Posted by Chuks Nwachuku on
The matter of the arrest and trial in London of the Governor of Bayelsa State, Diepreye Alamieyeseigha, on money laundering charges is fast becoming an alarming saga.
The matter of the arrest and trial in London of the Governor of Bayelsa State, Diepreye Alamieyeseigha, on money laundering charges is fast becoming an alarming saga. The Governor in apparent breach of his bail conditions escaped from Britain and reappeared suddenly in Government House, Yenogoa, to a rousing and tumultuous welcome from the people of Bayelsa State. The Federal Government is not at all amused and appears not to be leaving anything to chance in a bid to bundle Alamieyeseigha as fast as it can manage back to London. There are talks of an international warrant of arrest being issued against the Governor and Nigerian troops have reportedly been sent to Bayelsa State. Also, the newspapers report the commencement of impeachment proceedings against the Governor by some members of the Bayelsa State Legislature who have however fled to Lagos. The Governor on his own part is screaming of a plot by the Federal Government to destabilise his State and assassinate him. It is not certain how the alarming saga of Alamieyeseigha will end.
However, I believe there are serious issues of law and national security thrown up by this saga which many of our jurists and scholars seem to have lost sight of having been completely taken in by the morally reprehensible nature of the crimes Alamieyeseigha is accused of and the apparent ignominy of his 'jumping bail" allegedly in disguise as a pregnant woman.
It is not in dispute that as the Governor of Bayelsa State Alamieyeseigha is protected from arrest and trial during his term of office under section 308 of the Nigerian Constitution in the same manner and to the same extent as the President of the Federation himself. It is however urged by the apologists of the President that this provision of the Nigerian Constitution does not enjoy international recognition and protection because the Constitution is not of international 'application". The argument further goes on that it is only the President of Nigeria that enjoys international immunity by virtue of international conventions in that regard which conventions, it is said, neither recognise nor protect the person or office of the Governor of Bayelsa State.
Much ink has been spilt on these international conventions by the most eminent of Nigerian jurists in this field in support or opposition of their application to a Governor of a State in Nigeria. I would therefore wish to approach this matter from a different perspective altogether in the hope that more light would thereby be thrown on it.
When we assert that Nigerian State Governors do not enjoy international immunity from arrest and trial we are, in effect, asserting that any country of the world is free to pick up a Governor of a State in Nigeria and bundle him into jail so long as it can manage to pin a criminal charge on him. It also means that persons having civil disputes against the Governor can drag him before a court in a foreign land so long as that court has an interest in hearing the claim. It is possible to imagine powerful oil companies operating in the Niger Delta seeking declarations and injunctions in a foreign court against the Governor and Government of a State in the Niger Delta.
The national security implications of this position which is urged upon Nigerians with fervour by its leaders is that it is possible for a foreign power or a group of persons enjoying the support or sympathy of a foreign power to blackmail, intimidate and harass the Governor of a State in Nigeria with arrest and trial or threat of such arrest and trial with a view to unlawfully influencing the exercise by that Governor of the awesome powers vested in him in relation to his State ñ as the Federal Government through Nuhu Ribadu, Chairman of EFCC, is alleged to be currently doing to the members of the Bayelsa State House of Assembly. Thus, it would be possible for the Governor and/or Government of a State in Nigeria to come under the dark grip of a foreign power or a group of persons acting through a foreign power.
It is easy for the ordinary mind to regard the above scenario as far-fetched but it would be proof of affliction with acute myopia to do so, particularly with respect to the oil wealthy and sensitive Niger Delta where foreign powers and foreign businesses are very much interested in controlling the behaviour of the people and would welcome an opportunity to do so through the ability to exercise an unwholesome influence over their Governors and Governments.
Indeed, I foresee a situation where procuring the arrest of Nigerian State Governors abroad would soon become a branch of international crime for mafia groups and other criminals round the world. Nigerian State Governors or Governments are entrusted constitutionally with huge sums of money (in many instances surpassing the national budgets of some countries) as well as enormous powers that impact on the welfare of millions of people in their respective States. It is likely to be a hard-to-resist temptation for the criminals of the world to seek to lay their hands on some of that money either directly or indirectly through intimidating or blackmailing a Nigerian State Governor with threats of procuring his arrest abroad for crimes which the criminals themselves could contrive in any manner including deliberating planting incriminating materials on the Governor.
It is from this perspective that I would respectfully urge Nigerians to once again view the issue of constitutional immunity for State Governors nationally and internationally. While we are justified to express disgust at an apparently thieving State Governor avoiding prosecution, albeit temporarily, by means of the cloak of immunity, it would be a serious mistake to limit our view of the immunity of State Governors to this consideration as we are deliberating being misled by the Federal Government to do. We must not forget that any precedent that we lay now would apply indiscriminately and equally to both a criminally minded Governor and an honest, diligent and patriotic Governor being harassed and intimidated either nationally or internationally or by a conspiracy of both national and international interests in the exercise of his powers.
If we agree therefore to look at the issue of national and international immunity for State Governors from the perspective of an honest and patriotic Governor facing national and international opposition to the due and proper exercise of his powers 'without fear or favour" as he swore to do, or rather, from the perspective of the need to protect Nigerian State Governors from being intimidated and overawed in the exercise of the powers and functions of their office both nationally and internationally, then it is my privilege to invite Nigerians to consider the issues below.
The Nigerian constitution states at section 1(2) thereof as follows:
'The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof except in accordance with the provisions of this Constitution".
I very much suppose that those who argue that the Nigerian Constitution has no international 'application" mean to assert that a foreign country or power has the liberty to disregard this provision and take actions that would have the effect of having Nigeria or a part thereof governed otherwise than as provided by the Constitution. I can already hear an exclamation of 'God forbid!" But that is clearly the meaning and effect of the assertion that the Nigerian Constitution does not command international respect under international law.
I understand that those who make this assertion do so having the immunity conferred on State Governors in section 308 of the Constitution in mind. But they forget that section 1(2) of the Constitution is part of the same Constitution. That is the crucial point: That those who assert so strongly that Britain is right to disregard the constitutional provisions relating to the office and person of Alamieyeseigha are, with due respect, misconceived i.e. they neither know nor understand the depth of what they are saying.
The argument that the Nigerian Constitution has no force in Britain is simplistic, with all due respect. When it is argued that Britain lacks the competence under international law and the common law of England itself to disregard the provisions of the Nigerian Constitution in relation to any functionary of the Nigerian Government or of a part thereof it is not thereby put forward that the Nigerian Constitution applies in Britain as the ordinary law of that country. Indeed, the Nigerian Constitution does not seek to regulate affairs in Britain. The unassailable argument is that Britain cannot exercise any power or jurisdiction that would have the effect of regulating the affairs of Nigeria or the exercise of power by any person in Nigeria contrary to or in disregard of the Nigerian Constitution. In other words, Britain is not competent to exercise any jurisdiction civil or criminal over Nigeria or any part thereof.
If Britain were to have the legal competence to exercise a power or jurisdiction which would have the effect of setting aside or putting in abeyance the provisions of the Nigerian Constitution regarding the exercise of power in Nigeria by any person or the due governance of Nigeria or a part thereof the Constitution of Nigeria and indeed the Nigerian nation would cease to be sovereign. The sovereignty of Nigeria is not just the sovereignty of the President of Nigeria, as the apologists of Mr. President would want to believe. It is rather the sovereignty of the Nigerian Constitution and the President of Nigeria being an office or institution created under or by the Constitution is only a beneficiary of that sovereignty. But he is by no means the only beneficiary because he is not the only governmental office or institution created by that Constitution - the same Constitution creates 36 other heads of Government, and more than that, goes on to clothe them all with the same insignia of sovereignty as it does Mr. President, namely immunity from arrest and civil or criminal process.
As for the argument that Bayelsa State lacks international status, we only have to ask ourselves a simple question to discover how hollow it is, namely: Can Bayelsa State or Bayelsa State Government be put to civil or criminal trial abroad without offending the sovereignty of Nigeria, or can the property or assets of Bayelsa State or its Government abroad be seized as not constituting sovereign property? The answer is obviously in the negative. And the reason is that Bayelsa State with its Government, even if held not to constitute an independent state under international law, is certainly a section or branch of the Nigerian Sate and Government so that to put Bayelsa State or its Government on trial abroad is to put the Nigerian State or Government itself on trial abroad. We can see therefore that the Governor of Bayelsa State, even without the immunity clause in section 308 of the Constitution enjoys immunity from civil and criminal process under international law as the head of a section of the Nigerian State and Government. At least, this ought to have been the position of the Federal Government arising from its constitutional responsibility to protect the sovereignty of the country at all times.
It is also easy to demonstrate that the arrest and jailing in Britain of Alamieyeseigha is an action which impacts upon and overthrows the Nigerian Constitution. Governor Alamieyeseigha being the Executive Governor of Bayelsa State is the authority on which the exercise of executive powers in the State is vested under and by virtue of sections 5(2) and 176(2) of the Nigerian Constitution. However, a foreign power, Britain, in exercise of its own judicial powers claims the legal competence to prevent Alamieyeseigha from exercising these executive powers by claiming the power to arrest and jail him, and thereby force a change of the Government of Bayelsa State in a manner contrary to and not contemplated by the Nigerian Constitution. In effect, Britain claims the power to decide legally that Nigeria shall be governed not as provided by the Nigerian Constitution but rather as Britain wills Contrary to section 1(2) of the Nigerian Constitution.
If Britain is right then the Nigerian Constitution is not sovereign but on the contrary legally subjugated to Britain: that we all agree is absolutely unacceptable. If however Britain is wrong then the legal interpretation of its arrest and imprisonment of Alamieyeseigha contrary to the sovereign will of the Nigerian people as expressed in the Nigerian Constitution is that it sought by the exercise of its own sovereign will and power to overthrow the Nigerian Constitution and the Government of Bayelsa State. If Alamasieyeseigha had not made a dramatic escape from British captivity and reclaimed his constitutional responsibilities and powers Britain would have brought about in the government of Bayelsa State an occurrence not contemplated by the Nigerian Constitution which is what is known as a revolution in law or a coup in ordinary parlance i.e. a forcible overthrow or deposition of Alamieyeseigha as the Governor of Bayelsa State. Now, by definition a revolution or a coup is an act of war. Britain, in my humble view, has levied war on Bayelsa State and therefore on Nigeria with a view to effecting the forcible overthrow of the Bayelsa State Governor and Government.
That brings us to another interesting aspect of this saga. Are Nigerian State Governors and Governments by law protected from intimidation and harassment or forcible overthrow under any guise? The criminal code law of Lagos State at sections 37 and 41 thereof makes it the offence of treason punishable with death to make war or to conspire to make war against the Governor or Government of a State with an intention to intimidate or overawe the Governor of that State, or to form an intention to effect a change in the Government of a State in Nigeria by unconstitutional means. It is equally the offence of treasonable felony punishable with life imprisonment under section 41© of the same law to intimidate or overawe a Legislative Authority by extra-legal means otherwise known as war. Similar provisions are contained in the criminal codes of other Southern States of Nigeria, including Bayelsa State and in the penal codes of the Northern States.
Now, without doubt, to arrest a State Governor is to intimidate and overawe him by extra-legal means i.e. by war. Similarly, to detain or jail a Governor is to remove that Governor from the government of his State unconstitutionally. So then, how can any Nigerian reasonably contend that it is within the legal competence of a foreign government to arrest and jail a serving Governor of a State in Nigeria? And where do all these leave the President of Nigeria and his accomplices, including Nuhu Ribadu and Bayo Ojo, SAN?
It is not in dispute that the British Deputy High Commissioner to Nigeria told Nigerians to the hearing of Mr. President that Britain arrested Governor Alamieyeseigha on the invitation of Mr. President. In addition, the Attorney General of the Federation went to London to swear to an affidavit that Alamieyeseigha should not be permitted to return home to resume his constitutional duties. Here at home Nuhu Ribadu is blackmailing Bayelsa State legislators with imprisonment and threat of imprisonment over alleged financial improprieties to compel an impeachment of the Governor. We have also heard of troops being sent to Bayelsa State.
The facts therefore support a conclusion that the President of Nigeria with a view to bringing about a forcible and unconstitutional change in the Government of Bayelsa State procured and conspired with Britain to levy war on the Bayelsa State Governor and Government by arresting and jailing the Governor in Britain. And having failed in that bid by the escape of the Governor from captivity in London, the President is employing extra-legal means i.e. acts of war not only to intimidate and overawe the Governor but also to bring about his forcible and unconstitutional overthrow. Mr. President has engaged and is engaging in acts, which can be legally interpreted as acts of treason against the Federal Republic of Nigeria and the Government of Bayelsa State. Mr. President would seem to have betrayed the nation and exposed it to international ridicule and the danger of foreign domination and manipulation through empowering foreign Governments and powers to make war against Nigerian State Governors to intimidate and overawe them and forcibly overthrow their Governments by means of effecting their arrest and imprisonment in foreign lands.
To bring home this point, I refer to the oath of office of Mr. President as contained in the 7th Schedule of the Constitution by which he swore to defend the Nigerian Constitution and the sovereignty of Nigeria at all times. Thus, the President is under oath to assert in and against Britain the immunity of Governor Alamieyeseigha and the sovereignty of Bayelsa State and its Government as an integral part of the State and Government of Nigeria as provided by the Nigerian Constitution. He has no power under the Constitution to do otherwise. But he chose to betray the Constitution and his oath of office in favour of a grandstanding as an anti-corruption crusader.
For those who are concerned that immunity has been employed by State Governors as a cloak for corruption, I would urge that fighting corruption does not require that we overthrow constitutionality, legal order and reason. We should not forget that the need to fight corruption was the excuse that the late Nzeogwu gave for shooting down constitutionality way back in 1966. We cannot now seem so late in the day to agree with him especially after all the 'fight" against corruption that we experienced during the reign of the military. The most effective weapon for dismantling corruption is the ballot box ñ the power to vote out and replace corrupt officials. That weapon was denied Nigerians in 2003 and preparations are being made for a repeat of that denial on a greater scale in 2007. The subversion of the electoral process is the greatest evil in the Nigerian polity.
We should not allow ourselves to be deceived that a war is being waged against corruption when the foundation for present corruption was laid by the electoral robberies of April, 2003 and a greater foundation for future corruption is right now being laid by the shams of INEC appointments and actions and the shenanigans in the PDP and the entire political landscape. Why should this treasonable and unconstitutional measure of arresting a serving Governor in a foreign land be preferred to the simple process of ensuring free and fair elections and nurturing an enduring democratic culture? Should it not be of concern to Nigerians that right before our eyes the Bayelsa State House of Assembly is being intimidated and overawed by Nuhu Ribadu and the Federal Government with threats of imprisonment and deployment of troops? What does this portend especially in view of the possible plan to effect a constitutional amendment to prolong the tenure of Mr. President? Why should the image of an allegedly thieving Alamieyeseigha being thrust upon our faces by Mr. President blind us to the acts of Mr. President calculated to overrun and subjugate the Nigerian State and people to himself and with foreign assistance too?
Finally, those who feel 'vindicated" by the judgment of the Crown Court in England should consider that Britain has an interest in exercising some influence or control over the oil bearing States of the Niger Delta. Why should it deny itself of that opportunity which has been presented to it on a platter of gold by the unwholesome action of Mr. President? Why should it be the prerogative of Britain to determine to what extent it can interfere with the affairs of Nigeria or a section of it? Why should it be reasonable for any Nigerian to believe that such determination could be and has been fair?
• Mr. Nwachuku is a Partner with IndemnityPartners, Lagos