“The essence of the national carrier is to attract cargoes which are of national interest”
Barrister Emeka Akabogu is a frontline maritime Lawyer in Nigeria .In this interview with Anozie Egole, he spoke on a lot of industry issues, including Cabotage, the national carrier the controversial MASECA Bill, and other.
“Ownership of ships in Nigeria has not improved”
“The more important thing is the unavailability of catchment cargo which should be the driver of the Cabotage trade” What is your assessment of 2018 so far as it concerns the maritime industry?
Well, the industry largely this year has been quiet; there has not been anything of significant which one can say is important enough to cause major disruption or improvement in the ongoing activities. Anytime we are accessing the industry, we will look probably from the operations point of view and also from the policy point of view. So operationally, the key operators will go round to those who operate within the ports and the indices there will be related to the volumes which are coming in and the ones going out and also the volumes which are handled within the ports. There is also operational information about the number of ships which are calling at the ports and which are operating within the offshore areas. So, the only thing one may say is there probably has been an increased measure of stability given the exchange rate which has at least maintained some consistency in the last one year. And in addition, there has also been an improvement in oil prices; these are two important factors that have effects or operational impacts. From that point of view I guess the operators may (if nothing else) be more relaxed as far as their business is concerned.
However from policy point of view, one cannot point to anything of any significance which has been happening across the various activities of the regulators or the ministry. Beyond the Shippers’ Council, one can say that the Council has been more vibrant in trying to engage in the industry and also trying to keep operators on their toes in terms of complying with regulations. But beyond that one can’t say boldly of any major activity in the sector.
How do you think the traffic gridlock along Oshodi Apapa expressway can be tackled?
The solution will be to prioritize Apapa as a national asset. I think where we are now is as a result of sub optimal attention giving to the role that Apapa plays in the economy of Nigeria. Don’t forget that roughly about 60 to 70% of Nigeria’s import by sea comes through Apapa; out of the entire country’s import both of dry and liquid cargo. So this is the national gateway and a national gateway on which more or less rests the day to day sustainability of the economy. So we expect that more strategic attention should be giving to such a gateway but that has not happened over the years and as a result the infrastructure in the area has fallen. So if they are able to prioritize the city as an economic gateway with that they will give priority attention to not just the maintenance of the road but the development of the new entries into the city, then it will happen. We need more overhead bridges, more attention to railway and routine maintenance, otherwise this problem will continue.
What is the latest about the court case between the Nigerian Shippers Council, Shipping Lines and the Terminal Operators?
The case is really between the parties that are involved; the Nigerian Shippers Council will be in a better position to speak on the moves that have been made by any of those operators to settle. But from a legal point of view, I am aware that the both parties have appealed the various parts of the judgments to the Supreme Court. So that appeal process typically is very long, but it is ongoing.
How would you assess the implementation of Cabotage Act by NIMASA, with the agency saying that they have been able to achieve up to 70% implementation?
NIMASA must have been quoted out of context, if they say they have achieved up to 70% success in the implementation of the Act. Is either they were quoted wrongly of they are providing information which is not correct. Because if you are assessing Cabotage from very clear indices, it is about improving ownership of ships by Nigerians, crewing of ships by Nigerians, building of ships by Nigerians and finally, improving registration of ships in Nigeria. One of them; which is building of ships in Nigeria is more or less a non-start, so we will not focus much on that.
However on what criteria can it be said that ownership of active ships in Nigeria has improved, unless there is a data to that effect. But as far as we know the ownership of ships in Nigeria has not improved. The crewing of ships in Nigeria by Nigerians has relatively not improved. So NIMASA probably has succeeded in training a certain number of seafarers but training them is one thing, getting them transiting to actually manning vessels is another thing. NIMASA needs to promote a framework that will facilitate the sea time experience and employment for many of the people they have trained that is the only way the training will have value. That will only happen if we have got a wholesome arrangement where there is increased ownership of active ships by Nigerians and that has not happened because many active ships in Nigeria are still foreign owned. Many Nigerian operators have huge difficulty accessing cargo and more importantly accessing credit for the purpose of undertaking that kind of operations they want. I think the more important thing is the unavailability of catchment cargo which should be the driver of the Cabotage trade.
Recently the Nigeria Shippers Council organized a seminar for judges and they are also planning on organizing for lawmakers, do you think there is need for such seminars?
Well the shipper’s council is a regulatory agency and far as I know one of their important functions is capacity development. So if they have been doing that and it has been successful for the judges, probably their thinking is that will also be successful for the legislators. So certainly there is need to as much as possible educate key stakeholders not just on the operations of the Nigerian Shippers Council, but the workings of the laws which regulates the stakeholders, the industry and the relationship with other parties outside the industry who only intermittently engage with the industry. And if this will aid the resolution of industry disputes, because I know that the National Assembly often calls public hearing for the purpose of resolving important industry issues and not just for the purpose of law making. It often serves as a kind of arbiter for the purpose of resolving some issues. I guess it might also be useful for the purpose of sensitizing some existing laws on which they might have an oversight functions and developing new laws. So I don’t see anything wrong in the seminar.
What do you have to say about the current move to reintroduce the MASSECA Bill?
The bill was earlier introduced a couple of years ago and it was thrown out. So what is unfortunate is that despite the overwhelming rejection of the bill the last time, obviously vested interests have been reintroducing this bill. And it is made worse by the fact that the subject matter of the bill relates to issues which are largely under the purview of NIMASA. If NIMASA has not been effectively undertaking its maritime security obligations, which should be issue which needs to be looked into either in terms of support system that NIMASA has, the NIMASA Act itself or in terms of the competence of the people who are charged with that responsibility. But it is not to be solved by creating a new agency with the likelihood of having the same challenges which NIMASA is also facing; you know there is Nigerian Navy also. So the efforts and the resources that have gone into the MASSECA initiative need to be channeled into improving the operations of both NIMASA and the Navy.
There have been clamour for a national carrier for the maritime sector, how do you think it can be achieved?
Well, the first question is whether there is value to be added by a national carrier. A national carrier (if it exists )will need to be defined in terms of purpose, is it the line which will move cargo from Nigeria to other parts of the world or is it going to operate within Nigeria, it has to be effectively defined. What drives such a carrier will have to be commercial exigencies. So if a business case is made and the business case supports the set-up of a national carrier, all well and good, but without a business case it is going to be difficult. Let us assume that there is an existing business case for a national carrier, it is one thing to have a national carrier existing, and it is another thing for the carrier to be successful. If you recall there was actually a national line called the National Unity Line that was after NNSL collapsed, the National Unity Line was a national carrier but it never really took-off. In fact during privatization process the National Unit Line was one of those agencies which was listed by the privatization committee at that time to be sold and I also remember that there was a bid for it then and it was eventually sold; this is more than 15 years ago, but we didn’t hear anything about it since that time. I think there was a huge challenge in translating the prospects of this national line into reality largely because the essence of a national carrier is to attract cargo which is of a national nature. So government cargo which is cargo supplied or imported by government or its agencies and cargo which is generated by government and its agencies should be able to be carried by this national carrier. These are the requirements under the law, if you look at the NIMASA Act you have such provisions there. So these are the kind of things that should ordinarily make a national carrier viable. But that national carrier needs to operate commercially so that it can deliver value to potential clients. Then it has to be giving support from due sensitization to operators including government themselves; establishments like the NNPC, NNLG, amongst others. Those establishments which generate high volume of cargo regularly needs to be sensitized on the relevance of a national carrier and the legal mandates impose on them where a national carrier exists.
Do you think there is need for Alternative Dispute Resolution to be used in settlement of disputes in the sector?
Alternative Dispute Resolution (ADR) is always an option which should be explored because within the context of dispute resolution mechanism it is one of those which could be quicker and give more value than litigation. There is always a challenge that parties may after an ADR process still go back to litigation. But increasingly even the judiciary is very mindful of the importance of sanctity of agreement. So where there is a dispute resolution clause in an agreement the judiciary is mindful of it. In fact the Chief Justice of Nigeria has recently given directive to all Judges in the federation who are faced with dispute resolution clause not to assume jurisdiction but to let the parties have recourse to the dispute resolution clause. So it is very useful particularly in the maritime industry because the industry needs to progress on a lot of speed and ADR could facilitate that. But stakeholders must be mindful when they are reaching agreement so that they can have a properly drafted dispute resolution clause to take care of such situations.
How would you assess the ban on the importation of rice into the country through the land borders, do you think it is actually yielding fruits?
I wouldn’t be in the position to determine whether it is yielding fruits or not because there is no data really; whether in terms of if there are more imported rice in the country or not. But most importantly on a casual review of shops, there are lots of imported rice everywhere. So, obviously if that ban is in place, it is not working and its implementation needs to be reviewed. The more important issue should be whether it is the proper route to take in view of the limited local rice production that is an exchange which needs to be looked at both the people in the ministry of agriculture and those within the border station. But as far as the ban within the land border is concerned, that implementation I want to believe leaves a lot to be desired.