Piracy And Armed Robbery In The Gulf Of Guinea And The Suppression Of Piracy And Other Maritime Offences Act (Supmoa) 2019 By Caroline Tokulah-Oshoma

1. INTRODUCTION

The increasing rise in piracy in the Gulf of Guinea has become
alarming. Until recently, the concern about piracy has been the
Gulf of Eden operated by Somalia pirates; however, piracy has
witnessed a drastic shift to the Gulf of Guinea. Armed robbery
against ships and cargo theft have also risen uncontrollably within
Nigerian territorial and internal waters. These activities pose a
serious threat to national, regional and global security and
economy.

Earlier this year, the Director General of the Nigerian Maritime
Administration and Safety Agency (NIMASA), Dr. Dakuku Peterside
attended a major maritime security conference at the International
Maritime Organization (IMO) Headquarters in London. The conference
discussed the increasing high risk of piracy in the Gulf of Guinea
with emphasis on piracy off the coast of Nigeria. The Head of
Security for BIMCO, Jakob Larsen, noted that Nigeria holds the key
to resolving maritime offences within the coast of Nigeria and this
requires Nigeria to work with international navy. On the part of
Nigeria, Dr Dakuku Peterside acknowledged that there is a high
security risk of piracy in the Gulf of Guinea but stated that
NIMASA and the Nigerian Navy are doing their best to help curb the
problem

As part of curbing the problem of piracy, armed robbery against
ships and other Maritime offences, the President assented to the
piracy bill, sponsored by NIMASA titled;
The Suppression of Piracy
and Other Maritime Offences Act (SUPMOA) 2019. The Act
gives effect to the United Nations Convention on the Law of the Sea
(UNCLOS) 1982, the Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation (SUA) 1988 and its
Protocols.

This article discusses the SUPMOA 2019, notes some of the
pitfalls and offers some recommendations.

1. PIRACY, ARMED ROBBERY AND CARGO THEFT IN THE GULF OF
   GUINEA VIS-À-VIS NIGERIA’S TERRITORIAL WATERS

According to the International Maritime Bureau (IMB) 2019 Q3
report on piracy and armed robbery against ships covering
January 1 – September 30, 2019, the Gulf of Guinea
was reported to be the world’s most dangerous trade route and
piracy hotspot in the world. The report noted that 119 incidents of
piracy and armed robbery against ships occurred worldwide, with 95
ships boarded, 10 ships fired upon, 10 attempted attacks, and 4
ships hijacked. The Gulf of Guinea accounted for 43 of the actual
attack and 10 attempted attacks, 86% of crew taken hostage and 82%
of crew kidnappings worldwide. The report further revealed that of
the 9 ships fired upon worldwide, 8 were off the coast of
Nigeria.

Undisputedly, these statistics reflect that Nigeria is currently
at the epicenter of piracy attacks in the Gulf of Guinea. This
position is reinforced by the IMB Q3 report which shows that the
Lagos seaport appears to have the highest number of incidents in
the world so far in 2019, with 11 of the incidents reported
occurring within Lagos port. Interestingly, the IMB Q3 report
reveals that there was not a single incident of piracy in Somalia
and in the Gulf of Eden from January 1 – September 30 2019. This
clearly shows that the tide of piracy has indeed shifted to the
Gulf of Guinea in general and Nigeria in particular.

Apart from piracy and armed robbery against ships, one other
prevalent attack against ships within Nigerian waters is the theft
of crude oil and other essential cargoes and properties.
 The IMB Q3 report revealed several incidents of actual and
attempted cargo theft within Nigeria waters. For instance; on March
24, 2019, two armed robbers boarded an anchored tanker at Lagos
secured anchorage area and stole oil cargo using hose pipes. Prior
to this, on January 7, 2019, two armed robbers boarded an anchored
tanker during STS operations in Lagos, the hoses were connected to
the ullage ports of the forward cargo tanks to steal cargo, but an
alarm was raised and the robbers escaped but on the July 25, 2019,
ten armed robbers boarded a berthed ship during cargo operations
and stole the ship’s stores from the paint locker. On August 14,
2019, two robbers boarded a berthed Offshore Supply Vessel at Onne
Port and stole the ship’s properties from the pump room. Some of
the key driving factors behind armed robbery against ships and
cargo theft within Nigeria waters include weak law enforcement,
corruption, poverty and an unregulated oil market. Due to the high
risk associated with Nigerian territorial waters, insurance
providers now require ships coming to Nigeria to obtain extra cover
/ security. Unfortunately, this is an added significant primary
cost to ship owners and charterers which makes Nigerian ports
expensive and unattractive.

III.       THE SUPPRESSION
OF PIRACY AND OTHER MARITIME OFFICES ACT (SUPMOA) 2019

The Suppression of Piracy and Other Maritime Offices Act
(SUPMOA) 2019 was enacted at a time when the coast of Nigeria is
being described as the new haven for piracy in the world, the
“Somalia” of the present day by the international maritime
community. The Act is timeous, innovative and far-reaching.
 

Purpose of the Act

The SUPMOA 2019 seeks to prevent and suppress piracy, armed
robbery and other unlawful act against a ship, aircraft and other
maritime craft, howsoever propelled, including fixed or floating
platform.

Application of the Act

The act applies to any person on board a ship or aircraft
navigating in, on or above the territorial and internal waters of
Nigeria or on above international waters; or fixed or floating
platform in, on or above the territorial and internal waters of
Nigeria or on or above international waters.

It also includes circumstances where the offender or alleged
offender is found outside Nigeria but is in the territory of a
State who is a party to other International Maritime
Conventions.

Piracy Defined

Section 3 of the SUPMOA 2019 provides the definition of piracy
and practically adopted the definition provided under Article 101
of United Nations Convention on the Law of the Sea (UNCLOS) 1982.
 It provides that piracy consists of any;

(a)    Illegal act of violence, act of
detention, or any act of depredation, committed for private ends by
the crew or the passengers of a private ship or a private aircraft,
and directed:

     (i) In International Waters against
another ship or aircraft, or against a person or property on board
such ship or aircraft;

  (ii)  Against a ship, aircraft, persons or
property in a place outside the jurisdiction of any State;

(b)  Act of voluntary participation in the operation of
a ship or of an aircraft with knowledge of facts making it a pirate
ship or aircraft; and

(c)  Act of inciting or of intentionally facilitating
an act described in subparagraph (a) or (b)

Flowing from the definition of piracy, it is evident that any
acts of violence committed against a ship within the territorial or
internal waters of Nigeria will not be considered piracy. It is
pertinent to distinguish between piracy from armed robbery against
ships. Armed robbery against ships is often misinterpreted and
misconstrued as piracy, these two criminal concepts are categorized
differently. While the crime of piracy takes place on the High seas
(international waters) and must fulfill some essential elements,
the crime of armed robbery against ships on the other hand takes
place within the territorial and internal waters of a Coastal State
i.e Nigeria. The offence of piracy is provided under Section 3 of
SUPMOA, while the offence of armed robbery against ships is covered
under section 4.

Section 4 provides that a maritime offence includes armed
robbery at sea and any other act, other than piracy which is
committed by any person or group of persons where that person or
group of persons or their sponsors unlawfully within the Nigerian
Maritime Zone or jurisdiction commit the following acts or offences
such as: Hijacking of a ship, destruction of a ship, theft of
cargoes on a ship, demanding ransom, receiving proceeds from the
offences of piracy, permitting pollution of water from the ship,
threat to life whether or not to solicit for ransom, providing
false claim of a piracy and other maritime offences under the
Act.

Prosecution

One aspect of the act that is commendable is the fact that it
empowered NIMASA to prosecute offences under SUPMOA albeit with the
consent of the Attorney General. Section 5 (1) provides that the
Attorney General; any law officer so designated by the Attorney
General; or the Nigerian Maritime Administration and Safety Agency
(NIMASA) with the Attorney General’s consent are empowered to
prosecute offences under SUPMOA.

Jurisdiction

As with other Maritime related offences, Section 5(2) of the Act
gives exclusive jurisdiction to the Federal High Court to hear and
determine any matter under the Act irrespective of other elements
of crime that may appear to be non-maritime related contained in
the offence.

Punishment

Section 12 provides that any person who commits an act of
piracy, armed robbery at sea or any other unlawful act under
SUPMOA, whether or not the person was armed with a firearm or other
weapon during the commission of the offence shall be liable on
conviction to life imprisonment and payment of N50, 000,000.00
(Fifty Million Naira) and in addition to restitution to the
owner.

1. SUPMOA 2019 PITFALLS

• The Piracy and Other Maritime Offences
  Fund

Section 19 of the Act provides that a fund known as the Piracy
and Other Maritime Offences Fund (POMO Fund) shall be created by
the Nigerian Maritime and Safety Agency (NIMASA). The POMO fund is
to be used for the implementation of the Act and the Fund shall be
credited from money approved by the Federal Government for the
implementation of the Act; gifts, financial contributions by
beneficiaries of the services of the maritime enforcement agencies;
35% of the proceeds of sales of any property seized and anything
forfeited under the Act including instruments used in the
commission of crimes and criminal activity under the Act; the
contribution from the maritime fund under NIMASA Act; and
contribution from the Cabotage Vessel Financing Fund (CVFF) under
the Cabotage Act 2003. Furthermore, the POMO fund is to be managed
by NIMASA.

It is hoped that the POMO fund will not suffer the same fate as
the undisbursed Cabotage Vessel Financing Fund (CVFF) created under
the Cabotage Act. Suffice to say that the POMO fund is to be
disbursed judiciously for the successful implementation of the
SUPMOA 2019.

Piracy Definition

With the full adaptation of the definition of piracy under
Article 101 of UNCLOS, the challenges associated with that
definition were also adopted.  For instance, section 4 of
SUPMOA provides that for piracy to be established, the act must be
committed for private ends or for personal gain. However, any acts
that are politically motivated do not fall within the definition of
piracy. This principle is flawed because in Nigerian political
climate, political rivals could go as far as committing criminal
act of violence against a ship or crewmen, unfortunately, it will
not amount to piracy.

Another pitfall observed, is the failure of the Act to expressly
define a ship or what constitute a ship. Similar lacuna was also
created in the Cabotage Act 2003. The failure of the Cabotage Act
to expressly describe an oil rig as a ship has been used by foreign
shipowners as an avenue for contesting the statutory powers of
NIMASA to levy its statutory fees on oil rigs employed by these
shipowners in their drilling operations until the Court finally
interpreted the act to include oil rigs that are propelled. 
The issue of what constitute a ship could have easily been averted
if the definition given by the Act was all encompassing and
sufficient to cover all ships like the Jones Act 1929 did. It is
hoped that this lacuna will not affect the effective prosecution of
offences under the Act.

• Receiving proceeds from the crime under the
  Act

Section 4(g) of the SUPMOA 2019 provides that it is an offense
to receive proceeds from the crime of piracy, armed robbery against
ships and other maritime offences at sea. The Act expressly lumped
individuals receiving proceeds from the crimes under the Act and
Corporate entities such as banks and other financial
institution.  There is need to revisit this section because
proceeds of crimes including maritime crimes usually find its way
to banks and other financial institutions without the banks knowing
the actual source of the funds.  With the enactment of this
Act, banks and other financial institutions are advised to upgrade
their KYC tools and procedure.

The Act under section 12 (1) provides that any person who
commits an act of piracy, armed robbery at sea or any other
unlawful act under the Act, whether or not the person was armed
with a firearm or other weapon during the commission of the offence
shall be liable on conviction to life imprisonment and a fine of
N50, 000,000.00 (Fifty Million Naira) and restitution. However,
section 12 (2) also provide that if during the commission of armed
robbery at sea, the offender was in possession of or had under his
control any firearm, explosive or BRCN weapon, the offender will be
liable on conviction to at least 15 years imprisonment.  There
is need to revisit the punishment section because of the disparity
and ambiguity.

V. RECOMMENDATION

The aim of SUPMOA 2019 is to prevent and suppress piracy, armed
robbery and other unlawful act against ships, aircraft and other
maritime craft. But these maybe difficult to achieve if the
necessary tools are not put in place for the effective
implementation of the Act. The following tools are recommended;

1. Establishment of a National Coast Guard

NIMASA has been empowered under the Act to enforce the SUPMOA
2019. However, NIMASA being a civil entity is not fully equipped to
effectively carry out the enforcement of SUPMOA 2019. For this
revolutionary Act to be effective and cure the menace of sea
crimes, it therefore calls for establishment of a national Coast
Guard empowered by law according to international maritime best
practices. The role of the national Coast Guard is to safeguard the
territorial and internal waters of a Coastal State while the Navy
patrols the High Seas and protect the Costal State against external
aggression. The time to establish a national Coast guard is
now.

1. Funding

The Nigerian navy needs to be fully supported and funded and
there should be a collaboration between the Nigerian navy and
international navy in safeguarding the high seas around the coast
of Nigeria and the Gulf of Guinea.

1. Creating Maritime Division Court

Maritime matters are of specialized knowledge as such, there is
an urgent need to create a specialized divisional court to handle
maritime matters presided over by trained maritime judges for the
speedy dispensation of offenses under the Act. With NIMASA’s powers
to prosecute albeit with the consent of the Attorney General,
offences under the Act will be prosecuted swiftly, hence the need
to have a maritime court readily available to dispense justice.

VI. CONCLUSION

The Suppression of Piracy and Other Maritime Offences Acts
(SUPMOA) 2019 is a much-needed intervention in the Nigerian
maritime sector and for the security of Nigerian territorial and
internal waters. With the Act criminalizing the offences of piracy,
armed robbery against ships, cargo theft and other related maritime
offences, Nigeria will be taken seriously in the international
maritime community. Nigeria has taking the necessary steps not only
to improve security within her territorial waters, this Act will
also help to curb the menace at seas internationally.

WRITTEN BY; CAROLINE TOKULAH-OSHOMA
(MRS) Associate – Olisa Agbakoba Legal
(OAL) Email: [email protected]^[1]