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Understanding The New Anti-Piracy Law: Fears And Predictions

Understanding The New Anti-Piracy Law: Fears And Predictions

Pirates at Sea

By Oloyede Iretioluwa, NYSC Associate at Solola and Akpana
Introduction
Prior to the enactment of the Suppression of Piracy and Other Maritime Offences (SPOMO) Act in 2019, there was no such law in Nigeria addressing the activities of sea pirates in Nigerian waters despite the records provided by the International Maritime Bureau (IMB) in 2018 and in the first quarter of 2019, that the Gulf of Guinea particularly Nigeria takes credit for high incidence of pirate attacks, hijacks and kidnapping globally. While certain Conventions exist to curb piratical activities internationally and treating sea piracy as a crime, this was not enough for countries especially Nigeria who is a signatory to these conventions. Consequently, the gap created by the unavailability of an anti-sea piracy law in Nigeria is such that when pirates are arrested in our territorial waters and even on the high seas, they do not serve the time, perhaps this situation find its way in one of  the provisions of our grund norm that “a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law”.
Explanation of certain terms
It is pertinent that I give certain explanation of some words as not all atrocities perpetrated in the sea are regarded as piracy.  More so, piracy can take various forms like attacks, hijack but not to be confused with armed robbery against ships. A cursory look at how the 2019 Act was couched, one would realise that there are other unlawful acts at the sea apart from piracy.
Maritime Piracy
This is an act of violence, attacks, crimes committed for private benefits by a private ship and its crew against seafarers, ships and vessels on the sea of any country or international waters. ( Onuoha & Hassan, 2009 and Hong 2010). In another dimension, maritime piracy is a global or international crime perpetrated against innocent seafarers targeting their ship for robbery, kidnapping for ransom, extortion, hostage-taking for political motive and destruction of lives and properties for terror motives (Priority Paper for the Danish Efforts to Combat Piracy and other Types of Maritime Crime 2019-2022)
Sea piracy has been classified into three main categories, according to the IMB (International Maritime Bureau). They include:
Attacks
This is a direct assault on seafarers and transporters of goods and services. In most cases, the attacks are not successful but are treated as piracy because of intentional attempts.
Hijack
This is act of confiscating vessels by pirates from their target route or destination to another destination. This can be purposely to either seek for negotiation in monetary terms or political or even economic motives.
Kidnapping
The pirates abduct the seafarers and demand a ransom before they release them, the targets or abductees are usually expatriates who are working in oil companies, construction companies, this is common in the Horn of Africa and Gulf of Guinea.
Robbery
In some cases, the incidence is not to kidnap or to hijack the vessels or cargoes but to rob the seafarers of what is valuable and available to pirates. They use their speed boat and target the vessels, mount on them and demand for what they are looking for. They cart away with these valuables.
Highlights from the Act
The Act is divided into four parts but I will only bring out those provisions as it relates to maritime piracy.
Objectives of the Act
The Act is established to prevent and suppress piracy, armed robbery and any unlawful act against a ship and maritime equipment.
Scope of Application
The provisions of the Act are applicable to any person on board a ship or aircraft and fixed or floating platform navigating on or above the territorial or internal waters of Nigeria or on above international waters.
The Act applies in the following circumstances to a person, ship, aircraft in or above international waters as it relates to piracy: where an offender is found outside Nigeria but is in the territory of a state party to the Suppression of Unlawful Acts against Maritime Navigation (SUA Convention), or any other similar Convention and offence has been committed onboard a ship or vessel flying the flag of a party to the SUA Convention. This I believe is referring to a vessel registered or flying the flag of Nigeria.
Offence of Maritime Piracy Defined
The United Nations Convention on the Law of the Sea (UNCLOS) 1958 set the tone for a comprehensive definition of piracy and the definition given by this Act is in line with UNCLOS to wit:
a.      The illegal act of violence, an act of detention, or any act of depredation committed for private ends by the crew or messenger of a private ship or private aircraft and directed in international waters against another ship or aircraft, against a person onboard a ship or aircraft.
b.     Act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or aircraft and
c.      Act of inciting or intentionally facilitating an act described in subparagraph (a) or (b)
Trial and Jurisdiction
Only the Federal High Court that has jurisdiction to try the offences set out in the Act and this court is empowered to try any of the offences(Piracy and other Maritime Offences) against a ship registered in Nigeria or flying Nigerian flag, against a ship or fixed floating platform within the continental shelf of Nigeria, against a citizen of Nigeria, in Nigerian territory, including its territorial waters, by a Nigerian citizen and in the case of piracy, against any ship or aircraft outside- This means , given the concept of “universal jurisdiction” as it relate to the high seas, the provisions of this act will apply to any ship involved in piratical acts that Nigeria decides to arrest.
Punishment for Piracy
The Act provides for the punishment of life imprisonment and a fine of not more than N50,000,000(fifty million naira) in addition to the restitution to the owner or forfeiture the Federal Government of Nigeria whatever the person has obtained or gained for a person who commits piracy whether he was armed with firearms or not. It further prescribe a fine of N500,000,000 (Five hundred million naira) for a company or entity that commit the offence of piracy and each of its directors or principal officers or any person responsible for its management and control, shall be liable to a fine of not less than N100,000,000(one hundred million naira) and imprisonment for not less than 15years each in addition to restitution to the owner or forfeiture to the Federal Government of whatever property gained.
Additionally, any person who attempts to commit any act of piracy shall be liable on conviction to not less than 12years imprisonment and a fine of not less than N100,000,000(one hundred million naira)
Fears and Predictions
In analysing the provision of the 2019 Anti-Piracy Act, one can see that they are well articulated and categorical in identifying what is maritime piracy, who is responsible for undertaking the judicial proceedings and the specific punishment for perpetrators. Gladly, if the provisions of the Act are implemented, I predict that it would drastically minimize piracy in Nigerian waters, and because it extends beyond the Nigerian waters it means the total global incidences will also decrease and this will be a boost for the Nigerian economy and the International maritime industry. Also, the enactment of this Act will act as morale for other African countries (particularly those in the Gulf of Guinea) to follow suit in enacting their own independent legislation addressing maritime piracy and in a short period the Gulf of Guinea will become a “no go area” for piratical activities and this can minimize incidences of maritime piracy and security of the Gulf will be guaranteed. Additionally, given the sanctions and strict punishments provided by the Act which will not only deter the criminals due to the fear of the consequences but also discourage piracy as a business in the whole for perpetrators.
Notwithstanding the positive change this Act is predicted to bring, However, I have my fears, which is premised on the fact that laws are often not fully implemented in Nigeria and this Act might just end up as a mere paper work. Consequently, Gulf of Guinea will continue to make newspaper headline as the hotspot of maritime piracy since Nigeria as a country takes credit for most of the piratical activities in the Gulf, the pirates continue to escape and this also may discourage the coming in of investors into the country given the unguaranteed security and there may continue to be loss of revenue for the Nigerian Government.

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