Posted by Professor Sagay, SAN on
Like the proverbial word of Damocles, the Alamieyeseigha controversy hangs on the nation's moral rectitude.
Like the proverbial word of Damocles, the Alamieyeseigha controversy hangs on the nation's moral rectitude. Itse Sagay espouses the complexities in jurisdictional immunity applicable to heads of federating states in a country.
I have read the recent contribution of Professor David Ijalaiye on the subject of the entitlement of Governor Diepreye Alamieyeseigha to sovereign immunity, with great interest.
Professor Ijalaiye is a long standing scholar of International Law and his views deserve the utmost respect. Indeed, we both taught the International Law Course at the University of Ife in the early seventies. This response to Ijalaiye's paper gives me the opportunity to offer a comprehensive explanation of the complex issue of jurisdictional immunity as it applies to states within a federation and their Heads of State/Government.
DOMESTIC IMMUNITY
In his discussion of Sovereign Immunity under Nigerian Law, Ijalaiye, relying on section 308 of our Constitution (full immunity of the President, Vice President, Governors, and Deputy- Governors) reaches the following contradictory conclusion.
'In practical terms, President Olusegun Obasanjo is currently the President under the Nigerian Constitution and he enjoys sovereign immunity in that capacity. Also Alamieyeseigha, as the head of the Government of Bayelsa State enjoys some measure of immunity in that capacity".
Section 308 of the Constitution makes identical provisions for the immunity of the President and the Governors. There can therefore be no basis for concluding that whilst the President enjoys sovereign immunity 'in that capacity", Governor Alamieyesiegha who is protected by identical provisions in the same section ì as head of the Government of Bayelsa State enjoys some measure of immunity in that capacity". Where in section 308 is the President granted sovereign immunity and Governors granted the down graded some measure of immunity? What does some measure of immunity mean in the context of section 308 of the Constitution which I now proceed to reproduce below.
ì(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section ñ
(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either on pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:
(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to 'period of Office" is a reference to the period during which the person holding such office is required to perform the functions of the office".
It can thus be seen that there is no distinction whatsoever between the immunity granted the President and that granted a Governor under section 308. Therefore the introduction of the term sovereign immunity for the President and some measure of immunity with respect to Governors, is an extra or indeed unconstitutional importation of foreign provisions into the Constitution by Ijalaiye. Infact for both the President and Governors, the correct term for the identical immunity they enjoy under our Constitution is absolute immunity.
(ii) Secondly, Professor Ijalaiye further states quite correctly that the President is granted the executive powers of the Federation in section 5(1) of the Constitution, whilst section 5(2) of the same Constitution vests the executive powers of each state in the Governor of that State.
Again, very sadly Ijalaiye draws different conclusions from similar facts. For according to him, 'hence for the purposes of International Law, it is only the president that enjoys 'independent sovereign immunity".
How on earth does such a conclusion arise from sections 5(1) and 5(2) of the Constitution granting the President and Governors executive powers in their exclusive areas of authority?
The President's executive powers are limited to the items in the Exclusive Legislative List and the Concurrent List. The Governors' executive powers encompass not only those in the Concurrent Legislative List but go on to include all residual subjects, i.e., items not listed in the Exclusive and Concurrent Lists. That is why International Law describes the powers of a Federal Government as enumerative (that which has to be specifically listed) whilst a federating states powers are termed plenary. (meaning, complete, absolute). Indeed, when modern Federations first emerged in 1787, with the coming together of the 13 United States Colonies, first as a confederation and subsequently as a federation, the international community looked at the new federal entity with suspicion and doubt, and whilst they acknowledged the sovereignty and individual international personality of the federating states, it was with reluctance that the international personality of the new federal state as an independent sovereign entity, was acknowledged. The present unchallenged international personality of a federal state only emerged over a period of time.
LOCATION OF SOVEREIGNTY IN A FEDERATION
The mistake Ijalaiye made repeatedly in his otherwise admirable contribution, was the assumption that a federation has a single undivided sovereignty. That is incorrect. A federation's sovereignty is split between the federal state and the federating states. Let us look at some authoritative definitions of federalism.
According to Professor B.O. Nwabueze:
'Federalism may be described as an arrangement whereby powers within a multi-national country are shared between a federal or central authority, and a number of regionalized governments in such a way that each unit including the central authority exists as a government separately and independently from the others, operating directly on persons and property within its territorial area, with a will of its own and its own apparatus for the conduct of affairs and with an authority in some matters exclusive of all others. In a federation, each government enjoys autonomy, a separate existence and independence of the control of any other government. Each government exists, not as an appendage of another government (e.g., of the federal or central government) but as an autonomous entity in the sense of being able to exercise its own will on the conduct of its affairs free from direction by any government. Thus, the Central government on the one hand and the State governments on the other hand are autonomous in their respective spheres".
As Wheare put it, 'the fundamental and distinguishing characteristic of a federal system is that neither the central nor the regional governments are sub-ordinate to each other, but rather, the two are co-ordinate and independent". In short, in a federal system, there is no hierarchy of authorities, with the central government sitting on top of the others. All governments have a horizontal relationship with each other".
Now let us see how federalism is defined in International Law.
In Whiteman's Digest of International Law, the legal status of a federating unit (State) within a federation is defined as follows;
'A federal State is a political contrivance intended to reconcile national unity and power with the maintenance of 'States" rights". It is a union of a number or body of independent States whose territories are contiguous and whose citizens have certain affinities, either racial, ethnological or traditional, who have a common historical background or heritage, a community of economic interests, and feel a craving for spiritual and national unity, but at the same are anxious to maintain the identity and independence of their States, which are not strong enough in modern times to face external industrial competition or military menace. It is an organic union. A federal State is a distinct fact. The federating States also remain distinct facts"
'A federal State is a perpetual union of several sovereign States which has organs of its own and is invested with power, not only over the member-States, but also over their citizens. The union is based, first on an international treaty of the member-States, and, secondly, on a subsequently accepted constitution of the federal State. A federal State is said to be a real State side by side with its member-States, because its organs have a direct power over the citizens of those member-States. This power was established by American jurists of the eighteenth century as a characteristic distinction between a federal State and confederated States, and Kent as well as Story, the two later authorities on the Constitutional Law of the United States, adopted this distinction, which is indeed kept up until to-day by the majority of writers on politics. Now if a federal State is recognized as itself a State, side by side with its member-States, it is evident that sovereignty must be divided between the federal State on the one hand, and on the other, the member-States. This division is made in this way, that the competence over one part of the objects for which a State is in existence is handed over to the Federal State, whereas the competence over one part remains with the member-States. Within its competence the federal State can make laws which bind the citizens of the member-States directly without any interference by these member-States. On the other hand, the member-States are totally independent as far as their competence reaches." (See Vol. 1, para 23 at p.308).
In the light of the split sovereignty of federations, the federating states have a certain degree of international personality and the head of State/Government of a federating State is entitled to sovereign immunity.
The original independence and sovereignty of the states, nations and autonomous communities constituting the present state of Nigeria was confirmed by the Supreme Court of Nigeria in ATTORNEY-GENERAL OF THE FEDERATION v THE ATTORNEY-GENERAL OF ABIA STATE AND 36 OTHERS in the following passage from the leading Judgment of Ogundare, JSC:
'Until the advent of the British colonial rule in what is now known as the Federal Republic of Nigeria (Nigeria, for short), there existed at various times various sovereign states known as emirates, kingdoms and empires made up of ethnic groups in Nigeria. Each was independent of the other with its mode of Government indigenous to it. At one time or another, these sovereign states where either making wars with each other or making alliances, on equal terms. This position existed throughout the land now known as Nigeria. In the Niger-Delta area, for instance, there were the Okrikas, the Ijaws, The Kalabaris, the Efiks, the Ibibios, the Urhobos, the Itsekiris, etc. Indeed certain of these communities, (e.g Calabar) asserted exclusive right over the narrow waters in their area. And because of the terrain of their area, they made use of the rivers and the sea for their economic advancement in fishing and trade - and in making wars too! The rivers and the sea were their only means of transportation. Trade then was not only among themselves but with foreign nations particularly the European nations who sailed to their shores for palm oil, kernel and slaves". ([2002] Vol. 16, WRN, 1 at p.68)
THE STATUS OF FEDERATING STATES WITHIN A FEDERATION AND IN INTERNATIONAL LAW
The leading English Practitioner's book in International Law, Oppenheim's International Law edited by Professor, Sir Robert Jennings QC, (former President of the International Court of Justice) and Sir Arthur Watts KCMG, QC (former Legal Adviser to the British Foreign and Commonwealth Office), states as follows;
'Since a federal state is itself a state, side by side with its member states, sovereignty is divided between the federal state on the one hand, and, on the other, the member states; competence over one part of the objects for which a state exists is vested in the federal state. Whereas competence over the other part remains with the member states. Within its competence the federal state can make laws which bind the citizen of the member states directly without any interference by these member states. On the other hand, the member states are totally independent as far as their competence reaches.
For international law this division of competence is of interest insofar as it concerns competence in international matters. Since it is always the federal state (and not the member states) which is competent to declare war, make peace, conclude political treaties, and send and receive diplomatic envoys, the federal state is itself an international person, with all the rights and duties of a sovereign state in international law. On the other hand, the international position of the member states is not so clear. There is no justification for the view that they are necessarily deprived of any status whatsoever within the international community; while they are not full subjects of international law, they may be international persons for some purposes. Everything depends on the particular characteristics of the federation in question. Thus two member states of the Soviet Union ñ a federal state since 1918 ñ are separate members of the United Nations and are parties to many treaties".
(See Oppenheim, Vol.1. Part 1. Peace, 9th edition, 1992, para 75, p.249.
• Professor Sagay, SAN is a constitutional and international law expert