THE PROPOSED AVIATION BILLS: OUR POSITION
EXPEDITIOUS INAUGURATION OF BOARDS OF DIRECTORS OF AVIATION AGENCIES
Due to the nature of professionalism in the Aviation Sector, its critical nature together with safety issues, there is a fundamental need for the emplacement of boards of directors for prompt decision-making. While we acknowledge the fact that Interim boards could fill the administrative vacuum, agencies were not contemplated to run without functional boards for periods exceeding 3 months. ART is of the view that Aviation Sector policymakers adopt the international aviation best corporate governance for the promotion of safety. Situations, where the Aviation agencies operate without formally inaugurated boards, could cast a thick shadow on transparency, accountability, and responsibility.
CONFLICT OF INTEREST, INSIDER TRADING, AND CONFIDENTIALITY
We are highly delighted with the provisions of Section 14 of the NAMA Bill which aptly captured our expectations for the benefit of the Aviation Sector. For ease of reference, we reproduce it hereunder and urge that it be adopted and extended to all other Aviation Agencies.
- The Members of the Governing Board, the Managing Director, Directors, and the employees of the Agency shall not control, manage or operate any aviation enterprise while in office.
- Any of the persons specified in subsection (1) of this section, having a financial or other interest in any aviation enterprise shall make full disclosure of such interest to their respective appointing authorities.
- Any of the persons mentioned in subsection (1) of this section is prohibited from participating in any action or decision that may, whether directly or indirectly affect their financial interest in any aviation enterprise.
- A member of the Board, the Managing Director or any other officer or employee of the Agency shall–
- not for his personal gain, make use of any information which has come to his knowledge in the exercise of his powers or is obtained by him in the ordinary course of his duty as a member of the Board, the Managing Director, officer or employee of the Agency;
- treat as confidential any information which has come to his knowledge in the exercise of his powers or is obtained by him in the performance of his duties under this Act; and
- not disclose any information referred to under paragraphs (a) and (b) of this subsection, except when required to do so by a court of competent jurisdiction or in such other circumstances as may be prescribed by the Board, from time to time.
- Any person, who contravenes the provisions of subsection (4) of this section, commits an offense and is liable on conviction to a fine of not less than N200, 000.00 or to a term of not less than 6 months imprisonment or to both.
ESTABLISHMENT OF A PAYMENT CLEARING HOUSE
In view of the discomfort experienced by airline consumers resulting from flight delays and cancellations, we implore the Committee on Aviation to ensure the establishment of an airline Clearing House as an instrument to facilitate the transfer of value on domestic flights. It is our view at ART that the establishment of an Airline Clearing House will help reduce the discomforts suffered by passengers when flights are delayed or canceled as the clearinghouse will enable one airline’s ticket to be exchanged for the ticket of another airline such that when excessive delays occur, or flights are canceled such passengers can have their tickets endorsed to another airline on the next available flight utilizing such instrument. To ensure compliance, we advise that any domestic operator that fails to register with the proposed payment Airline Clearing House could be denied issuance or renewal of its Air Operator’s Certificate. To this end we further plead that the NCAA be empowered to be the lead authority responsible for the protection of consumers’ interest in the Aviation and allied services industry notwithstanding the provisions of any other law.
NIGERIA SAFETY INVESTIGATION BUREAU
The ART is of the view that safety investigation and administration in transportation should be all-embracing. We are of the view that its composition should be collaborative inter-ministerial. Modern cities have long adopted multimodal transportation systems to ease the movement of people, goods, and services. It is our view that the establishment being proposed should embrace these modern trends.
We, therefore, recommend the change of title of the proposed agency to be Nigeria Transportation Safety Administration Bureau with its Chief Executive designated as Executive Chairman to be assisted by four Executive Vice Chairman representing Land, Water, Rail, and Aviation Safety Investigation. Also, we urge that you reconsider the wordings of the Bill regarding the objective of the agency. We propose for your consideration, the following as the objective: “The objective of this Act is to provide an effective, legal and institutional framework for accident investigation of transportation occurrences in Nigeria and anywhere Nigerian interest is involved or when the transportation vehicle is a Nigerian carrier and make recommendations to prevent future occurrences”.
We further suggest the involvement of the Ministry of Transportation and its agencies at the primal stage.
SUMMARY RECOMMENDATIONS ON THE PROPOSED CIVIL AVIATION (NCAA) BILL 2019
PART II SECTION 5 (5)
This section of the bill makes provision for an interim board in the absence of a board appointed by the President.
NOTE
- While the interim board may serve a useful purpose to fill a vacuum created by no appointment of a board in the short run. It is not the intention of the law that the Authority should function without a board for periods of more than three months. It is important for the Authority to comply with international best practices in its structure and administration, in the interest of safety. The situation where the Authority operates without aboard for a period of up to 10 years should be avoided.
- Because of the nature of professionalism in the aviation sector and the critical nature and involvement of safety, there is that fundamental need to always have a functional board in operation for each of the aviation agencies.
RECOMMENDATION
- Section 5 (5) of the bill should be amended taking into account the observations in 1 (a) and (b) above. The tenure of the interim board should be limited to six months.
PART 10 SECTION 16
NOTE
SECTION 16: This section deals with the establishment of Directorates and Inspectorate.
Aviation Security and public health have become important and core issues in civil aviation. In the light of this fact, we are of the view it should be represented at the highest level of management.
RECOMMENDATION
We recommend that directorates be created for aviation security and aeromedical services.
PART XVII SECTION 105 LEGAL PROCEEDINGS
This section deals with legal proceedings against the Authority.
NOTE
No provision was made for pre-action notice in this section. Pre-action notice is important to protect the Authority from ambush litigation that may disrupt its operation.
RECOMMENDATION
A SECTION 105 (4) SHOULD BE CREATED: “A suit shall not commence against the Authority before the expiration of a period of 2 months after a written notice of intention to commence the suit shall have been served on the Authority by the intending plaintiff or his agent, and the notice shall explicitly state the cause of action, the particulars of claim, the name and place of abode of the intending plaintiff and the relief which he claims”.
PART X SECTION 65
This section deals with the nationality and registration of aircraft.
NOTE
It is in the interest of the security of the nation that all aircraft in public transportation should have an Air Operator Certificate from the state Authority
RECOMMENDATION
We recommend a new Section 65 (5): No person SHALL operate an aircraft in public transport category, carry passengers or cargo for hire and reward without having a valid AOC issued by the authority
PART XV SECTION 95 AIR OPERATORS ECONOMIC REGULATION
ESTABLISHMENT OF A PAYMENT CLEARING HOUSE
NOTE
This is currently none existent in the bill
RECOMMENDATION
We believe that Nigeria is ripe for a clearinghouse. That provision be made in the bill for the establishment of a domestic payment clearing house in the bill.
Therefore we propose and appeal to your committee to ensure the estab lishment of a payment clearing house for domestic flights. This will reduce the discomfort of flight delays and cancellations on consumers as they can quickly be boarded on the next available flight. We also advise that it should be made mandatory for all local airline operators to register with the payment clearing house.
That a new section 95 (6) (r) be created.
Section 95 (6) (r)
(r) Ensure the establishment of a payment clearing house for domestic flights. Any local operator that has not registered with the payment clearing house shall not be granted an Air Operator’s Certificate.
ANNOTATIONS
Civil Aviation (NCAA) Bill 2019
- Part II membership and composition of governing body
Section 5 (4) (F)
Section 5 (5)
- Part III functions and power of the board
Section 10 (2) (g)
- Part IV management and staff of the authority
Section 11 (e) (VI)
Section 12 (1)
Section 16 (6) (b)
Section 16 (11) (c)
- Part V financial provision
Section 23 (9)
- Part VII powers of the authority to regulate
Section 42(1) (a)
- Part X air operator certificate
SUMMARY RECOMMENDATIONS ON THE PROPOSED NIGERIA COLLEGE OF AVIATION TECHNOLOGY BILL 2019
1 PART II- PRINCIPAL OFFICERS AND OTHER STAFF OF THE COLLEGE
SECTION 13 Deals with the appointment of a Rector
NOTE
S 13 (d) (ii) is ambiguous. It needs clarification.
RECOMMENDATION
We are of the view that this subsection serves no useful purpose. We recommend that it be expunged.
SECTION 13 (7) Serves no useful purpose but may only create confusion. It should be expunged.
Section 20 deals with Removal and discipline of Staff
Section 20 (5) (a) (b) and (c) deals with suspension of staff
Section 20 5 (c) provides for suspension for more than a period of 3 months. The law is that suspension cannot be indefinite.
Section 20 (5) (c) serves no useful purpose in the light of the above.
RECOMMENDATION
Section 20 (5) (C) should be expunged.
ANNOTATIONS
Nigerian College of Aviation Technology Bill 2019
Part ii Principal Officers and College Staff
Section 13 (2) (d) (iii)
Section 15 (2)
Section 15 (7) (c)
Section 16 (6) (c)
Section 17 (2)
Section 18 (2)
Section 20 (5) (c)
Section 20 (5) (d)
SUMMARY RECOMMENDATIONS ON THE PROPOSED NIGERIA AIRSPACE MANAGEMENT AGENCY BILL 2019
PART II SECTION 4(5)
This section of the bill makes provision for an interim board in the absence of a board appointed by the President.
NOTE
(a) While the interim board may serve a useful purpose to fill a vacuum created by none appointment of a board on the short run. It is not the intention of the law that the Authority should function without a board for periods of more than three months. It is important for the Authority to comply with international best practices in its structure and administration, in the interest of safety. The situation where the Authority operates without a board for a period up to 10 years should be avoided.
(b) Because of the nature of professionalism in the aviation sector and the critical nature and involvement of safety, there is that fundamental need to always have a functional board in operation for each of the aviation agencies.
RECOMMENDATION
Section 4 (5) of the bill should be amended taking into account the observations in 1 (a) & (b)
PART III SECTION 8 FUNCTIONS OF THE AGENCY
As part of the functions of the agency the following should be considered
RECOMMENDATIONS
In the discharge of its functions the Agency shall operate within the ambits of the applicable international and national standards and regulations.
While section 8(1) (J) provide seamless engineering and infrastructure technology for implementation of aviation systems and service frameworks, to ensure global interoperability and safety in the Nigerian airspace;
Because Aviation system block upgrade is an ICAO framework and therefore should not be inserted in the law because once ICAO changes the framework it then requires the law to be reviewed.
C NAMA shall obtain safety certifications from NCAA in undertaking the functions in section 8 (5)
3 PART 1V SECTION 17 DELEGATION OF POWERS
- For the effective discharge of the functions conferred on the Managing Director under this Act, the Managing Director may discharge any of the functions through the directors in charge of any of the following Directorates –
RECOMMENDATIONS
- Air Traffic Services;
- Safety, Electronics and Engineering Services;
- Finance, Accounts and Commercial Services;
- Human Resources and Administration
- Company Secretary and Legal Adviser;
NOTE: departments merged and renamed
PART V SECTION 18 FUND OF THE AGENCY
Section 18 (1) (xii) & (2) (b)
RECOMMENDATION
NCAA and NAMA cannot be charging evaluation fees (xii) from the same customer. This will create conflict. So, only one of the two agencies should charge this fees and a sharing formula for the proceeds established because they both have a role in the process.
SECTION 18 (2) (b)
We recommend that NIMET should not collect this revenue other than their share of the 9% of 5% TSC, CSC and Charter Services and their other 23 services provided outside the aviation industry.
SECTION 20 (2)
In addition to any other remedy provided for in this Act or by law, rules and guidelines made pursuant to this Act in relation to collection of an unpaid and overdue charges imposed by the Agency for air navigation services, whether or not a Judgment for the collection of the charges has been obtained, the Agency may apply to the Federal High Court, for an order, which the court considers appropriate, authorising the Agency to seize and detain any aircraft belonging to the defaulting airlines and aerodrome operators provider until the charges is paid or a bond or collateral security acceptable to the Agency is provided for the unpaid and overdue amount
RECOMMENDATION
This should be expunged a creditor is at liberty at any time to take any legal action to recover any debt owed
ANNOTATION
Nigeria Airspace Management Agency BILL 2019
- Part 1 Objective and Application
Section 1
Section 2
- Part II Establishment of NAMA
Section 3 (3)
Section 4 (4)
- Part III Functions and Powers
Section 8 (I) (J) (K)
Section 8 (5)
Section 10
- Part IV Management and Staff of the Agency
Section 11 (2) (e)
Section 12 (a)
Section 17 (1) (a-g)
- Part V Financial Provision
Section 18 (xii) (xiv)
Section 20 (2) should be EXPUNGED
Section 21 (e)
- Part VI Provision Relating to Acquisition of Land
Section 37 (7) (c)
- Part IX Legal Proceeding
- Section 43(3)
SUMMARY RECOMMENDATIONS ON THE PROPOSED NIGERIA METEOROLOGICAL AGENCY BILL 2019
PART II SECTION 3(6)
This section of the bill makes provision for an interim board in the absence of a board appointed by the President.
NOTE
(a) While the interim board may serve a useful purpose to fill a vacuum created by none appointment of a board on the short run. It is not the intention of the law that the Authority should function without a board for periods of more than three months. It is important for the Authority to comply with international best practices in its structure and administration, in the interest of safety. The situation where the Authority operates without a board for period up to 10 years should be avoided.
(b) Because of the nature of professionalism in the aviation sector and the critical nature and involvement of safety, there is that fundamental need to always have a functional board in operation for each of the aviation agencies.
RECOMMENDATION
(c)Section 3 (6) of the bill shou
ld be amended taking into account the observations in 1 (a) and (b)
3.6. The tenure of the Interim Board should be limited to 3 months.
2 PART III FUNCTIONS OF THE AGENCY Section 8 (g)
(g) Provide and operate telecommunications systems for meteorological purposes subject to regulations made by the Nigerian Communications Commission;
RECOMMENDATION
The appropriate regulator is National Frequency Management Commission.
3 PART IV S.10 (3)
QUALIFICATION OF THE DIRECTOR GENERAL
RECOMMENDATION
We recommend 20 years cognate experience, 5 of which should be at Senior Management level.
13 (3) should be amended anew
13 (3) (h) Director Legal Services to avoid conflict with Section 11 (2) (b)
Section 16 (e) (f) (g) provides for the funds of the Agency. We consider the percentage of 10% of FAAN landing charges and 10% of NAMA over-flight charges excessive.
NOTE
NIMET does not provide any direct services to FAAN. We consider 5% of the sales tax surcharge on tickets and cargo and charter charges by NCAA as adequate.
RECOMMENDATION
We recommend not more than 3% of over flight charges for NIMET.
The 10% of landing charges from FAAN should be deleted because NIMET provides no service to FAAN.
4 PART VII Section 31 POWER TO IMPOSE FINE
NOTE
Only the courts can impose fines.
RECOMMENDATION
The word fine should be deleted and replaced with penalty.
5 PART IX SECTION 35 (5) LEGAL PROCEEDING
This section deals with legal proceedings against the Authority.
NOTE
No provision was made for pre-action notice in this section. Pre-action notice is important to protect the Authority from ambush litigation that may disrupt its operation.
Section 38 (b) Deals with the execution of judgment
NOTE
Section 38(b) Unconstitutional
This section deals with execution of judgment made by a competent court.
RECOMMENDATION
- The provision requiring the approval of the Attorney General for the execution of the judgment of a court of competent jurisdiction amounts to arresting the judgment of the court and denying litigants the benefit of their action. It is against the constitution of Nigeria.
- We recommend that the offending portion of section 35 (5) be deleted.
ANNOTATIONS
Nigeria Meteorological Agency Bill 2019
- Part III Functions of the Agency
Section 8 (1) (g)
- Part IV Management and Staff
Section 10 (3)
Section 13 (3)
- Part V Financial Provision
Section 16 (1) (e) (f) (g)
- Part VI Investigation and Enforcement
Section 31
- Part IX Legal Proceeding
Section 35 (5)
SUMMARY OF RECOMMENDATIONS ON THE PROPOSED FEDERAL AIRPORTS ATHORITY OF NIGERIA BILL (FAAN) BILL 2019
1 PART I SECTION 2(6)
This section of the bill makes provision for an interim board in the absence of a board appointed by the President.
NOTE
(a) While the interim board may serve a useful purpose to fill a vacuum created by none appointment of a board on the short run. It is not the intention of the law that the Authority should function without a board for periods of more than three months. It is important for the Authority to comply with international best practices in its structure and administration, in the interest of safety. The situation where the Authority operates without a board for period up to 10 years should be avoided.
(b) Because of the nature of professionalism in the aviation sector and the critical nature and involvement of safety, there is that fundamental need to always have a functional board in operation for each of the aviation agencies.
RECOMMENDATION
Section 2(6) of the bill should be amended taking into account the observations in 1 (a) and (b)
2 PART 1 (3)
- The section deal with the mandate of the Authority.
NOTE
- The Authority undertakes development of airport and associated infrastructures to support airports.
RECOMMENDATIONS
- We recommend that section 1(3) be amended to read ‘The Authority shall manage the airports listed in the first schedule to this Act and any other airport it may develop and any other airport that may be assigned to it by the Minister, from time to time
3 PART III SECTION 10 (3)
NOTE
- This section deals with the qualification of a person to be appointed Managing Director/ Chief Executive of the Authority which is fixed at 15 years’ experience. We are of the view that due to the technical nature of the aviation industry generally. It is desirable that only persons with a minimum of first degree and 20 years’ experience in the aviation industry be qualified for appointment.
RECOMMENDATION
We recommend that this section of the bill be amended that only person with minimum of first degree and 20years experience in the field of aviation five of which must be at senior management cadre.
4 PART III SECTION 15
- This section deals with the establishment of directorates of the Authority.
NOTE
- The Directorates created are not listed. This is a departure from other agencies and subject to abuse. The directorates should be listed using the existing structure.
RECOMMENDATION
- We recommend the following directorates using existing structure Section 15 (1)
- Director of Operations
- Director of Engineering Services
- Director of Aviation Security
- Director of Commercial and Business Development
- Director Human Resources and Administration
- Director of Legal/ Secretary to the Authority
5 PART IV SECTION 16 (2c) (3) AND (4)
16(2c)
- This section deals with the financial provision and revenue of the Authority.
NOTE
- The Authority grants concession for various economic activities in the airports including concessions. However revenue from concessions is not listed as one of the revenue sources of the Authority.
RECOMMENDATION
- Revenue from concessions should be reflected as a source of revenue for the Authority in the bill. A new sub section 16 ( c) ( xxxii) Concession fee should be created.
16(3) (4)
- This section deals with sharing the revenue of the Authority.
NOTE
- There is no basis for sharing the revenue of the Authority with other agencies. The Authority is not a major consumer of the services of NISB and NIMET. The percentage given to the two agencies is high.
RECOMMENDATION
- The percentage given to NISB and NIMET should be reviewed downwards. The Authority has the enormous responsibility to maintain airports to international standards. Moreover the more than 80% of the airports it manages are not profitable. So every revenue counts.
6 Part VI SECTION 35 (1)
- This section deals with execution of judgment made by a competent court.
NOTE
- The provision requiring the approval of the Attorney General for the execution of judgment of a court of competent jurisdiction amounts to arresting the judgment of the court and denying litigant the benefit of their action. It is against the constitution of Nigeria.
RECOMMENDATION
- We recommend that the offending portion of section 35 (1) be deleted.
ANNOTATION
Federal Airport Authority of Nigeria Bill 2019
- Part 1 Federal Airport Authority of Nigeria
Section 1 (3)
Section 2 (b) 1
- Part III Management of the Authority
Section 10 (2)
Section 12 (6)
Section 15 (Directorates Listed)
Section 15 (1)
- Part IV Financial Provision
Section 16 (xxxii) ART’s
Section 16 (3) (4)
- Part VI Legal Proceeding
Section 35 (1)
- Part VIII Miscellaneous
Section 41 (1)
SUMMARY RECOMMENDATIONS ON THE PROPOSED NIGERIA SAFETY INVESTIGATION BUREAU BILL 2019
PART I SECTION 1
Part I defines the object of the ACT
NOTE
The object as presently stated in the bill does not quite capture the primary purpose of the bill
RECOMMENDATION
We suggest the following wording for the objective: The objective of this Act is to provide an effective, Legal and institutional framework for accident Investigation of transportation occurrences in Nigeria and any where Nigerian interest is involved or when the transportation vehicle is a Nigerian carrier and make recommendation to prevent future occurrences.
2 PART II SECTION 5
Section 5 deals with the power of the NSIB
NOTE
Section (5) (M) (II) It is important it empowers the NSIB to issue safety bulletin. However it is important that the power be limited to other mode of transportation excluding aviation to avoid conflict of the Civil Aviation Authority. The Civil Aviation Authority is the sole State Authority responsible for the safety regulation of aviation.
RECOMMENDATION
Section 5 (M) (II) should be amended to read “issuing safety advisory notices or bulletins excluding aviation”.
3 PART II SECTION (6) & (7)
This part deals with the independence of NSIB and Director General and NOTE composition of governing board.
RECOMMENDATION
We recommend the title of Executive Chairman instead of Director General and to be assisted by four Executive Directors representing the other transportation modes.
4 PART III SECTION 8 (5)
This section of the bill makes provision for an interim board in the absence of a board appointed by the President.
NOTE
- While the interim board may serve a useful purpose to fill a vacuum created by none appointment of a board on the short run. It is not the intention of the law that the Authority should function without a board for periods of more than three months. It is important for the Authority to comply with international best practices in its structure and administration, in the interest of safety. The situation where the Authority operates without a board for period up to 10 years should be avoided.
- Because of the nature of professionalism in the aviation sector and the critical nature and involvement of safety, there is that fundamental need to always have a functional board in operation for each of the aviation agencies.
RECOMMENDATION
- Section 8 (5) of the bill should be amended taking into account the observations in 4 (a) and ( b)
ANNOTATIONS
Nigeria Investigation Safety Bureau Bill 2019
1 Part 1 Objective and Application
Section 1
2 Part II Establishment of NISB
Section 5 (m) (ii)
Section 6 (b)
3 Part III General Organisation and Administration
Section 8 (5)
4 Part IV Management& Staff
Section 11(4) (C)
5 Part V Financial Provision
Section 14 (I)
6 Part XI Family Assistance Programme
Section 47 (1)
7 Part XIII Offences and Penalties
Section 48 (1)
Elder Gbenga Olowo
President ART
Communicated by Olumide Ohunayo
Ass Sec Gen
