By
Gani Fawehinmi
October 4, 2005
INTRODUCTION
Under International Law, immunity is enjoyed by the Head of a Sovereign State. State here means Nation State and not a geographical or political division within the Nation State, like Bayelsa State.
The Customary International Law recognizes Nation State and not a geographical or political division within a Nation State as deserving immunity for the head of that Nation State.
In Nigeria the Head of the Nation State of Nigeria is General Olusegun Obasanjo. By the political divisions in Nigeria, there are 36 geographical states with 36 Governors but none of them is the Head of the Nation State of Nigeria. None of the 36 Governors enjoys any immunity under the Customary International Law. Consequently, Governor Diepreye Alamieyeseigha does not enjoy any immunity outside Nigeria.
Immunity of a Governor Under Section 308 of the Constitution of the Federal Republic of Nigeria, 1999
The only immunity a Governor of any of the 36 States of the Federation enjoys within the territorial jurisdiction of Nigeria is that provided in Section 308 of the Constitution of the Federal Republic of Nigeria, 1999. Section 308 has no extra-territorial application and therefore the immunity therein is not enjoyed outside Nigeria by any Governor.
The Immunity of Head of State of Nigeria Under international Law
Although the Head of State of a country enjoys immunity outside his country under International Law, this immunity is however subject to certain exceptions. The most notable of the exceptions are:
i. where the Head of State engages himself in drug trafficking.
ii.where the Head of State has committed war crimes.
DRUG TRAFFICKING
A Head of State cannot enjoy his international immunity where he engages in drug trafficking. The clearest and most recent example is the case of General Manuel Noriega, the Head of State of Panama Republic. Panama won its independence from Spain in 1821 and in 1903 from Columbia. It has a population of 2.5 million people.
On 20th December, 1989, US invaded Panama to arrest General Manuel Noriega the Head of State of Panama and he claimed asylum in the Vatican Embassy.
On Wednesday, January 3, 1990, Noriega surrendered himself to the American troops and he was arrested and taken to the United States for trial on drug related charges. On Thursday, January 4, 1990, he was arraigned on a 12-count drug trafficking indictment. He was tried and convicted on money laundering charges. Noriega is now serving a 40-year imprisonment in America. Yet, Noriega was at the time of his arrest, trial and conviction, the Head of State of the Panama Republic. It is, therefore, clear under International Law that the immunity of Head of State of a Nation State is not sacrosanct.
WAR CRIMES
Slobodan Milosevic who was elected President of the Federal Republic of Yugoslavia later became President of Serbia in 1989. Slobodan Milosevic had a bad domestic life. His father committed suicide while Slobodan was in the High School and his mother hanged herself ten years later.
Slobodan Milosevic was indicted on 27th May, 1999 while in office as a serving President of Serbia for war crimes and crimes against humanity committed during Kosovo War, genocide in Bosnia and war crimes in Croatia.
Slobodan Milosevic was arrested on 1st April, 2001, on charges of abuse of power and corruption and on June, 2001, Slobodan Milosevic was handed over to the United Nations International Criminal Tribunal for the former Yugoslavia where he is currently standing trial for war crimes and crimes against humanity committed in Kosovo, genocide in Bosnia and war crimes in Croatia while he was the President of Serbia.
UNITED KINGDOM STATE IMMUNITY ACT OF 1978
The United Kingdom State Immunity Act, 1978 is worthy of consideration in the Diepreye Alamieyeseigha debacle. This Act was promulgated in 1978.
Section 14 of the said Act which is the heart of the legislation provides as follows:
"14. (1) The immunities and privileges conferred by this Part of this Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to:
(a)the sovereign or other head of that State in his public capacity;
(b)the government of that State,• and
(c)any department of that government
but not to any entity (hereafter referred to as a ‘‘separate entity’’) which is distinct from the executive organs of the government of the State and capable of suing or being sued.
(2)A separate entity is immune from the jurisdiction of the courts of the United Kingdom if and only if
(a)the proceedings relate to anything done by it in the exercise of sovereign authority; and
(b)the circumstances are such that a State (or, in the case of proceedings to which section 10 above applies, a State which is not a party to the Brussels Convention) would have been so immune."
It must be understood that State here means Nation State i.e. Sovereign State like Nigeria but not a part of geographical division of Nigeria like Bayelsa State and Lagos State etc, to mention two (2) of the thirty-six (36) States.
Therefore under the United Kingdom State Immunity Act, 1978 no Governor of this country (Nigeria) has immunity in the United Kingdom.
THE CRIMINAL JUSTICE ACT, 1993
The Criminal Justice Act, 1993 was promulgated in the United Kingdom to make money laundering a very serious criminal offence. The Law creates offences which relate to the laundering of money which is the proceeds of criminal conduct other than the drugs trafJicking and terrorism. One of the implications of this Act is that you can be prosecuted in the United Kingdom for laundering the proceeds of criminal conduct even though the conduct all took place overseas...
By this Law, any Governor, like Diepreye Alamieyeseigha who brings in money into the United Kingdom which is a product of corrupt practices at home in Nigeria can be arrested, tried and convicted in the United Kingdom.
There are other legislations in this direction promulgated by the Parliament in England which make it an offence for any Bank or Bank Manager or Bank official who fails to report to the British Police any lodgment in the Bank Account which is more than $10,000 and in some cases, the failure carries a maximum imprisonment of 15 years.
Let Nigerians understand that the British are not joking with their anti-corruption war. It is only here at home that anti-corruption crusade of the Federal Government is half hearted.
In England, the Police and other law enforcement agents are not subject to the control of the Prime Minister. But is General Olusegun Obasanjo giving the law enforcement agents in our country including Economic and Financial Crimes Commission (EFCC) absolute free hand to rid the country of corrupt public officers?
VIENNA CONVENTIONS
It is preposterous and it smacks of gross intellectual deception and fraud for anyone to argue that a Governor in Nigeria has immunity under the Vienna Conventions.
VIENNA CONVENTION ON DIPLOMATIC RELATIONS 1961
It was signed at Vienna on April 18, 1961. The Convention, which entered into force on April 24, 1964, has 53 Articles.
Article 1, which is the definition section, limits the application of the Convention to the diplomatic mission and allied matters. The definition does not however, apply to persons who are non-diplomat.
The totality of the 1961 Convention emphasizes the functional necessity of diplomatic privileges for the efficient conduct of international relations as well as pointing to the character of the diplomatic mission as representing its state. Thus, the purpose of the Vienna Convention on Diplomatic Relations, 1961 is to provide:
"privileges and immunities which are not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing states."
VIENNA CONVENTION ON CONSULAR RELATIONS, 1963.
The Convention was signed at Vienna on April 24, 1963. The Convention has 79 Articles and provides immunity for consuls in order to protect consular relations among nations.
Generally, consuls represent their state in many administrative ways, for instance, by issuing visas and passports and generally promoting the commercial interests of their state. However, their functions are few and they are accordingly not permitted the same degree of immunity from jurisdiction as diplomatic agents.
The 1963 Vienna Convention provides immunity only for consular officers and not to political officers of the sending State in the receiving State. Therefore, no political office holder e.g. Governor can claim immunity provided under the 1963 Convention.
Even under the 1963 Convention on Consular Relations, Consular Officers can be arrested and prosecuted in respect of grave offences by virtue of Articles 41 and 43. Consequently, whether under the 1961 or 1963 Vienna Convention, there is nothing in the two Vienna Conventions that gives immunity to a governor being the head of political division within a country like Nigeria. After all, he is not the Head of a Sovereign State in International Law. He is not a member of a diplomatic mission abroad, and not a member of our consular missions any where in the world.
There are other International Conventions, which for our purpose are not relevant here.
CONCLUSION
Finally, as far as International Law is concerned, Governor Diepreye Alamieyeseigha has no immunity from arrest in any country outside Nigeria.