INTRODUCTION
The maritime sector serves a vital role in global trade and commerce. It facilitates the movement of goods, resources, and people across borders. In every country, the waters are integral to the nation’s socio-economic development, supporting industries such as oil and gas, shipping, fishing, and tourism. Despite this importance, the maritime sector faces significant security challenges, such as being susceptible to persistent threats of piracy and other maritime offenses.
In an attempt to put an end to this, several international conventions have been put in place. However, it should be noted that the definitions of piracy in those instruments have been criticized for having limitations. For instance, under the United Nations Convention on the Law of the Sea, piracy only occurs on the high seas. This is the same as in the Rome Convention.
The Nigerian government enacted the Suppression of Piracy and Other Maritime Offenses Act (SPOMO Act) in 2019. Prior to its enactment, it was hard to successfully prosecute pirates in Nigeria, as the Nigerian Constitution does not allow the conviction of anyone of an offence that is not in a written law. This legislation represents a crucial step towards enhancing maritime security and combating criminal activities at sea. By giving comprehensive definitions of acts of piracy, armed robbery at sea, and other unlawful acts perpetrated within Nigeria’s territorial waters and exclusive economic zone (EEZ), the SPOMO Act aims to deter would-be offenders and protect the integrity of maritime activities.
LEGAL ANALYSIS OF THE SUPPRESSION OF THE PIRACY AND OTHER MARITIME OFFENCES ACT (SPOMO ACT)
The SPOMO Act provides a comprehensive legal framework for addressing maritime insecurities, empowering law enforcement agencies to investigate, prosecute, and punish perpetrators of maritime crimes and other related offenses. Furthermore, the Act incorporates key international legal instruments, aligning Nigeria’s legal framework with global standards and enhancing cooperation with international partners in combating maritime threats. After all, the Act was made to give effect to the provisions of the United Nations Convention on the Law of the Sea (UNCLOS), 1982, and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA), 1988, alongside its Protocols.
Under the 1982 UNCLOS, piracy is defined as consisting of any of the following acts:
(a) any illegal acts of violence or 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) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, person or property in a place outside the jurisdiction of any State;
(b) any 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;
(c) any act of inciting or intentionally facilitating an act described in subparagraphs (a) or (b).
The limitations in the above definition are very glaring, as it applies only to attacks committed in the high seas and for private purposes. Also, according to the definition, the involvement of two ships is required. In other words, attacks in the territorial sea or the internal waters of a coastal state, committed by stowaways or crew members, ship hijacking, attacks by criminals onboard, and so on, for political ends and national interests, do not constitute piracy. This is obviously a loophole in international law, since a good number of pirate attacks are committed within the jurisdiction and territorial sovereignty of a coastal state. Another issue faced is that, prior to its enactment, it was hard to successfully prosecute pirates in Nigeria, as the Nigerian Constitution does not allow the conviction of anyone of an offence that is not in a written law.
In an attempt to take care of the above lacuna in Nigeria, the SPOMO Act was enacted. The first offence identified by the Act is the offence of piracy. Although in slightly different wording, the Act aligns itself with the UNCLOS definition of piracy. The Act provides as follows:
Piracy consists of any
(a) illegal act of violence, detention or depredation committed for private ends by the crew or any passenger of a private ship or aircraft and directed
(i) in international waters against another ship or aircraft or against a person or property on board the ship or aircraft, or
(ii) against a ship, aircraft, person 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 intentionally facilitating an act described in subparagraphs (a) or (b).
We can say the Act has successfully domesticated the provisions of the UNCLOS, 1982, the SUA, 1988, and its Protocols regarding the offence of piracy. This was unlike before, when it was hard to successfully prosecute pirates in Nigeria, as the Nigerian Constitution does not allow the conviction of anyone of an offence that is not in a written law. However, from the above, it is clear that Section 3 of the Act is just a reproduction of what we have in Section 101 of UNCLOS 1982.Thus, the lacuna has not been taken care of.
More so, the Act recognizes a number of offences tagged “maritime offenses,” including armed robbery at sea, theft of ships, violence against persons on board ships or aircraft, destruction or damaging of ships, aircraft, or their cargo, demanding ransom or monetary payment in connection with piracy or maritime offenses, use of explosives, radioactive material, or weapons in a manner causing death or serious injury or damage, receiving, concealing, or disposing of ransom or proceeds of piracy or unlawful acts, et cetera.
Another vital provision of the Act is the grant of power to prosecute maritime crimes. Thus, the Nigerian Maritime Administration and Safety Agency (NIMASA) is empowered to prosecute any offence under the Act upon obtaining the consent of the Attorney General. Also, any offence under the Act may be prosecuted by the Attorney General of the Federation or any law officer so designated by the Attorney General’s Office. The Act grants the Federal High Court exclusive jurisdiction to try offences under the Act.
Part 2 of the Act provides for offences, penalties, forfeiture, and restitution. Basically, if someone commits a crime under this Act, they can get life imprisonment and a fine of 50 million Naira. They also have to pay back the owner. This is meant to discourage maritime crime. But there is a problem: under the immediate subsection. if the offender uses a firearm or a BRCN weapon during an armed robbery at sea, they only get 15 years in prison. This is not only inconsistent with Subsection 1 but also doesn’t even match the severity of the crimes or the goal of fighting maritime threats in Nigeria’s waters.
CHALLENGES OF SPOMO ACT
The Act is a great step forward in fighting maritime insecurity in the country. However, there are some areas that could be improved. One of such challenges is the adoption of the UNCLOS definition of piracy, which has its limitations. For example, it only considers piracy for private ends, involving at least two vessels, and for profit. In recent times, ship hijackings have had other motives, like religious or ideological reasons. Writers have been categorized into Criminal and Terrorist Piracy. Criminal piracy is carried out by a group. They might be organized or unorganized. So, it cannot always be classified as part of organized crime activities, as in a few cases, “opportunists” have taken advantage of unstable or unsecured environments to carry out piracy activities. The purpose of this is usually financial and material gain and has no ideological or political dimensions. The main objective, as in the case of other criminal activities, is to secure personal financial benefit. So, this is the only form of piracy anticipated by the Act.
Whereas, there can be terrorist piracy. Terrorist piracy is usually politically motivated and practiced by a small number of terrorist or insurgent groups, prominent among them being the Tamil Tigers in Sri Lanka and the Abu Sayyaf group in the Philippines. Terrorist piracy, or the use of piracy tactics by political groups, has a number of motives and objectives, such as gaining a major financial source to support the militant group’s military and political activities, causing embarrassment to the government as it would demonstrate its inability to impose control over the state’s territorial waters, and denying access to some areas (area denial) by establishing a maritime no-go zone to prevent the government and other unfriendly parties from navigating in certain parts of the waters.
Another limitation is the lack of a clear definition of a ship, which raises questions about NIMASA’s jurisdiction over crimes related to oil rigs and drilling vessels. Another challenge is with the provisions of Section 12, Subsections 1 and 2, of the SPOMO Act discussed above. The Act provides to the effect that the punishment for crimes committed under the Act is life imprisonment and a fine of 50 million Naira. However, the inconsistency arises when immediate Subsection 2 provides to the effect that if the offender uses a firearm or a BRCN weapon during an armed robbery at sea, they only get 15 years in prison.
THE DEEP BLUE PROJECT
Moving further, the Nigerian Government launched the Deep Blue Project in Lagos. The project aims to enhance maritime security and protect our waters. This has definitely contributed to better domain awareness and economic diversification. The Deep Blue Project addresses several challenges in the Nigerian maritime sector. One of the main challenges is the high incidence of piracy and sea robbery in our waters. These criminal activities not only pose a threat to the safety of our people but also hinder economic activities such as shipping and fishing. The project aims to tackle these crimes head-on and ensure the safety and security of our maritime environment. Additionally, the project will enhance the prosecution and punishment of offenders through the SPOMO Act passed in 2019.
CONCLUSION
Flowing from the above, it is clear that despite the shortcomings of the SPOMO Act, it has been a great legal approach towards addressing maritime insecurities in Nigeria. Evidently, the Act domesticated the provisions of the UNCLOS, regarding the offence of piracy, particularly with reference to Section 3 of the Act. This paper, in analyzing the approach of the SPOMO Act in combating maritime insecurity in Nigeria, appreciates the definition of piracy under UNCLOS and the SUA Convention together with its limitations. It also appreciates the definition of piracy under the Act, its shortcomings, and other relevant provisions of the Act. This paper goes further in its approach to assessing the launch of the Deep Blue Sea channeled towards implementing the SPOMO ACT.
This Article Was Written By: ISSA ABDULAZEEZ ATERE, LL:B (UNILORIN), BL (IN VIEW)
contact via email/phone no: issaforyouu@gmail.com; +2348141970801
Source: BarristerNg
