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GOVERNOR DIEPREYE ALAMIEYESEIGHE HAS NO IMMUNITY FROM CRIMINAL PROSECUTION IN UNITED KINGDOM Text of the press Statement by Kayode Oladele The question whether or not the arrest and detention of the Bayelsa State Governor, Diepreye Alamieyeseigha in London is in breach of international law has conjured up a debate which will soon balloon into a drama of international proportions particularly amongst experts in this area of the law. Of particular interest however, are the statements credited to Prof. Itsey Sagay and Mr. Akpo Mudiaga-Odje who were reported in the Newspapers as saying that the embattled Governor enjoys immunity from prosecution in the United Kingdom. Prof. Sagay even went to the extent of saying that the Governor enjoys the same immunity as the president and diplomats. Using the Vienna Convention as the basis for his argument, the learned professor states that: “The British High Commissioner’s claim that a British law is holding Governor Alamieyeseigha is irrelevant because no British legislation can overturn international law, concerning immunity of persons. That claim is irrelevant and does not hold water in this case. To give you an example of what I am talking about, no British law can for instance ensure the arrest of Third Secretary of an embassy, who is no more than a level 10 officer. And the reason is that such a person is protected by the Vienna Convention for persons carrying diplomatic passports, although this convention does not cover heads of state whether president or governors, but it gives you an idea of what having an immunity does to whoever has such protection”. Prof. Sagay missed the point here. The professor’s comparison of the Governor with diplomats is misplaced and has no bearing with the current development in the law and the intent of the Vienna convention. Governments use ambassadors, and diplomats to represent their nation. These special envoys do everything from resolving conflict, deciding on how much humanitarian relief will be sent to a nation, or just being present at diplomatic dinners and ceremonies. Diplomats are the vital link between nations, and they enjoy complete immunity from the law of the host nation. Originally this immunity was extended as a courtesy to allow for an uneventful stay in the host country. While in a foreign country on official business, diplomats are granted exemption from arrest or detention by local authorities; their actions are not subject to civil or criminal prosecution. On 14 April 1961, the Vienna Convention on Diplomatic Relations was adopted by the United Nations Conference on Diplomatic Intercourse and Immunities. The Convention focuses on the status of diplomatic missions not state governors. Highlights of the Convention which was wrongly cited by Prof. Sagay include the following: Article 29: Diplomats
are inviolable; exempt from any arrest and or detention. Article I of the Convention states that for the purpose of the Convention, the following expressions shall have the meanings hereunder assigned to them: [(a)] the "head of the mission" is the person charged by the sending State with the duty of acting in that capacity; [(b)] the "members of the mission" are the head of the mission and the members of the staff of the mission; [(c)] the "members of the staff of the mission" are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission; [(d)] the "members of the diplomatic staff" are the members of the staff of the mission having diplomatic rank; [(e)] the "diplomatic agent" is the head of the mission or a member of the diplomatic staff of the mission; [(f)] the "members of the administrative and technical staff" are the members of the staff of the mission employed in the administrative and technical service of the mission; [(g)] the "members of the service staff" are the members of the staff of the mission in the domestic service of the mission; [(h)] a "private servant" is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State; [(i)] the "premises of the mission" are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission. Whereas, a Third Secretary of an embassy, who is no more than a level 10 officer has diplomatic immunity pursuant to the Convention, a state governor has no such immunity even if he holds a diplomatic passport. The reason for this is simple – it is one of extraterritoriality. The diplomat never officially leaves the sending country. Just as embassies are considered territories of the countries they represent, the diplomat would remain within jurisdiction of the sending country while in the host country. Another reason is one of functional necessity. The privilege of diplomatic immunity is argued to be a necessary component of the diplomatic mission. However, when a crime is committed by a diplomat, the first option is to have the sending country waive the diplomat's immunity, allowing the diplomat to be punished for the crimes committed in accordance with the laws of the host nation. Another option is to declare the diplomat in question a "persona non grata" (unacceptable). This forces the sending nation to recall the diplomat or remove the diplomat from the post all together. The third solution, though rarely used, is the complete severing of all diplomatic ties. The Vienna Convention, no doubt, allows for an incredible amount of personal protection, which can be easily abused by diplomats, but none of these liberties or protections is available to Governor Alamieyeseigha. Governor Alamieyeseigha has no immunity both under the customary international law and the Vienna Convention. This is because, under the current trend in international law; the places where the corrupt can hide are becoming fewer. The arrest and detention of the Governor Alamieyeseigha spotlights two issues namely: whether the British government has jurisdiction or power to arrest and prosecute the Governor and whether the Governor enjoys immunity from such prosecution. In legal phraseology, Jurisdiction is used to describe the authority and power of the court to hear and determine a cause of action or the authority of the state to affect a legal interest. Jurisdiction is divided into three types: the first is the jurisdiction to prescribe which is the ability of a state to make laws to regulate activities, relations, status of persons or a person’s interests in property; the second is the jurisdiction to adjudicate which is the authority of a state to subject particular persons or things to its judicial processes while the third category is the jurisdiction of a state to enforce its authority or to use its wherewithal or resources to compel compliance with its laws. The issue confronting us in Alamieyeseigha‘s case is power of the British government to prescribe, adjudicate and enforce its laws. Current developments in international law have focused on state’s power and authority to prescribe, adjudicate and enforce its law in criminal matters. This is referred to as territorial theory. The territorial theory allows states to exercise jurisdiction over persons in connection with acts that take place within the territorial boundaries of the state. A state even has the power to prescribe law over persons or things that share its nationality. This expands the traditional bases of jurisdiction by emphasizing the effect of an offense committed outside the territory of a state and allows the exercise of jurisdiction where such conduct is deemed harmful to the national interests of the forum state. Thus, any state may impose liability, even among persons who are not its nationals, for conduct outside its borders that has effects and consequences within its borders that the state reprehends. A good example of this theory was United States v. Noriega. On February 14, 1988, a federal grand jury sitting in Miami, Florida indicted General Noriega and twelve co-conspirators on twelve counts of engaging in a criminal enterprise in violation of U.S. racketeering and drug laws. The indictment alleged that Noriega participated “in an international conspiracy to import cocaine and materials used in producing cocaine into and out of the [United States].” Furthermore, Noriega was alleged to have exploited his official position as commander-in-chief of the Panamanian Defense Forces (PDF) by receiving payoffs from the Colombia-based Medellin Cartel (Cartel) in exchange for his assistance. In his motion to dismiss, General Noriega asserted that the Court lacked jurisdiction in the case against him because he was the leader of a sovereign nation. He further argued that even though he was not a democratically elected leader, his position as the acknowledged de facto leader of Panama qualified him for immunity. Noriega was convicted by the U.S. District Court for the Southern District of Florida on all counts. Although not expressly stated, much of the reasoning applied by the Noriega Court was mirrored by English courts and the House of Lords in the Pinochet case. The federal courts exercised jurisdiction over Noriega pursuant to the territorial and protective principles. The Pinochet case which also involved the issues of whether Pinochet enjoyed immunity for acts committed as head of state, and whether customary international law granted the English courts jurisdiction to extradite Pinochet to Spain is another example. The U.S Court of Appeals for the Seventh Circuit has also recently held in Abiola v. Abubakar that General Abubakar has no sovereign immunity for acts committed as a member of the Provisional ruling Council (PRC) under the late General Sanni Abacha. However, a state is not without limits in its exercise of jurisdiction. International law provides that a state may not exercise jurisdiction to prescribe when doing so would be unreasonable. Whether jurisdiction is unreasonable is determined by weighing a non-exhaustive list of factors, including the link of the activity to the regulating state, the foreseeable effects in that state, the character of the activity to be regulated, and the extent to which the regulation is consistent with the patterns and practice of the international system. Although the proper limits of jurisdiction over transnational activity have been questioned, extraterritorial prosecutions commonly have included serious offenses, such as the traffic of narcotics and money laundering. In Noriega’s case, the district court addressed the issue “whether the [United States] may exercise jurisdiction over Noriega’s alleged criminal activities.” One of Noriega’s challenges to the court’s jurisdiction was that such an exercise was unreasonable under any standard of international law. In deciding this issue, the court refrained from looking at Noriega’s official status, instead focusing entirely upon the conduct at issue as alleged in the indictment; the Court held that the exercise was reasonable. It is clear that the exercise by the British Police to arrest Governor Alamieyeseigha was reasonable. Further the British Court would have no difficulty in addressing the remaining question: Whether In addition to possessing the power to reach the conduct in question under customary international law, the crimes under which Governor Alamieyeseigha is charged are intended to have extraterritorial effect. Without doubt, the crimes under which the Governor is charged are so intended, since the statutes applicable are designed to stop money laundering. Further, on a more traditional level, the principle of customary international law supports jurisdiction over Alamieyeseigha. This is because the indictment charged Alamieyeseigha with acts that occurred within the territory of the United Kingdom. This fact would support the exercise of the traditional basis of jurisdiction, the territorial principle, which allows for the exercise of jurisdiction over acts occurring within a state’s territory. In addition, the act is justified under the protective principle which permits the exercise of jurisdiction over acts that have potentially harmful effects in that state. Corruption directly harms the people of the Nigeria and United Kingdom, particularly the poor. Corruption undermines the institutional foundation on which economic growth depends. Corruption lowers the quality of public services and infrastructure, distorts government spending decisions, decreases tax and customs revenues, and damages confidence in the rule of law. Corruption undermines confidence in public institutions and exacerbates budget problems. Former U.S. President Grover Cleveland had as his motto, “Public office is a public trust.” When officials abuse that trust, democracy suffers. Corruption tears at the fabric of democracy itself. The World Bank has identified corruption as “the single greatest obstacle to economic and social development.” Former U.S Attorney General Ashcroft, speaking at the Second Global Forum, said, "Corruption is no longer seen as an accepted cost of doing business; it is no longer tolerated as an unavoidable aspect of government. It is now widely recognized that the consequences of corruption can be devastating: devastating to economies, devastating to the poor, devastating to the legitimacy and stability of government, and devastating to the moral fabric of society." This change in perspective is the harbinger of a future where the corrupt and those who corrupt them will be treated simply as what they are – petty criminals, who will have to face the consequences of their actions in a court of law, just like the thieves, vandals, or common criminals. Since Governor Alamieyeseigha is also not a head of state, he definitely does not have any immunity under customary international law. Customary international law has long held that a head of state is not subject to the jurisdiction of foreign courts in actions relating to official acts. Even if, as Professor Sagay has mischaracterized, the Governor enjoys the same Immunity as the Nigerian President, he still cannot benefit from head of state immunity since he is not so recognized by the British government. In order to benefit from head of state immunity, a government official must be recognized by the immunizing state as the head of state. However, recognition is considered a discretionary function, with there generally being no legal duty to recognize the validity of a state or its leader. The grant of immunity is a privilege that may be freely withheld by the British Government.
Perhaps, as a public official, Governor Alamieyeseigha could claim immunity since public officials are entitled to immunity for acts executed in their official capacities. This position was robustly explained by the U.S Court of Appeals for the Seventh Circuit in Abiola v. Abubakar. Like Abubakar, Governor Alamieyeseigha will have a hard time convincing the court that his act constitutes an official act to justify such immunity. This is because the test as to whether a public official is personally liable in litigation is whether the act of the official is sufficiently connected with the state as to make it an official act. Since this case involves money laundering, which was undertaken for his own personal gain in violation of the British law and indeed, the Nigerian law, this becomes purely a private act of the Governor, hence, he is on his own. And according to the restrictive theory of immunity, public officials are amenable to suit for acts in their private capacities or for those undertaken for their own personal gain
Nigerian law may allow impunity and make allowance for sacred cows, but the British authorities will prosecute Governor Alamieyeseigha to the full extent of the law and take all efforts to make sure that the Governor does not benefit from the policy, or assistance.
In conclusion, unlike Prof. Sagay, I am not surprised that the Governor’s legal team has not raised the issue of immunity. The legal team may well be aware that the immunity path is rough and bumpy as there are no viable legal precedents. The issue of jurisdiction is a done deal and the stage is set for trial even if the Nigerian government decides to enter a suggestion of immunity at this stage.
October 1st, 2005. |
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