Posted by From Laolu Akande, New York on
BY a split decision of two judges to one, a United States Court of Appeal has rejected an appeal by former military ruler, Gen. Abdulsalami Abubakar, to stop his trial in the U.S. over alleged human rights abuses.
BY a split decision of two judges to one, a United States Court of Appeal has rejected an appeal by former military ruler, Gen. Abdulsalami Abubakar, to stop his trial in the U.S. over alleged human rights abuses.
The suit was filed against him by elder statesman Chief Anthony Enahoro, activist lawyer Chief Gani Fawehinmi (SAN), and a daughter of the late Chief Moshood Kashimawo Olawale Abiola, Hafsat. The others are Dr. Arthur Nwankwo, Mr. Femi Aborisade, Mr. Owens Wiwa and one C.D. Doe.
They are accusing the former Head of State and the then Provisional Ruling Council (PRC) of being responsible for alleged state-sponsored crimes, including the death in detention of Hafsat's father and mother, Alhaja Kudirat Olayinka Abiola.
The appellate court, in a judgment last month released to The Guardian at the weekend, noted Gen. Abubakar's claim for immunity but insisted that the trial must continue.
The court insisted that the US Foreign Sovereignty Immunity Act (FSIA), which Abubakar's defence relied upon, does not subscribe to a situation whereby rulers in a state are supposed to be seen as the very embodiment of that state.
According to the lead judgment: "The FSIA did not seem to subscribe to Louis XIV's not-so-modest view that L'etat c'est moi. How much less, then, could the statute apply to persons, like General Abubakar, when he was simply a member of a committee, even if, as seems likely, a committee that ran the country?"
The matter, which was argued by a set of lawyers including two Nigerians on either side, was orally presented before a panel of three U.S. Court of Appeal judges on January 10, 2005. The Nigerian lawyers are Kayode Oladele for the plaintiffs and Emeka Ugwuonye for Gen. Abubakar. Oladele has been credited for sustaining this case through the US district courts to the Court of Appeal, which has now ruled in the plaintiffs' favour.
A U.S. federal district court in Chicago had previously ruled that Abubakar should face the civil trial for the time he was not Head of State, having granted him immunity for the time he was Nigeria's ruler. In the Appeal Court ruling, the lead judge, Terance Evans, noted that the lower chamber held that Abubakar was entitled to common law immunity for the year that he was Head of State.
But Abubakar's lawyers sought a complete immunity and appealed to the Court of Appeal for the seventh district in Chicago. In the lead judgment, Evans stressed the uniqueness and seeming difficulty of the case.
He said: "A courtroom in Chicago, one would think, is an unlikely place for considering a case involving seven Nigerian citizens suing an eighth Nigerian for acts committed in Nigeria. It sounds like the sort of fare that would be heard in a courtroom on the African continent. But this case ended up in Chicago, and that leads us to consider the claims of seven Nigerian citizens against a Nigerian general over alleged torture and murder in Nigeria. The path the plaintiffs are pursuing is, as we shall see, quite thorny."
He recalled that the specific issue which gave rise to the interlocutory appeal was the decision that the 1976 FSIA did not apply to individuals and thus General Abubakar was not immune from suit.
He said according to the complaint, the Provisional Ruling Council (PRC), ruled by decree and curtailed civil liberties. During the time, Abubakar occupied the third highest military and political position in Nigeria.
The lead judge noted that Hafsat Abiola holds Abubakar responsible for the death of her parents, both of whom were pro-democracy activists. Her father, M.K.O. Abiola, in fact, was a candidate for president in 1993.
Hafsat is contending that the early election returns showed that her father won the vote, but the military regime nullified the election, leading to violent clashes between armed forces and civilians.
Continuing, the judge said that the late M.K.O. Abiola unsuccessfully challenged the election's nullification through the Nigerian court system and sought Nigerian and international support for the recognition of the election results. In June 1994, M.K.O. Abiola declared himself the president of Nigeria. He was promptly arrested and charged with treason.
According to the complaint, he was kept in prison under inhumane conditions, was tortured, and denied access to lawyers, doctors, and his family. He died in prison in July 1998, shortly after General Abubakar assumed control of a new military regime.
But the judge also noted that General Abubakar had appealed against the denial of immunity under the FSIA, stating that "whereas the preliminary issue is whether we have appellate jurisdiction over the appeal. We conclude that we do."
The lead judge said: "General Abubakar contends that he has immunity for official conduct taken while he was a Nigerian public official and a member of the ruling council. Underlying his argument is his contention that the FSIA applies to individuals in government, not just foreign governments and agencies. The historical underpinnings of the FSIA go back almost 200 years."
Quoting legal precedents, the judge said: "In Schooner Exchange v. McFaddon, 11 U.S.(7 Cranch) 116 (1812), the Supreme Court recognised the immunity of foreign sovereigns from suits brought in the courts of the United States. Justice Marshall said that "members of the international community had implicitly agreed to waive the exercise of jurisdiction over other sovereigns in certain classes of cases, such as those involving foreign ministers or the person of the sovereign."
He also drew from Republic of Austria v. Altmann, 541 U.S. 677 (2004) (quoting McFaddon, 11 U.S. at 136). He said: "For the next 165 years, the executive branch decided whether a foreign nation was entitled to immunity. The usual procedure was that the State Department would provide the court with a suggestion of immunity and the court would dismiss the suit. See 15 Moore's Federal Practice, å? 104.02 (Matthew Bender 3d ed.).
Even a previous Nigerian government related case came in handy for the lead Appeal Court judge. He said in 1952, the State Department adopted what had become known as the "restrictive theory" of sovereign immunity. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983). "Under this theory, immunity is limited to suits involving the sovereign's public acts and does not extend to cases arising out of strictly commercial actions," he noted.
The two judges who agreed on the lead judgement, Terance Evans and Michael Kanne, therefore stated that "The language of the Act supports our conclusion. The overriding concern of the Act, as set out in 28 U.S.C. å? 1602, is allowing judgments against foreign sovereigns in connection with their commercial activities. The statute was passed so immunity determinations in such contexts would be made by courts of the United States and of the States . . ." not by the executive branch of the government.
Essentially, the appellate court ruled that the immunity envisaged in the FSIA did not explicitly include individuals who either head the government or participate in it at some high level.
Yet, the judges further held: "It is true, however, that this issue is a long way from being settled. The FSIA has been applied to individuals, but in those cases one thing is clear: the individual must have been acting in his official capacity. If he is not, there is no immunity. For instance, a Korean official being sued by a personal family employee was not immune because he was not acting within the scope of his official duties. Park v. Shin, 313 F.3d 1138 (9th Cir. 2002)."
The judges said: "In our case, we conclude, based on the language of the statute, that the FSIA does not apply to General Abubakar; it is therefore also clear that the Act does not provide jurisdiction over the case."
"On matters of jurisdiction, the Court of Appeal agreed with the plaintiffs that it exists but noted that 'one procedural requirement in the Act is exhaustion." Section 2(b) says: "A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred."
That means that the plaintiffs would need to show proof that they have exhausted the Nigerian courts to no avail to plead their cases.
The Court of Appeal judges then remanded "this case to the district court for a determination regarding whether the plaintiffs should be allowed to amend their complaint to state such a claim and, if they do, whether, in 16 No. 03-3089 fact, the exhaustion requirement in the Torture Victim Protection Act defeats their claim."
Even the third judge, Richard Cudahy, who slightly differed also conceded that Abubakar could not claim sovereign immunity. But he went further to say: "I cannot agree that plaintiffs' suit is precluded by their failure to bring a claim under the Torture Victim Protection Act of 1991 (TVPA) or by their failure to exhaust legal remedies in Nigeria."
According to him: "If General Abubakar were deemed to have made the requisite showing that specific domestic legal remedies exist, plaintiffs' suit should still be allowed to proceed.
"Plaintiffs have introduced evidence that they or their relatives were targeted by the Nigerian government as political enemies, and under such circumstances there was obviously nothing to be gained by filing complaints in the Nigerian courts. The facts of life shed some doubt on the majority's airy conclusion that African courtrooms would provide a more hospitable forum for these claims than those of Chicago."
He continued: "U.S. government sources reveal that from the year 2000, when Abubakar relinquished power, until 2003, when plaintiffs filed the instant suit, the Nigerian judiciary was under-funded, corrupt, subject to political influence and generally unable or unwilling to compensate victims of past human rights abuses."
He said: "The foreign policy implications of the immunity question are intensified where a sitting or former foreign head of state is involved. Fortunately, the question of General Abubakar's immunity for acts taken as Nigeria's head of state is not before us."
General Abubakar has appealed the district court's denial of immunity only for acts taken as a member of the Nigerian Provisional Ruling Council (PRC).
The third judge therefore affirmed the ruling of the district court and allowed the case to proceed to a trial on the merits.