This article considers the Nigerian law on the investigation of aviation accidents, the challenges, and the need for reform. It focuses on the issues of independence of the Accident Investigation Bureau (AIB), transparency of the Bureau’s investigation, priority of investigative agencies and suspension of airlines’ operating licences (AOL) before the conclusion of investigations. Generally, an accident reduces confidence in the safety of any mode of transport. This is why independent investigations of accidents are important in improving transport safety. The analysis of the circumstances of accidents often leads to recommendations being made to prevent the events re-occurring. Thus, the underlying objective of investigating aviation accidents is to prevent future accidents, and not to apportion blame or liability. Aviation accidents are often fatal and tragic due to the high altitude at which aircrafts fly, and the large number of people that travel by air. Also, the chances of survival are slim. The fatal nature of aircraft accidents makes investigation
consider the immediate and underlying factors of an accident, in order to establish and apportion blame for its occurrence. A credit system that weighted causal factors according to their overall culpability was put in place. For example, an accident could be regarded as being 70% the result of pilot error and 30% the result of environmental factors. In 1948, the Chicago Convention of the International Civil Aviation Organization drafted a set of procedures to govern the burgeoning international aviation industry. These procedures include rules concerning the responsibilities of contracting states, in the event of an aviation accident occurring on their soil. These standards and recommended practices were designated as Annex 13 of the Convention. Currently, the Civil Aviation Act, 2006, is the principal legislation regulating civil aviation in Nigeria. Section 1 of the Act vests the Minister of Aviation with the responsibility for the formulation of policies and strategies for the promotion of civil aviation in Nigeria. The Minister is also responsible for ensuring that Nigeria’s obligations under international agreements are implemented and adhered to. The Act created the Nigerian Civil Aviation Authority and vests it with the authority to regulate civil aviation in Nigeria. Also, Section 73 of the Act, domesticates international treaties to which Nigeria is a party, including the aforesaid Chicago Convention, the 1999 Montreal Convention and the 2001 Cape Town Convention. Most importantly, Section 29(1) of the Act established the Accident Investigation Bureau (AIB) as a body corporate with power to sue and be sued in its corporate name “except for matters associated with accident reports”. Section 29(12) reiterated the sole objective of investigation of accidents in line with the Chicago Convention. That is, “prevention of accidents and not to apportion blame or liability’. Also, the content of any air accident investigation report by the Bureau is not admissible in evidence pursuant to Section 29(14) of the Act. Section 29(2) states that the Bureau shall be autonomous. However, the other provisions of the same Section 29(2) put paid to the notion of independence where it stipulates, “that it shall report to the President through the Minister of Aviation.” A contradiction! The Bureau’s level of autonomy is debatable, if the aforesaid reporting line and the other provisions of the Act are considered. Section 29(3)(a) states that the President, upon the recommendation of the Minister of Aviation shall appoint the Commissioner of Accident Investigation. Based on Section 29(5)(a) of the Act, the AIB is funded largely by subventions and budgetary allocations from the Federal Government. The Commissioner of Accident Investigation, in line with Section 29(7) of the Act, can only recruit staff with the approval of the Minister. Section 29(10) empowers the Minister of Aviation to make regulations for the investigation of accidents. In essence, the Bureau is funded and controlled by the Government and is anything but autonomous if it cannot recruit staff, make regulations on investigations and release investigation reports independently. It is opined that all the aforesaid provisions of the Civil Aviation Act impede the independence of the AIB, and are inconsistent with the provisions of Article 5.4 of Annex 13 to the Convention on International Civil Aviation and the Nigeria’s obligations thereto. Article 5.4 states that: “The accident investigation authority shall have independence in the conduct of the investigation and have unrestricted authority over its conduct, consistent with the provisions of this Annex (underline mine for emphasis)”.
It is noteworthy that the said Annex 13 contains international standards and recommended practices for the investigation of air accidents. Section 29(11)(e) of the Civil Aviation Act specifically incorporates the provisions of Annex 13 of the International Convention on Civil Aviation. Conversely, Section 29(10) of the said Act empowers the Minister of Aviation to make regulations for the investigation of accidents. The fact that the AIB cannot independently release the final reports on accident investigations is a clear evidence of its lack of independence. For example, none of the official final reports of the air crashes, which occurred in the last ) decade, has been released. Thatis, Bellview Flight 210 where 117 ” persons died on 22nd mae; October, 2005; Sosoliso = Airlines Flight 1145 where 107 died on 10th December, 2005; and ADC Flight 992 where 96 people including the then Sultan of Sokoto died on 29th October, 2006. The Commissioner of the AIB, who headed the investigation of the Sosolisoaircrash was quoted in Thisday Newspaper of 14th June, 2012, as stating that the report of the aforesaid Sosoliso was ready but not yet released by the Federal Government. He also commented that “the accident was caused by lack of diesel to power the generating set for the runway”. It is noteworthy that all the aforesaid airlines are now defunct, even without the release of air crash investigation reports. Perhaps, their demise is due to a combination of negative public perception of the safety of their aircrafts and the knee jerk suspension of the licenses by the authorities. Consequently, hundreds of jobs and considerable investments were lost. Also, it is opined that the AIB’s lack of Probitas Law Journal | 03
independence leads to loss of confidence in the Bureau and the aviation industry.
The public does not understand the Bureau’s operations and procedures. They understandably believe that the AIB’s work is shrouded in secrecy and it attempts to cover up lapses in the aviation industry. This affects the survival of the airlines involved in accidents as evident by their demise over the years. The AIB could have used the opportunity of the major air crashes of the last decade to educate the public about the processes of investigation and the expected time frame for the conclusion of its reports. This would have helped the Bureau’s public perception and confidence. As a corollary, the negative perception and public outrage after air accidents often forces the aviation authorities to make ‘knee jerk decisions’. The authorities often suspend the operating license of the airlines involved in accidents without investigation. Internationally, an air crash investigation typically takes an average of two years. For example, the final report of the investigation of the crash of Air France Flight 447 from Rio de Janeiro to Charles de Gaulle International Airport, Paris on 1st June 2009, where 216 passengers and 12 aircrew died, was only released on 5th July, 2012. Similarly, the final report of British Airways Flight 38, which crash landed at the Heathrow Airport on 17th January, 2008, was only released on 9th January, 2010. None of the airlines’ licenses were suspended pending investigation. Sosoliso Airline’s licence was suspended after the Port Harcourt accident before the conclusion of the investigation, which led to the demise of the airline.
It need not have suffered the loss of its business, if its license was not suspended before conclusion of investigation. Dana Airline’s licence was also suspended from 3rd June to 15th June, 2012 as a “safety precaution” after the crash of its McDonnell Douglas MD-83 aircraft. The Dana crash raises another issue that was not specifically addressed under the Civil Aviation Act: the management of the relationship between a judicial or administrative proceeding to apportion blame or liability and the AIB’s investigation. Following the tragic accident, which claimed the lives of 159 passengers and the public outrage that ensued, the Lagos State Government, probably reading the negative public mood towards the often inconclusive investigations by AIB, set up a Coroner’s Inquest. A Chief Magistrate, Probitas Law Journal | 04 Mr.Komolafe, was appointed the Coroner to investigate the cause of the air accident. This highlighted the issue of priority of investigation of air accidents, when another arm of government is interested in the cause of the accident.
However, the issue of the constitutionality and competence of the said coroner of Lagos State to investigate the cause of an air crash, when aviation is an exclusive remit of the Federal Authorities is currently subjudice. The proceeding is currently on hold due to legal hostilities in suit no. FHC/L/CS/956/12 between Civil Aviation Round Table Initiative Limited & Another V. Komolafe& 10 others before Hon. Justice Okon Abang of the Federal High Court, Lagos. In the United States, the National Transportation Safety Board (NTSB) was established in 1967 to conduct independent investigations of all major transport accidents. It is not part of the Department of Transportation (DOT) “Generally, an accident reduces confidence in the safety of any mode of transport. This is why independent investigations of accidents are important in improving transport safety.” or affiliated with any of DOT’s modal agencies, including the Federal Aviation Administration. The Safety Board has no regulatory or enforcement powers. To ensure that the Safety Board’s investigations focus only on improving transportation safety, and not on apportioning blame or liability, the Board’s analysis of factual information and its determination of probable cause cannot be entered as evidence in a court of law. In cases of suspected criminality, other agencies may participate inthe investigation.
The Safety Board does not investigate criminal activity. In the past, once it has been established that a transportation tragedy is a criminal act, the FBI becomes the lead federal investigative body with the NTSB providing any requested support. For example, the 11th September, 2001 crashes of four airliners were obviously the result of criminal actions and therefore, the Justice Department not the NTSB, assumed control of the investigations. The NTSB provided requested technical support. However, the FBI and the Justice Department can no longer assume control of investigations. According to section 1131 (2)(b) of the National Transportation Safety Board Reauthorization Act, 2006, the Attorney General of the US, in consultation with the Chairman of NTSB, must determine and notify NTSB that circumstances reasonably indicate that the accident may have been caused by an intentional criminal act. The Board shall then relinquish investigative priority to the Federal Bureau of Investigation. The relinquishment of investigative priority by the Board would not affect the authority of the board to continue its investigation.
Also, the NTSB holds a public hearing as part of a major accident investigation for two reasons: “to gather sworn testimony from subpoenaed witnesses on issues identified by the Board during the course of the investigation; and, to allow the public observe the progress of the investigation. Hearings are usually held within six months of an accident but may be delayed for complex investigations. The United States’ approach may be adopted, or considered, in respect of reform of the issue of priority over investigation in the face of conflicting interests by different government arms or agencies, public hearing and independence of theAIB. In sum, and as inherent above, it is clear that the law on the investigation of air accident needs to be amended. lts current state leaves much to be desired in the areas of independence and transparency of the AIB, in line with our international obligations and best practices. A situation where the AIB has not published any of the reports of all the air accidents of the past decade is not acceptable. Also, it is opined that public hearings of the proceedings of the AIB would go a long way in tempering outrage against airlines involved in air accidents. Conversely, regular public updates may suffice, if public hearing of the proceedings of the AIB is impractical. This may address the issues of transparency and public confidence. Finally, the ‘knee jerk’ approach of suspending air licences after accidents without investigation is economically suicidal for a developing country like Nigeria and should be avoided.