PASSENGERS’ RIGHTS IN THE ABUJA-KADUNA DERAILED TRAIN

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Background

Rail passengers in Nigeria’s derailed Abuja-Kaduna train only signed up for – were guaranteed – life and safe arrival. Assured of their rights as commuters. Still, reasonably preventable events have threatened their safety or lives under the transportation laws.

Inchoate transportation laws and infrastructural deficiencies, and lack of enforcement are critical problems in Nigeria’s transportation sector, including aviation, road transport, waterways and maritime, and rail.

Nigeria’s aviation sector enjoins a clear regulatory framework. Regulators appear to be most developed in terms of legislation, given the global enforcement of international regulations and conventions.

Indeed, everyone uses road transportation in Nigeria except Nigerian prisoners and confined psychiatric patients. Road transportation includes human transportation, transport of goods or animals, walking, and any other self-propelled vehicles that may consist of wheelchairs.

Road transportation is most commonly used because it is cost-effective and easily accessible whether for short and long-distance travel or courier of goods or animals within Nigeria.

As Abuja-Kaduna rail resumes on Monday, 28th  March 2022, our transportation and logistics law team offer this commentary on the rights of the passengers in the derailed Abuja-Kaduna Train. We hope that the government’s assurances on added security and data protection will endure.

Brief History of Nigeria’s Rail Transportation

Historically, Nigeria’s rail transportation peaked in the late ’50s and early ’60s of the 20th century. Rail transportation in Nigeria traced its beginning to 1898 when the 1st railroads were constructed by the British Colonial governments to enhance international trades, primarily exports.

In about 1912, the Lagos Government Railway and Baro-Kano Railways merged to create a “nationwide” railway administered by the government department of the railway.

Nigerian Railway Cooperation (“NRC”) traces its origin to the government department of the railway and 1898.

Nigeria’s rail network is at about 3,505 kilometres  of single-track lines 1,067 mm (3 ft 6 in) gauge and 1,435 mm from Abuja to Kaduna.

It is said that none of NRC’s lines is electrified. We will demonstrate how electrification may have reduced vandalism and deliberate derailing of the train for hostage-taking in Nigeria.

157 kilometres of railroads are double-tracked. These are located between Lagos and Ibadan. The rail lines are mostly built of rails with a weight per meter of 29.8 kg, 34.7 kg or 39.7 kg. NRC network is almost 4,000 kilometres long.

The government is considering converting the existing rail network from cape gauge to standard gauge.

NRC, in about the last 2 decades, was insolvent. Its insolvency was due to poor infrastructural maintenance and rolling stock and overstaffed employees – huge deficits and barest revenues.

Recent governments are struggling to revamp NRC without any clear policy direction regarding NRC’s structure and protection of commuters.

The government’s policy direction should urgently include a clear and unified consumer protection framework and regulatory pathways.

The impassable Kaduna-Abuja expressway drove road passengers to the Abuja-Kaduna railway. With no proactive measures from NRC and governments to ensure the passengers’ safety. Recent events underscore the extent of policy and regulatory gaps at NRC.

Rights of Commuters in the Abuja-Kaduna train

On 28th March 2022, Nigerians experienced added dimension in insecurity of lives and properties when terrorists derailed the Abuja-Kaduna train (the “derailed Abuja-Kaduna train”) by using explosives on the railroads.

The derailed Abuja-Kaduna train was forced to a stop, and the terrorists who apparently knew the passengers’ identities (the “passengers’) or “commuters”) marched identified commuters off to an unknown place.

Reports on the derailed Abuja-Kaduna train are plastered on national dailies from time to time.

We noted that Nigeria’s transportation laws are not unified or readily accessible to researchers or the public. The passengers’ rights will include:

  • Rights to data protection
  • damages or compensation for breach of duty

Comparatively, passengers within the European union enjoy the right to information when they buy a train ticket, the railway company or ticket vendor must give commuters clear information:

  • general conditions applicable to your journey
  • time schedules and requirements for the lowest fares and the fastest trip
  • accessibility, access conditions and availability on board of facilities for people with disabilities or reduced mobility
  • services available onboard
  • procedures for reclaiming lost luggage
  • complaint procedures

The passengers’ rights to privacy and data protection survives the passenger. We note that the derailed Abuja-Kaduna train was an act of God, although somehow foreseeable.

NRC is the operator of Nigeria’s railways. The commercial activity of the Nigerian government. We submit that NRC is bound to and subject to all applicable legislation respecting consumer protection in Nigeria.

Such legislation includes the federal competition and consumer protection act, 2018 (“FCCPA”), and Nigerian data protection regulation, 2019 (“NDPR”). The passengers are consumers under Nigerian laws.

Interestingly, FCCPA widely defines consumers to include any person to whom a service is rendered. NRC rendered services to the commuters and continues to generate benefits for other commuters across Nigeria.

S.130 of the FCCPA imposes on NRC certain obligations that include duties to render standard services to commuters in a manner that a reasonable person would expect. Timely performance, completion of services, and commitment to inform commuters of any delays.

Nigerians that include interest groups and civil societies are yet to hold NRC and Nigerian governments accountable for the ill-fated Abuja-Kaduna train from a consumer protection standpoint.

Granted that a responsible government is constituted to protect the rights and properties of its citizens and residents from unlawful actions and to further its economic wellbeing through affordable basic amenities.

This is irrespective of whether any such duties are justiciable (actionable in law) or not. These amenities are infrastructure considered to be essential to make life easier and more pleasant.

Commuters’ Right to Data Protection

It seems that the terrorists who derailed the Abuja-Kaduna train knew passengers’ identities and the couches each profiled passenger occupied. Because the terrorists intentionally marched to each of the sofas and drove the passengers into the forests.

NRC’s data protection compliance appears most porous and non-existent. It may be that its data storage does not comprise proper firewalls or its staff or agents are negligent with the commuters’ personal data.

In either case, NRC reasonably breached its data protection obligations to the commuters. This wrongful disclosure of the passenger’s personal data is at the root of the commuters’ misfortune.

The NDPR requires NRC to obtain passengers’ consent to process data and develop security measures that guarantee the commuters’ personal data from hackers and any other cyber-thefts.

NRC as an operator is a data controller and data processor under the NDPR. All NRC’s ticketing agents are data processors, and NRC is responsible to commuters for any data breach.

NITDA (National information technology and development agency) ought to immediately investigate NRC’s compliances with NDPR and penalize NRC for all its breaches.

We submit that families of the commuters or the passengers, where applicable, should immediately commence an action against NRC for breach of the passengers’ personal data.

Civil societies and other interest groups, that include NBA SPIDEL, should drive this civil litigation war against NRC to benefit our rail sector.

Enforcing Commuters’ rights to damages

The passengers or passengers’ families may enforce NRC’s breach of its data protection duties to the commuters. Breach of data protection entitles the passenger to damages or compensation. Compensation may be punitive, special or general.

Enforcement may pose some challenges that may be reasonably overcome with technologies or accountability by NRC. We submit that these challenges will include the identities of commuters, especially those who terrorists have held hostage or killed.

An FOI request to NRC to disclose the passengers’ identities or through technologies that may include SIM location or Google location, and other location-based software or applications, may do.

NRC is not likely to deny the identity of any commuters unless its ticketing system does not retain commuters’ identities. This may be exacerbated by the profound ticket racketing at NRC terminals – especially at the Abuja-Kaduna railroad.

Recommendations

Good practices and consumer-focused services require NRC to provide commuters with insurance that may cover death, disability, disappearance and medical bills resulting from accidents.

This is a minimum that RTEAN is already providing for road commuters in Nigeria. Nigeria’s Minister of Transport should urgently make regulations spelling out more clearly consumer protective regimes.

This is enabled by s.17 of the Nigerian Railway Cooperation (NRC) Act, 2004. A more consumer-friendly schedule would spotlight the efforts of the federal government of Nigeria.

Further to these, NRC and the Minister should:

  • create Special Police Force to safeguard rail infrastructure
  • create road networks around the railroads
  • add electricity to the railroads
  • install CCTV (closed-circuit television) to each of the couches and among volatile security railroads

In addition to the use of NIN (national identity number), valid data page and the undisclosed security features at the terminals and on the rail tracks.

Perhaps, NRC should be unbundled to enable an operator and regulator to evolve from its present structure, using the aviation model as an example only.

Key People: Lilian Mates and Osita Enwe

Note: This commentary is for general guidance on the related topic only and not professional advice. We recommend you obtain specific professional advice instead of acting on the available information in this legal commentary.

We make no representations or warranties to the accuracy or completeness of the information in this publication to the extent permitted by law. SRJ, our members, or agents accept or assume no liability for any consequences you may suffer if you rely on the information contained in this commentary or for the decision thereof.