Hassan Bello: ‘Incorporation of international laws into the Nigeria’s municipal laws is a constitutional provision’
Mr. Hassan Bello is from Kebbi State, Nigeria. He studied at Federal Government College, Ilorin, Kwara State before proceeding to Ahmadu Bello University, Zaria for his law degree. After his National Youth Service Corps (NYSC) posting, he was engaged at Sokoto State Investment Company from where he rose to become the general manager.
He later joined the Nigerian Shippers Council (NSC) as Assistant Director (Legal). He rose to become the Director (Legal Services) before his appointment as Executive Secretary and Chief Executive Officer in 2013 by the then president, Dr. Goodluck Jonathan.
Bello is a Fellow, Arbitration Council of Nigeria; council member, International Maritime Organisation (IMO), council member; Provisional Enabling Business Environment Council (PEBEC) and Maritime Lawyers Association (MLA) among others.
International admiralty laws are usually enacted through domestication of conventions and treaties by countries that operate under the dual system. In this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, the Executive Secretary/ Chief Executive Officer of the Nigerian Shippers Council (NSC), Mr. Hassan Bello, explains that the best way to get ratified treaties domesticated is to involve parliamentarians from the outset. He also spoke about the African Continental Free Trade Agreement (AfCFTA), National Transportation Commission Bill and the national fleet among others.
How do you evaluate the domestication of some of the principles of international admiralty laws into Nigeria because the legal frameworks are not as fast as expected?
Domestication of the principles of international admiralty law agitated the minds of jurists, lawyers and stakeholders at the last maritime seminar for judges. Incorporation of international laws into the municipal laws of Nigeria is a constitutional provision. Section 12 of the Constitution says that any treaty between Nigeria and a country must be, for it to be effective incorporated into the municipal laws of Nigeria through a legislative process. So if we have an international convention, the fact that we have ratified it does not mean that it is automatically a law. We operate what is called the dual system. In other countries, it is monastic in the sense that once you ratify a convention, it is incorporated automatically. So you could see that one of the reasons for the delay is the dual processes. For a convention to come into play, it will require a signature, which is already provided in that international convention. After that, then it becomes effective. So, Nigeria, like every other country with dual system, the processes are slow. However, the most important thing, which Nigerian Shippers Council has always insisted on, is to involve the parliamentarians right from the outset when you are negotiating the law. We have the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea Act, which is called the Rotterdam Rules. Right now, it is a new carriage regime and it is very good for Nigeria because of our vast hinterlands. This is so that the responsibility of the carrier could be covered from overseas up till the time when the goods are handed over to the shipper either in his house or in his warehouse. It is a modern convention. It incorporates electronic commerce and door-to-door delivery of cargo. Even though Nigeria had agreed to the convention, it will still need to bring it to the parliament. Fortunately for us, the Nigerian parliament has been involved in the negotiation for the Rotterdam Rules. They have attended colloquium, which was organized by Comite Maritime International (CMI). I know we went to South Africa, Canada, France and many other countries with members of the National Assembly. So, they are fairly conversant with it. If it comes, it needs not to be treated like a new thing. I think there is a committee set up by the federal government under the ministry of transportation headed by the legal adviser, looking at the conventions. It is a very important committee and its members are NIMASA and one or two other agencies. So the committee’s mandate is to look at the proper conventions to adopt because we cannot adopt all. We adopt a convention if we are involved in the negotiation so that Nigeria’s interest would be protected.
It is interesting you mentioned that the National Assembly is abreast with these conventions. So, what accounts for the delay especially for those very critical to our operations as a country?
It depends on how fast the executive is in transmitting such request to the National Assembly. Nigerian Shippers Council has helped in the incorporation of the Hamburg Rules, which is also a carriage regime and I know that there were lots of stakeholders involved such as the Nigerian Maritime Law Association. We have some Shippers we prefer that the law favour their interest. So, when you have a convention, what you do is to take it to stakeholders because they are the ones who will really push for the domestication of those laws. Shippers Council is a stakeholder-based organization. We have organized colloquia and conferences on the Rotterdam Rules, where we invited stakeholders to come and make input into the convention. They made their input and we also went to the United National Commission on International Trade Law (UNCITRAL) to negotiate. In fact, that is one of the most commendable thing that Nigerian Shippers Council did. Nigerians brought all the African countries together because when we were negotiating the Rotterdam Rule, there were varied interests between those who own the ships and those who own the cargo. When Nigerian Shippers Council saw that we would be better together, it called all the African countries to Nigeria for a colloquium and had a common stand. And by the time we got there, Nigeria led and made a representation. Our position was very strong, such that United States, France and others had to negotiate with the African group. In fact UNCITRAL sent a letter of commendation to Nigerians Shippers Council to the government for the first time. And every day after the meeting, African groups would meet and discuss. It was very effective. Rotterdam Rule represents the interest of African nations. That is why it is a balanced convention. Unfortunately, we have not achieved the required signature for it to be a convention, but I think that would be done very soon.
Nigeria sometimes is laid back in some of our laws. What is the Council doing at the moment to pave way for free market?
That is true! Nigerian Shippers Council is a trade facilitator. This is one of the major functions of the Council. And through that, we will like to encourage trade and have a trade-based economy because of our competitive advantages such as population, landmass, coastlines and so many others. We have raw materials, minerals and agriculture. So Nigeria should be a strong partner, but unfortunately, trade among African countries is abysmally low. It is now like 26 per cent.
What do you think is the major challenge?
It is infrastructure! It is a very major challenge. I have always cited the example of trading with Ethiopia. An Ethiopian Shipper would like Nigerian pepper to be shipped to Spain and from Spain to Ethiopia because there is no sea link between African countries. Fortunately, we are looking at this with Nexim. Soon there will be regional cabotage among African countries. The issue has received the attention of the authorities, but we have to have our products to be competitive. We have to have access to finance to our producers and infrastructure such as cargo airport, which must be adequately functional. I doubt if we can see a refrigerated warehouse for the storage of sensitive products in Nigeria.
Talking about market among African countries, we have the African Continental Free Trade Agreement (AfCFTA), which Mr. president is reluctant to sign on the argument that stakeholders need to be consulted?
Nigerian Shippers Council is a member of the steering committee of the AfCFTA. It is not that Nigeria is reluctant. We are operating under a democracy and as such a country of laws. We need to engage strategic stakeholders such as Manufacturers Association of Nigeria, Nigeria Association of Chambers of Commerce Industries Mines and Agriculture (NACCIMMA), Shippers and others. They must have to have their input so that all interest is represented. The trade agreement is good, but as the president said, we must have to engage stakeholders. These engagements have been going on and very soon, Nigeria will take a decision on it.
What is the state of the national fleet?
The national fleet implementation committee has been working very hard. To establish the national fleet is not that simple. Nigerians want a short deadline, but it is a three years project. It is going to be a private sector led national fleet. Government will not put a kobo in it. But private sector needs incentives. And so we have to clean up a whole lot of things. Don’t forget that few years back, Federal Ministry of Transportation signed a MoU with a Singaporean Shipping Company for a joint venture on 40-60 basis, so we can have a national fleet. But the operating conditions were really not favourable. So the Singaporean company opted out. So, we have to change policies. We could have gathered one or two ships and say that is the national fleet but we want a fleet that is sustainable. If we have a national fleet, it would have profound effect on our economy.
Nigerians would want to know what stage the National Transportation Commission Bill is now?
The bill has been transmitted to the president for his assent. When a bill is presented, the president would also like to have the advise of his government. This is a multi sectorial commission. It cut across not only the ministry of transportation but also others. So the president did the right thing by sending the bill for comments.
Going by the contents of that bill, what are the benefits?
The bill seeks for transparency. It will also encourage competition. It will guide the transport sector in making contributions to Nigeria’s GDP. In a nutshell, it is an economic regulation. It has no business with technical regulations. It is purely how we can have efficiency in our ports. It aimed at making Nigeria the preferred destination for cargo.
We have plethora of laws in Nigeria, even within the maritime industry like the Cabotage Act and the major challenge is implementation?
The Cabotage Act is being implemented. We need capacity because the Act is anchored on three things – the ship must be built, owned and crewed by Nigerians. We are trying to boost the capacity of indigenous ship owners. There could be hitches here and there, but I know that Cabotage is being implemented. And that is what NIMASA is doing now to tweak the Act. NIMASA is pushing for the amendment of the law to make it more effective.
Recently, some shipping companies and terminal operators who took the Council to court over your regulatory status is seeking for dialogue. What is the reason for this development?
The case is not adversarial. The case was to seek for certain legal interpretations. The private sector needs certainty so that it would not be over-regulated. It needs to plans its revenue stream and operate with certainty. That is what took us to court. They wanted to know if what we did was right and whether we have the powers to regulate. The court has made that interpretation to them and that is all that they needed. It happens all the time. Even while the case was going on, we had a good rapport, especially with the shipping lines. We were negotiating to establish a mechanism for settlement of disputes. We are also talking with the terminal operators because we also protect the interest of shipping companies. The government must guarantee and protect the investments of the private sector so there will be a reasonable profitability.
How is Nigeria ranked in the global index in terms of cargo clearance and Tracking Error Volatility (TEV)?
We had the latest exercise were Nigeria lost one stand. Before we were 104 but now 105. It is even a blessing in disguise. There have been lots of reforms, which have not taken effect. And if they did, we would have ranked higher than many countries. Provisional Enabling Business Environment Council (PEBEC) is a very effective committee made up of young Nigerians who have shaped the way we think in the agencies. The whole idea is for us to serve the private sector and not the other way round. PEBEC stresses the issue of accountability and transparency. That is what the ease of doing business is. You need to be accountable, transparent and effective. You must have seen changes in airports, sea ports and among the Nigerian internal dynamics. To incorporate a company in the Corporate Affairs Commission (CAC), which was cumbersome is now 24 hours while to get a land is now being simplified. So these changes by this PEBEC is what Nigerians don’t see, but that is the dynamics of this administration. It has changed a whole gamut of the way we do business. By the time our reforms start succeeding, you will see that we would have achieved much.
What you are saying in effect is that there has been significant improvement in the ease of doing business in Nigeria?
There has been and it started just two years ago. When it crystallizes, you will see that Nigeria will be the frontier of investment in Africa.
In your own assessment, what is the percentage of foreign direct investment we have attracted in the last two years?
I can’t give you the figures, but it is much. Except for now that we have slowed down due to the coming elections, Nigeria has more return on investment than many countries in Africa. Nigeria has the population for market and the ease of doing business is now the icing on the cake.
How do you and your team plan to redefine the mandate of the Council?
The mandate of the Council is to make the ports and other transport facilities more efficient. We are talking about automation, the ease and cost of doing business. Now we are free from arbitrary increase in tariffs. No tariff is levied against Nigerian cargo without negotiations from the Nigerian Shippers Council. That is a rested issue. Secondly, we have to look at the ease of doing business. We are also going electronic to make sure that the process of clearing goods is done electronically. We are thinking of the national single window, which is our target now. The moment we do that, it will engender transparency, decrease corruption tremendously and tackle the leakages to government revenue. We would like to remain trade facilitators. We have border information centers in two strategic places in Seme and Jibia to formalize informal trades. We give information to those who want to trade with Benin Republic or Niger Republic. We formalize the trade so government would be able to make revenue and it becomes easy for people to do such businesses.
In comparison to other countries, the right of cargo owners is not being respected as expected, what are you going to do to reverse this trend?
The right of Cargo owners is usually an individual commercial transaction. The cargo owner has a bill of lading which he signs, which governs the transaction. Usually, he should negotiate favorable terms but because our shippers are not organized, that is why we have Nigeria’s Shippers Council. Over the years, the Nigerian Shippers Council has negotiated favourably on behalf of the Nigerian cargo owners. We negotiate even laws. That is why we negotiated the Rotterdam Rules, that is why we brought ports to the hinterlands and that is why we are developing truck transit park and border information centres. They are all for Shippers. We also promote fair practices. We have had to battle with European ship owners on rates and charges on behalf of Nigerian Shippers. Generally, Nigerian Shippers or cargo owners are operating just as it is done internationally.
You hinted about pursuing uniformity in laws during the last maritime seminar for judges. What is the update on that?
We need to have uniformity in rules so it boost trade among ourselves. If Cameroun operates a law which is different from Ghana and Ghana operates one different from Nigeria, you will find that there is no fluidity or uniformity in the laws and it can cause serious delays. In fact, it is disincentive to trade. What we are going to do now, which is under the union of African Shippers Council is to bring all the laws together so that we at least have regional laws. I know there will be some legal problems because some are common law countries like Nigeria and Ghana while others are civil law countries, which are French speaking counties. For trade, there is need for unification and we have started discussing about that.
So many people in the maritime sector have called for quick settlement of maritime litigations. What is your take on that?
Mediation is a very good way to settle disputes. It is not adversarial, it cost less and not complicated. I will rather mediate than litigate. It is good to settle disputes through mediation or arbitration. And mediation is my preferred way of settling disputes.