In January 2017 Nigeria’s Vice President, Prof. Yemi Osibajo SAN launched a document promoted by the Nigerian Navy and produced by the Federal Ministry of Justice called “Harmonized Standard Operating Procedures on Arrest, Detention and Prosecution of Vessels and Persons in Nigeria’s Maritime Environment 2016.” In his foreword to the document, the Attorney-General and Minister of Justice Abubakar Malami SAN expressed satisfaction that the document adequately addresses the issues of overlap of responsibilities of agencies. With the seal of approval of two eminent senior advocates, it was not surprising to hear the Chief of Naval Staff, Vice Admiral I.E. Ibas assert that the document is to provide “a consolidated guideline for harmonious management of arrests, detention and prosecution of vessels and suspects as well as seizure and forfeiture”.
With costs often in millions (and occasionally in billions) of dollars, vessels are prized assets of major economic significance. They are typically purchased with bank loans, collaterised with tangible and intangible assets, manned by tens of people of often diverse nationalities, operated by multiple service providers and laden with cargo locking in interests of even more complex dimensions. Incidents that affect vessels are therefore almost always of considerable commercial significance across economic sectors and national jurisdictions. As a result, a document focused on “arrest, detention and prosecution of vessels” must be well-justified in law and procedure. However, the “Harmonized Standard Operating Procedures on Arrest, Detention and Prosecution of Vessels and Persons in Nigeria’s Maritime Environment 2016” (“HSOP”) does not quite meet this requirement. It cannot confer any powers or rights on the Navy or any other organization. Any action founded on it will be an illegality unless otherwise statutorily justifiable.
The HSOP is a set of guidelines. A detailed look at its provisions indicates that it is not stated to derive authority from any particular legislation. Clause 2 of the document makes a general assertion that it is based on “the statutory powers conferred on the Ministries, Departments and Agencies (MDAs) charged with maritime law enforcement activities.” In reality the statutory powers of all the relevant MDAs are sourced from different independent statutes, none of which is exactly the same with the other. Administrative guidelines are often derived from a primary legislation which makes provisions of a general nature, with the guidelines offering more specific procedural direction. As a result such guidelines are often binding only to the extent that they are in congruence with the provisions of the primary legislation. Where a provision in a set of guidelines or regulations is determined not to flow from any particular provision in its primary legislation, it is void. This rule will obviously apply with greater force where the entire set of guidelines is not based on any statutory foundation as is the case with the HSOP. At best, it is a tool for administrative convenience. Any agency purporting to rely on it as a basis for their action can only be successful if the action it has taken is covered under its own establishing legislation.
Inconsistencies With Statutory Provisions
Clause 7 of the HSOP broadly provides that the “agencies” have a right to arrest any vessel or person involved in “any type of criminality”. The breadth of this statement suggests a carte blanche in arrest of vessels. The “agencies” are not defined. It is not clear if “agencies” are members of a “Stakeholders Forum” constituted in Clause 2 of Part 1 to include Ministries of Defence, Justice, Agriculture, Transportation, Interior, Finance, Petroleum Resources and Environment with their respective relevant agencies. More attention will be paid for the purpose of this article, to the Nigerian Maritime Administration and Safety Agency NIMASA, which under its establishing Act, for instance does not have the power to arrest any vessel involved in “any type of criminality”. If NIMASA arrests a vessel for smuggling, it will be acting outside the scope of its statutory authority.
The HSOP confuses arrest with detention of ships contrary to established usage in admiralty practice. Whereas “arrest” will often refer to judicial orders constraining a ship’s movement, “detention” is the constraint imposed by regulatory bodies of the type contemplated in the HSOP. However, the HSOP contains a definition for “arrest” but none for “detention”, even though it defines “detaining officer”. Its definition of “arrest” is the same with accepted usage for “detention”.
Occasions for ‘Arrest’
The guidelines set out a range of occasions when vessels will be liable to arrest including for operating ‘without authorization’, ‘piracy/armed robbery’, ‘stealing economic resources of Nigeria’, ‘illegal bunkering’, ‘unauthorised movement of petroleum products’, ‘unauthorised research activities’, ‘drug and human trafficking’, ‘transportation of slaves’, ‘navigating in unauthorized areas’, ‘navigating without regard to ROR’, use of outboard engine ‘beyond approved capacity’, ‘non-compliance with Cabotage Act’ and ‘any other illegal maritime activities not specified in this HSOP’. Other activities are included which have not listed, with many requiring very specific technical evidentiary burden beyond mere suspicion. Yet the guidelines did not specify particular organisations which may arrest in respect of particular offences, suggesting that any of the ‘agencies’ listed may arrest for any of the offences listed. This is a recipe for likely regulatory anarchy and certain impunity.
‘Order of Court’
Clause 8 goes further to vest power of arrest on all ‘law enforcement agencies as specified in their various establishment Acts’, adding that ‘such powers shall include an Order of Court of competent jurisdiction’. Firstly, the power of arrest of all ‘law enforcement agencies’ should be based on reasonable and informed suspicion which for a good number of the offences may only be determined on technical indices which the law enforcement agencies simply do not have. To satisfy the requirement of reasonable and informed suspicion, the arrest should be at the instance of a technical regulator such as the DPR, NIMASA, Department of Fisheries or other relevant agency. Such provisions have not been made. The requirement of an ‘Order of Court’ is obviously an attempt to give the arrest a veneer of due process. Unfortunately, this will serve to complicate things as the guidelines cannot impose a requirement which many of the individual agencies do not have in their statutes. NIMASA for instance does not have an express provision in its Act requiring an order of court to detain ships, though under section 51(1) it may with the approval of the Minister, make regulations to regulate the process. Such regulations can include the requirement of an order of court. Interestingly, the Coastal and Inland Shipping (Cabotage) Act expressly authorizes enforcement officers to detain ships in relevant circumstances without an order of court. Therefore the mandatory requirement of an ‘Order of Court’ under the guidelines will only fester regulatory confusion. It is also fraught with practical difficulties for implementation, with the procedural hurdles of obtaining a court order not conducing to likely imperatives of immediate detention.
Detention Pending Prosecution
Clause 13 suggests that vessels will be arrested and investigations conducted after the fact. By providing that ‘the agency to take over an arrested vessel shall depend on the nature of offence committed’, the presumption is that the arresting authority (ostensibly the Nigerian Navy) would have arrested the vessel without the involvement of the relevant agency. It is not clear what considerations would have informed the decision-making in arriving at the arrest.
Further confusion is stoked by Clause 15(3) which provides that in the event of the inability of an agency to take custody of a vessel, ‘the agency is to hand over to the Nigerian Police Force or the Admiralty Marshall of the Federal High Court pending prosecution’. It further provides in Clause 15(4) that the Nigerian Navy may be in custody of the arrested vessel on behalf of the relevant agency pending prosecution. These provisions harbor two challenges, both relating to legal validity. In the first place, it appears to sanction detention pending prosecution, which goes against the constitutional guarantees of fair hearing and presumption of innocence. Secondly, the Admiralty Marshall is not a general receiver of all detained vessels; the office can only act within the expressly provided mandate of the Admiralty Jurisdiction Procedure Rules under the Admiralty Jurisdiction Act. In the absence of statutory authority, an arrested vessel cannot be legally handed over to the Admiralty Marshall as proposed.
In Clause 17(1) the guidelines provide that ‘in the event of failure to reclaim seized and detained vessels by its owners for a period of 12 months the Agency in custody of the seized item as the case may be, shall reserve the power to obtain an order of forfeiture and disposal from a court of competent jurisdiction.’ In effect, the burden of reclaiming the arrested vessel is with the owner, irrespective of the circumstances of the detention. The provision does not give a precise reference point for determining a failure to claim. Thus it is not clear whether time will start counting immediately after arrest, or after any proceedings relating to the vessel or after any relevant exchanges. It also does not provide for notice to be given to the owner of the vessel and the manner of same. These are important issues in view of developments in practice which often see vessels detained without clear-cut definition of responsible authorities, persons to engage with or even benchmark procedures.
The idea of harmonized guidelines suggests the existence of a range of agencies with diverse powers of ship detention. To some extent, this may be true – NIMASA, NPA, Customs and the Navy are some bodies statutorily empowered to detain ships under different rules. Harmonized rules however suggest sameness or similarity of offences, enforcement regimes, personnel and assets. This is hardly the case with the HSOP, as different statutes regulate the operations of different agencies. A proper attempt to harmonise rules will be based on an appreciation of the similarities and differences of the statutory provisions governing detention for each of the relevant agencies, an area in which the HSOP unfortunately falls considerably short. It is a not-so-well scripted document promoted by the Nigerian Navy which attempts to validate arbitrariness. From an inverted prism, this may be understandable in view of the considerable judgment debt hanging over government bodies arising from illegal detention of vessels.
Despite its potential, the document has ignored the single most significant cause of the judgment debts that constitute its primary mischief – wrongful and continued detention of vessels over a long period with daily costs and losses counting. It ignores the need for strict timelines to be in place where a vessel is arrested on mere suspicion, and that options for bail-bond must be provided and distinction made between owner of vessel and owner of cargo with procedure for disentangling and ring-fencing both interests in the determination of rights.
At the end, the HSOP, despite the high-level executive fanfare that attended its launch, is a light-weight document without legal potency and operational clarity.
Culled from Akabogu and Associates Monthly Newsletter May 2018 edition.