New Aviation Law May Lead to Chaos – Stakeholders Warn
The Federal Competition and Consumer Protection Act ,FCCPA, which was signed into law on February 5, 2019, by President Muhammadu Buhari, has been described as having a faulty extra territorial application as it concerns aviation.
Speaking at a stakeholders’ forum tagged “Consumer Protection in the Aviation Industry”, held in Lagos, experts from the aviation industry expressed their concerns over some provisions of the new Act which, according to them, have the potential to cause conflict among regulatory agencies and also jeopardise air safety.
Top of the concerns, as raised by the Legal Adviser and Head of Compliance and Enforcement, Nigerian Civil Aviation Authority, NCAA, Mr. Emmanuel Chukwuma, was the area of jurisdiction and oversight as contained in Section 105 of the Act.
The contentious Section 105 states: “In so far as this Act applies to an industry that is subject to the jurisdiction of another government agency by the provisions of any other law in matters or conducts which affect competition and consumer protection, this act shall be construed as establishing a concurrent jurisdiction between the commission and the relevant government agency, with the commission having precedence over and above the relevant government agency.”
This provision, according to Chukwuma, will make the NCAA subservient to the FCCP in matters of consumer protection within a jurisdiction that it (FCCP) lacks the technical know-how to adjudicate over matters.
The NCAA’s Legal Adviser posed that aviation is a global business governed by international bodies such as the International Civil Aviation Organisation (ICAO) and the International Air Transport Association (IATA) which have provided ample guidelines to all Civil Aviation Authorities on how to deal with all issues of passenger infringements.
He maintained that only the CAAs have a better understanding of the aviation industry. That is why they are saddled with the onus of oversight and regulations in line with the International Standard and Recommended Practices as enshrined in ICAO Annexes.
He added that all the international regulations provided by ICAO were domiciled in the Nigerian Civil Aviation Regulations (NCAR) from 2006 and amended in 2015. And it was on this premise that the NCAA has a directorate of consumer protection which is mandated to check, investigate and arbitrate on issues of infringements.
He expressed shock that such an Act has been promulgated without involving relevant stakeholders across the value of all sectors, as he just learned about it two weeks ago.
“I was not aware of this new law until two weeks ago, I must be frank with you. And I wonder why such a law would be enacted without involving other stakeholders. However, I have read through the Act and I have seen areas that may be expunged or the law be repealed. I am particularly worried by the provision of Section 105 which says there will be concurrent jurisdiction in the application of the law but that the FCCP will have dominant authority over the other.
“And I ask how possible is it to have a concurrent jurisdiction yet the FCCP will take preeminence. This will surely create conflict between the agencies. As a matter of fact, the new law has a lot of extraterritorial provisions that have to be expunged. But we will make our concerns known to the government and the general public after studying the law,” he said.
He recalled an incident involving Aero Contractors some years ago when the airline canceled a flight but failed to treat passengers well. The CPC (Consumer Protection Commission) was involved to adjudicate the matter. At the end, the CPC charged the airline N20 million as the cost of investigation, among other charges ranging from N1000 to N20,000 as compensation to the passengers. It became a controversial issue and the NCAA had to intervene.
Another area of concern was that the new Act applies to defaulters outside Nigeria. This means an infringement against a passenger, whose flight emanates from Nigeria, will be judged according to the indigenous new law.
This, according to Mr. Anaso Kalu, the Deputy General Manager, Flight Operations and Adjudications, NCAA, was against Article 6 of the Chicago Convention, which reads contrary to the recommendation of the new Act.
Other concerns raised by the stakeholders were that the umpire of the new Act (FCCP) could comprise members of a special tribunal who could summon and examine witnesses/documents, administer oaths and do all the court proceedings independently.
As it were, the new Act on consumer protection fails to recognize and respect the fact that aviation has its regulations and standards which are globally recognized and adhered to by all Civil Aviation Authorities.
And based on the reactions of the stakeholders, the new law could only cause a chaotic situation in the industry where such matters like flight cancellations or delays, which are common scenarios resulting from weather or operational reasons, may be seen as infringements by the FCCP and treated as such.
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