International law

International law, Immunity and Money Laundering: Gov. Alamieyeseigha’s Ordeal

Osa Iyinbo

Sentiments aside, whether or not the arrest and detention of an incumbent Governor of another sovereign State (nation) on charges of money laundering should draw any international furor depends on the status of, or privileged enjoyed by, such governor outside the shores of his or her country. Granted that Gov. Alamieyeseigha enjoys immunity from prosecution for crimes committed in Nigeria based on his status, absent any bilateral agreement between Nigeria and the UK, such immunity does not apply extraterritorially. There is no doubt that had he been a governor from a super power nation, his arrest and detention would have been handled differently. It is equally true that without the active support and connivance of the present administration the Governor’s current woes would not have unraveled at this pace. However, under customary international law diplomatic privileges and immunities only apply to sovereigns and their representatives or head of mission and certain categories of persons serving in the mission.

International law provides that immunities apply to the sovereign and to the sovereign head of state, its ministers and diplomatic officials. For the avoidance of doubt, and with all due respect to certain legal experts in Nigeria, I have quoted copiously (below) from the Vienna Convention on Diplomatic Relations dealing with persons who qualify for immunity under international law and UK State Immunity Act of 1978, respectively.

According to Article 14(1) of the Convention,

“heads of mission are divided into three classes, namely:

(a) that of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank;

(b) that of envoys, ministers and internuncios accredited to Heads of State;

It also states in Article 31(1) that

“[a] diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”

Contrary to beliefs making the rounds, the UK State Immunity Act Of 1978 states as follows:

1.--(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.

(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.

Furthermore, s.14 of the Act states that:

(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

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.

Those who believe the governor is entitled to immunity rely on s. 14(1)(b). However, according to the House of Lords in Ex parte Pinochet stated that: “this immunity enjoyed by the head of state in power and an ambassador in post is a complete immunity attaching to the person of the head of state or ambassador (emphasis mine) and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state.”

Base on Art. 31 of the Convention and s. 14(2) the Act, such immunity does not attach to the commercial or professional activity of such diplomat. Therefore, assuming arguendo, that the governor is entitled to immunity, such immunity will not apply to his commercial transactions and properties, which would then be subject to the domestic laws of that nation where they reside. If on the other hand the governor does not qualify for immunity under any of the forgoing provisions, then he is a private citizen. According to Chief Justice Marshall in The Schooner Exchange case, 1812, “[w]hen private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with inhabitants of that other, … it would be obviously inconvenient and dangerous to society, and would subject the law to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of the country.” He went further to say that “there is a manifest distinction between the private property of a person who happens to be a prince, and that of the military force (the sovereign) which supports the sovereign power … A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the prince, and assuming the character of a private individual; …”

As was widely reported, the governor at the time of his arrest was traveling with his regular Nigerian passport instead of a diplomatic passport. It is necessary to lay to rest the fact that as a governor traveling with a civilian passport, he is subject to the laws of every country he enters just like every alien visitor. Even if his diplomatic passport conferred any privilege on him, he should not brazenly violate it.

With the spike in terrorism, drug and human trafficking -modern day slave trade (all of which are considered jus cogens norms: international law norms for which no sovereign can claim immunity and derogation impermissible (unless of course you are a super power)), the crime for which the governor is being charged, money laundering, has gained international prominence. To a great extent, there is a correlation between money laundering and these international crimes; not that the governor has been linked, directly or remotely, to any of these crimes. In order to curtail its advancement, many countries (particularly those in the western world) have become proactive in their fight against it; the focus has shifted to Africa, and Nigeria in particular is on the radar screen.

As Nigerians and the international community continue to watch events unfold, it is possible that if there exist a bilateral agreement (which is doubtful), between Nigeria and the UK, which afford government officials immunity, the Nigerian government may choose to invoke or waive such privilege and consequently allow the British judicial system take its course. Either way, Aso Rock, the nation’s seat of power is in a bind: any attempt by the government to invoke such an agreement will seriously cast doubt on its war against corruption. Also, it may tantamount to interfering in the internal affairs of another country. On the other hand, the government must demonstrate to all that the support it has lent the British government is not politically motivated. However, the flip side of this alleged political witch-hunting is vindication: the governor and his supporter can use this opportunity to demonstrate to all that his wealth was legally acquired and not by way of thievery or chicanery.

While trying to secure bail for the embattled governor, his lawyers advanced several arguments most of which are not totally persuasive. First, the argument that the governor is a man of integrity and likely to return to stand trial falls flat on its face in view of the ugly and dangerous precedent set by Gov. Dariye who has been accused of jumping bail almost under similar circumstance. As an aside, the ramifications of Governor Dariye’s actions are enormous and far-reaching. It does not portend a good omen for his person, the office of the Executive and the country at large and neither does it help the country’s already battered international reputation. Moreover, and unbeknownst to him (Gov. Dariye), he is now a prime candidate for INTERPOL, and may be subject to arrest if he set foot outside Nigeria. His actions lend credence to the fact that Nigerians, even those in authority, do not respect constituted authority. If he has nothing to hide, there is no reason why he should not immediately return to the UK to clear his name and help salvage the country’s reputation.

The other argument put forward by Gov. Alamieyeseigha’s lawyers to the effect that his state cannot function and will likely to descend into anarchy without his presence is pedestrian, nescient and completely begs the issue. It does nothing but cast aspersion on Nigeria’s staggering democracy and portray Nigerians as unaware of the rules of democracy. The Nigerian constitution, like all other constitutions, including most totalitarian and monarchical regimes, provide for a deputy in the absence of the substantive head (of government). Since his state has not collapsed from the time of his incarceration, there is the likelihood that it will not while his case lingers. At this point, it is up to his state and their representatives to decide on the next step if his absence persists for longer than necessary. For now, let peace reign while the law takes its course.

In trying to win legal sympathy from the court for their client, the governor’s legal team should not assail the intelligence of the average Nigerian, albeit without malice. These great legal minds should focus their attention and resources on extricating their client from the “hangman’s noose” (and save the issue of witch hunting for another day). As soon as the opportunity comes, let them present all such evidence that will proclaim his innocence. There is no doubt that based on the publicity the case has generated, the Governor will be given due process as well as an expeditious trial.

In the interim, the Nigerian government should accord the governor all the necessary support he deserves to pursue his case for obvious reasons: one, he is still an incumbent governor; second, and perhaps most importantly, he is a Nigerian citizen who is in trouble with the law outside his country. There is absolutely no contradiction in the government furnishing evidence against him as well as ensuring that he is given a fair trial and the respect he deserve.

Hopefully, at the end of it all, Nigerians, irrespective of their status, would learn some valuable lessons.

Osa Iyinbo, MPA and an LL. M student at the Albany Law School, Albany, NY