Shippers’ Council Bill conflicts with FCCP Act, usurps NPA functions—NCMDLCA disapproves controversial bill

 

Maureen Aguta

 

 

The list of stakeholders disapproving further legislative processes on the bill to repeal the Nigerian Shippers Council Act CAP N133 LFN 2004 presently before the House of Representatives has continued to increase as maritime stakeholders under the aegis of National Council of Managing Directors of Licensed Customs Agents (NCMDLCA) have faulted content of the bill, even as they have called on President Bola Tinubu to intervene.

NCMDLCA in a letter to the President Tinubu, signed by the group’s President, Lucky Amiwero, also called on the Minister of Marine and Blue Economy, Adegboyega Oyetola to set up a committee of experts to properly guide the process of a bill on port regulation without over riding or conflicting with existing legislations.

Titled, A Bill for the Repeal of The Nigerian Shippers Council Act and Enact the Nigerian Shipping and Port Economic Regulatory Bill, the group criticised the role played by the House Representatives Committee on Shipping Services for convening a Public Hearing on a matter that falls under the purview of the Port and Harbour Committee.

The group requested that President Tinubu should consider the Port and Harbour Bill as the first to go through legislative process before the Port Regulatory Bill in order to measure up with the international best practice.

According to Amiwero, the Port and Harbour Bill should be considered first to resolve the components which are: Landlord /Marine operation, Port operation and Regulation and elements of the port which include traffic, tariff, labour and infrastructure.

They stated that the Nigeria Port Authority (NPA) Act 38 of 1999 has an all-inclusive function which comprises the elements and functions of the proposed bill.

He noted that the Nigerian Shippers Council Port Regulatory Bill which was withdrawn after it passed through first and second reading and was replaced with another Bill almost before the public hearing, was organised by the Committee on Shipping Service which include

He emphasised that the bill as proposed conflicts with the Federal Competition and Consumer Protection Act and seeks to usurp some of the functions of the Nigerian Ports Authority

The letter reads in part: ”The Nigerian Ports Authority Bill, should be considered, so as to define and include the three components: Landlord/Marine Operation, Port operation, and Regulation and the Port element Traffic, Tariff, Labour and infrastructure that was ceded to private terminals operators that is not contained in the Act”.

” However, the Nigeria Port Authority(NPA) 38 of 1999 has a comprehensive function, which covers the three elements, Regulation, Port operation and Landlord/Marine operation, Lacking component and characteristics of concession, Year of the concession, Nature of the concession BOT, etc”

” Nigerian Ports Authority (NPA) Act/Bill must come first, as they are the one who conceded their infrastructure, retrenched labour of almost 10, 000 workforce, shared their tariff with Terminal Operators and cargo throughput, they are left with a lot of injuries, pains and afflictions without the law being put in place until date ”

“The Nigerian Ports Authority (NPA) legislative process must come first, so as to situate the proper port process, so as not to create over regulation, taking over function of the Port Authority like it is in the current bill, overlapping, conflicts and duplications.”

” The Port regulation is one essential element of a Port which is not expected to be transferred to private sector, given the inherently good nature of Port Regulation, a public monopoly/ public Service Port, must not be replaced by a private Monopoly, regulation is required to:-Promote port efficiency, Protect Consumer and users against monopolistic or other abuse by operators, Prevention of pricing or Service discrimination, Monitor Compliance”

” The Port Regulator of South Africa function is as stated: Exercise Economic Regulation of the Port System in line with Government objectives; Promote equity of access to Ports and to facilities and Service provided in the Port, Monitor the activities of the Authority to ensure that it Performs its functions in accordance with the Act, Regulator must hear appeal and complaint contemplated, Negotiate and conclude with the competition commission, Advise and receive advise from other regulated authority, Consider proposed tariff of the authority, Co-ordinate and harmonized the exercise of jurisdiction over competition, Regulate the provision of adequate, affordable and efficient Port Service and Facilities”

” The function of the economic Regulator of South Africa is manifestation of clearly defined without overlapping, usurping of powers and conflict, the Port Act and Regulation should not be personal, political or means of making money, it must be based on Nigerian Interest, which states in Section 7-(a) of Nigeria ports Authority Act 38 of 1999, to provide and operate, in the Ports, such facilities as appear to it best calculated to serve the interest of Nigeria.”

Amiwero pointed that the Port Regulatory Bill should strictly serve its purpose and not interferes with other regulatory agencies.

” The bill contains clauses that conflicts with other agency especially Nigerian Ports Authority(NPA) 42-(a) usurping the powers of Licensing of port service and facilities, is that of the Landlord, who is the owner of the Land , who lease/the Land, that is Nigerian Port Authority and partial owner of the Leased/ concession facilities , Clause 2(d)(e)(g) 4-(h),(o)(p)4-(2) Clause 28-(c)(d)(e) Clause 38-(1)(a) (b)(c)(d),” he said. He added that usurping powers and conflicts with another legislation will create obstacle on implementation, existing legislation should not be duplicated or override by provision.

His words:”Under Clause 70 contains the interpretation of various terms Prescribed Service, means a Person, body or Agencies which is-Prescribed by this bill as such; or Providing prescribed Service in Nigeria within the Meaning of Section 38 of this bill and includes: (i) Nigerian Railways Corporation, (ii) Nigerian Ports Authority, (iii) National Inland Waterways Authority and other Agencies providing regulated service of any nature in the regulated sector in Nigeria.”

” The implication by the provision means that Nigeria Railways Corporation, Nigerian Ports Authority, National Inland Waterways Corporation and all other Agencies performing regulated service, the Bill is tagged Port Regulatory Agency and should be limited as such.”

” As prescribed in Clause 4- of the Port Regulator Bill duplicates the function of the FCCP Act, it clearly stipulates the function as contain in the Bill: (a)Establish a regulatory framework for the provision of Regulated service and regulation of economic activities, (b)Regulate market entry and exit, (c) subject to competition and consumer protection laws in force in Nigeria, (i)Promote, encourage and facilitate effective competition and a transparent, competitive market free of unfair business practice and ensure that the misuse of monopoly or dominant markets position or non-transitory market power is prevented.”

” Section 17-(a)-(z) 18-(a)-(h (ii)Ensure the prevention of unfair practice including price or rate, fixing, discrimination, predatory pricing amongst some competitors or against others or against Service users, hoarding and restrictive or exclusive and restrictive or exclusive contracts which have or may have a negative effect within the regulated sector, (iii)Protect the Interest of providers and users of regulated service by ensuring price are fair, reasonable, Competitive and generally on matter of common interest.

” Clause 4-(h)-(i) of the Bill states, Set terms, conditions, fees for and approve the grant of licenses, registration and permit for the provision of regulated Service”

” Port Regulator is to regulate not to issue license, permit, approve for grants of license, the bill conflicts the function of other agency on the issue of license, permit, usurping powers of other agencies.”

” Licensing and registration fees and due should not be duplicated and charged to excising Licenses, especially the Licensed Customs Agents (LCA) who are registered and licensed by Finance/Customs Service and any other body, the Port Regulator is not to duplicate registration, Licensing, Permit, that is not their function, they should not usurp powers of other agencies, but should limit their function to the Regulation of Economic interest,” Amiwero stated.

He warned that the bill will lead to conflict, litigation and impediment of port and other national agencies regulatory function in the economy, with such duplicated and conflicting clauses; saying the Port Authority Act 38 of 1999 is the principal Act that will provide for concession and other matters, which will form the bases of which the port regulator will be enacted. “Provision of the Act should be crafted so as not to have ambiguity, proper legislative work should be done to save the port and the Port users,” he said.