Sovereign Immunity
And Governor DSP Alamieyeseigha
By
David Adedayo
Ijalaiye
culled from GUARDIAN, October 11,
2005
THE arrest, release, re-arrest and subsequent remand in London prison of Bayelsa
State Governor, Diepreye Alamieyeseigha, for money-laundering, has necessitated
the re-examination of the concept of sovereign immunity under municipal law, as
well as under international law with particular reference to Nigeria.
Sovereign Immunity Under Nigerian Law
Immunity under Nigerian law is governed by Section 308 of the Constitution of
The Federal Republic of Nigeria 1990, which provides that during their tenure of
office, no criminal proceedings may be brought against the President,
Vice-President, governors and their deputies, nor may any civil proceedings be
instituted against them in their private capacities, nor may they be arrested or
imprisoned during that same period. In order to preserve the right of a
plaintiff to sue any of these officials, it is provided that the statute of
limitations will not run against a claimant until the expiration of the term of
the office of the official concerned".
In practical terms, President Obasanjo is currently the President under the
Nigerian Constitution and he enjoys sovereign immunity in that capacity. Also,
Governor Alamieyeseigha, as the head of the government of Bayelsa State, enjoys
some measure of immunity in that capacity. Consequently, Section 5(1) of the
1999 Constitution vests executive powers of the Federation in the President
whilst Section 5(2) of the same Constitution vests the executive powers of each
state in the governor of that state.
It is submitted, however, that the President has an overriding executive power
over the governor of any state. Hence, Section 305 of the same constitution
confers on the president the power to declare a state of emergency in any of the
constituent states of the country under circumstances enumerated or spelt out in
that section.
Simply put, the President has supervisory powers over the powers enjoyed by the
state governors. Hence, for the purposes of international law, it is only the
President that enjoys "independent sovereign immunity" in a true Federation like
Nigeria, in contradistinction to the situation existing in a confederation or a
quasi-confederal state like Canada where each of the constituent states enjoy
independent sovereign immunity in foreign countries.
Another important point to note in this connection is that in Nigeria, there is
only one Ministry of External or Foreign Affairs and this is at the federal
level and it is the President that appoints a minister to that ministry, whereas
there are no foreign ministries at the state level.
Consequently, in terms of foreign affairs, it is the President that is totally
and exclusively in charge.
Sovereign Immunity Under International Law
Under international law, foreign heads of state, whether monarchs or presidents,
embody in their persons the sovereignty of their states and when they visit or
pass through the territory of another sovereign and independent country, they
are wholly exempted from the local jurisdiction, both civil and criminal.
The monarch or president will be covered by this immunity even if he enters into
a contract of marriage under a fictitious name. Hence in Mighell v. Sultan of
Johore, the Sultan of Johore in India, whilst visiting England became
engaged to a young English woman to whom he disclosed his untrue identity as
that of Albert Baker. The Sultan, having failed to fulfill his promise of
marriage, the lady attempted to sue him for breach of promise of marriage. It
was held by the British Court that a ruler of an independent sovereign state,
Johore, having been so regarded for that purpose, the ruler was immune from
legal process unless he decided to wave his immunity and to submit to
jurisdiction.
There is one crucial issue to the sovereign immunity being touted in favour of
Governor Alamieyeseigha. This crucial issue relates to the status of component
units of federal state. The right answer would seem to have been provided by
Lord Denning in the case of Mellenger v. New Brunwick Development Corporation.
In this case, Lord Denning emphasised that -
"Since under the Canadian Constitution, each provincial government, within its
own sphere, retained its independence and autonomy under the Crown ... It
follows that the Province of New Brunswick is a sovereign state in its own right
and entitled, if it so wishes, to claim sovereign immunity".
Also, Article 28 of The European Convention of state Immunity 1972, provides
that constituent states of a federal state do not enjoy immunity ipso facto,
although this general principle is subject to the proviso that federal state
parties may declare by ratification of the convention that their constituent
states may invoke the benefits of (sovereign immunity) and may carry out the
obligations of the convention.
It is, therefore, strongly submitted that each of the 36 states of Nigeria does
not constitute an "independent sovereign state" and its governor cannot,
therefore, claim "sovereign immunity" in international law. Afterwards, the
rationale for independent sovereign immunity in international law is "par in
parem non habet imperium". This means that since the independent sovereign
states of the world are equal, one sovereign power cannot exercise jurisdiction
over another sovereign power.
It cannot, therefore, be over-emphasised that since each of the 36 states of
Nigeria is neither independent nor sovereign, it cannot operate on the same
footing as independent and sovereign states under international law. The British
Broadcasting Corporation (BBC) was, therefore, right in its recent statement
that in Nigeria, "immunities for governors and their deputies do not extend
beyond Nigerian shores".
It is, however, submitted that the governor of any of the 36 states of Nigeria
visiting another country as the Representative of the President of Nigeria,
ought to enjoy sovereign immunity in a representative capacity during the period
of the representation. Consequently in that case, the immunity enjoyed by such a
governor should not be higher but only similar to the immunity enjoyed by a
diplomatic envoy.
In international law, the person of a diplomatic agent is inviolable and he is
immune from any form of arrest or detention and from all criminal proceedings.
It is his duty to respect the criminal law and police regulations of the
country, but if he breaks them, the only action that may normally be taken
against him is a diplomatic complaint to his government or, in an extreme case,
a demand for his withdrawal as a persona non grata.
It is possible of course in international law for a sovereign state to waive
expressly or impliedly the immunity of a diplomatic representative within the
jurisdiction of the receiving state. A fortiori, the President of a country may,
for good cause, decide to waive the immunity enjoyed by a governor of a state
representing him in another country if such a governor engages in an act which
is contrary or inimical to the policy of the government of his home country.
In the instant case, even if it is conceded that the Governor of Bayelsa State
obtained permission from President Obasanjo before travelling abroad, and even
if it can be inferred from such a permission that immunity is thereby conferred
on him during his absence abroad, President Obasanjo is still morally bound to
waive such immunity in respect of money-laundering perpetrated by him since the
war against corruption is currently the main focus of his administration. In
this connection, it has rightly been observed:
"Under the presidential system, the personality of the President, his style,
preferences and dislikes will make a great imprint on the direction government
policy goes. Thus, it is the perception of the President about what is crucial
to the country that will, in most cases, become the main focus of the
administration".
Indeed, it can be inferred from a recent statement of President Obasanjo that he
had already given a nod to the arrest of Governor Diepreye Alamieyeseigha by the
British police for money-laundering activities. The arrest was made on Thursday,
September 15, 2005. In this connection, President Obasanjo was quoted as saying
that "no Nigerian was above the law and that the campaign in Nigeria against
corruption in high places was bearing fruits".
President Obasanjo further stated: "There had been no other instance in the
history of Nigeria where top government officials were arrested over corruption
while they were still in office as it is being done now".
In other words, President Obasanjo welcomed the arrest of the Bayelsa Governor
as an evidence of the potency of his anti-corruption crusade.
It appears that President Obasanjo's support for the arrest and detention of
Governor Alamieyeseigha must have been partly influenced by a strong petition
addressed to the Economic and Financial Crimes Commission (EFCC) by some
citizens of Bayelsa State against the governor, revealing that some members of
his family had looted from the Bayelsa's government treasury the following huge
sums of money:
1,043,655.79 USD; 173,365.41 Great Britain Pound; and 556,455,893.34
Naira.
Coincidentally, President Obasanjo's stand has been further vindicated by the
information recently credited to Alhaji Nuhu Ribadu (Chairman of (EFCC) that
Governor Alamieyeseigha allegedly owns many houses in London estimated at 10
million British Pounds.
Conclusion
The case of Governor Alamieyeseigha has brought to the fore the discussion as to
whether it is desirable to continue to retain in the Nigerian Constitution
Section 308 which confers immunity on the President, the Vice-President and the
governors of the 36 states of the federation.
In my considered judgment, the immunity conferred by Section 308 has done more
harm than good since it has been used by some of the officials concerned as a
licence for stealing public funds with reckless abandon. It is, therefore,
strongly submitted that the section be completely expunged from the constitution
so that the officials concerned will no longer have legal cover for plundering
government's treasuries for their own benefits.
Currently, Mr. Tafa Balogun, the former Inspector-General of Police, is being
tried for official corruption. Once Section 308 of the Constitution is expunged,
all the corrupt chief executive and other officials at the federal and state
levels will be similarly treated. After all, what is good for the gander is good
for the goose.
At this juncture, it is pertinent to point out that even in modern international
law, sovereign states no longer enjoy absolute immunity but only restrictive
immunity as clearly shown in the celebrated case of Pinochet, the former
President of Chile. Before the case of Pinochet, it was thought that a Head of
State or a former Head of State was entitled to claim absolute immunity from the
jurisdiction of national courts whether in criminal or civil process. Pinochet
of Chile relied on this ancient rule and he initially won his case at the
Divisional Court (i.e. High Court) of Britain. However, The House of Lords,
Britain's highest Court, subsequently ruled on Wednesday, November 25, 1998,
that the charges against Pinochet, including torture and hostage-taking, could
not be considered official functions and, therefore, the immunity normally
granted to a former Head of State did not apply to him. The court further stated
that heads of states who have committed crimes particularly those against
humanity, are responsible for those crimes and may be prosecuted anywhere.
It has been persuasively and attractively argued that money-laundering
activities, particularly in respect of the poor state of Bayelsa, would
constitute a crime against humanity in view of the fact that in such
circumstances, it would deplete or empty the state's treasury, thus, creating
armies of unemployed and hungry youths who frequently resort to violence and
other nefarious acts as a means of earning a livelihood.
The fact that an unemployed/hungry man, more often than not, resort to violence,
has been explained by Chief Emeka Odumegwu-Ojukwu in a way that is unanswerable:
"A hungry man is an angry man; an angry man is an unreasonable man; an
unreasonable man is a violent man".
Also, the rule that foreign states now enjoy only restrictive sovereign immunity
in the territories of one another is buttressed by the decision of the British
Court of Appeal in the case of Trendtex Corporation v. Central Bank of
Nigeria. In this landmark case, the court rejected the doctrine of absolute
immunity accorded sovereign states in the British Courts especially in relation
to trading activities. In reaching this conclusion, the court took into account
the fact that majority of states of the world now favour the principle of
restrictive immunity since they now distinguished pragmatically between foreign
state activities jure imperii and jure gestionis. For the former,
they grant immunity, for the latter, they refuse it. The distinction between
these two types of state activity rests on the assumption that an adequate
distinction between public and private activities can always be made.
Finally, the following must be said. As far as Nigeria is concerned, Diepreye
Alamieyeseigha is still the legitimate Governor of Bayelsa State. If he absconds
from the United Kingdom and suddenly reappears in Nigeria, he automatically
becomes an untouchable person because he cannot be arrested by the police or
prosecuted before the Nigerian court since he enjoys immunity under Section 308
of the Constitution of The Federal Republic of Nigeria, 1999.
However, he is currently in the United Kingdom still being charged before the
British Court. His diplomatic status is yet to be determined as to whether he
enjoys sovereign or diplomatic immunity before the British Court.
The practice in the United Kingdom is for each Head of Mission to submit in
advance to the Foreign Office the names of those persons for whom any form of
diplomatic status is claimed, and if accepted, they are included in a published
list to which the courts will refer from time to time. In case of doubt, the
statement of the Foreign Office of Britain will be treated as conclusive on the
matter, and this automatically leads in appropriate cases, to the grant of
privileges and immunities.
In view of the foregoing, the only cause open to Nigeria for now is to adopt an
attitude of wait-and-see.
Ijalaiye is an emeritus professor of law at the Obafemi Awolowo University, (OAU),
Ile-Ife, Osun State.
