Can Senate order detention of containers?

November 19, 2020
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ON the 12th of October, 2020, the Senate Committee on Customs, Excise & Tariff wrote a letter to a major shipping company operating at Nigerian seaports, demanding that some containers, numbering not less than 500 be detained inside the ports due to noticeable infractions. The letter which was signed by the Chairman of the Senate Committee, Francis Alimikhena and titled: ‘Identification of malpractices, wrong classification/financial leakages in the import value chain stated that, “The Rules of the Senate of the Federal Republic of Nigeria mandate’s this Committee to carry out Legislative Oversight into the operations of the Nigeria Customs Service (NCS) with a view to identifying the financial leakages, irregularities/malpractices in the entire import and export value chain.

“In the course of the assignment, the Committee discovered the attached list of containers including Bill of Lading numbers, Containers numbers on the vessels mentioned and shipped by your shipping company as committing Infractions based on wrongful declarations in order to evade proper duty payment leading to revenue loss to the Federal Government.

“In view of the above, the Committee hereby orders that the attached list of containers should NOT be released to the companies until proper duties are paid to the Federal Government and with a notification of proof of duty payment.

“Kindly note that violation of this order shall attract serious legislative and economic sanction. For further enquiries, please contact the committee Clerk. Accept the assurances of the Committee’s regards.”

ILEGALITY OF DETENTION ORDER

On whether the Senate Committee reserve the powers to write directly to shipping companies, ordering the detention of containers inside the ports, a seasoned maritime lawyer and solicitor, Emeka Akabogu, lampooned the committee, stating that it overstepped its mandate.

According to Emeka Akabogu who is a Senior Partner at Akabogu and Associates, while speaking with the Nigerian Tribune, “The National Assembly has no such powers to detain containers in the ports. The National Assembly is set up to over-sight the Executive arm of government. This is broad because what the Nationals Assembly has over the Executive is not a supervisory power but an oversight power. To over-sight means to ensure that an organization is working within the mandate which has been thrust upon it by law. This should be limited to broad policy directions. It should be limited to broad policy suggestion.

“In the system of government that Nigeria operates, we have Executive, Legislative and Judiciary arms of government. The Executive is entrusted with implementation of the law. The Legislative arm of government does not have any business with implementation of the law. In this case that concerns detention of a set of containers, the Nigeria Customs Service (NCS) is the executive arm of government that is concerned with the implementation of the law that the National Assembly has made.

“By writing to a shipping company demanding that some containers be detained, the Senate Committee on Customs, Excise & Tariff has gone beyond its mandate of interceding with the agency of government set up by law, to interceding with maritime stakeholders who are being regulated by agencies of government in the maritime sector. This is wrong, illegal and an impunity taken too far.

“Writing letters to maritime stakeholders, asking them to discuss with the Clerk of the Senate Committee in respect to cargo clearance is illegal because it goes against national law and negates trade facilitation.  By every standard, this is wrong and nobody should try to sugar-coat it or justify it.

“The Customs should be allowed to do its job, and if the Customs is failing to do its job properly, this is obviously not the way to make them sit up. If the Customs is not doing its job, the Senate Committee has tools to make them sit up. The Committee can go to plenary to make the Customs do its job, not overstepping their mandate.

“The National Assembly can give broad directions, not specific direction relating to specific incident. Even the Minister of Transportation cannot give the Nigerian Maritime Administration and Safety Agency (NIMASA) particular directives on a mandate that the agency is supposed to do. The Minister is only mandated to give broad directives of a particular nature to NIMASA, but if the Minister start going specific, it becomes illegal. However, if the Minister decides to go specific, it is still understandable because he has executive powers. It is not so for the National Assembly that lacks any executive powers. The powers that determine which cargoes to clear and which ones not to clear is an executive function, not a legislative function.

“The Senate Committee can advise the Customs that certain cargo owners are not compliant with the nation’s cargo clearance laws, that such cargoes should be detained. This is a general directive and it’s in line with the Committee’s mandate. However, the Senate Committee cannot instruct the Customs to detain cargoes over noticeable infractions. Please note the word ‘advise’ and ‘instruct’. The Senate is to make laws and oversight the Ministries, Departments, and Agency’s of government over its implementation.

“Writing directly to a shipping company, and asking that some cargoes be detained is impunity taken too far. Asking the shipping company to get in touch with the Clerk of the Committee or face legislative sanctions is an illegality in its entirety. What legislative sanction does a National Assembly Committee has over a shipping company? The best they can do is to summon the leadership of the shipping company to appear before it if there is a petition against the firm. It is when the leadership of the shipping company fails to appear before the lawmakers that a warrant of arrest is issued to the Nigerian Police Force (NPF)

“Do you also know that the National Assembly has powers of investigation? However, after investigating, it can only make recommendations. The National Assembly usually undertakes fact-findings to unravel many anomalies in the system, but after such fact-findings, they can only do a report and send to the Executive arm of government in form of a recommendation.”

IMPLICATION OF DETENTION ORDER

With a port already almost filled to capacity, the recent detention order from the Senate Committee on Customs, Excise and Tariff has thrown the port community into a state of confusion. In the words of a clearing agent, Orji Nwanchukwu, “We are just coming out of an almost one week port shutdown induced by an EndSars protest that went out of control, and now, over 500 containers are said to be affected by this detention order from the Senate Committee. This year alone, we have had to battle with Covid-19 lockdown, EndSars lockdown and now the Senate has ordered the detention of over 500 containers. This will cripple our ports system and make us very uncompetitive in the West African sub-region.

“Because of this detention order, Customs officers are refusing to attend to those containers listed by the Senate Committee on Customs, Excise and Tariff because everybody is trying to play safe despite the illegality of the order. In this scenario, who is going to pay for the extra days spent in the port terminals by those containers? Will the terminal operators grant waivers again after magnanimously granting waivers for both the Covid-19 and EndSars induced port shutdown? What about the demurrage that will accrue on those cargoes, who is going to be liable?”

Speaking on efforts to salvage the situation, the National President of the Association of Nigerian Licensed Customs Agents (ANLCA), Tony Iju explained that he is currently in Abuja to liaise with the Senate Committee on Customs, Excise and Tariff to lift the detention order.

“We are currently holding series of meetings with the Senators to ensure they lift the detention order on those containers. We cannot be talking about its legality now because cargoes are currently trapped inside the ports. We need to make the Senate Committee and the Customs collaborate more to ensure trade is facilitated at our ports. We hope that after our meeting with the Senate Committee, the detention order on those containers will be lifted,” Tony Iju, ANLCA National President told the Nigerian Tribune exclusively.

Also calling for calm and a quick resolution to the imbroglio, Founder of the National Association of Government Approved Freight Forwarders (NAGAFF), Dr. Boniface Aniebonam advocated for compliance in trade practices to avoid a situation where detention order will be issued by any arm of government on containers inside the ports.

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