By
Olu Onagoruwa
October 10, 2005
SOMETIME in May 1973, a Mr. and Mrs. Lee, a diplomat and his wife descended on
Mrs. Sojimi who had boarded the same ship with them. As she looked helpless, she
ran to the captain of the ship for help, the captain ignored her. She then ran
to a medical doctor for help and treatment, the doctor also ignored her.
What was amazing about all of them was that they were all British. What was
staggering about them was that they all contributed in the beating of Mrs.
Sojimi. Perhaps what was more staggering of all was that the Nigerian government
which was under a legal duty to defend the woman (Mrs. Sojimi) failed to perform
its duty well, if at all. It was then a military government, which had enough
tentacles to defend Mrs. Sojimi. Perversely, the British police had beaten our
diplomat. The British Government treated the whole affair with a pervasive
calmness and did nothing.
Now it is the turn of Alamieyeseigha, a bigger diplomat. He is the Governor of
Bayelsa State. He has been arrested and is under trial for serious offences. The
allegations against him are very serious and deep wounding. It involves the
taking of Nigerian money out of the country and the deposit into foreign
account. We heard that he deposited 30 million pounds in his daughter's account
also.
Clearly, he has no iota of authority to take half a penny of our money outside
the Nigerian border. One sad information is that the British Government might
confiscate an amount of 10 million pounds because he cannot explain how he got
the money. Nowadays if you cannot explain how you got a particular money, there
is a presumption that the money is money-laundered which may ultimately land in
the hands of terrorist.
Now, let us take a legal look at Alamieyeseigha's predicament. One important
question is did we Nigerians tell him to transfer all our wealth overseas? He
went to Germany for an operation and was passing through London when he was
arrested. By all account Almieyeseigha was a high diplomatic agent of the
Nigerian State. He presides over the executive apparatus of his State, which is
part of the Nigerian State.
In the case of the United States Vs. Tehim in 1980 the International
Court of Justice described the rules of diplomatic law as a "self contained
regime, which on the one hand lays down the receiving States obligation
regarding the facilities, privileges and immunities to be accorded to diplomatic
mission and on the other foresees their possible abuse by members of the mission
and specifies the means at the disposal of the receiving State to counter any
such abuse". It was so self-contained that the homes, which the diplomats lived
in the sending territory, would be regarded extra-territorially as belonging to
the country sending the envoy as the owner of the property. But it was decided
in R V Turnbull, exparte Petroll by Fox J of the Australian Supreme Court
where he held, after a review of all the authorities, that an embassy is not
part of the property of the sending authority.
Fortunately a product of the systematic growth of customary international law,
diplomatic immunities and privileges are such a vital component of state
intercourse that they have been embodied in the convention on diplomatic
relations adopted by one United Nations Conference in 1961. After independence,
Nigeria acceded to these treaties.
However, as would be noticed it is clear in law that a principle has been
immemorially established by international law to the effect that diplomatic
envoys and their families cannot be arrested or tried for any criminal offence,
or taken away for any civil offence or forced to give any evidence. In the
Menoza case in 1571 the Spanish Ambassador compromised his diplomatic position
by conspiring to dethrone Queen Elizabeth 1, but he was protected against
criminal privilege.
Again, in the case of Dutch Ambassador and the Land Grave Hessee Cassel in 1963
it was held that this immunity also protected him from processes. However, in
the case of serious delinquency or "high assertion of sovereignty or a diplomat
might be arrested and detained for sometime". Consequently, the Count of
Gyllenbour - the Swedish Ambassador was in 1717 detained for plotting against
the Hanoverian dynasty.
On a hoary authority provided by Genfilis and Hotman, two great international
lawyers of 16th century, the correct course when a diplomat is suspected of a
criminal act is that he must be handed over to the authorities of his own
country. With the exposition of the rules of international law it would be clear
that the law relating to diplomatic immunity is very consistent and beyond
peradventure. As an agent of the Nigerian State, Alamieyeseigha cannot be
arrested or detained.
Of course the other claim of Mr. Alamieyeseigha is his claim, which he should
properly make, it is that he is entitled to sovereign immunity. This is based on
the theory of equality amongst States that no one state is bigger than the other
state.
Consequently, no one state can exercise jurisdiction over the other. The case to
illustrate this is that of Mighell Vs Sultan of Johore (1894) 10B.149. He
had called himself "Albert Baker" to a young girl whom he had promised to marry.
When the girl brought an action for breach of promise of marriage the truth
became known, and his identity became public. Although he was a Prince of
Malaya, the court upheld his plea of sovereign immunity. A very strange and
interesting case is that a Hawaiian Court accepted a claim of sovereign immunity
by a South Korean Foreign Minister on the basis of a letter written by the
American Department of Justice. The letter reads, "Under customary rules of
international law recognised and applied in the United States the head of a
foreign government , its foreign minister and those designated by him as members
of his official party are immuned from the jurisdiction of the United States
Federal and State Courts".
Even when the government of Murtala/Obasanjo tried to extricate themselves from
the cement crisis they resorted to the claim of sovereign immunity to protect
the Nigerian Central Bank. Although Justice Donaldson granted their claim the
Court comprising three eminent judges including Lord Denning overrode the case.
The issues are now whether the protection given to Alamieyeseigha by
international law and the Nigerian constitution can be waived. Section 308 of
the constitution says he cannot be tried both criminally and in a civil case.
The Nigerian Court has in fact decided that even where a case exists it cannot
be continued. I submit that whereas the diplomatic character of the governor can
be waived, the sovereign immunity of the governor cannot be waived. It is part
of the constitution of the land. Once it is made known that the governor is part
of the executive authority of Nigeria, they should abdicate their trial of the
governor. His trial is a breach of international law.
Alamieyeseigha may now have to resort to the defence of sovereign immunity. This
is the area where Federalism of the Nigerian State comes into full bloom, and it
is the most important part of the issue. Justice Marshall, the Chief Justice of
the United States, emphasising the Federal character of the American
Constitution stated, "in Marbury V Maryland 17 US.316 (1819) that "The
Government of the United States, though limited in its power, is supreme and its
law when made in pursuance of the constitution form the supreme law of the land
notwithstanding anything in the constitution or laws of any state to the
country". For example, all the executive power in the Federation are continued
in section 5 of the constitution. Section 5(i) declares, "Subject to the
provisions of the constitution the Executive powers of the Federation, shall be
vested in the President". Section 5(2) states that "Subject to the provisions of
the constitution the Executive powers of a state, shall vest in the Governor of
the State.
In spite of this as was stated by Justice Marshall of the U.S. Supreme Court,
the powers of the President are supreme. Besides, the President controls the
foreign affairs of the country, the states have no powers in this regard.
Although the powers are exclusively vested in the President in the Exclusive
Legislative list, the Federal Government cannot ignore state interest. In
Article I Section 10 of the American constitution, it was stated that the state
cannot be involved in foreign negotiations but the supreme court held in
Skirioter V Florida 318 that states cannot be excluded, particularly by
state of Florida, must regulate sponge fishing outside its territorial waters.
So what Alamieyeseigha should claim in Britain is that he is mini-head of state.
As a Governor of Bayelsa State he cannot be arrested, detained or imprisoned
whatever the offence alleged against him. In the words of Genfilis and Hotman
"all the British authorities could do is to gather all the evidence of his crime
and send them to the Federal Government, because all their court in England
cannot try him under international law". When he has arrived he should be
removed from office and tried.
All that the Federal Government should do in the circumstance is to forward all
evidence that he is truly a governor of Bayelsa State of Nigeria. There are
those who argue that section 308 does not extend beyond Nigeria. My view is that
the Nigerian constitution is recognised under international law. This is not the
time for politics as the Nigerian Constitution is evidence that we exist in the
world. It is being trampled on by our British friends!!