Amiwero: New Port Bill Will Foster Duplications, Create Confusion

In this interview, the President of the National Council of Managing Director of Licensed Customs Agents, the umbrella body of customs agents in Nigeria, Mr. Lucky Amiwero said the Nigerian Shipping and Port Economic Regulatory Agency Bill 2023, which has passed second reading in the House of Representatives, will create chaos in the Nigerian maritime industry if appropriate steps are not taken to bridge identified gaps. He also sheds more light on the way forward. Excerpts

You have been in the industry for a long time and participated in a series of federal government committees to reform the port. So, what will be your assessment of service delivery and efficiency with regards to regulatory agencies at the ports presently?

Well, I have served in about 168 government committees. Most of the things you see in Nigerian ports are something we advise on. We don’t just serve in committees, we go to committees to serve and think about most of the things you see today. Service deliveries in our ports have some hiccups here and there. Due to one reason or another, laws are not made, and most of the laws are duplicated. Most of the laws override each other. Most of the laws are not implementable laws. 

So, when you are talking about service delivery, it must be based on procedures, what procedures are in place. For instance, customs laws are conventions. They are conventions that we entered into with various countries. It is not a domestic law. Custom law is a convention; it’s a procedural law on trade, international trade. We actually have close to 90 to 100 different types of treaties, conventions, protocols, you know, an agreement. For instance, we have two agreements that are on the pipeline. We have the trade constitution agreement, which has been signed, which actually has been incorporated in most of our laws that is new. Then we have the African Continuity Free Trade Agreement, which is going to be operational very soon.

Those are two new agreements and they are procedures. They are procedures you have to follow to implement them. You know, when you are looking at service delivery, you’re talking about facilitating trade in the past. Today, our ports are not working in tandem with international best practice. And the new bills they brought in are to duplicate and create a lot of confusion because they are not experts. You know, the shipment council is not people who are in the ports. I lecture them. I lecture from level 8 to 17 and all of them. So 8 to 14 and from 13 to 14, train some of them few times.

So when you are talking about service delivery, we have to look at the laws. For instance, the government instituted port concession that is not in the law. It’s not in the Nigerian Ports Authority (NPA) law. Look at the bill they are trying to rush through the National Assembly, it is not in the NPA law. The concession is not in the NPA law. And this present Shippers Council management is trying to go into territory they don’t understand. When you look at the Port Act, the Port Act of 1998-99 has no concession characteristic and elements. There’s no concession there.

Even the Port Bill, they had a public hearing, which was being manipulated. Are they going to pass it before the Port Act? And the Port Act is the principal Act. So, those are the issues we are talking about. 

But sir, don’t you Nigerian ports are over regulated? 

The problem is not overregulation. The problem is that what they’re supposed to have done that weren’t done at the ports. The challenge with the Nigerian port is that laws are not there. For instance, who takes care of the terminals? Who takes care of shipping companies? You know, those are the laws.

What you have in South Africa is one single law, and you have an independent regulator that actually concentrates on the ports. But what the Shipper’ Council is trying to do is to expand its territory to railway, to inland water, to every area, to even give issue license to do so many things, which they don’t have a authorisation.

When you are talking about licensing: Why you don’t have infrastructure, how do you issue license, NPA is the one that has the infrastructure. Custom is the one that has the infrastructure. What is Shipper’ Council? They are just to protect shippers’ interests.

I was a member of the Trade Advisory Committee, so I go around to do a lot of things. I should have been the one who is in support of Shippers Council. But I am a man that believes in doing the right thing. That is why we come out to say this thing; it should not be done that way.

The industry is not overregulated. That’s the point; it’s not regulated at all. Now, when you talk about the economic interest, commercial interest in the port, you don’t start to create monopoly.

Just take a look at other port regulators in the world! But what this bill has done is to expand the scope and move it to even all agencies all over the country. So, those are the areas we feel that experts should be engaged, we have experts in the country.

I trained on port concession in 1999. I started training on port concession with NPA general managers and assistant general managers. At least in the country today, I’m one of the people who can talk about concessions.

The Shippers’ Council is not supposed to be in the port. It’s not there. Yes, because the law does not allow shippers’ council to be in the port. In the Port Act, 51 of 1999 it is only the agents that are supposed to be in the port, the Customs, Nigerian Police, Immigration and that is all. 

But sir, don’t you think this bill will duplicate the functions of the other regulatory agencies, especially that of the Nigerian Maritime Administration and Safety Agency? 

That is what we are saying. What they are doing is that they just repeat act. They don’t repeat sections; they don’t look at how other countries operate. You don’t have a section in customs, which you want to operate and you don’t rebuild that section you allow that section to exist. And you now bring another section that will duplicate that section. It’s going to create a lot of confusion. Our assembly members should be doing their job.

You don’t have to go in and do the same thing, you look at your area and limit yourself to your functions so that you don’t duplicate.  It will bring a very bad influence. This is why I have to address this to the presidency and other areas. 

Sir, the body to be established under the bill would oversee the operations of other agencies, a situation that would likely endanger agency efficiency. What’s your take on this? 

You see, when you look at agencies, you don’t override other agencies. You cannot do the function of those agencies. For instance, people come to understand classification. They don’t understand interpretation. So, how do you override other issues against them? They don’t understand anything about Customs, for instance. They don’t know about the NAFDAC procedure. How do you override what I just said, you are not an expert in that field. With this bill, you don’t know what is the work of the Shippers Council for now. Do they understand what they call the procedure of trade? What they do is just to make sure that the trade complies with their own rules. We don’t override NAFDAC. I just look at what happened in other countries, other clans, you find out that is what is on. You don’t say the use of port regulations and specifically for concession, for concession of the ports.

The World Bank toolkit says you cannot start a concession without bringing a new law. But the law you are having now is a new act, which will clash with the 1999 act, which actually established the Port Authority Act. You don’t regulate a thing that you don’t know. You must regulate things you know. But the regulation is for economic interest. When you look at the economic interest, how do you move this thing so that you don’t create problems, how do you do this not to go and start to see how you regulate other agencies in their regulatory functions. You don’t do that. It is not done anywhere in the world.

We have similar bills that have come and gone that none were passed into law. So what’s your suggestion on how to break the law, so to speak? 

You see, when you see us stay in Abuja for nine months, eight months, and then ten months, fighting bills, they didn’t just stop the bills.

We must know that we make contributions to make those bills better. Even the new Custom

Bill that is passed, it has passed a lot of irregularities, confusion and complex situations because we stopped it so many times.

So that bill must be adjusted, it must be amended because it cannot fly. If they want to, they will have conflict. There’s a lot of conflict there. It’s not a domestic trade. It’s an international trade deal that has to do with convention, treaty and agreements.

You go to Ghana, they have their own Act, they have the Custom Act, it’s not a service bill, a service bill is not supposed to be used as a name, it’s not supposed to be a Custom Act, what is custom act, Import and export, but when you say, custom and excise management, you say import excise, excise is manufacturing import and export, then manufacturing, that is excise, management, including the management of the service inside that space. That is what you have in SEMA. 

But what you have now is that you have custom service bill. Service bill is never done anywhere in the world. It’s not a special service. It’s a trade act. So all these things must be harmonised and reorganized. Otherwise, we’ll be having a very serious issue in our port system.

Let’s move away from that and go to the Lagos ports. The Lagos ports remain one of the most congested. What advice will you give on the development of the ports?

The Lagos ports are not congested. It is the handling of the ports. When this port was to be concessioned, I fought against it. I said the concession must not be done politically. The concession was done and they removed the element of concession. The concession element was not in the law.

There was no law passed for concessions. There was no law. You just give these things to terminal operators without a law. So, it’s a contract, not a law. So the concession law is missing in NPA Act. What you have in NPA Act is a lease agreement, and that lease agreement, that’s for five years. And you must understand, before that court was concession you were having holding bays, you’re having trailer pack. You have PTML. It’s supposed to be a terminal, but you call it a port.  Then you have KLT, and then you have Apapa port. When you look at the Apapa port, if you put this port to deck, you can call Lagos state a city port. It just needs handling. It’s not congested. It’s just handling. What is the handling? You have tools, and then you have procedures.

How can they make the eastern ports work? 

The eastern ports cannot work the way people are looking at. You know, non-professionals don’t understand. It is their importers that will make the eastern ports work. It’s not government. That is number one. Number two; what is the draft level of the eastern ports?

Number three, how many factories do you have in the east? The factories are all concentrated in Lagos. Nobody will want to send his cargo to the east and bring it back to Lagos from the east.

Ports are influenced, cargo are influenced by the shippers, when a shipper says, “I want my cargo sent to Lagos,” you cant send it to East. You are going to pay, because that’s what we call the transfer clause, it does not cover that one. The investment, if government tries to, they will pay in billions.

So when you see people sit in Abuja, they talk rubbish. You don’t see, the eastern ports must be developed for them to be able to have what they call domestic cargo. We did the three cargo lines. We have what they call the transit cargo, we have what they call the transshipment cargo, and we have what they call the domestic cargo, which is cargo that is built inside. Maybe, you have transshipment, but we have lost our transshipments.

Our transshipments are in Ghana, Benin Republic and Togo. So, most of our consignments are going there. When you look at even the Lekki Port, it does not have rail. One of the things that attract shippers is when you look at the cost. You know, when you look at the cost. There’s no rail. So in another one, two, three years, you find out that Lekki seaport might be more difficult to clear things than even the Apapa port because Apapa is being modernised, especially the roads, because we influenced those roads in 2009.

Lastly sir, what will you advocate as a holistic way forward for the Nigerian maritime industry, considering that it has so far failed to attain its potential as an economic enabler?

This demands going the extra mile to reform the whole sector. You cannot continue to run the sector the way it’s been. Civil servants cannot run the sector. I served in 168 government committees; these committees are committees that put structures on ground. That is why you can see our port in this level that we are in today. If we have done it the way we are doing it continuously, you wouldn’t do anything without reform.

Buhari did not do anything. That reform issues and everything stopped with Jonathan. Buhari came in and messed up the whole thing and left.

And this time, you are having people who are new, many of them are new to the port system, new to the ministerial system, many of them are new. So, you find out that the jokers will go there and advise them what they will be doing, the wrong things. And that is why you cannot beat Obasanjo, he will look for the time to do what is right.

What you need is holistic reform. Not these single windows you are talking about. You need people who understand what a procedure is and know when a procedure is faulty.

When you talk about procedure, even lawyers don’t know it. Like when you talk about the license custom agency, they interpret the law, classify the law and apply the law. They’re not transporters, they’re not freight forwarders, who arrange carriage of goods. But we don’t arrange carriage of goods, we classify goods, we interpret goods, we are cargo doctors. So you need experts who have been able to go through the system.

After serving in 168 government committees, nine presidential, etc, who has the pedigree I have in the country? Tell me.