‘Unbundling NIMASA Unnecessary’

Mike Igbokwe, a Senior Advocate of Nigeria (SAN) and renown maritime lawyer

— Mike Igbokwe, a Senior Advocate of Nigeria (SAN) and renown maritime lawyer
By Bayo Bernard
The Cabotage Act (2003) was enacted to encourage indigenous ownership of the shipping business. But many years after, it doesn’t seem this ideal has been met. What do you think is responsible?
To really judge the performance of the Act we need to look at things like how many ships are currently owned by Nigerians, whether Nigerians are the ones manning these ships? This record can only be got ten from NIMASA. But if we look at the clamour that the Act has not really transformed into benefits, that is not to say that the Act should not have been enacted. To me, whatever the challenges are can be overcome, especially by government making sure that the implementors; the agencies that have overlapping responsibilities and conflicts are resolved. Also the physical will and determination in making sure that the guidelines are implemented to the letter without minding whose is gored. The Act was enacted to achieve a lot of benefits, thinking that the infant local shipping industry will mature, dominate coastal trade and get enough muscle to compete internationally through highly subsidise vessels to reduce the dominance of foreign ships within the coastal and inland waterways of Nigeria up to 200 nautical miles.
It does seem that the Cabotage Vessel Finance Fund (CVFF), which was created to serve as an avenue for soft loans for Nigerian shippers has not achieved much in that regard. What are the other avenues available for prospective shippers?
The banks are not prevented from lending money to ship owners. But their loans usually have terms and conditions that can make the loans unattractive. And I know that Nigerian banks hardly lend on long-term basis, the interest rates are high and we need to achieve a single digit interest rate. The world over, shipping is a long-term investment, with favourable and soft interest which can bring added value into the economy. But CVFF, is two per cent surcharge from cabotage trade. This is collected from cabotage operators. I can call it private / public sector partnership contributing to that fund with a view to also derive benefit from it. Then there is the tariff also paid for registering their vessels for cabotage. Morally speaking, they are contributing to the Fund and must also derive benefit from it. But seven years after the CVFF was enacted, no single person to my knowledge has benefited from the fund. Recently, the man at NIMASA has been trying to put in place some structures. The guidelines for the CVFF implementation are already there. So what the man needs now is to implement these guidelines, have the lending institutions and consultants to advise on these guidelines and shortlist Shippers who qualify. Not everybody who applies will qualify. Though the CVFF money may not be enough, it is only there to support the acquisition of vessels. They may be old vessels but not more than 10 or 15 years.
Does the perceived non-performance of NIMASA justify its unbundling so as to make it focus on a specific area, especially in the face of a Bill which is meant to create another security agency?
Why should you unbundle NIMASA, forgetting that NIMASA in a combination of some government agencies like the National Maritime Authority, JOMALIC et cetera. Then maritime stakeholders are saying instead of duplicating efforts and creating confusion all over the place and unnecessary competition among the government agencies, why not try to bring all of them together and it yielded result. That was in 2007 when the NIMASA Act was enacted. About two years after that you are now telling us you want to unbundle, that is an element of policy sommersault. In what respect? If you look at that Maritime Security Agency (MSA) bill, everything there has already been covered by the NIMASA Act. You will have to use all the money that is supposed to have been used to strengthen NIMASA, or channelled to other sectors of the economy to fund the agency. That is not all. If you consider the recognition granted by Imo, it is only granted to Safety and Maritime Administration, and that is NIMASA. Imo will not deal with the National Security Adviser, and it will not deal with more than one agency in the same country.
The country will just run into problems, because NIMASA has been recognised, but if you bring this up Imo will not deal with them. The maritime sector is not a local sector, it is an international sector governed by international conventions relating to more than one country, so you cannot localise it.
When you now say you want to create a security agency that cannot work with Imo what is the benefit? If you really think you have something reasonable to offer, why don’t you support NIMASA, is it not the same country you want to serve that NIMASA is serving? In fact, this is an aberration. If you look at the development of our Merchant Shipping you will see, look at the 1969 Merchant Shipping Act and the 2007 Merchant Shipping Act you will discover that the Federal Minister of Transport has always been the one giving responsibility on marine pollution, maritime security and manpower development and what have you. Subject to the 1962 Act, the Minister of Transport delegates functions to agencies and parastatals. Pursuant to the Merchant Shipping Act 2007, the Minister delegates the performance of these functions to NIMASA. When you now have the National Security Adviser taking over these functions it is an aberration, and you look at the functions the NSA will now have in respect of this (MSA) bill, that they said is calculated at unbundling NIMASA, it takes away all the functions of NIMASA. So when the minister ought to have been playing a role in respect to NIMASA, it is the NSA that is doing so. They just duplicated all the provisions in the NIMASA Act, and if you look at it, it is just an unnecessary duplicity. Yes, NIMASA is just like any other government maritime parastatals like NPA, Nigerian Shippers Council. Of course, there are many things that NIMASA does not have capacity to do, the military area, like the naval function, but you have either the marine police or the Navy performing this function. The NIMASA and the Cabotage Act have already created a structure whereby NIMASA can enlist the support of any of these agencies, including the Nigerian Customs Service, Nigeria Immigration Services, et cetera, to perform its functions. I was there at the Public Hearing when the Nigeria Navy said that what they need is to be given necessary support to perform their function. Why are we not looking at that? Even the Navy is against the setting up of that Agency. So, it is something we really need to look at and tell ourselves the truth. So it is not about unbundling NIMASA, and I personally think it is not the kind of law that should be passed by the National Assembly because of the military garb that is associated with it. The Imo will never deal with them. Why should a military body perform the role that can be discharged by a civil body?
It does seem, however, that the Bill is enjoying the support of stakeholders. But should the presidency decide to push this bill through the National Assembly, what do you think will happen?
Let me tell you this, in the Constitution there is separation of Powers among the various arms of government, and also relationship between these separated powers. The lawmakers will make their laws, the Executive will implement while the Judiciary will interprete. At the end of the day what the judiciary says the law is, is what will be. They may go ahead and pass the Bill, notwithstanding that stakeholders have totally rejected it. Who are they making the law for? The way the National Assembly works, they consult and that is why the Public Hearing is there, and its essence is to feel the heart of the operators of that sector. So, I think it will be preposterous for the lawmakers to go ahead and pass a bill that maritime stakeholders have totally rejected. Is the interest of the NSA greater than those that actually drive the maritime industry? And what is his background as far as maritime is concerned. So, it is not about somebody trying to muscle everybody by saying that because I’m the NSA whatever I want I must get it. This country has not turned to that. We have laws. Therefore, I know the legislators are civilised enough to know which law should be passed, no matter what pressure anybody is mounting on them. Even within the government, many agencies are against it: the Navy, Ministry of Transport are against it, so who is supporting it? So it does not end there, anybody that is not okay with it can go to court to challenge it. Therefore, they should be ready because there are many of us that are ready to go to court to challenge it.