At about 3pm on Sunday, June, 2012, an
aircraft, a Boeing, MD-83 plane, with registration number 5N-RAM,
operated by Dana Airlines Limited, crashed into two houses in Iju
Ishaga, a suburb of Lagos metropolis, killing all 146 passengers and
seven crew members on board, in addition to unspecified number of people
on ground. The plane which went down in a densely populated area, was
about two minutes to touch down at the Domestic Terminal of the Murtala
Muhammed Airport in Lagos.
Official reactions were not late in
coming. President Goodluck Jonathan declared three days of national
mourning in honour of the victims of the air disaster, cancelled all his
public engagements scheduled for Monday, June 4, 2012, and directed
that the national flag be flown half-mast for the three days of
mourning. The President commiserated with and prayed for the families of
the victims of the crash. He also assured all air travelers in the
country that every possible effort would be made to ensure that the
right lessons were learnt from the tragic loss of valuable lives in the
plane crash and that further measures would be put in place to boost
aviation safety in the country. The former Minister of Aviation, Ms
Stella Oduah, did not only visit the crash site on the day of the
incident, she also pledged a full scale investigation into the causes of
the air disaster, a pledge serially re-echoed by Nigeria Civil Aviation
Authority.
On Monday, June 4, 2012, the President
Jonathan, and Governors Babatunde Fashola of Lagos State and Ibikunle
Amosun of Ogun State visited the crash site in demonstration of their
concern over the incident. The Ministry of Aviation suspended
indefinitely Dana Air’s operation license to enable NCAA to carry out
investigation into the incident. The license has since been restored and
Dana Air is in the air again.
Sadly, government’s swift reactions to
the Dana Air disaster were very familiar. In Nigeria, official
expression of grief, public exhibition of sadness and assurance of
rectitude over plane crashes has become a classic shedding of crocodile
tears. Any time there is an air disaster in Nigeria, officials of state
issue statements condoling with the families of the victims and assuring
Nigerians that concrete steps will be taken to prevent a recurrence.
During the Olusegun Obasanjo’s presidency, when plane crashes became the
face of the Nigerian aviation industry, a stakeholder’s forum, was
convened and presided over by the President and broadcast live on
national television, to find lasting solutions to the problems of air
safety plaguing the aviation sector. Thereafter, some money was voted,
as a special intervention fund, to revamp the aviation sector. We all
are aware that the money later became the subject of corruption
allegations and criminal prosecutions, involving not only two Ministers
of Aviation, but also their aides.
And so, the ritual went on. The media
focused on the aviation sector, inundating the public with
attention-competing statements of government officials nationwide,
expressing deep sorrow over the tragic incident, and commiserating with
the families of the bereaved. Nigerians were reminded of many things
that were wrong with the aviation sector: inadequate funding of the
system; failure and corruption of regulatory agencies; deterioration and
lack of maintenance of airports and equipment; archaic and obsolete
navigational system; aging aircrafts that are not fit to fly anymore;
and weak, fund strapped airlines that increasingly resort, in order to
remain in business, to aircraft-overuse, corner-cutting, periodic
technical-checks skipping, and improvisation, thereby jeopardising the
lives of air travelers and crew members.
The Accidents Investigation Bureau of
NCAA recovered the black box. Special prayers for the repose of the
souls of the departed were held in places of worship nationwide.
Intervention strategies were articulated, including merger and
consolidation of airlines, and a further massive injection of funds, as
rescue stimulus, in order to strengthen and enable airlines operating
in Nigeria buy newer and safer aircrafts. After a while, the aviation
sector settled back into business as usual, and our people returned to
the skies to fly by faith, and meet with the inescapable dictate of
fate, against which we are told there is no armour. The vicious cycle
continued.
But are Nigerians so helpless in the
circumstances? Is there nothing we can do to prevent these avoidable air
disasters and the attendant deaths? Is the law so inadequate or
impotent that it cannot help to prevent these recurring air disasters?
Has government been faithful and sincere in awarding punishments or
sanctions for dereliction of duties, negligence, unethical practices and
acts of corruption in the aviation sector, in order to deter
culpability resulting in avoidable or preventable plane crashes? If
government has not been faithful and sincere, and is not likely to be,
what options are available to the citizenry; and if government has been
faithful and sincere, but these sanctions and punishments are not
effective in preventing avoidable air disasters in Nigeria, what other
steps should government take? Is it even reasonable or logical to
expect a government that has left the roads in a terrible state of
disrepair, leading to perennial road crashes and attendant deaths to
ensure air safety? Can a government that cannot guarantee security of
lives and property in our country, which is now in the throes of armed
robberies, assassinations, kidnapping, insurgent bloodletting, and
inter-communal slaughter, be trusted to guarantee air security and
safety?
We have painfully observed that in the
past two decades, whereas all sorts of measures have been taken by
government following air disasters in Nigeria, Nigerians have yet to see
any action in the direction of criminal investigation and prosecution
of officials of the aviation industry, particularly officials that are
responsible for checks and certification of aircrafts in the regulatory
agencies, and the management of airlines, whose misconduct might have
resulted in those air disasters.
Section 3 (a & b) of the Federal
Airports Authority of Nigeria Act provides that “the principal functions
of the Authority shall be—(a) to develop, provide and maintain at
airports and within the Nigerian air space all necessary services and
facilities for the safe, orderly, expeditious and economic operation of
air transport; and (b) to provide adequate conditions under which
passengers and goods may be carried by air and under which aircraft may
be used for other gainful purposes, and for prohibiting the carriage by
air of goods of such classes as may be prescribed.”
The Nigerian Airspace Management Agency
(Establishment Etc )Act Cap N90 PART III Section 7 lists the functions
of the Agency. They include “provision of air traffic services in
Nigeria, including air traffic control, visual and non-visual aids,
aeronautical telecommunications services and electricity supplies
relating thereto, to enable public transport, private, business and
military aircraft fly, as far as practicable and as safely as possible;
provision of aerodromes at all the major Nigerian airports, the
navigation services necessary for the operation of aircraft taking-off
and landing and integrate them into the overall flow of air traffic
within the Nigerian airspace; generally securing the safety, efficiency
and regularity of air navigation; and procuring, installing and
maintaining adequate communication, navigation and surveillance and air
traffic management facilities at all airports in Nigeria.”
Under Section 7 Part III of the Nigerian
Civil Aviation Authority ( Establishment, Etc Act), Cap 94 some of the
functions of NCAA are that the NCAA shall “order the inspection of
aircraft, aircraft manufacturers and maintenance facilities or
organisations, training facilities (including simulators), and other
appliances designed for use in air transportation, as may be necessary
to enable the Authority to determine the issuance or granting of a
certificate of registration or approval to such aircraft, aircraft
manufacturer and maintenance facilities or organization and other
applicable appliances; issue, renew or validate a certificate of
airworthiness in respect of aircraft, and specify in the certificate of
airworthiness by regulations, the duration of such certificate of
airworthiness, the type of service for which the aircraft may be used
and such other terms, conditions or limitations as are required in the
interest of safety; and prohibit any Nigerian registered aircraft or
foreign registered aircraft from operating within the Nigerian airspace
unless certificates of airworthiness are issued or validated under the
regulations in force with respect to the aircraft”
When the duties imposed by these
legislations are breached, and the duty of care imposed by these laws,
the Civil Aviation Act, and other laws are breached by aviation
officials, airline owners and operators, are civil sanctions the only
remedy? The answer is no.
Under our criminal laws, criminal
negligence can be prosecuted. “It is the duty of every person who has in
his charge or under his control anything whether living or inanimate,
and whether moving or stationary, of such a nature that, if the absence
of care or precaution in its use or management, the life, safety or
health of any person may be endangered, to use reasonable care and take
reasonable precautions to avoid such danger; and he is held to have
caused any consequences which result to the life or health of any person
by reason of any omission to perform that duty”; “ when a person
undertakes to do any act, the omission to do which is or may be
dangerous to human life or health, it is his duty to do that act; and he
is held to have caused any consequences which may result to the life or
health of any person by reason of any omission to perform that duty”;
“a person who unlawfully kills another in such circumstances as not to
constitute murder is guilty of manslaughter ; any person who commits the
offence of manslaughter, is liable to imprisonment for life”. ( See
Sections 304,305, 317 and 325 of the Criminal Code Act, Cap C38, Vol. 4
LFN, 2004.)
So, the law is not dumb. The question
is, when are we going to move away from fixation on insurance claims and
compensation for the avoidable deaths, and creatively move to criminal
prosecution of offenders in the aviation sector?
•Ogunye is the principal counsel, Jiti Ogunye Chambers, Lagos
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