The Social Media Bill: The Government’s Attempt At Monopolizing Truth | Michael Orekoya
report, false information and incendiary images on Facebook have contributed to
more than a dozen killings in Plateau state.[1] In 2018 there was a false
alarm, on Facebook, of an impending massacre of the Christian Berom people of
Plateau state by Fulani Muslims. Grim
images of murdered children and corpses buried in mass graves were circulated
online.
urgent need to combat the menace of falsehood online. It must be noted that the
raging menace of falsehood online is not peculiar to Nigeria as various
jurisdictions around the globe have taken deliberate legislative and
non-legislative steps in addressing it.[2] In 2016 the Nigerian
legislature proposed the “Frivolous Petitions (Prohibition) Bill” also called the
Anti-Social Media Bill by those who criticized it. Section 3(4) of the bill
sought to regulate social media by criminalizing “abusive statements” online
known to be false by the author. This bill was however vehemently rejected by
majority of Nigerians and was subsequently withdrawn by the Senate following
the recommendations of the Committee on Judiciary, Human Rights and Legal Matters
which stated inter alia that the passage of “the bill will do more harm than
good”.
Niger State East Senatorial District sponsored the “Protection from Internet
Falsehoods and Manipulations and Other Related Matters Bill 2019”. On the 20th
of November the bill reached second reading in the Senate. Like the frivolous
Petition Bill, this bill has stirred up controversy and questions regarding its
validity have been asked in several quarters. This article intends to discuss
the constitutional validity of the bill, examine specific provisions in the
bill and their implications, and proffer recommendations upon engaging in a
comparative study.
RIGHT TO FREEDOM OF EXPRESION
constitution states that; every person shall be entitled to freedom of
expression, including freedom to hold opinions and to receive and impart ideas
and information without interference. Subsection (2) provides that every person
shall be entitled to own, establish and operate any medium (including social
media) for the dissemination of information, ideas, and opinions. Freedom of
expression is, however, not an absolute right as they carry duties and
responsibilities, meaning government can restrict it. Article 19(3) of the
ICCPR provides that every lawful restriction on the freedom of expression must
comply with the following:
The restriction must be provided by law
The restriction may be based on :
Public order, morality or health
Respect for the right and reputation of others
The restriction must be proportionate and
necessary.
constitution contains similar provisions. According to the Oakes test[3]
developed by the Supreme Court of Canada, proportionality involves comparing
the importance of the right and the likely effect of the restriction on the
exercise of that right with the importance of the goal or the legitimate aim
which is sought to be protected. Also the Supreme Court of India in Ranagarajan
v. P.J Ram[4]
held that there must be a very close link between an expression and a threat of
a disturbance for a law restricting such expression to be deemed necessary.
on the basis of public order or safety to be considered necessary:
There must be a pressing need as minor
threats to protected interests do not pass the threshold test for restricting
freedom of expression.
The government should adopt measures that are
least intrusive and are most conducive to freedom of expression.
Legitimate expressions should not be hampered
by the restriction as harmful expressions should be the focus.
The limitation should be proportionate. This
means a limitation should not cause more harm than good.
the defendant was convicted for spreading false news contrary to
Section 181 of the Canadian Criminal Code which stated: “Everyone who willfully publishes
a statement, tale or news that he knows is false and that causes or is likely
to cause injury or mischief to a public interest is guilty of an indictable
offence…” Upon appeal, the Canadian Supreme Court held that Section 181
of the Criminal Code violated Section 2(b) of the Canadian Charter of Rights
which guaranteed freedom of expression as even lies and false statements are
protected forms of expression. In this case, the Canadian court examined the
legislative objective of the Code and determined that there was no pressing and
substantial objective attached to it. It was further held that Section 181 suffered
from vagueness and was overly broad hence it could affect a broad range of
expression and speech.
BILL
states that a person who does any act within or outside Nigeria in order to
transmit in Nigeria a statement knowing or having reason to believe it is false
and the transmission in Nigeria is likely to, among other things, be
prejudicial to public health, public safety, public tranquility or public
finances and diminish public confidence in the performance of any duty or
function of, or in the exercise of any power of the government is liable upon
conviction, in the case of an individual, to a fine not exceeding N300,00 or to
imprisonment to a term not exceeding 3years or both, while in any other case, to
a fine not exceeding 10 million.
note that there’s a great risk that the law will be misused to clamp down on
opinions or information that are critical of the government as the General Interpretation
Section of the Bill states that “a declaration is false if it is false or
misleading, whether wholly or in part, and whether on its own or in the context
in which it appears”. A lack of clear definition of what the bill
regards as falsehood would not serve the ends of justice as the bill, if signed
into law, will end up targeting a wide range of expressions. Just like Section
181 of the Canadian Criminal Code, this provision suffers from vagueness and is
overly broad.
point that the bill bears direct semblance with Singapore’s Protection from
Online Falsehoods and Manipulation Act.[6] Singapore is a ‘democratic’ country but it is
ranked 151 out of 170 countries in the World Press Freedom Index, hence Singapore
is a bad model when it comes to laws regulating falsehood online.[7] Among other things, the
stated objective of the Bill is to prevent the transmission of false statements
on the internet and to enable measures to be taken to counter the effect of such
transmission.
Law Enforcement Department (The Police) the power to direct the Nigerian Communications
Commission (NCC) to order the internet access service provider to take
reasonable steps to disable access by end users to a declared online location.
Contrary to popular opinion, the Access Blocking Order does not grant the
government the power to shut down the internet, it could however be used to
prevent Nigerians from accessing online platforms that check the excesses of
the government in the name of ‘falsehood’. Clause 18 of the bill also provides
for a Disabling Regulation which can be issued to an internet intermediary like
Facebook or Google to disable access by end-users in Nigeria to a particular
publication that is deemed ‘false’.
Bill respectively make provision for ‘Correction’ and ‘Stop Transmission’
Regulations. Under this regulation, the government can order a person to make a
declaration, in such terms as may be specified by the government, that a
transmitted material contains a false declaration of facts. In Singapore, where
a similar law applies, a Facebook post by an opposition politician that
questioned the governance of the state’s sovereign wealth funds and accused the
government of mismanagement were considered by the Singapore government as
“false”.[8] The Singapore officials
ordered the accused to publish the government’s refutation at the top of their
posts. The original post was then published with the word “FALSE” boldly
stamped across its pages. In another development, Facebook announced that it
had applied a label to a post “determined by the Singapore government to
contain false information”, as required under the “fake news” law. This post by
an Australian based blog which claimed the police had arrested a
“whistleblower” who “exposed” a political candidate’s religious affiliations
was issued a corrective label by Facebook.[9]
13 (2), the bill stated that no appeal may be made to the high court by any
person unless the person has first applied to the Law Enforcement Department
(The Police) to vary or cancel the sanctions imposed. It has been argued that
Clause 13(2) is necessary to prevent falsehood from spreading quickly. It must
however be stated that this provision makes the Police the judge and the jury
in its own matter. Furthermore, the red tape in the Nigerian Police might
discourage individuals from appealing against a sanction hence defeating the
ends of Justice.
34 gives the government power to make regulations “necessary” or “convenient”
in carrying out or giving effect to the act.
This blank cheque given to the government, particularly the police force
in enforcing the provisions of the act is a source of worry to many, including
the author, as it could serve as a leverage for violating the right to freedom
of expression by a police force that is notorious for its ruthlessness in
dealing with dissidents.
does not have any specific law prohibiting the dissemination of falsehood
online unless that information is defamatory and is covered by libel laws or
within the sphere of broadcasting regulations.[10] Section 181 of the
Canadian Criminal Code which prohibits the spreading of false news was declared
unconstitutional by the Supreme Court of Canada. However the hate propaganda
provisions in Section 318 and 319 of the Criminal Code can be used to deal with
false news which promotes hatred.
specific regulation prohibiting the dissemination of fake news; it however has
legislations against fake news in general. The 1881 Law on Freedom of the Press
can be used by the government to stop the spread of fake news that could
disrupt public peace. However France recently adopted a new law that requires
large-scale online platform operators to adhere to certain standards during the
three months preceding general elections.[11] The new law, among other
things, provides that a judge may order any proportional and necessary measure
to stop the dissemination of fake or misleading information online.
enacted the Computer Misuse and Cyber Crimes Act. This act criminalizes “false
publications” and the “publication of false information”. However major
provisions of the Act were suspended by the Constitutional and Human Rights Division
of the Kenyan High Court.[12] The provisions remain
suspended to date.
UK does not currently have any specific regulation on false news online.
However several reports have been issued, recommending tech companies to remove
content identified as harmful or they will be penalized. The UK has adopted a
pre-emptive response strategy targeted at predictable events such as elections.
There is a rapid response unit that is comprised of specialists including
analyst-editors, data scientists, media and digital experts. The rapid response
monitors news and information been shared online, assesses the scale of
engagement to determine whether it is appropriate to respond to the content and
creates appropriate content with the aim of balancing the narrative. The rapid
response targets the content such that the “correct content” is visible to the public.
study it can be deduced that in the “free world” laws specifically regulating
news on social media are considered unconstitutional and a violation of the
right to freedom of expression. Also the difficulty in defining “false or fake
news” raises the risk of an overbroad government legislation that might
eventually clamp down on opposition or any form of criticism as it is with
Singapore. Unfortunately there is no hard and fast or permanent fix to the
menace of falsehood on the internet; nonetheless there is is a need to address this
menace:
users should be better educated so that they can easily distinguish credible
sources from sources notorious for peddling news that are false. Internet users
should be better enlightened on the actors and stakeholders and their
affiliations in a given story. Critical news consumption skills that would help
to identify and question unverified details should be incorporated into school
curriculum or promoted through government sponsored programs. For example in
2018 the United States Embassy in Kenya started a media literacy campaign known
as “YALI Checks: Stops.Reflects.Verify” to counter the spread of false
information online in Kenya.[13] This campaign provides a
mix of online activities, including an email series, an online quiz, blog posts,
online chats, public outreach, educational videos, and an online pledge. This
solution is long term and it requires the government’s commitment to yield
results.
like Japan, Canada, Sweden and the United Kingdom have refused to enact
legislations that expressly address or regulate news on social media; rather
they apply relevant provisions of existing laws regulating the media. These
laws could however be amended to reflect current technological and
telecommunications development. Despite being unconstitutional, the Cyber
Crimes (Prohibition, Prevention etc.) Act 2015 already addresses falsehood
online. Section 24 of the Act provides that; anyone who sends a message or other matter by means of computer knowing
it to be false, for the purpose of causing annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or
needless anxiety to another commits an offence. Section 2 of the act
further states that; any person, who intentionally transmits any
communication through a computer system or network to bully, threaten or harass
another person, where such communication places another person in fear of
death, violence or bodily harm to another person commits an offence.
Also Section 373, 375 and 376 of Nigeria’s Criminal Code as well as the
Defamatory and Offensive Publications Act all criminalize defamation. Section
59(1) and (2) of the Criminal code are also used to try false publication
offences.
NCC recently created a technical framework for the use of social media Network
in Nigeria.[14]
This framework attempts to provide a baseline for social media governance,
policy and guidelines to help the individual, businesses or the government.
However, in addition to this, the NCC should create an accreditation system and
a fact-checking portal for content creators and distributors. This accreditation
system will inculcate and promote existing news gathering and reporting norms
and best practices for online platforms. Independent accreditation institutions
could be created as long as they do not undermine the right to the freedom of
expression. The accreditation system should be designed and closely monitored in
such a way that it will not be manipulated by the government in silencing
online news platforms or promoting government-approved news.
countries rated low in the freedom of speech indices to enact legislations with
broad definitions in an attempt to further restrict free speech and stifle
opposition. In Canada and Kenya such laws have been deemed unconstitutional and
have been suspended. The Protection from Internet falsehood and manipulation
Bill 2019 which shares a direct similitude with Singapore’s oppressive
Protection from Online Falsehoods and Manipulation Act has no place in
Nigeria’s democracy as it specifically grants the government monopoly over the
truth.
[1] BBC
News, Fake news and Nigeria’s herder crisis, 29 June 2018,
https://www.google.com/amp/s//www.bbc.com/news/amp/world-africa-44655148/
[2]
BBVA, Fake news: the figures and solutions of a global phenomenon, 16 May 2018 https://www.bbva.com/en/fake-news-the-figures-and-solutions-of-global-phenomenon/
[3] R
v Oakes, (1986) 1 SCR 103
[4]
1989 SCR (2) 204
[5]
(1992) 2 S.C.R. 731
[6][6]
The Cable, Fact Check: Is Nigeria’s ‘social media bill’ truly a replica of
Singapore’s act? https://www.google.com/amp/s/www.thecable.ng/fact-check-is-nigerias-social-media-bill-truely-a-replica-of-singapores-act/amp
[7]
Reporters Without Boarders, 2019 World Press Freedom Index
[8] Theguardian.com,
Singapore invokes ‘fake news’ law for the first time over Facebook post https://www.google.com/amp.theguardian.com/world/2019/nov/25/singapore-fake-news-law-facebook-brad-bowyer
[9]
Reuters, Facebook Issues Label on user’s post under new Singapore fake news law
https://www.google.com/amp/s/mobile.reuters.com/article/amp/iduskbn1y4043
[10]
CBC, MPs Look For Ways to Fight ‘Fake News’ in Wake of Mosque Shooting, Kathleen
Harris, Feb. 2, 2017, https://www.cbc.ca/news/politics/canada-fake-news-google-facbook-twitter-1.3961992
[11]
Organic Law No. 2018-1201 of 22 December 2018 Regarding the Fight Against
Information Manipulation
[12]
Bloggers Association of Kenya (Bake) v Attorney General & 5
others(2018)eKLR at 1,
[13]
U.S. Embassy in Kenya, Ambassador Godec and U.S Embassy Counter Fake News with
Media Literacy Campaign, March, https://ke.usembassy.gov/ambassador-godec-u-s-embassy-counter-fake-news-media-literacy-campaign/
[14]
NCC, Technical Framework for the Use of Social Media Network in Nigeria version
1.0, June, 2019
https://www.ncc.gov.ng/documents/871-igov-technical-framework-social-media/file
Competition Law in Nigeria | Ayotunde Abiodun
traders, guilds and Governments have always been subject to scrutiny, and
sometimes severe sanctions. The history of Competition Law reaches back to the
Roman Empire. Competition Law is a legal framework put in place to promote or
maintain Market Competition by regulating anti-competitive conduct by
Companies.[1] Competition Law is implemented through public
and private enforcement.
a deep supply market for Consumer goods and services, not just to ensure that
there are many Suppliers in the market for particular goods and services, but
to ensure that such Suppliers play according to a set of rules that would make
it difficult for any of them, individually or as a group, to lessen or
eliminate Competition in the Market. [2] According to Leonard Ugbajah,”In a free market economy (in a
market where there is competition), the consumer is King”. The underlying
factor for Competition Law is Consumer Protection. Competition Law is also known as “anti-trust law” or “anti-monopoly
law” in other Jurisdictions.
varies from Jurisdiction to Jurisdiction. The important objectives of Competition
Law are to protect the interests of consumers and ensure that Entrepreneurs
have an opportunity to compete in the Market economy. Competition Law has been
viewed as a way to provide better public services.
rules promoting Competition in the Marketplace before 2019. On the 5th
of February 2019, the Federal Competition and Consumer Protection Act (FCCPA)
2019, was signed into law. This can be regarded as the first comprehensive
Competition law in Nigeria.[3]
Prior
to the enactment of this Act, there was no single legislation regulating
competition in Nigeria. This Act supersedes all other laws regulating
Competition in Nigeria such as the Investment and Securities Act 2007, the
Nigerian Communications Act 2003, the Electric Reform Act 2005, except the 1999
constitution of the Federal Republic of Nigeria.[4] These Acts were
Sector-specific. The FCCPA introduced a consolidated legal-regime for
Competition in Nigeria. The Provisions of the FCCPA have an overriding effect on
other regulations dealing with Competition and Consumer Protection matters in
Nigeria. [5]
and Consumer Protection Commission and the Competition and Consumer Protection
Tribunal for the promotion of competition in the Nigerian markets at all levels
by eliminating monopolies, prohibiting abuse of a dominant market position and
penalizing other restrictive trade and business practices.[6] The activities of
the Consumer Protection Commission have been taken over by the Federal
Competition and Consumer Protection Commission, established by the FCCPA.
promoting and maintaining a Competitive market in Nigeria, promoting economic
efficiency, protecting consumer interests and welfare, prohibiting restrictive
and unfair business practices and ensuring that the development of the Nigerian
economy.[7] This would bring
about more taxable businesses, more spending by the consumers, variety of goods
and services, business striving for more quality in their manufacturing and
packaging etc. These are beneficial to the Nigerian Economy.
Firstly, it establishes the Federal Competition and Consumer Protection
(Commission) and the Competition and Consumer Protection Tribunal for the
promotion of competition in the Nigerian markets at all levels by eliminating
monopolies, prohibiting abuse of a dominant market position and penalizing
other restrictive trade and business practices. The activities of the consumer
Protection Commission have been taken over by the Federal Competition and
Consumer Protection Commission, established by the FCCPA.
issuance of rules and regulations to govern competition and consumer protection
matters and the elimination of all anti-competitive agreements.[8] The Commission also
resolves disputes, address complaints, issue directives and apply sanctions
when necessary.[9]
concurrent jurisdiction to regulate matters relating to competition and
consumer protection with other sector-specific regulatory bodies. The
Commission is also empowered to determine appeals or requests to review the
exercise of power by sector regulators on matters affecting competition.[10] This implies that
the Commission may overturn a decision made by any sector-specific regulator.
the establishment of a Competition and Consumer Protection Tribunal to conduct
trials over activities, which are prohibited by the Act. Sections 39(2) and
Section 47(1) of the FCCPA provides that the Tribunal can also hear appeals on
decisions made by the Commission or Sector-specific regulatory authorities and
impose penalties for prohibited acts. The Tribunal can also review decisions
made by any sector-specific regulatory authority on issues arising from
competition and consumer protection. The Tribunal can only exercise this power
where such appeals or reviews have been heard by the Commission.[11] The Act also provides
that the decisions of the Tribunal must be registered at the Federal High Court
prior to its enforcement.[12]
Protection Act has also created a new regime for Mergers. Sections 118 to 128
of the Investment and Securities Act (ISA), which deal with mergers and
acquisition, have been repealed by the Act. The Commission has been empowered
to prohibit and approve mergers. That is, the Securities and Exchange
Commission no longer regulates mergers and acquisitions in Nigeria. The FCCPA
has a key difference as it provides for the inclusion of a Joint venture as a
means by which a merger can occur in (section 92(1) (b) (iii) of the FCCPA.
Intermediate mergers are not contemplated under the FCCPA as it prescribes only
two categories of mergers- small and large mergers.[13] Approval of small
mergers will be granted within 20 business days of filing the merger
notification[14]; whilst the approval
of large mergers will be granted within 60 days following the satisfaction of
the merger notification requirements.[15]
an agency of Government of the Federation or agency of the Subdivision of the
Federation and all commercial activities aimed at making profit and geared
towards the satisfaction of demand from the public. The Act also regulates
Conduct outside Nigeria by a citizen of Nigeria or a person ordinarily resident
in Nigeria; a body Corporate incorporated in Nigeria or carrying out business
within Nigeria; any person in relation to the supply or acquisition of goods
and services by that person in relation to the acquisition of shares or other
assets outside Nigeria resulting in the change of control of a business, part
of a business or any assets of a business, in Nigeria.
bring about the advancement of the Nigerian economy by creating an enabling
business competition for healthy competition in the various sectors and
industries across the Nigerian Market.
[1] (Tyler, Martin. 2006)
[2] www.wikipedia.com
[3] ACAS-LAW; Federal Competition and Consumer Protection Act 2019
[4] O.
Isiadinso & E. Omoju, “The Federal Competition And Consumer Protection Act
2019: Regulatory Implications For Merger Transactions In Nigeria” available at http://www.mondaq.com/Nigeria/x/791502/Securities/The+Federal+Competition+And+Consumer+Protection+Act+2019+Regulatory+Implications+For+Merger+Transactions+In+Nigeria
(accessed 2nd September 2019)
[6] Explanatory Memorandum
of the FCCPA
[7] Section 1 of the FCCPA
2019
[8] Section 17(g) of the
FCCPA 2019
[9] Section 17(h) of the
FCCPA 2019
[10] Section 47(2) of the
FCCPA 2019
[11] Section 47(2) of the FCCPA 2019
[12] Section 54(b) of the
FCCPA 2019
[13] Section 92(4) of the
FCCPA 2019
[14] Section 95(6) of the
FCCPA 2019
[15] Section 97 of the
FCCPA 2019
US Consulate Marks International Human Rights Day In Lagos – Fapohunda, Akpata Speak On Human Rights
The PUSAN Milestones: 31 Prominent Reasons The Paul Usoro NBA National Leadership Stands Out
Anti – Corruption Day 2019
#anticorruption
#legalnaija
#nigerianlawyers
#SayNoToCorruption
Cross – Border Financing: A Module At The Career Training For Lawyers
Piracy And Armed Robbery In The Gulf Of Guinea And The Suppression Of Piracy And Other Maritime Offences Act (Supmoa) 2019 | CAROLINE TOKULAH-OSHOMA (MRS)
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.
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
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.
and offers some recommendations.
ARMED ROBBERY AND CARGO THEFT IN THE GULF OF GUINEA VIS-À-VIS NIGERIA’S
TERRITORIAL WATERS
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.
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.
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.
MARITIME OFFICES ACT (SUPMOA) 2019
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.
of the Act
robbery and other unlawful act against a ship, aircraft and other maritime
craft, howsoever propelled, including fixed or floating platform.
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.
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.
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;
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;
participation in the operation of a ship or of an aircraft with knowledge of
facts making it a pirate ship or aircraft; and
intentionally facilitating an act described in subparagraph (a) or (b)
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.
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.
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.
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.
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.
Offences Fund
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.
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.
Definition
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.
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.
under the Act
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.
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.
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;
Establishment
of a National Coast Guard
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.
Funding
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.
Creating
Maritime Division Court
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.
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.
BY;
TOKULAH-OSHOMA (MRS)
Agbakoba Legal (OAL)
ctokulah@hotmail.com
The Potential Of Sports In Developing Nigeria | Oluwabukunmi Adeniran
words of Beverly Agbakoba-Onyejianya; “There has been an explosion in
the Entertainment industry. It is time for the sporting industry to begin to
add value. We are a populous country, we have a young population, so there is
no reason why sports should not be bigger than it is now”.[1]The
introduction of sports law as a field has gained a lot of prominence around the
world, especially in Europe. In Nigeria however, it is yet to spread its wings,
owing to certain factors, most of which are based on the structure of the
sporting associations in the country. Also, It is yet to be realized that
sports has gone beyond mere recreational activity and is now a highly lucrative
business and a means of making money across the board, for clubs, sponsors, footballers, agents, and
even lawyers.[2]This
Article highlights the current issues in the Sports sector and provides an
insight to the profitability and potential of sports law in Nigeria and its
possible effect on the Nigerian economy if duly exploited.
INTRODUCTION
the most lucrative areas for the Nigerian economy if properly explored. The
constant neglect and manipulation in that space has however limited its
potential. According to Sport for Development and Peace International
Working Group, sport has the potential to promote social integration,
gender equality, and social capital development amongst others.[3]
Sports Law touches on a variety of matters, including contract, tort, agency,
constitutional, labor, trademark, copyright, discrimination based on sex,
criminal, and tax issues.[4]
These laws vary, depending on the status of the athlete, the kind of sport, and
some laws vary for other reasons.
part of human social existence. They have been used as forms of exercise,
sometimes just for leisure, or as a hobby. They are so ingrained in our lives
and have thus become an exciting part of our daily lives. However, in recent
time sports has transcended from pure entertainment or leisure and has now
gained commercial and economic significance, especially in the United States,
the United Kingdom and all through the European Union. Through marketing,
promotion, franchising, merchandising and brand building of professional sports
teams, teams in these countries have become more economically significant,
viable and have assumed the influences associated only with multi- national
companies. Sportsmen and women have also become more commercially important
surpassing previously existing notions with respect to their financial worth,[5]
thereby bringing value to their respective localities or countries, thus
inviting investors. There has been an evolution of the most popular sports,
such as football, tennis, basketball, cricket, car- racing, and so on into mega
international events. They have also evolved into profitable domestic sports
events like; Major League Soccer (MLS), the English Premier League (EPL) and
the Spanish La Liga. The organizers of these sporting events on the
international level have been able to reap immense financial rewards by inter
alia exploiting and leveraging on aggressive marketing campaign, taking
advantage of the marketable potential resident in these sports.[6]
the North American sports industry generated $60.5 billion in 2014, and is
expected to reach $73.5 billion by 2019. Sources of revenue include
merchandizing, sponsorship, media rights and gate receipts, which is the
biggest source of revenue. But revenue derived from media rights deals is
projected to surpass gate revenues. The industry also provides employment in
different areas ranging from the athletes to coaches, scouts, umpires,
referees, commentators, amongst others.[7]
more compelling. The sports industry’s contribution to the European economy is
enormous. The industry contributes more to the European economy than
agriculture, forestry and fisheries combined. If other sectors that benefit
from sports are included, the share of the continent’s sports GVA jumps to
2.98% or 300 billion Euros.
labour market accounts for 2.12% of the total employment in Europe, equivalent
to about 4.5 million sports-related jobs. The largest number of sports-related
jobs is in Germany, estimated at 1.5 million jobs. Sports and sport-related
activities are estimated to supply over 400,000 full-time jobs in England, or
2.3% of the country’s jobs market.[8]
Nigeria should really tap into the huge prospects of the sports sector.
NIGERIA
Lack of Sporting and Recreational Facilities
lack of adequate ones are said to be largely responsible for the poor
performance of the nation’s sports men and women in both continental and world
championships, making it difficult to develop and inject fresh blood into Team
Nigeria’s contingent. It has made a country like Nigeria, with a population of
over 167million people, to keep recycling athletes for major international
competitions.[9]
Lack of Medical Care and Insurance
medical care and insurance packages for athletes on national and club
assignments has negatively affected sports in Nigeria. At the Namibian 2014
African Women’s Cup of Nations, Gloria Ofoegbu, a Nigerian player, suffered a
career-threatening injury, as reported by the Punch Newspaper, which ruled her
out of the game for two years. The player’s club could not afford the cost of
the surgery required to ensure she returned to football and Ofoegbu was left on
the sidelines for two years until a “Good Samaritan” paid for the surgery in
2016.
Poor Remuneration
from academies without the proper contractual agreements between the clubs and
the players, thus meaning that the clubs do not own the players and can
therefore lay no claim to the profits whenever a player is being sold. By
virtue of section 9(4) of the Nigeria Labour Act: “No contract shall
provide for the payment of wages at intervals exceeding one month unless the
written consent of the State Authority has been previously obtained.”
professional footballers being owed months/years of salaries without being able
to enforce payment of their salaries, as agreed initially. One of the reasons
would be their inability to acquire the services of a lawyer, who would be able
to secure a favorable contract on their behalf, with Nigerian football clubs.
pay off players whose contracts have been terminated is also a bug wonder. The Labour Act provides in section
11(7) that: “All wages payable in money shall be paid on or before the
expiry of any period of notice”. However, in Nigeria, most players are
rarely paid their wages after being offloaded by their clubs and that is due to
their inability to make sure they signed enforceable contracts. This has become
a major problem for Nigerian players, who are thus unable to make ends meet.[10]
Recycling of Old Athletes
country’s habit of recycling old and past athletes contributes to the lack of
improvement and growth in the Sports sector. This recycling results from the
lack of recreational and sporting facilities in primary and secondary schools which stifles talent
discovery. It can also be as a result of the poor remuneration thereby
discouraging the youths from the consideration of participating in sports
within the country. Hence, the reason we see natives of the country playing for
other countries is attributable to the fact that it is more secure and
profitable for them. The Government should show interest and encourage the
youths by providing the necessary training facilities and opportunities and
select new athletes or players, thereby refreshing the sporting community and expelling the aged among them
so as to enhance quality performance and create a more competitive team.
Insufficient Policy Regulations
(NSC), established in 2007,[11]
is the apex Federal Government Agency charged with the responsibility of
implementing the policy and programs of the Federal Government with respect to
sports administration, management and
facilities development, with a vision statement; “To Develop Sports
Sector to a World Class Level”.
objectives enshrined in the National Sports Policy of 1989, but the
sports management structure suffered some setbacks as a result of poor or
non-implementation of the 1989 policies. Since 2007, an Executive Bill has been
put to the National Assembly for an Act in respect of the establishment of the
N.S.C. Up to this moment, this Bill has not been passed into law. The impact of
the non-passage of this Bill into law is weighty and ramifying and does not
make the NSC to be as strong as it would have been with its enabling law is in
place.[12]
It has been argued that the Nigerian National Sports Policy is a richly crafted
document which, if followed to the letter, could catapult the country into
being a sports giant. Some of the key aspects of the policy include the
co-ordination of sports development programs at all levels of government. For
instance, the Federal Government, through the National Sports Commission, is
expected to initiate programs aimed at identifying, nurturing and developing
talents through a national elite development program. This is to be done
through state sports festivals, the national sports festival, national youth
games, etc.
Poor Funding/ Corruption:
is one of the problems inhibiting the growth of Nigerian sports.
times, when funds are even made available, officials siphon the
underpaid and under motivated.[13]
RECOMMENDATIONS; THE WAY FORWARD.
appreciable impact on national development in Nigeria.[14]
However, there is no denying the fact that there is still more to be done in
terms of administration and providing the enabling environment for sports to
thrive. As the saying goes; Rome was not built in a day.
facilities in the wake of the oil boom to the African Nations Cup successes in
1980 and 1994, Olympic gold medals in 1996, sport has frequently been regarded
as perhaps the most potent unifying factor in the multi-ethnic country.[15]
With the recent failures in sports competitions, there have been calls for a
revamp of sports administration.
was estimated to be 190.9 million.[16]
For both males and females, the median age of the country is 18.4 years of age.[17]
Agreeably, a high percentage of the population is of sport-able age.
Considering that Nigeria is ranked 7th most populous country in the
world, it is clear that with provision and maintenance of more sporting and
recreational facilities, with improved technical competence and a clear cut and
enforceable government policy on sports development as well as government
policies encouraging parents , the sporting sector will flourish.
professional sports clubs and sports events organizers within Nigeria not only
join this highly profitable global bandwagon but also take into consideration
the various areas of Law that have a nexus with Sports. The role of skilled
lawyers in the media, sports and entertainment sector in Nigeria cannot be
overemphasized. The most eminent legal scholars have always unanimously held
that law is necessary to keep the world running. Without law, there would be a
state of chaos. In the same vein, Sports without the governance of a body of
laws can be comparable to a football match without a referee; havoc.[18]
professional players, as well as clubs in Nigeria, to acquire the services of
lawyers, in order to make the footballing environment comfortable for clubs and players as well.[19]
the National Sports Commission Act, giving it the necessary organizational
empowerment to exercise discretion on matters concerning it, allowing it
exercise creativity and initiative as sports operations demand without any
unnecessary encumbrance. It is however important to note that Sports law does
not control the rules within games, this is left to the internal governing
bodies to make rules for enforcement. For example, FIFA( stands for Federation Internationale de
Football Association, in French…put this in the footnote….use the full
English name) makes the majority of rules and regulations for football.[20]
better served by the introduction of a sui generis intellectual
property law that will solely protect aspects of intellectual property in
Nigerian sports. This Law would be in the shape of a unique sports proprietary
rights to protect innovation and creativity in Nigerian sports. This would
ensure that Nigerian sports associations, sports events organizers, as well as
sports professionals would have a one-stop-shop for the protection of their
intellectual property rights and innovations rather than having to rely on
piecemeal protection.[21]
change the world … to inspire … to unite people … create hope … is more
powerful than governments …”[22]
is reflective of the immense potential of sport in the modern day.
from commercial partnerships, sale of match day tickets, players, and other
sources of club revenue, to the kit and sporting goods manufacturers making
profit from the sale of replica kits, down to the match day steward who earns
income with his back to the game, it can be seen that the economic benefits of
commercialization of sport reach beyond the athlete and the sports club only.[23]
B. Agbakoba-Onyejianya, “Why I am Passionate About Sports Law” (2019)
Available at: https://thenationonlineng.net/why-im-passionate-about-sports-law/
(Accessed 5th December, 2019)
O. A. Eribake, “What Students And Aspiring Sports Lawyers Need To Know About
Sports Law In Nigeria” (2019) Available
at:
https://www.lawyard.ng/what-students-and-aspiring-sports-lawyers-need-to-know-about-sports-law-in-nigeria-by-eribake-ayomide-oloruntoba/
(Accessed 5th December, 2019)
H. O. Oloko, “Sports Law in Nigeria and its Prospects”
U.J. Amadi, “Intellectual Property Rights In Sports: A Trick Or Two
Nigeria Can Learn From The Global Game” (201…) LLM [Leeds Beckett University]
[6] P.
Kandiah, “Sports and Intellectual Property”, (201…) Available at:
http://EzineArticles.com/5202279 (Acessed on 4th December, 2019)
[7] Olajide
Olutuyi, Sports should be part of Nigeria’s economic diversification.
(Published on 15 June, 2017).
[8]
Olajide Olutuyi, Sports should be part of Nigeria’s economic diversification.
(Published on 15 June, 2017).
Salifu Usman, Mike Ubani and Phillips Adefioye, Nigeria: State of Sports
Facilities in Nigeria (2012). Available at:
https://allafrica.com/stories/201209230339.html (Accessed 4th December, 2019)
Ayomide Oloruntoba, “Sports Law in
Nigeria; The Need for Enforceable Contracts For Footballers” (201…)
Available at: (insert website) (Accessed 5th December, 2019)
(Accessed 5th December, 2019)
[11]
https://en.wikipedia.org/wiki/National_Sports_Commission
[12]
Has sports development suffered setback in the National Assembly? By Professor
Emmanuel Ojeme
U. Jeremiah, “Nigeria sport:Falling standards, result of leadership
vacuum” (2017l Available at: (insert website link) (Accessed 5th December,
2019)
K.C. Omuojine, “The Legal Framework For Sports Development In
Nigeria” (201..) Available at (insert website link) (Accessed 5th
December, 2019)
[15]
Ibid.
Sources include: World Bank, United States Census Bureau.
World Population Review, “Nigeria Population 2019 (Demographics, Maps,
Graphs)” (201…) Available at:
http://worldpopulationreview.com/countries/nigeria-population/ (Accessed 5th
December, 2019)
Worldwide: Global Overview Of The Sports
by George SK and Smriti Ganotra. Last updated: 21 March 2018.
Ayomide ‘Toba Eribake, Sports Law in Nigeria; The Need for Enforceable
Contracts For Footballers.
Sports Law by Richard Ubah, May 19, 2015
African Sports Law and Business Bulletin. Issue 3/2017
Nelson Mandela, “Speech by Nelson Mandela at the Inaugural Laureus Lifetime
Achievement Award, Monaco 2000”, World Laureus Sports Awards Limited, 25 May
2000, viewed on 07 November 2018,
https://db.nelsonmandela.org/speeches/pub_view.asp?pg=item&ItemID=NMS1148.
Why Africa urgently needs to commercialize its sports sector. Published 29
November 2018 By: Kelvin C. Omuojine