By Genevieve Aningo
Recently, authorities of Equatorial Guinea intercepted a vessel, MT Heroic Idun in their waters at the behest of Nigerian surveillance team on account of illegal activities perpetrated within Nigeria’s exclusive economic zone. Not willing to let go, Nigeria has gone to court but interpretations as to what to expect are shaped in different convictions as the alleged suspects or offenders claim innocence, while international agencies plead fundamental human rights violation. Is Nigeria right or wrong? Experts have x-rayed the conundrum in perspectives.
However, maritime sea offences at the Gulf of Guinea have taken a down curve so far this year as a result of the collaboration amongst the Nigerian Navy, the American Coast Guide and the Nigerian Maritime Administration and Safety Agency(NIMASA) through the Deep Blue Project as well as other spirited efforts by some maritime nations with interests on the route.
There are many factors that help to reduce the incidence of piracy and other sea insecurities at the Gulf. They include:The Suppression of Piracy and Other Maritime Offences (SPOMO) ACT and Yaounde Architecture, – the intra-regional commitment between the Economic Community of West African States (ECOWAS), the Economic Community of Central African States (ECCAS) and the Gulf of Guinea Commission .
These exemplary efforts have made Nigeria and the Gulf to bank one year of no piracy attacks at the Gulf Of Guinea. However the recent Korean Tanker B pirates attack on November 23rd and other maritime trade offences on the seas are still issues to be tackled.
Prior to this era, for the last 15 years, the Gulf was an emblem of sea piracy having witnessed incessant ship attacks in the region. According to the International Maritime Bureau in 2020, the Gulf of Guinea witnessed 84 attacks on ships, with 135 seafarers kidnapped for ransom. The IMB report contained that the Gulf experienced nearly 50 percent increase in kidnapping for ransom between 2018 and 2019, and around 10 percent increase between 2019 and 2020. Thus, the region accounts for over 95 percent of all kidnapping for ransom at sea.
The Gulf of Guinea
The Gulf which runs from Senegal to Angola covers about 6,000 km of coastline is a significant shipping trade arena for cargoes, oil, gas and fishing activities. It is home to nearly 20 commercial seaports and 17 countries share coastline boundaries with the Gulf includes: Benin, Cameroon, Equatorial Guinea, Ghana, Gabon, Ivory Coast, Nigeria, Togo, Sao Tome and Principe, Angola, Republic of Congo, Liberia, Sierra Leone, Guinea, Guinea-Bissau, The Gambia and Senegal. The Gulf also accounts for 25 percent of African maritime traffic and houses the second largest oil producers- Nigeria and Angola. These upscale shipping business potencies pose a magnitude of maritime insecurities as piracy, kidnapping of seafarers, oil theft and illegal fishing at the Gulf.
The Case at Hand
A sizzling and pending case at the Gulf is the Very Large Crude Carrier (VLCC) MT Heroic Idun Vessel (IMO 9858058) registered in Marshall Island with a length of 336-metres, 60 metres breadth and a capacity of 3 million barrels.
On August 12th, the MT Heroic Idun Vessel containing 27 seafarers of Indian and Sri Lankan tribe were arraigned for attempted oil theft at the Nigerian Akpo Oilfield terminal, River state. This arrest was after failure of the vessel to obey the directives’ of NNS GONGOLA (MMSI 657754000), a military Ops, to head towards Bonny anchorage to obtain clearance and authorization in order to load crude oil. However, the MT Heroic Idun Vessel turned southwards towards Sao Tome and Principe in a bid to defy the instruction. Unfortunately, the vessel was arraigned on Equatorial Guinea waters with the help of the Nigerian Navy surveillance facility and the Equatorial Guinea Amphibious Ship on August 12th. Being an offence committed on the Nigerian Exclusive Economic Zone, Equatorial Guinea Vice president, Teodoro Nguema Obiang Mangue authorized for the repatriation of the vessel to Nigeria for further actions.
Currently, the Federal High Court 5 Port Harcourt Rivers State has charged the vessel on account of some offences and adjourned the case till January 10th 2023.
The Chief of Policy and Plans , Navy Headquarters, Rear Admiral, Saidu Garba has listed offences committed by the vessel to include: attempt to deal in export crude oil without license or authorization; entering a restricted zone around an oil field without authorization and thus violating Nigeria’s Exclusive Economic Zone Regulations; falsely accusing a Nigerian Navy Ship of Piracy on International Maritime reporting platforms after having communicated with the Nigerian Navy Ship without ambiguity about her identity therefore violating sections of the Suppression of Piracy and Other Maritime Offences (SPOMO) Act 2019; violation of all lawful instructions at sea from maritime Law Authorities as well as Nigeria’s Miscellaneous Act and other associated national and international laws ascribed to by Nigeria and violation of Customs and Immigration Laws as acceded by Nigeria regarding the operations of Akpo Oil Terminal being an Oil installation in the Nigerian Exclusive Economic Zone.
The latest ‘hymn’ on the issue is that the International Chamber of Shipping (ICS) has called for the release of the detained 27 seafarers on the grounds that the welfare of the seafarers in Nigeria is poor as they are suffering from typhoid fever and malaria . According to news by The Maritime Executive on November 25th, while quoting the Secretary General, ICS, Guy Platten “This unacceptable detention of the Heroic Idun crew must be resolved as quickly as possible. It is essential that this situation is de-escalated”. The publication also revealed that the ICS is citing the shipping companies’ statements that no unlawful activity was taking place and that the vessel had the appropriate clearances to load oil from the Akpo offshore in the terminal. Also, the ICS has engaged the attention of the International Maritime Organization (IMO), the International Labour Organisation (ILO) and the International Transport Workers Federation (ITWF) to remind the governments of Equatorial Guinea and Nigeria of their legal obligations under the international law.
In an interview with the Chief Executive Officer, Zoe Maritime Resources Limited and Partner Edodo, Thorpe & Associates, Oritsematosan Edodo-Emore gave her opinion on the case.
She said: ‘I think that the first thing to understand is that the judicial process is slow and the crime also alleged is a very serious offence and because of its seriousness it takes time to impound vessel for so long, but what you have there is that if the suspects feel unjustified for being detained for too long, they need to bring an action for their fundamental human rights in court for violation. When asked if Nigeria is breaching international law on the matter because the International Chamber of Shipping, the International Maritime Organisation, International Labour Organisation etc are currently appealing to the Nigerian government to release the seafarers, Edodo cleared that she can’t ascertain the particular convention or law that the ICS is alluding to. She explained:
”I don’t even know if they are just being detained under the Suppression of Piracy and Other Maritime Offences Act( SPOMO ACT) which is a Nigerian law or under international conventions; Investigations are still going on. For me, since seafarers are being detained, I think that the proper thing to do is take an action. They have not been charged yet but detained pending investigations, so it is for them to bring an action for their release which would be a fundamental Human rights action. It’s for them to take action basically. Another thing is, if the offence breaches any international convention Nigeria is a signatory and whether Nigeria has domesticated the convention? One thing is that it is not enough to sign a convention, one need to confirm if Nigeria has domesticated that law into our laws. Has Nigeria domesticated the laws, so that that convention can apply into our municipal laws in which anything in it is binding in a practical way? It’s not enough to say Nigeria has signed a convention, after signing; the next thing is to find out if Nigeria has domesticated that law. The bottom line is that we must not be tired of engaging, the seafarers have been there for so long and international organizations are intervening but has anybody gone to court on their behalf? So far as I know, nobody has done that”, said Edodo-Emore.
Edodo-Emore suggested that in a case as this legal and diplomatic measures can help pacify the grievances of the parties involved. “They can have diplomatic approach or legal court proceedings but the important thing is that it is a judicial process since the offences fall under the SPOMO Act and if anybody feels aggrieved, they should exercise what the rights are and use the judicial process. Of course diplomatic intervention is also very good; if one wants to pursue that but the important thing is to take action”.
She spoke on the reoccurrence of piracy attacks at the Gulf of Guinea and maintained that such should not dissuade NIMASA, Nigerian Navy and other security agencies at the Gulf from continued effort to arrest piracy at the Gulf
She explained: “Korean Tanker B Ocean attack does not in any way remove the commendations that the IMO President, Mr Kitack Lim made to the Nigerian Maritime Administration and Safety Agency, the Nigerian Navy and other maritime securities at the half rather it shows us that piracy in the Gulf of Guinea is a living issue. Also, the fact that Nigeria has made some success before doesn’t not mean that the NIMASA and Navy should rest because their success means that the pirates would go and re-strategize and recoup and come back to attack; so also the security agencies in the Gulf of Guinea must be at alert to their responsibilities. Therefore, the recent attack doesn’t diminish the investments that NIMASA has done but shows that they have to be up and doing and know that just because they have been successful in quenching the pirate attacks for a year doesn’t mean they won’t be future attack
Dr. Olisa Agbakoba SAN and Head of the Arbitration and ADR practice group in Olisa Agbakoba Legal, contributed to the discourse by highlighting that a case like this which is already in court is not suitable for public opinion. According to him, “The matter has been charged to court whether right or wrong. Everybody must wait for the outcome of the decision of the court. There were charged up to 10 days ago for contravening the suppression of piracy Act. I am not fully aware of the details and the double charges but the charges were explained before the High Court in Port Harcourt. The case is already in the court so we cannot do anything except to wait for the court to make a decision; anything we say now is what we call sub-judice because a matter in the court is not meant to be discussed whether rightly or wrongly charged, the matter is in the court for the court to decide”.
On his comment regarding the resurfacing of piracy at the Gulf of Guinea barely one week of Nigeria trumpeting a one year operation without its occurrence, Agbakoba implored NIMASA to bear in mind that so long as shipping operations exist in the Gulf of Guinea, piracy is bound to happen but with concerted efforts it can be managed. In his words: “Piracy is an old historical matter of about 10,000 years. We have always had bandits of piracy at the high seas and what that does is that from time to time, they shift locations. There was a time that the Gulf of Aden , Somalia was exceedingly dangerous, then they moved to the Gulf of Guinea which is Nigeria and that was why Nigeria then saw it necessary to pass a legislation – which is the SPOMO Act to suppress the operation of piracy . So you would always find piracy because people are obviously looking for all kinds of opportunities to make money. For some historical reason, piracy has been something that old sailors have always found useful ways to kidnap and extort money from people. It’s never going to wear away. It’s an incident of maritime trade. it requires that everybody must be secured and take the best opportunity to safeguard which is why I always encourage Nigeria to have a Coast Guard so that our waters are properly secured but in doing that anything against piracy must comply with international conventions and all the relevant laws so that the country that’s taking action against piracy is also seen violating the rights of vessels”.
On the other hand, Jean Chiazor, SAN and Principal Counsel, Jean Chiazor &CO. (Ofianyi Chambers) faulted the MT Heroic Idun Vessel for the alleged crime and justified Nigeria for the actions taken so far regarding the case. She buttressed: “Since the vessel came into our territorial waters and our Exclusive Economic Zone, we have every justification to arrest the vessel where it is found to be guilty of an illegal trade that transmits oil theft. Yes, that is why they are pleading for us to release them. They cannot demand. I’m sure it’s an appeal. If it’s not right then, they will be demanding. They might even go to the world court but they are appealing. They can’t come into our territorial waters and commit a crime and think they can get away with it. The fact is that they were caught within our territorial waters doing an illegal trade. So, Nigeria has every justification to arrest and detain the vessel and the culprits”, said Chiazor.
She further commented that Nigeria is not breaching any international conventions of which it is signatory to; on the issue and if Nigeria is trespassing against any law then it is not justified in arresting the MT Heroic Idun Vessel. According to her, No, if we are breaching any conventions, then we won’t have any justification. Justification means we have every legal right. The only thing is that if the country that we arrested has a jurisprudence that is synonymous to our own, if they have what is called the Doctrine of Reciprocity; that is in Nigeria, if we arrest Indian citizens for an offense, we try them or we can deport them to India to be tried and India has a similar law, that if Nigerians are arrested in India for a Maritime offense, the India authority can send them to Nigeria to be tried or to be tried under the India law which is similar to the Nigeria jurisprudence. So, if that exists and they have done that for Nigeria before and Nigeria is now failing to do the same; then they can say that Nigeria is breaching an international practice but not a convention as such. I don’t know if there is any Doctrine of Reciprocity between Nigeria and Indian”.
Chiazor also suggested that both diplomatic and legal measures can help solve the issue at hand. She said,”Both approaches are good. They charged them to court and get them tried for the offense which they have committed. Happily we have the laws here for such offenses against piracy and criminal acts. This is oil theft so it’s a criminal offense. We don’t have any law enacted directly on oil theft because this oil theft is really coming up strong on us. We don’t have a particular edict on oil theft. So we will put it under the criminal law because it’s not piracy. Although we have piracy law which is the SPOMO Act, if it was piracy act, we can try them in Nigeria, under the Federal High Court because we have the law specifically for piracy Act. And then, diplomatically, the two countries can apply the Doctrine of Reciprocity used by diplomats and it becomes a diplomatic issue”.
