Definition of 'piracy'
Maritime offences and unlawful acts at sea
The president recently assented to the Suppression of Piracy and Other Maritime Offences Bill, successfully concluding almost a decade of advocacy to implement such a law in order to curb and deter sea piracy, armed robbery and other unlawful acts at sea.
The Suppression of Piracy and Other Maritime Offences Act 2019 gives effect to the relevant provisions of several international conventions already ratified by Nigeria.(1) It is significant because it has:
- ended the controversy around whether the crime of sea piracy is defined in any local legislation; and
- bestowed on the Federal High Court exclusive jurisdiction to determine matters of armed robbery and other unlawful acts at sea.
Prior to the law's enactment, the prosecution of parties suspected of sea piracy was problematic in Nigeria, as there appeared to be no domestic statute which defined the crime. Under Section 36(12) of the Constitution, no party may be convicted of a criminal offence unless such offence is defined by an existing law. Although Section 215(h) of the Merchant Shipping Act 2007 provides that the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988 (SUA Convention) and the protocol thereto have applied since the MSA's commencement, there were doubts among maritime stakeholders as to whether Section 215(h) thereof sufficiently domesticated the SUA Convention as required by the Constitution in order for the definition of sea piracy contained in the convention to apply.(2) Section 3 of the Suppression of Piracy and Other Maritime Offences Act has laid this issue to rest by defining 'piracy' as any:
(a) illegal act of violence, act of detention. or any act of depredation, committed for private ends by the crew or any passenger of a private ship or private 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 of intentionally facilitating an act described in subparagraph (a) or (b) of this section.
Notably, the above definition accords with the universal jurisdiction principle espoused in the United Nations Convention on the Law of the Sea 1982, whereby states may – in accordance with their municipal laws – arrest and prosecute persons, ships or aircraft suspected of committing piracy regardless of whether the pirate or attacked ship flies a foreign flag or has a foreign crew. The definition also covers violent acts committed against property other than ships, such as aircraft and floating and fixed platforms in the Nigerian Exclusive Economic Zone.
Maritime offences and unlawful acts at sea
Section 4 of the Suppression of Piracy and Other Maritime Offences Act lists 18 maritime offences and unlawful acts at sea, which include armed robbery at sea and acts other than piracy committed within Nigeria or its maritime zone. Such acts include:
- the hijacking of a ship, aircraft or fixed or floating platform;
- the destruction or vandalism of a ship, installation or navigation facility; or
- interference with the operation of a ship, installation or navigation facility.
Under Section 5(2) of the Suppression of Piracy and Other Maritime Offences Act, the Federal High Court, to the exclusion of all other courts, has jurisdiction to hear and determine any matter under the act. In addition, Section 10 provides that, notwithstanding the provisions of any other act, any person who commits or attempts to commit, facilitates, aids, abets, conspires or participates in an act of piracy or any maritime offence or unlawful act under the act will be liable, on conviction, to any penalty or punishment provided for under the act. The combined effect of these two provisions appears to be that where an act constitutes an offence under the law, it cannot be prosecuted in any way other than as set out in the Suppression of Piracy and Other Maritime Offences Act. Thus, for example, the trial of a case of armed robbery committed on board a ship within Nigerian waters may not be validly heard and determined in the high court of any state of Nigeria or the federal capital territory despite the general jurisdiction of those courts to try cases of armed robbery.
Other significant provisions of the Suppression of Piracy and Other Maritime Offences Act include those relating to restitution to owners of violated maritime assets and the forfeiture of proceeds of piracy or maritime offences.(3) The act also provides that the following parties may prosecute offences under the act:
- the attorney general;
- any officer so designated by the attorney general; or
- the Nigerian Maritime Administration and Safety Agency, with the attorney general's consent.
The Suppression of Piracy and Other Maritime Offences Act will help to address the lingering issues of piracy and armed robbery at sea which Nigeria has grappled with in recent times. While some of the principles embodied in the act are understandably untested in the Nigerian courts, the act is undoubtedly a solid framework for dealing with sea piracy and other unlawful acts at sea.
For further information on this topic please contact Victor Onyegbado at Akabogu & Associates by telephone (+234 1460 5550) or email ([email protected]). The Akabogu & Associates website can be accessed at www.akabogulaw.com.
(1) Namely, the United Nations Convention on the Law of the Sea and the SUA Convention and its protocols.
(2) Under Section 12(1) of the Constitution, international treaties entered into by Nigeria have no force of law except to the extent to which they have been enacted into law by the National Assembly.
(3) See, in general, Section 12 of the Suppression of Piracy and Other Maritime Offences Act.