Chinelo Obogo, [email protected]

 

On Tuesday, November 19, 2019, President Muhammadu Buhari transmitted a letter to the Senate, seeking consideration and passage of six Aviation Sector Bills for amendment. The bills include Civil Aviation Bill 2019; Federal Airport Authority of Nigeria (FAAN) Bill 2019; Nigerian College of Airspace Management Agency Establishment Bill 2019; Nigerian Meteorological Agency Establishment Bill 2019 and Nigerian Safety Investigation Bureau Establishment Bill 2019.

The proposed bills were welcomed by stakeholders in the industry but as the details of some of them became public, concerns were raised about certain sections of some of them. The bill which raised the most concern is the FAAN bill 2019.

Part V Section 26(1) of the proposed bill states that the Authority shall with the consent of the Minister, discontinue the use of any airport maintained by it pursuant to this Act. 26(2) states that where the use of an airport is discontinued pursuant to subsection (1) of this section, the Authority shall submit a valuation of the airport to the Federal Government  who shall cause compensation to be made to the Authority as appropriate.

Section 27 states: “Without prejudice to section 1(3) of this Act, the Authority may, with the consent of the Minister assume the management of any airport in Nigeria in addition to those assigned to it under this Act.

Section 26(1) states that: ‘When there is any hindrance to the acquisition by the Authority of any land required for any purpose of the Authority under this Act by agreement or negotiation including any failure by the Authority to reach an agreement as to the amount to be paid in respect to the acquisition, the Minister, on the application of the Authority and after such enquiry as he may think necessary ay declare that the land is required for the service of the authority.

Industry stakeholders raised concerns especially for Section 26(1) which gives FAAN, with the consent of the Minister for Aviation, the authority to ‘discontinue’ the use of any airport maintained by it. Though the proposed bill is similar in content with the FAAN Act 2005, professionals in the industry say the concerns raised are justified as the Federal Government is now talking about concessioning all the airports in the country. They fear that if such controversial provisions are not amended or expunged, any minister in power may not bother following due process or complying with the provisions of the Privatitsation Act if and when the government decides to concession them.

An instance when the Federal Government didn’t follow due process was during the sale of FAAN’s guest house at GRA Ikeja  by the former management of the authority. A source within the agency revealed to Daily Sun that not only was it done in an obscure and secretive manner, there was no open bidding.

Another instance is the control of the Lagos Airport Toll gate for which the labour unions have insisted should be handed over to them for a period of three months. The contract of the current contractor, who was chosen after a rigorous open process, expired in February 2019 and the labour unions have been pushing for the collection of toll fees to revert to the commercial department of FAAN. Despite the assurance by the unions that if given back control of the toll gate, it will surpass the present contractor in revenue generation, Daily Sun reliably learned that another company has already been penciled down by the agency to take charge of collecting toll and car park fees.

“The process of selection wasn’t made open, there was no open bidding and nothing was published in the paper for companies to submit tender. We just woke up one day to hear that a new contractor has been chosen to take over from the present contractor. Now the present contractor has gone to court to challenge the action of the government because they believe that the process should have been made transparent and at least, they should have been given the right of first refusal,” an industry source told Daily Sun.

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An aviation security expert and CEO of Centurion Securities, Captain John Ojikutu said the minister’s authority to disuse any airport should not be absolute but should be supported with an Audit or Survey Report from the Nigerian Civil Aviation Authority (NCAA) the designated civil aviation Authority.

“What is definition of Authority in the Bill? The valuation of an airport may be done by FAAN, the authority of the minister to discontinue the use of any airport should be supported with an Audit or Survey Report from the NCAA the designated civil aviation Authority. The minister authority to disuse any airport should not be absolute.

“What is the bill’s definition of a disused discontinued airport or when is an airport declared disused? It must not be at the discretion or in the opinion of anyone without the report of the responsible civil aviation Authority, in every case, the NCAA.

“My take on this particular issues are; first, if government decides now to disuse any of its 22 airports before the planned concession, it must have technical or economic reasons to do that but those reasons must be supported by the NCAA Audit and Survey Reports. These reports must be shared with and be included with the report of the Infrastructural Concession and Regulations Commission. A disused federal airport could end up for sale to a private organisation or individual but the decision must not be unilateral but corporate.

“Second, government must diligently go ahead with the concession of the non aeronautical infrastructure and facilities in all the federal airports, make FAAN a holding company and revert the aeronautical infrastructure in FAAN to a commercialised NAMA. Ensure that each of the major international airports of Lagos, Abuja, Port Harcourt, Kano and Enugu are concessioned with four of the remaining airports and with progressive plans given to the concessioners for the development of each of these airports. If any of these airports still become disused, it will follow the process enumerated in one above.

“An airport managed by FAAN and owned by the Federal Government is not a standalone airport. If any airport is closed today does not mean the staff there would lose their job; they are FAAN staff deployed to the airport and can still be deployed anywhere except like the Nigerian Airways that became defunct in name. If they are concession the way I have suggested so that no airport is left out, so also would no staff be left out,” Ojikutu said.

A lawyer, Abdul Mahmood, had a different view however. He says the that section of the bill means that the minister has no power to discontinue use of an airport but that  the use of an airport can be discontinued for many reasons, ranging from health and safety issues to decline of air commerce and that the bill is a public interest protection article, which empowers FAAN as the authority which manages the airports on behalf of the state.

“The use of airport can be discontinued for many reasons, ranging from health and safety issues to decline of air commerce. My sense is that this is a public interest protection article, which empowers FAAN as the authority which manages the airports on behalf of the state. The power to discontinue is exercised by FAAN but FAAN cannot exercise that power without the consent of the minister. The minister’s only role is to give consent- he has no power to discontinue use of an airport.

“I don’t find any problem with S.26. Perhaps the interpretation article of the Act should give us an understanding of what the Act means by “discontinue”. In interpretation rule, punctuation has its function. Pay heed to the commas after “shall” and before “discontinue”. The power to discontinue lies in FAAN. But, it cannot exercise the power without the consent of the Minister. The Minister cannot exercise the power.

“There’s nothing remotely connected to concession here. Concessions are regulated by concession agreements made pursuant to the Act. Go to the area that deals with concession in the Act. Why bring in concessions?  Go to the interpretation article to see if it explains discontinue. That section has nothing to do with concession,” Mahmood said.