Posted by Akpo Mudiaga Odje, Esq., on
I read and perfectly understood the views expressed by my friend, Mr. Felix Ayanruoh, in his contribution to this great debate under the caption: 'Bayelsa Governor has a case to answer" and duly published in the October 7, 2005 edition of the Vanguard Newspaper at page 33 as well as the Guardian Newspaper of October 9, 2005 at page 67 .....
I read and perfectly understood the views expressed by my friend, Mr. Felix Ayanruoh, in his contribution to this great debate under the caption: 'Bayelsa Governor has a case to answer" and duly published in the October 7, 2005 edition of the Vanguard Newspaper at page 33 as well as the Guardian Newspaper of October 9, 2005 at page 67 under the caption: 'Stealing and money laundering is not a governmental function." Since what he apparently reacted to by his articles was a mere press statement by my humble self, the rule of fair hearing entitles me to be heard by way of a more elaborate response.
Pinochet's case in the United Kingdom. The facts of this case are well known. The erstwhile dictator of Chile then a Senator for life, was pursued by a Spanish Government's warrant for extradition to face indictments for acts of hostage taking and torture carried out during his infamous reign. About three cases arose from this scenario, to wit:- (1) R Vs. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (1998) 4 All ELR 897. (2) R Vs. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (1999) 1 All ELR 577; and (3) R. Vs. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (Amnesty International and others intervening (1999) 2 All ELR 97. These cases sufficiently flogged the issue of immunity for Heads of State especially under Section 14(1) of the State Immunity Act of 1978 operating in the United Kingdom. However, I am primarily concerned with the decisions in (1) and (3) above. In the Ex parte Pinochet Ugarte [1998] (supra), the House of Lords held inter alia that the former Head of State had no immunity under that Act in respect of the international crimes of hostage taking and torture, and that those acts could not be regarded in any circumstance as a function of a Head of State.
This point was correctly adumbrated by Mr. Ayanruoh in his discourse. However, Lord Slynn in his illuminating dissenting judgment nevertheless reiterated the importance of protecting the immunity offered to heads of states in the comity of nations when he declared at page 913 lines c-g that: 'It does not seem to me that it has been shown that there is any state practice or general consensus let alone a widely supported convention that all crimes against international law should be justiciable in national courts on the basis of the universality of jurisdiction. Nor is there any jus cogens in respect of such breaches of international law which require that a claim of state or head of state immunity, itself a well-established principle of international law, should be overridden." This judgment was, however, confined solely for academic purpose when Pinochet successfully set it aside on ground of real likelihood of bias when it was discovered that Lord Hoffman, one of the Law Lords in the 3-2 majority judgment, had very strong ties with Amnesty International, an organization which had hitherto been clamouring for the trial of the ex dictator. See Ex parte Pinochet Ugarte [1999] 1 All ELR 577. - 2 - Consequently, Ex parte Pinochet Ugarte (1999) (No. 3) (supra) is now the authoritative judgment that laid down the law regarding immunity for a Head of State in England notwithstanding that it came to the same conclusion with its 1998 decision. In his leading judgment, however, Lord Brown Wilkinson relying more on the need to give effect to the Convention against Torture and other cruel inhuman or degrading treatment or punishment, held that Mr. Pinochet could not claim immunity because Britain was under a legal obligation to give effect to the said convention. In other words, the said treaty overrode Pinochet's immunity.
Thus, he declared at page 115 lines a-c that: 'Under the convention the international crime of torture can only be committed by an official or someone in an official capacity. They would all be entitled to immunity. It would follow that there can be no case outside Chile in which a successful prosecution for torture can be brought unless the state of Chile is prepared to waive its right to its officials' immunity. Therefore the whole elaborate structure of universal jurisdiction over torture committed by officials is rendered abortive and one of the main objectives of the Torture Convention - to provide a system under which there is no safe haven for torturers - will have been frustrated. In my judgment all these factors together demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention." He was quick to observe however, that it was indeed the first time this kind of immunity would be disregarded in England.
Thus, he noted at page 111 lines e-f that: '.... It will be the first time, so far as Counsel have discovered, when a local domestic court has refused to afford immunity to a head of state or former head of state on the grounds that there can be no immunity against prosecution for certain international crimes." These are some of the peculiar circumstances that made the House of Lords to disregard the immunity conferred on the former head of state under the State Immunity Act of 1978. The Law Lord stated that it was the need to specifically give effect to that Convention that overrode Pinochet's immunity. Not that he did not have any immunity at all! There is one thing to have the immunity, and another to disregard it! This is why some international law scholars and observers still believe that the Pinochet cases settled nothing, and the position of the case law remains in a state of flux on the issue of disregarding immunity for heads of state.
Distinguishing features of the Pinochet case: One, Pinochet was no longer a head of state at the time his matter was decided, and some of the Law Lords were even reluctant to extend immunity to a former head of state. (See Lord Browne Wilkinson at page 112 lines f-g that: 'He too loses immunity .. in ceasing to be head of state. ..")
Two, the House of Lords, per Lord Browne Wilkinson, decided the case more on the need to give effect to a Convention rather than unilaterally disregarding the traditional immunity conferred on heads of state. Three, at the end of the day, the British Government technically overruled the judgment of the House of Lords by permitting the ex dictator to escape justice on the ground that medical reports revealed that he was not fit to stand trial! (Is Alamieyeseigha fit to stand trial today with his acute diabetes, operation and hypertension?) Four, based on the above, therefore, the Pinochet's case remains an academic judgment because it was never enforced!! Five, the fear and apprehension of British authorities in this matter was as a result of the persistent demands from the Chilean government that it should grant Pinochet immunity. This much was recognized by Lord Wilkinson when he stated that: 'Up to this point, Chile had been urging that immunity should be afforded to Senator Pinochet .." (See page 103 lines h-j supra). Unfortunately, in our case, the Federal Government is even ironically and strangely pummeling the embattled Governor (home and abroad) more than the British government! And this gave the legal effrontery to the Metropolitan Police to even handcuff an elected Governor of this country on board an aircraft! In point of fact, the inspiring dissenting judgment of Lord Goff, quoting and adopting Lord Slynn in the (Pinochet No. 2) (supra), reinforces my submission, when he noted at pages 116-117 that: '........except in regard to crimes in particular situations before international tribunals these measures did not in general deal with the question as to whether otherwise existing immunities were taken away.
Nor did they always specifically recognise the jurisdiction of, or confer jurisdiction on, national courts to try such crimes." From these weighty reasons, (supra) and those infra, I respectfully contend with profound respect to Mr. Anyanruoh that the Pinochet case is therefore not on all fours with Alamieyeseigha's case.
How Alamieyeseigha's immunity will arise in international law. Indeed, like the proficient scholar and international law expert Prof. Itse Sagay, SAN., observed, the issue of immunity was hitherto attached to only a head of state because in the years gone by, it was a unitary state that was initially evolving in international law. Consequently, the head of state of a unitary nation was the only authority that was recognized by the comity of nations. However, about 200 years ago, the United States of America evolved and discovered a Federal State which now recognized two levels of elected government, that is, the Federal and State Governments. This is the new status of government which the comity of nations has now recognised, and it is duly classified as 'political sub-divisions" in international law.
In this wise, the Constitution of the United States of America affirms this position as it pungently declares under Article IV Section 4 that: 'The United States shall guarantee to every state in this union a Republican form of Government.." Black's Law Dictionary (6th edition) at page 1303 defines a Republican government to mean inter alia: '...a government of the people; a government by representatives chosen by the people." A Republican government is therefore like an independent nation with its own elected government. Thus, an elected Governor of such a Republican State is like a mini Head of State with similar rights, privileges and benefits in international law. In Nigeria, our Constitution clearly states under Section 2(2) that: 'Nigeria shall be a Federation consisting of States and a Federal Capital Territory." On Section 3(1), it declares that: 'There shall be thirty-six States in Nigeria...." The Supreme Court in the recent case of A-G Abia State Vs. A-G, Federal Republic of Nigeria [2005] 12 NWLR (pt.940) at 452 speaking through the sagacious Belgore, JSC invoked the above constitutional provisions. Taking the point further, the exquisite international law scholar and advocate, Prof. Ian Brownlie, QC., DCL., FBA., writing on this issue of immunity on political sub-divisions (like elected Governors) in his seminal expose titled: 'Principles of Public International Law" 4th Edition at page 342, stated that: 'The extent to which member States of federations and provinces of other types of State can claim immunity is unsettled.
only the President and the Governors that form the executive organs of government in Nigeria. For the avoidance of doubt, Section 5(1) of the 1999 Constitution provides that: 'Subject to the provisions of this Constitution, the executive powers of the Federation - (a) shall be vested in the President ...." Whilst Section 5(2) declares that: 'Subject to the provisions of this Constitution, the executive powers of a State - (a) shall be vested in the Governor of that State ...." This is the hub of the matter! The Governor is therefore a mini President under our Constitution, nay, international law. Under local laws, the President and a Governor cannot even be tried for any civil or criminal offence. And in fact, both were even elected on the same day!
They are therefore both immune under Section 14 of the State Immunity Act, 1978. - 5 - These novel issues of municipal and international law need to be urgently addressed, if not upheld, by the Courts of England for the sake of the dignity of an elected Nigerian Governor in the comity of nations as well as duly recognizing the evolving concept of the Federal State in international law. The erudite emeritus Professor of Law, D.A. Ijalaye, contributing to this debate under the caption: 'Alamieyeseigha's ordeal in the context of sovereign immunity" published in the Vanguard Newspaper of 9/10/2005 at page 42, introduced the notion of immunity by Representation for a Governor when he declared that: 'It is, however submitted that, the governor of any of the 36 States of Nigeria visiting another country as the representative of the President of Nigeria ought to enjoy sovereign immunity in a representative capacity during the period of the representation." No foreign country should be allowed to try our Governors. If it happens, it would only mean that we have all failed as a nation by neglecting to provide laws that could tackle the corruption scourge. Also, it would mean that our legal and judicial systems are not effective in fighting corruption in Nigeria. For every Nigerian, especially Niger Deltan, the arrest, arraignment, remand and subsequent trial of Governor Alamieyeseigha from Brixton prison is a violation of our collective dignity and sovereignty. As long as he remains the elected Governor of Bayelsa State in the Federal Republic of Nigeria; in the eyes of the comity of nations, Alamieyeseigha's ordeal in the hands of the British authorities is a disgrace to our pride and prestige. Can the British Police question not even to talk of venturing to arrest a Governor of Texas, Louisiana or California?
* Executive powers over Bayelsa State still vested in Alamieyeseigha by the Constitution even whilst in Brixton Prison. As long as Alamieyeseigha remains the duly elected Governor of Bayelsa State under Section 5 of the Constitution, executive powers of the State is vested in him even whilst in Brixton prison! That is what the Constitution says, and I stand to be corrected by those who know better! So, the issue is not Alamieyeseigha's person; but the sanctity of the office he occupies, which is a hallowed creation of our Constitution. Imagine the Governor signing the Appropriation Law of Bayelsa State 2006, from Brixton prison? Does it not make a mockery of our sovereignty, dignity and democracy? * Immunity Clause should be expunged to encourage trials in Nigeria. If our Constitution is a bar to the prosecution of Governors for corruption in Nigeria, let the President use his almighty weight (as he used in solely convening the ill-fated National Confab), to muster the requisite requirements and amend the Constitution to expunge that obnoxious provision, i.e. Section 308 of the 1999 Constitution. Let us expunge that dubious provision of immunity from home to enable us try our people ourselves. Set a precedent in your country yourself and don't connive with foreign countries to do it for you because you will be desecrating an integral part of your democratic institution in the comity of nations. I therefore completely concur with the observations of the quintessential Mr. Emeka Ugwonye, when he submitted that: - 6 - 'A more focused debate (yet larger than the Bayelsa Governor's case) is the debate as to whether the Constitution of Nigeria should have accorded immunity to Governors at all." (See the Guardian Newspaper of 9/10/2005 at page 66). * Governors must improve the lives of the people and their infrastructure.
Whether you receive 1%, 3% or 13% from the Federation Account, it is a political, legal and social duty for every Governor to improve the lives of the governed by embarking on meaningful development of their respective States. They should create employment, build industries and revamp the health care sector, amongst others! Any deviation from these aspirations is a betrayal of the people's trust and a criminal offence punishable after 2007 in Nigeria! We thus respectfully urge them to have a rethink and do something for their people as 2007 announces their exit from power! * The Fight Against Corruption in Nigeria. It must be emphasized for the avoidance of doubt again that nobody is encouraging corruption in any form! Even the Constitution and law obliges us to argue on any side of an issue, which we shall continue to do. And that is why we argue that the due process of law must be followed and obeyed in the prosecution of the fight against corruption within and without Nigeria. In fact, we laud the anti-corruption drive of the Federal Government and use this opportunity to appeal to it once again to make same more comprehensive by disclosing and accounting for the revenue from the sale of crude oil from 29th May 1999 to 11th July 2005 when our respected President against all known laws of our land acted as the Minister of Petroleum Resources! That is to say, for six solid years! As for my good friend and brother, Mr. Ayanruoh, please be informed that under the aegis of the Niger Delta Democratic Union (NDDU), your brothers from the Niger Delta led by my humble self, instituted a Court action against our respected President (now before the Court of Appeal, Abuja), to compel him to appoint a Minister of Petroleum Resources as directed by law. Needless to say, our action was clearly responsible for the belated appointment of a Minister of State for Petroleum. I therefore urge him to come home and join us in the battle against poverty, unemployment, abuse of office, vainglorious ambition and civilian dictatorship.
*Akpo Mudiaga Odje, Esq., LL.M (Merit) (London) BL., is a Constitutional Lawyer and Author based in Warri, Delta State in the Niger Delta region of Nigeria.
Continues on Monday
Mr. Odje writes from Warri, Delta State.