By Ogunnusi Morolake Afolasade
Having previously discussed the legal regime on bunkering in Nigeria, and the necessity for approval based on obtainment of license from the Minister of Petroleum Resources , it is equally important to discuss the agencies involved in the enforcement of these laws in order to prevent illegal oil bunkering. Enforcement of the laws on bunkering:
The enforcing bodies that would be considered as regards the enforcement of laws relating to oil bunkering are the Nigerian Navy (NN) and the Police.
The role of the Nigerian Navy in coordinating the enforcement of laws relating to Anti-bunkering:
Armed Forces Act 1993[1] Section 1 (3) states that the Armed Forces (which consists of the “Army”, “Navy” and “Airforce" shall be charged with the defence of the Federal Republic of Nigeria on land, sea and air and with other duties as the National Assembly may from time to time prescribe or direct by an Act. Furthermore, it is important to note Sec 1(4)(a)(i)[2] which “states that notwithstanding the generality of the provisions of subsection (3) of this section, the Nigerian Navy shall in particular be further charged with coordinating the enforcement of all customs, laws including anti-bunkering laws, fishery and immigration laws of Nigeria at sea”.
The role of the Nigerian Navy in assisting The Nigerian Police with the investigation relating to illegal oil bunkering:
Apart from the role of the Navy in coordinating the enforcement of laws relating to Anti bunkering as stated in the Armed Forces Act, the Nigerian Navy also has a duty to assist the Nigerian Police in investigating offences relating to oil bunkering. Sec 217 of the Constitution of the Federal Republic of Nigeria[3], the Navy is one of the Armed Forces to defend Nigeria from external aggression, maintain its territorial integrity and secure its borders from violation of land, sea and air.
The provision of Sec 1(4) of the Armed Forces Act 1993 [4] has a problem of definition as regards the statutory powers conferred to the Navy. It is important to note that though the nature of implementation and support of the organisation of “anti-bunkering” laws is not specified, it has been taken to include using firepower and boat and also patrol and surveillance to ensure arrest and detention of erring ships and later hand them over to the police for investigation and prosecution by the Attorney General of the Federation. The Navy arrests erring vessels though arrest of vessels is not by search warrants, the Navy is purported to be empowered by its enabling statute and the constitution [5] It is also important to note the constitutional requirement as regards compulsory taking. Sec 44(1)[6] states that there should be no compulsory taking or possession of movable property or any interest in an immovable property, there should also be no compulsory acquisition, right or interest in any such property except in the manner provided by law . Sec 44(2)(k) [7]also states that there should be nothing in the provision of Section (1) that would affect the position of the general law, as it relates to the temporary taking or possession of property for the purpose of any examination, investigation or enquiry. "Moveable property” would include a ship or bunkering vessels and bunkers. The Nigerian Navy’s role in reducing the theft of the barrels of oil per day to the bearest minimum at the peak of the Niger-Delta crisis, led to the arrest of over 150 vessels and barges as the activities of the restive youth and militants were beginning to have an effect on the revenue of governments in the oil producing states hence stifling development in those states before the declaration of amnesty[8], which was introduced by the Late President YarAdua administration which allowed militants to lay up their arms. This program was the last ditch solution to the lingering problems in the Niger Delta region, as the crisis in the region had grown to the point of embarrassment for the entire country because the period before the amnesty was covered by a whole lot of activities including kidnapping of expatriates (and even Nigerian) workers in the oil sector, blowing up of flow stations and sundry activities which sometimes bordered on criminality[9].
This crisis is caused by the militants among which are a secretive armed group of hooded rebels operating under the name Movement for the emancipation of the Niger Delta (MEND)[10]. The restive youth in Niger Delta are also responsible for the crisis because of the political marginalization of the inhabitants of the Niger Delta region where oil was discovered in 1957. The argument for the crisis is that oil has been more of a curse than a blessing to the Niger Delta people who have been at the receiving end of the horrendous government oppression and brutality- causing the people to remain in abject poverty without the basic amenities such as water and electricity[11]. The Nigerian Military under the aegis of the Joint Military Task Force have been battling the militants since 2006 when the Movement for the emancipation of the Niger Delta started its violent activities. Although the military have tried their best to fight the militants, the latter have been able to withstand the military because of their access to sophisticated weapons which they use in attacking oil platforms.[12]
Apart from arrest of erring ships, Sec 1(4)[13] The Nigerian Navy also has a right to protect ships that are under detention until completion of the police investigation and prosecution by the Attorney General of the Federation[14].
The positive impact of the Nigerian Navy on illegal oil bunkering: Intensification of efforts to arrest vessels for illegal activities-
As earlier stated, 150 barges were arrested at the peak of the Niger Delta crisis[15]. Since 2003, when the naval patrols intensified efforts, the Navy has arrested over 236 ships, tugboats and barges engaged in crude oil theft, illegal bunkering and other illegal activities on the high seas, resulting in about an 80 per cent reduction in crude oil theft over the last three years. The Navy’s effort was due to the fact that Nigeria was losing an average of 160 000 barrels of crude oil per day to criminal elements; the ļ¬gure has since been brought down to less than 30 000 barrels per day (according to NNPC figures) or 10 000 barrels (according to the Nigerian navy)[16].
Punishment of Naval officers who engage in illegal activities:
The Nigerian Navy has a duty to implement anti-bunkering laws which has been taken to include arrest and detention of ships, Sec 1(4)Armed Forces Act[17], where the officers prejudice a conduct of service discipline contrary to Sec 103 of the Armed Forces Act[18] which states that “A person subject to service law under this Act who is guilty of a conduct or neglect to the prejudice of good order and service discipline is guilty of an offence under this section and liable, on conviction by a court-martial, would be subject to imprisonment for a term not exceeding two years or any less punishment provided by this Act.
In a recently decided case between an ex Naval officer and the Federal Government of Nigeria[19] , where the Appellant before the decision of the Supreme Court was subject to a dismissal by the court martial and reduction of his rank to Commodore. This decision was also upheld by the Court of Appeal .The accused person together with two other officers, effected the disappearance of vessel MTAfrican Pride ( arrested with a cargo of stolen crude oil )from lawful custody. The officers were supposed to hand over the vessel to the police but failed to do so contrary to Sec 103 of the Armed Forces Act[20]
NUTSHELL:
This is the second installment by Morolake Ogunnusi on laws relating to anti-bunkering activity. Unless I am mistaken, Nigeria is the only place in the world which has recorded the sheer scale and magnitude of the phenomenon known as "bunkering". To make matters worse, the Nigerian Navy has been reduced to the status of a mere onlooker- unable to stem the tide of this worrisome national and regional embarrassment. The NNPC may claim to have reduced oil bunkering to less than 30,000 barrels of oil per day (bopd) however industry observers will note that this is mere 'rhetoric'. Recently the Nigerian Finance Minister- Ngozi Okonjo-Iweala informed Nigerians that the country is losing about a fifth of its annual oil revenues to oil bunkering. To put this in perspective, Nigeria still loses about 150,000 bopd (more than the entire oil production per day for Ghana). Now the question is: how does Nigeria resolve this situation in which the Navy appears helpless at best and complicit in the worst case scenario? How does Nigeria improve the efficacy of its anti-bunkering laws? Will an adjustment of the laws help to nip this bunkering phenom in the bud? It remains to be seen.... What are your thoughts on this?
[1] . Armed Forces Act 1993- Chapter A20 of the Laws of the Federation of Nigeria No 105 1993
[2] . ibid
[3] . op cit @ no 16
[4] . op cit @ no 298
[5] . op cit @ no 1 pg 9-The Minister of Petroleum Resources or any person authorised by him is empowered pending the trial of any violator or(person or body corporate) to interalia cause the arrest or seizure of any cargo or ship in which crude is carried arrest or cause to be arrested and handed over to law enforcement agent
[6] . op cit @ no 16
[7] . ibid 9
[8] . Nigerian-navy.blogsot.com-Nigerian Navy today-Tuesday, March 8,2011
[9] . From Militancy to Amnesty: Some thoughts on President Yaradua’s Approach to the Niger Delta crisis @ pg 136 – V. Egbemi Department of Political Science Kogi State University, Anyigba, Nigeria-(maxwellsci.com)
[10] . Nigeria’s Niger Delta crisis: Root causes of peacelessness issue 07/07 @pg 8- Hassan Tai Ejibunu(epu.ac.at)
[12] . op cit at no 38 pg 23
[13] . op cit @ no 29
[14] . op cit @ no 1 pg 8
[15] . op cit @ no 36
[17] . op cit @ no 29
[18] . ibid
[19] . it was held by the Supreme court that though offences preferred against the appellant
are of great concern to the Nigeria as a nation economically and security wise, and nobody ought to be let off on technicalities of them, but rules of evidence and statutory procedure must be followed to the latter in prosecution of criminal cases .Judgement was given in favour of the appellant as the court martial breached the fundamental human rights provision of the appellant as stated in Sec 36(1) of the 1999 constitution by not hearing the appellant’s side, the court was also not properly constituted.
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