea robbers and theft of petroleum products which Dr Ali referred to in his paper. It had some traits of inward-outward ‘piracy’ or unlawful act at sea. The 7 Appellants (6 of who were Ghanaians and 1 Nigerian) appealed against their conviction on 2 counts of conspiracy ‘to commit felony to wit Dealing in Petroleum Products and thereby committed an offence contrary to Section 3(6) of the Miscellaneous Offences Act CAP M17 of the Revised Edition (Laws of the Federation of Nigeria) 2007 and punishable under Section 1(17) of the same Act and for dealing without authority, in 4,000 metric tons of petroleum products suspected to be crude oil and bunkering it in a vessel called MT ATHINA later changed to M. T. Hope and thereby committed an offence contrary to Section 1 (17) (a) of the Miscellaneous Offences Act CAP M17 of the Revised Edition (Laws of the Federation of Nigeria) 2007 and punishable under Section 1(17) of the same Act.” They contended that Exhibit 10 (the vessel) was hijacked and the crew members locked up in the mess room of the vessel and that the vessel was then loaded with crude oil by other unknown persons who came around in boats and barges and pumping machines and loaded Exhibit 10 with crude oil and tried to put up a defence of attack by pirates. The Respondents claimed that the Appellants being crew members of the vessel MT ATHINA later changed her name to MT HOPE, which act was a violation of Section 340 of the Merchant and Shipping Act, CAP. N 11 Laws of the Federation of Nigeria, 2004 and that it was with the knowledge and encouragement of their employer and owners of the vessel, Captain Ken, which constituted an agreement to do an unlawful act by an unlawful means; notwithstanding that they were not on board the vessel with Captain Ken, but were in constant communication with each other to achieve the act. In dismissing the appeal, the Court of Appeal held:
“In the circumstance, the alleged defence of piracy is preposterous and a sheer afterthought, thus cannot avail the Appellants. Interestingly, it’s a notorious fact that the menace of piracy, most especially in the Gulf of Guinea, has transcended to an issue of global concern. Most regrettably, piracy in the Gulf of Guinea affects a number of countries in the West African Sub-Region, as well as the international community. Arguably, piracy acts interfere with the legitimate economic and security interests of the affected countries including Benin, Togo, Cote d’voire, Ghana, Nigeria, and the Democratic Republic of Congo. According to a WIKIPEDIA documentation Pirates in the Gulf of Guinea are often pan of heavily – armed criminal enterprises, who employ violent methods to steal oil cargo. In 2012, the International Maritime Bureau, Oceans Beyond Piracy and the Maritime Piracy Humanitarian Response Program reported that the number of vessels attacks by West African Pirates had reached a world high, with 966 seafarers attacked during the year. According to Control Risks, Pirate attacks in the Gulf of Guinea had by mid-November 2013 maintained a steady level of around 100 attempted hijackings in the year, a close second behind Southeast Asia. See WIKIPEDIA.
However, in the instant case, there is no doubt that in view of the credible evidence on record, the purported defence of piracy or pirates attack is baseless and highly preposterous, thus cannot in any way avail the Appellants. Contrariwise, the surreptitious and rather illegal changing of the name of the vessel from MT ATHINA to MT HOPE in the eleventh hour, the emergence of the 7th Appellant at the time of uploading the 4000 metric tones of the crude oil on board the vessel are unequivocal indications that the Appellants were premeditatively involved in the illegal oil bunkering in question.”
It is obvious from this case that the Court did not refer to or interpret the relevant provisions of either the UNCLOS or SUA Convention and Protocol on piracy or unlawful acts at sea but WIKIPEDIA, in determining that piracy was not involved in the case.
I would not have fully justified my honouring the invitation to comment on Dr. Ali’s robust paper, if I do not use this opportunity to once again appeal to President Buhari in whose custody the Suppression of Piracy Bill is currently, to quickly cause same to be sent to the National Assembly and upon receipt, the National Assembly should quickly pass it into an Act. This call is being made not only because as the elections of 2019 are fast approaching after politicians and law makers have got busy with campaigns, they hardly have time to enact laws and the Bill may end up awaiting the next legislative session, which would be disastrous. This is because armed robbers and pirates had been adversely affecting shipping in, the economy and security of, Nigeria and the Gulf of Guinea and until drastic steps are taken including enacting the Bill into an Act, the situation would get worse. Recently, the Guardian Newspapers on its front page reported inter alia that as at June, 2018 freight on goods to Nigeria had risen 6 times and the fear of introduction of minimum of US$200,000.00 as insurance premium before foreign ships call at Nigerian ports had arisen. The report also stated that US$213m was spent to contract maritime security personnel, naval patrols increased by US$13.2m, affiliated escorts (US$9.4m), private patrols protecting vessels in West African sub-region (US134.9m), US$6.6m was spent annually to protect Nigerian security anchorage area, NIMASA spent US$217.8m on counter-piracy; war risk insurance premium and risk insurance to protect crew was estimated at US$20.7m in 2017 for ships transiting the Gulf of Guinea Listed Area. What a heavy capital flight that would have been channelled towards the productive sector of the economies!!!
When I visited the website of the International Maritime Bureau (IMB’s) Piracy Reporting Centre on 1 July, 2018 , it recorded that “the Gulf of Guinea accounts for 29 incidents in 2018 Q1, more than forty percent of the global total. Of the 114 seafarers captured worldwide, all but one were in this region.
All four vessels hijackings were in the Gulf of Guinea, where no hijackings were reported in 2017. Two product tankers were hijacked from Cotonou anchorage in mid-January and early February, prompting the IMB PRC to issue a warning to ships. Towards the end of March, two fishing vessels were hijacked 30nm off Nigeria and 27nm off Ghana.
“The hijacking of product tankers from anchorages in the Gulf of Guinea is a cause of concern. In these cases, the intent of the perpetrators is to steal the oil cargo and kidnap crew. The prompt detection and response to any unauthorised movements of an anchored vessel could help in the effective response to such attacks,” commented an IMB spokesperson.
Nigeria piracy hotspot
Nigeria alone recorded 22 incidents. Of the 11 vessels fired upon worldwide, eight were off Nigeria – including a 300,000 MT deadweight VLCC tanker more than 40nm off Brass.
“Attacks in the Gulf of Guinea are against all vessels. Crews have been taken hostage and kidnapped from fishing and refrigerated cargo vessels as well as product tankers. In some cases, the attacks have been avoided by the early detection of an approaching skiff, evasive action taken by the vessel and the effective use of citadels. The IMB is working with national and regional authorities in the Gulf of Guinea to support ships and coordinate counter piracy actions. The authorities from Benin, Nigeria and Togo have sent out boats in response to several incidents,” said an IMB spokesperson. “
You will agree with me that is no good news for the Gulf of Guinea States and Nigeria apart from the imported inflation it is causing due to increased freight and insurance premium.
When enacted into an Act, the Bill will not only remove the inadequacies in the current Nigerian laws, but will also provide modern ways of prosecuting and penalizing arrested pirates who cannot be so prosecuted and penalized currently because of the absence of the needed exhaustive legal framework, but also pirate ships, ships and cargo onboard pirated ships. Until the Bill is enacted into an Act, pirates and unlawful actors at sea would not be deterred but would continue to cause havoc and even when arrested, cannot be successfully prosecuted and convicted and penalized as pirates and unlawful actors, under the current inadequate and archaic Nigerian laws.
Conclusion
The challenges facing the legal interpretation and judicial application of treaty provisions on piracy and to some extent armed robbery at sea have been highlighted for better understanding and application. However, until African States sign and domesticate the relevant provisions of treaties dealing with piracy and armed robbery or unlawful acts at Sea, their Courts would not start having opportunities to interpret and apply their provisions in deciding charges of piracy and armed robbery at sea and their jurisprudence in these areas would not grow.
More importantly, if drastic actions are not quickly taken by African states to ratify or accede to the applicable treaties, domesticate them and use same as one of the weapons for suppressing or curbing piracy and armed robbery at sea, these crimes would destroy the economies and security of African states, especially those of the Gulf of Guinea States, their shipping interests and capabilities. Please permit me to adopt the popular statement of President Buhari that ‘if Nigeria does not kill corruption, corruption will kill Nigeria’ in respect of piracy and armed robbery at sea and say, ‘if Nigeria and the Gulf of Guinea States do not kill piracy and armed robbery at sea, piracy and armed robbery at sea will kill Nigeria and the Gulf of Guinea States.’
