|Tonye David-West, Jr., Ph.D||Wednesday, September 28, 2005|
ANNOUNCE THIS ARTICLE TO YOUR FRIENDS
(DIPLOMATIC) IMMUNITY VS. THE INTEREST OF THE PEOPLE
& A REJOINDER - RE: ALAMIEYESEIGHA IN LONDON
was watching a Western movie long ago (the title escapes me now) where the main actor, a rapist and murderer of innocent blonde young women mostly in their teens in one of the Scandinavian countries went unpunished for his crimes because he had diplomatic immunity. When the citizens became aware of his diplomatic status, they understandably were enraged and urged their country to ignore international law sanctioning diplomatic immunity and bring the murderer to book. The well-crafted plot in this fictional movie brings to fore the merits, uses and abuses of this age-long concept called "Diplomatic Immunity", with particular angling on the recent cases involving Governors Alamieyeseigha and Dariye of Bayelsa and Plateau, respectively.
For the purpose of clarity, diplomatic immunity simply means certain foreign officials are exempt from the laws and legal jurisdiction of their host country. In this vein, if they commit crimes or violate the laws of their host country, they cannot be charged to court, imprisoned or punished in any other fashion besides being asked to leave their host country and barred from re-entry. In some cases, depending on how serious the crime is, the diplomat's own country will initiate an investigation and perhaps, prescribed punishment. But this is rare in the diplomatic circle and only happens sporadically. Also a rarity is the fact that some host countries can request a waiver of immunity from the diplomat's country so he/she can be tried in the local courts (of the host country). Again, this is seldom granted as it borders on the often crucial and sensitive issue of national sovereignty.
What most people do not realize is that there are varying degrees (or levels if you will) of diplomatic immunity and this is based on the diplomatic position of the individual. For example, the Nigerian ambassador to the US (or to another other country for that matter) has full diplomatic immunity whereas the clerk at the Nigerian Embassy only has partial immunity and that pertaining strictly to the execution of his/her duties. Additionally, immediate family members are also beneficiaries of this immunity and are granted the same level of immunity granted to the diplomat or official. A constitutive part of The Vienna Convention on Diplomatic Relations (1961) states categorically that those with any level of diplomatic immunity must obey the laws, regulations and customs of the host country. The fact that they hold such immunity does not give them the authority to violate the laws of their host country.
What is often missed in this concept (and this is very imperative) is the fact that diplomatic immunity is not for politicians and other officials to use for their personally gains or to prosecute a personal agenda, it is strictly meant to give such officials the latitude to perform their official duties without fear of persecution, blackmail, threats and the like. The import of this is amply imbedded and prescribed in The Vienna Convention on Diplomatic Relations of 1961 as well as The Vienna Convention on Consular Relations of 1963 of which more than one hundred and fifty (150) nations are signatories including Nigeria, the UK, US, Germany, Japan, Canada, Australia and much more.
In the matters involving Alamieyeseigha and Dariye, with particular reference to the recent article by Mr. Okezie Chukwumerije, titled "Alamieyeseigha in London" published on Nigeriaworld, the issues raised by the author are quite exigent and require additional insight and profundity. By this quote, the author posited a confounding question that has often elicited a mixed response, even from the pundits -
"...these issues include whether it was appropriate (here I am not concerned with legality) for the English authorities to confine in London an elected Nigerian official, allegedly for money laundering..."
Though the author is not "concerned with legality", it should be noted well that the action of the British authorities was informed by legal practice and it seemed evident that they had done some advance work to know that Alamieyeseigha was on a personal mission to London, not an official one. The UK (which includes Britain), being a signatory to the above conventions, acted within the confines of the conventions when they arrested and detained the governor. They knew that in the present circumstances he did not have diplomatic cover and moved swiftly to arrest him. These were the same circumstances under which Dariye was arrested a few months ago in London. These circumstances however, constrast with those of the Edo State governor a few year ago, who while on an official visit to London was allegedly found with $5 million on his person at the airport. But since he was on an official visit, thus, with diplomatic cover, he was allowed into the country unmolested even though the act was a violation of British currency laws.
The legality of the English authorities to detain Alamieyeseigha is not in question, what is, however, is whether Alamieyeseigha's trip to London was an official visit or a personal/private visit? Alamieyeseigha has partial immunity in the UK and any foreign country he visits and that only pertains to violation of law or criminal acts committed while performing his official duty as an elected governor of a sovereign country.
For example, if the governor was on a state visit to Britain and was found to have $10 million pounds on his person, the British authorities have no constitutional powers to question the source of the money or why he had it on his person even though that may violate British currency laws. In fact, it wouldn't even be an issue since he would have diplomatic clearance and will not be searched at the airport or at any point during that official trip. Unlike the Nigerian ambassador to the US who lives and works in the US, thus, having full diplomatic immunity, Alamieyeseigha does not officially live in London (even though he may own a home there) and therefore cannot claim to have full diplomatic immunity. He can only claim such in Nigeria where he lives and works and partial immunity (only relevant to his official duties) anywhere else including Britain where he is currently facing his accusers.
Therefore, the question before us is - was the alleged crime or violation of law committed in the execution of his official duties as the Executive and elected Governor of Bayelsa State? Can Alamieyeseigha claim diplomatic immunity as a private visitor to London in the fulfillment of a personal mission (not an official one), which in this case we are meant to understand, was to recuperate from a stomach surgery performed in Germany? Again, we must refer to the prescriptions of The Vienna Convention on Diplomatic Relations of 1961 as well as The Vienna Convention on Consular Relations of 1963, which state in no uncertain terms that diplomatic immunity is only pertinent in the execution of official duty and not applicable to acts or crimes committed on personal mission. This clause is particularly injurious to those with partial immunity and is so stipulated to differentiate between crimes committed during official visits of a foreign official and those committed during private visits.
The argument can be made, thus, that Alamieyeseigha's visit to London is not an official one, but a private one. Visiting London for the sole purpose of recuperating from a stomach surgery can hardly qualify as an official duty, not even in the most liberal definition. Additionally, the conventions cited above demand that foreign officials with any sort of diplomatic immunity must respect and obey the laws of their host country. We are all aware that the alleged crime, money laundering, is in the books as a crime under British law. If so, then Alamieyeseigha has allegedly violated British law and is subject to investigation, trial and if found guilty punished according to the law. For those who wonder, the same treatment, as least in principle, (which is not always what happens in practice) can be melted out to any British official in Nigeria on a personal mission.
It is up to the British government (and not a dictate of law or convention) to release and allow him to return to Nigeria while investigations are on-going with the promise that he would make himself available for trial if necessary. But the record set by his colleague, Dariye, is not a good one and they fear the possibility of Alamieyeseigha also absconding to safer grounds in Nigeria. In the case of Dariye, he was released pending further investigations, but absconded to Nigeria where he enjoys full immunity. It is therefore reasonable and expected for the British authorities to take a tougher stance the second time around.
Similarly, the federal government's refusal to plead on behalf of the governor has invariably given a tacit and implied waiver of immunity (if any) to the British authorities to confine (to borrow Chukwumerije's word) him in London. In the grand scheme of things, we must reckon that this not an issue of respect for the constitution of Nigeria, as noted by Mr. Chukwumerije, the same constitution Alamieyeseigha has reportedly disrespected and violated with his alleged crime, (money laundering is also a crime in Nigeria). It is rather one of the interest of the people of Nigeria when juxtaposed with the question of immunity for politicians and the pervasive corruption that abound in the country.
Seemingly, Nigeria is not ripe for such diplomatic niceties. As evidence, Joshua Dariye, a governor who was suspended for such hideous crime as money laundering in the millions of dollars, depriving his people much needed development and funds, is still sitting in Government House in Jos, governing without going on trial for his alleged crimes. In the same vein, the former governor of Anambra State (1999-2003), accused of murder of the Nigerian Bar Association chairman (and his wife) in his state while in office, could not be brought to trial because of the immunity he enjoyed as a governor. Moments after he handed over to Dr. Chris Ngige, which signified the end of his immunity, he was said to flee to the UK to avoid prosecution for those crimes.
The issue of immunity for Nigerian politicians ought to be revisited in the 1999 constitution. Perhaps, they will be opt to performing their duties well if they know that they are not exempted from prosecution, especially, when it comes to serious crimes such as murder, corruption, money laundering, etc. A complete elimination of immunity is not advisable, for that, as stated in the spirit of the conventions cited above, will be inimical to the concept of good governance. However, there must and should be serious limitations to the immunity granted to the Nigerian politicians and chief executives.
In the name of immunity wanton crimes and wholesome corruption is being perpetrated against the Nigerian people. In the name of immunity, politicians and governors are fleecing their states and committing acts of murder, mayhem and deprivation without the fear of prosecution. In the name of immunity, politicians have ordered the disappearances of their opponents again without fear of prosecution. By the time their terms are over, they have done sufficient work to buy an extended immunity (just as one would buy an extended warranty for a car) through bribes and payoffs of the investigating authorities.
The world of the Nigerian politician is one wrath with puerile inclinations and self-seeking and servicing tendencies. The constitution must not compound this with blanket immunity for the same breed of avaricious and rapacious politicians whose only purpose is to achieve self-apotheosis, aggrandizement and sublimation. At which point does the constitution put the interest of the people above and beyond those of the politicians who are supposed to serve the people? Immunity for Nigerian politicians as prescribed by the 1999 constitution is tantamount to asking the fox to guard the goat or the goat the yam - it is inherently flawed and incongruent with the concept of democracy as practiced. The Nigerian politician has abused this privilege severally. We do not have to travel too far to fetch the evidence for it is there in Plateau, Bayelsa (London) and in every other state in the federal republic of Nigeria. Should the constitution continue to grant full immunity to these elected and appointed officials in the face of these abuses?
© 2005 - Tonye David-West, Jr.