The Director General of the Nigerian Institute of Advanced Legal Studies (NIALS), Professor Muhammad Tawfiq Ladan, in this interview with KEHINDE OSASONA spoke on the recent UK arbitral award by P&ID against Nigeria, the essence of treaty obligations with neighbouring ECOWAS countries and his vision for the Institute.
Q: Sir, as the new helmsman of this Institute, what would you be doing differently?
Despite our teething problems, my vision is to make this place visible and generate fund. It may interest you to know that we are the only Institute with a functional press where we do our own publications. In line with our mandate also, we are to do research, publish and help all MDAs and organs of government who need our service in their areas of need. Also, when I came on board as the DG, we had about 317 staff out which we have 28 technical professional staff squatting at the basement with reptiles. Again, for over 40 years, we have been squatting in Lagos and squatting in Abuja for about 20 years without having our own permanent office. That too must change. Going forward, we are engaging stakeholders to come in and help such that in the next four years, we would have our permanent office. Not only that, I also intend to collaborate with relevant stakeholders in order to get results. More importantly, we are poised to engaging in capacity building in comparative international law and practice for our staff.
Q: What other strategy do you intend to employ?
All the three organs of the ECOWAS are in Abuja and Nigeria has been playing big brother. As for us, we want to equally refocus and reposition the Institute from its analogue way of doing things to a digital one. We shall add new strategic programmes like building our IGR, introducing our printing press to potential clients and to contest favourably in the market. In doing this, we have invited a creative director who would help move all our publications to e-book subscription. Again, the second phase will be e-book purchase because our key target groups are young guys, professionals and lawyers who do not have time to buy hard copies; yet they want to subscribe and purchase online.
Sir, the border closure has generated a fuss. Would you say Nigeria has violated Protocol of Free Movement?
No regional block survives without the member states respecting the treaty obligations. And in doing so, measures would be on ground in terms of budgetary, administrative and legal will to implement their treaty obligations. Meanwhile, Nigeria has been doing its best to implement some of its decisions and the treaty obligations, but it has not been easy. We just came back from a conference in Ghana and a number of participants raised the issue of border closure, and whether or not it alludes to violation of protocol of free movement among member states. Here is the distinction: a closure of border is different from border drilling. Even the media have a misconception about it. Border closure restricts the movement of persons, goods and services that violate the protocol on free movement. Don’t forget that the protocol is a right of all the 15 member states of the ECOWAS to move across the borders for not more than 90 days without a Visa. But on the 90th day, you must return to your country or in that host country, you must get resident permit for yourself or for your business or for your service. Otherwise, you must return on the 90th day. If you stay beyond the 90 days, you are violating the protocol and that member state can deal with you by their immigration laws. But the truth of the matter is that every country can engage in border drilling exercise in order to curb criminality or border crimes. In our own case, from Benin in particular, for years, we have been having problem tackling smuggling goods into the country. The protocol of ECOWAS that we have been respecting for years is what people are abusing. Even, if you meet some people in Cotonou, they would tell you that that the place is just like a state in Nigeria.
Could it be because of the liberalization policy of their Cotonou and Lome ports?
Well, the truth is that they have liberalized their port systems in such a way that people prefer to come through their ports and, if we shut them for a long time, their economy will suffer. Having said that, it is very important to know that when you are drilling your border to fight cross border crimes, just as it going on now, it is to prevent smuggled goods, including rice into the country.
Benin ports are known for harbouring 16, 25, 27 years expired rice, coming from Thailand and repackaged or re-bagged. And the first point of call of this expired rice is Nigeria. So, it is not because, we are producing our own rice, it is not because we want to protect local investors alone, No. It is simply because, the protocol itself did say, that before you can actually move not persons but goods from one neighbouring to another, you must make sure that 70 percent of that goods were actually produced in that particular member state. Tell me, where is Benin producing rice? That is the problem. So, in making clarification, let me state here that despite how flashy some ECOWAS citizens make it look, Nigeria is not violating any protocol.
Q: What is your comment on the current legal tussle in the UK and the award against Nigeria?
Well, that case of judgment debt was inherited by this administration. The present Attorney General inherited it. It is nevertheless against Nigerian government and his people. I think many states and heads of parastatals have in the past behaved very irresponsibly, and the people thought they could get away with it. You enter into a contract with a company, the company had already incurred some losses, and also borrowed money to execute part of the contract, all of a sudden, you failed to discharge your own part of the obligation, and then, when you borrow money as a contractor, investor from bank, interest keep accruing which you have no control over. At a point, where we actually needed to enter into a negotiation, we failed to do so as a nation such that at a point when we needed to get ourselves an arbitrator to peacefully arbitrate on our behalf, we did not do that. We dismissed it as rubbish and we believed that would go nowhere with us. The problem is not the companies that dragged Nigeria, it is also because, they never believed in our system that justice could be done, so they went outside. Don’t forget, we are dealing with foreign investors versus the host nation. In the contract, you are not always bound by the legal system or the laws of a nation. So, you have a clause always there, that you can arbitrate outside. So, the company actually used UK arbitration panel and venue for the dispute arising between the company and Nigeria.
Although, a judgment was given, we could have appealed against it, but we did not; we could also have negotiated out of court, we did not; we could have set up a review panel to review the award given, we did not. Meanwhile, the cumulative interest of the award given in terms of the judgment and the losses they incurred were growing. So, all these accrued money, they made a case for it to be built into the arbitral award against Nigeria. And it rose to $9.6b. The truth is: we can’t pay that kind of money because it is practically the life wire of our annual budget and a key chunks of our national budget.
Q: What is the way out?
We have to find out why we want to negotiate when we know that we can fish out the Culprits. People thought that they could get away with some of these things, that is why at times, you need to steadily review and be better informed. And after getting information, FG went out to block the first phase, which is the enforcement of the arbitrary award. Now, the FG has gone on appeal and it also worked. You don’t assume responsibility, when you know you can fish out those responsible for an act. Next time, people should be more cautious and know that they can’t get away with every negative misconduct.
