Nigeria: Sovereign Immunity And The Trials Of Augusto Pinochet

Last Updated: 17 February 2014
Article by Bolaji Ayorinde

1] INTRODUCTION

International law is the most recent addition in the line of established legal logics and jurisprudence. The reason for this is not farfetched. Nations have always determined their laws individually based on the peculiar situations which may arise from their cultures, experiences and interventions, which inevitably differ from country to country.

Even within a Nation, there is always a constant clamour for laws that can accommodate all components of that Nation; an example is the constant clamour for constitutional amendment or national conference on governance in Nigeria.

It is certainly now the time for us to begin to draw greater attention to the realm of International law as the world becomes increasingly globalised with the amazing developments in the field of information technology.

International law has since been given several definitions, principal amongst which is that, it is "a body of laws that govern the legal relations between or among states or nations". It can also be described as "a body of legal rules governing the interaction between sovereign states (Public international law)" or as the rights and duties of the citizen of sovereign States towards the citizens of other States (Private International Law).

Furthermore Blacks Law Dictionary, 6th edition at page 816 describes International Law as "those laws governing the legal relationship between nations, rules and principles of general application dealing with the conduct of nations and of international organizations and their relations inter se, as well as with some of their relations with persons, natural or juridical."

However the simplest description of international law is that it contains a set of rules and regulations that define the way in which nations generally agree to behave towards one another.

The notion of Sovereignty is a significant aspect of international law. Every Sovereign state or nation is bound to acknowledge and respect the independence and individuality of other Sovereign states or nations. The courts of one country are not expected to sit in judgment on the acts of the government of another state. See the case of Underhill v. Hernadez (1897) U.S Supreme Court.

Again in the case of Compainia Naviera Vascongada v SS Christiana (1938) 1 All ER 719 @ 720, Lord Atkin in his speech held that "the Court of a country will not implead a foreign sovereign".

Immunity as a concept on its own can be understood as a legally recognized shield which prevents the prosecution of the holder of a certain position from criminal or civil prosecution.

In municipal law, immunity can be provided for a certain class of persons such as the President, the Vice President, Governors and State Deputy governors. For example Section 308 of the Constitution of the Federal Republic of Nigeria 1999 provides as follows;

308. (1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section -

  1. no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
  2. a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
  3. no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:

Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.

(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

(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.

In the case of Fawehinmi v. Inspector General of Police (2002) 7 NWLR ( pt 767) at 608, the Supreme Court held that the above cited Section 308 of the 1999 Constitution of the Federal Republic of Nigeria protects the President, Vice President, Governor and Deputy Governors from civil and criminal prosecution for acts done by these persons during their tenure of office. However in this landmark judgment, the Supreme Court held that even though protected by Section 308, the affected public officers may be investigated and evidence gathered against them can be used to prosecute after their tenure of office. See also the case of Rotimi v MacGregor (1974) 11 SC 133 and Tinubu v. IMB Securities (2001) 11 WRN 27 CA.

2] SOVEREINGN IMMUNITY

Sovereign immunity as a judicial doctrine is one which precludes the bringing of judicial proceedings against a government without the consent of the government. Its history is founded on the ancient principle that "the King can do no wrong", or what I call the 'Kabiyiesi Principle'. The word Kabiyiesi (or kabi-o-osi) literally translates as 'querying or holding you accountable will not arise'. It is used to address the Oba, the all powerful monarch who is not accountable to anyone.

Most civilized and democratic Nations including Nigeria have essentially done away with this and the state can now be held very accountable for tortuous acts, breach of contract and general violation of fundamental rights. The provision of Section 6 (6) of the 1979 Constitution as retained in the 1999 Constitution as amended is of great significance. In the case of Ransome – Kuti & Ors v Attorney General Federation (1985) N.S.C.C Vol 16 part II @ 879, the Supreme Court as per Kayode Eso J. S. C held as follows;

" I have checked all our Constitutions prior to 1979 and regrettably I am not able to find any provision which one could apply, even remotely but rightly, in annulment of this doctrine. The court is to administer law as it is, and not as it ought to be.

This immunity attaching to the State in this country is sad. For the learned trial judge who took evidence described the scene that day as "hell let loose" and this had set out in his analysis of the evidence. He said:-"It is beyond dispute of course, that many soldiers, a witness gave the figure of 1,000, surrounded the entire buildings, hurling stones, and broken bottles. Many of them got inside the building, set fire to it as well as the generator in the compound"

This is bad. It should not be right that once the actual perpetrators could not be determined, the State, whose soldiers these perpetuators are could not be made liable. But then as I said the immunity of the State persisted at the time of the incident.

As it is the 1963 Constitution that governs this case I have made special study of the provision that I believe may be applied to exclude this immunity. S.22 is the closest but then it only deals with determination of rights and talks about fair hearing. No provision has helped.

Happily for the country, but this does not affect the instant case, section 6 of the 1979 Constitution which vests the judicial powers of the country in the court has to my mind removed this anachronism." See also Abacha v Fawehinmi (2000) 6 NWLR pt 660.

3] THE TRENDTEX CASE

The law on sovereign immunity like the entire concept of international law is still at a formative stage and the law has largely developed with the changes in the times that we live. This fact is evidenced by the decision of the English Court in the case of Trendtex Trading Corporation V. Central Bank of Nigeria (1977) 1 ALL ER 881.

This case arose at a time when Nigerian ports and the importation regime had been terribly mismanaged. There was mass importation of cement but very little facilities to discharge cargo. The paper work had been confusing and overwhelming for the ports authorities. Vessels from all over the world dotted over our territorial waters but could not berth at the Lagos Port. It was a scene reminiscent of the Spanish Armada, but only this time, it was a Cement Armada on the Nigerian coastal waters. The Central Bank of Nigeria (CBN) is created by Statute; it performs governmental functions of regulating the financial system. It safeguards the international value of the Nigerian currency and it is the banker and adviser to the Nigerian Government and States within the federation. In July 1975, the CBN through a correspondent London bank issued a letter of credit for US $14,280,000.00 in favour of Trendtex, a Swiss company for the price of cement to be sold by Trendtex to an English company which had contracted with the Nigerian Ministry of Defence to supply the Ministry with cement, for the building of Army barracks in Nigeria. The Central Bank of Nigeria by a letter, assured Trendtex that there was no need for confirmation by another banker of the letter of credit as the money will be available. Trendtex bought in the cement, supplied it to the English company, and shipped some of it to Nigeria. Because of congestion of shipping at the Nigerian ports, Trendtex incurred demurrage. Furthermore, the Nigerian government, because of the congestion, introduced import controls on cement and instructed the CBN not to pay for consignments of cement which were not authorized under the controls. Trendtex claimed payment of the demurrage and price of the cement shipped under the letter of credit. The CBN refused to honour the letter of credit. Trendtex promptly issued a writ in the English High Court against the CBN claiming the demurrage, the price of the cement shipped and damages for non – acceptance of the balance of the cement. The CBN applied to set aside the writ on the ground that it was a department of the state of Nigeria and was therefore immune from suit under the doctrine of sovereign immunity, as its refusal to pay was an act of a Sovereign government not subject to the English courts.

The English Court of Appeal Civil Division did not allow the CBN position on sovereign immunity to succeed. It was held that CBN was not entitled to sovereign immunity because having regard to its constitution, its functions and the control over it, it had not established that it was a department of the state of Nigeria even though it was established by the state under statute as a separate legal entity.

Trendtex thus marked the beginning and confirmation that international law changes with times. Trendtex dealt with the relationship between United Kingdom national law and international law. It was the first time that the English Court had applied restrictions to its sovereign immunity law. Following this decision, the Parliament in the UK enacted the State Immunity Act and Part 1 section 5 thereof excludes from immunity a range of commercial and financial crimes as well as personal injuries and damages to property in the United Kingdom.

In Trendtex, Lord Denning's decision was greatly influenced by the changing nature of the activities of government and state institutions. This change was recognized and well put by my learned friend and brother silk Olasupo Shasore SAN, FCI Arb at pages 29 to 31 of his very illuminating book titled "Jurisdiction and Sovereign Immunity in Nigerian Commercial Law" where he wrote that 'this common law doctrine of absolute sovereign immunity has changed (at least in English common law) over the years to the doctrine of restrictive immunity as a result of transformation in the functions of a sovereign state.

Prof. H. Lauterpacht in an article "The problem of Jurisdictional Immunities of Foreign States" wrote,

"The reasons for the tendency which has been on the increase since the end of the First World War to do away with the doctrine of jurisdictional immunity of foreign states have been repeatedly stated.............The main and articulate source of the opposition to it, has been the realization that the principle of immunity as originally applied by courts was intended to cover the political activities of the State as a Sovereign entity in the strict sense of the word and that it has become absolute and productive of injustice and inconveniences at a time the operations of the state are increasingly extending into the commercial, industrial and similar spheres. However the growing opposition to the jurisdictional immunities of foreign states has drawn its strength from factors more significant than modern developments in the economic sphere. These factors arise to a large extent from the challenge to the prerogatives of the Sovereign State which denies the individual the legal remedies for the vindication of his rights as against the state in the matter both of contract and of tort, and which asserts a privileged position for the state in the procedural sphere.......................

Restrictive immunity means no more than the immunity granted to a foreign sovereign is restricted to acts of a governmental or political nature, acts "jure imperii" and not commercial or personal acts.

The Privy Council in the case of PHILIPPINE ADMIRAL (OWNERS) v. WALLEM SHIPPING (HONG KONG) LTD abandoned the doctrine of absolute Sovereign immunity in actions in rem when Lord Cross said,

".....................the trend of opinion in the world outside the commonwealth since the last war has been increasingly against the application of the doctrine of sovereign immunity to ordinary trading transactions.................their Lordships themselves think that it is wrong that it should be so applied....................Thinking as they do that the restrictive theory is more consonant with justice, they do not think that they should be deferred from applying it...................."

Perhaps the most recent and notorious of cases regarding the subject of sovereign immunity is to be found in the trials of Augusto Pinochet. I have relied extensively on Brian P. Blocks and John Hostettler's book titled "Famous Cases, Nine Trials that changed the law" published in 2002 by Waterside Press for my information and material.

4] PINOCHET; THE BACKGROUND

Augusto Jose Ramon Pinochet Ugarte (hereinafter referred to as "Pinochet") was a General in the Chilean army. He was born on the 25th of November, 1915 and died on 10th December 2006 at the age of 91 years. On 11 September 1973 there was a military coup and Pinochet assumed power and on the same day was appointed president of the ruling junta. The coup d'état saw to the end of President Salvador Allende's democratically elected socialist government in Chile. Eleven days later the new regime was recognized by the British government and a year later, on 11 December 1974, General Pinochet assumed the title "President of the Republic".

In December 1985, General Ibrahim Badamosi Babangida overthrew the two year old regime of General Muhammadu Buhari and for the first time Nigeria, Babangida did not use the title Head of State but styled and called himself "President".

In 1980 there was a national referendum in Chile which approved a new constitution providing for executive power to be exercised by the President of the Republic as head of state. The Pinochet administration implemented harsh and stringent measures against persons considered to be political opponents. Our own country Nigeria has also witnessed several harsh military interventions with the General Sanni Abacha regime being the most draconian. Allegations of mass killings of about 3,000 people, detention and torture of about 100,000 people which included women and children were rife during Pinochet's regime. The same regime introduced various economic reforms which have been described as the miracle of Chile. The reforms made Chile till today the best performing economy in Latin- America. Pinochet held that office until 1990 when, after a democratic general election, handed over power to the new President on 11 March 1990. He was then appointed Senator for life, an appointment which afforded him immunity for life in his native Chile.

When Pinochet came to Britain on a special diplomatic mission in 1994, and again in 1995 and 1997, he was afforded full diplomatic courtesies. In September 1998, at the age of 82 he returned to Britain and with the full knowledge of the British Foreign Office he underwent an operation at a London Clinic.

Just before midnight on 16 October, 1998 and while still at the London Clinic, he was arrested pursuant to a provisional warrant (the first) issued under Section 8(1)(b) of the Extradition Act 1989 by a Metropolitan Stipendiary Magistrate, Mr. Nicholas Evans. On October 17, 1998 the Chilean government protested and claimed immunity on behalf of Pinochet as a visiting diplomat and former Head of State.

It was discovered that the provisional warrant, which was based on a claim of the Spanish government that Spanish citizens were murdered in Chile was deemed to be bad since murder was not an extradition crime in Britain at that time. This flaw became apparent to the British Crown Prosecution Service who were acting on behalf of the Spanish government, and a second international warrant of arrest, which relied on events between 1973 and 1979 in Chile, was issued by a Spanish court alleging crimes of terrorism, the infliction of severe pain and of genocide, which are extraditable offences. This resulted in a second provisional warrant of arrest issued by another Metropolitan Stipendiary Magistrate, Mr. Ronald Bartle, and on this warrant, Pinochet was re-arrested on October 23, 1998. The second provisional warrant was good because whereas the murder of a British citizen abroad is not an offence under English law, torture is, irrespective of where and on whom the torture was committed; see Section 134 (1) Criminal Justice Act 1988 of the United Kingdom, which makes torture a universal crime. The warrant was also premised upon acts of hostage taking within Section 1 of the Taking of Hostages Act 1982.

5] THE QUEEN'S BENCH DIVISION OF THE HIGH COURT

The Divisional Court heard Pinochet's challenge to the warrant on the 26th and 27th of October 1998. Pinochet claimed that he was entitled to immunity under customary international law and the provisions of Section 20 (1) Part II State Immunity Act 1978, read with Section 2 of Articles 29, 31 and 39 of Schedule I to the Diplomatic Privileges' Act 194.

The court was presided over by the Lord Chief Justice of England, Lord Justice Bingham and both Mr Justice Collins and Justice Richards sat with him. They took extensive arguments from Pinochets lawyers and lawyers to the Crown Prosecution Service. The Court unanimously held that Pinochet was entitled as a former Sovereign to immunity from the criminal and civil process of the English Courts and the warrants of arrests were quashed. The Crown appealed to the House of Lords (now known as the Supreme Court).

6] THE FIRST APPEAL

The first appeal was heard between 4th November, 1998 and 25th November, 1998 when judgment was delivered by the House of Lords, a period of just 21 days. Five law Lords sat on the appeal. They were Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Steyn and Lord Hoffman.

There were three grounds of appeal;

  1. That state immunity under Section 1 State Immunity Act 1978 which provides immunity to a foreign state from the jurisdiction of United Kingdom courts also extends it to a head of state in his public capacity;
  2. That personal immunity for a head of state under Section 20 of the 1978 Act which provides immunity to a head of state or former head of state in the exercise of his functions as head of state;
  3. That the common law "act of state" doctrine protects the appellant.

In view of the importance of the case, the court invited arguments from persons who were not parties to the Court as Amicus Curiae. This practice is also not uncommon in Nigeria. Amicus Curiae is a Latin term which means 'friend of the court'. It is also the name given to a brief filed with the Court with leave of the court by someone who is not a party to a case. It may be that the person is of the opinion that the decision may affect its interest, or that Counsel who in the opinion of the Court may provide valuable legal argument on certain issues arising from a case be invited to participate in the proceedings.

The Organisations invited by the House of Lords included; The Medical Foundation for the Care of Victims of Torture, The Redress Trust, Human Rights Watch, The Association of the relations of the Disappeared Detainees and Amnesty International.

The House of Lords allowed the appeal and overturned the decision of the Court of appeal by a majority of 3 to 2, Lord Slynn of Hadley and Lord Lloyd of Berwick dissenting.

The Court held that immunity for a Head of State or former Head of State applied only to acts performed whilst he was functioning as Head of State. Torture and the taking of hostages could not be regarded as functions of a Head of State.

It was further held that it was a principle of international law that acts of torture and hostage taking were unacceptable even were done by a Head of State or former Head of State and that since the offence with which Pinochet was charged were offences under the U.K, statute law, Pinochet had no immunity from the criminal process including extradition.

7] A TWIST IN THE TALE

Following the decision, Pinochet was required to remain in England whilst the Home Secretary decided whether to continue proceedings for his extradition to Spain to face criminal prosecution under Section 7 (1) of the Extradition Act 1989. On the same day of the judgment a television program (News Night) in the U.K. carried an allegation made by a speaker in Chile that Lord Hoffman, one of the Judges that decided Pinochet's case in the House of Lords was likely to have been biased against Pinochet.

Specifically, the allegation was that Lord Hoffman and his wife were strongly connected to Amnesty International, an organization invited by the court to address it as amicus curiae. On December 10, 1998, Pinochet's lawyers lodged a petition asking that the order of 25th November, 1998, be set aside and the opinion of Lord Hoffman be declared as to be of no effect.

8] THE PETITION

A new panel of the House of Lords was constituted. It had none of the Judges that took the decision of the 25th November, 1998. It was now heard by Lord Browne Wilkinson, Lord Goff of Chievely, Lord Nolan, Lord Hope of Craighead and Lord Hutton. Oral judgment was given an 17th December, 1998 while reasons given on 17th January 1999. The Court set aside the order made on the 25th of November, 1998 and directed a re – hearing before a fresh panel. The Court heard very detailed submissions by lawyers on both sides and considered its past decisions in R v. Gough (1993) AC 646 and Webb v The Queen (1994) 181 Crim LR 41.

In Nigeria, our Supreme Court also has powers to set aside its own judgment. It is worthy of note that the exercise of its powers to reverse itself is rarely invoked by the Supreme Court in Nigeria. It is usually an uphill task to convince the Court to consider such reversal. The general principle of law is that a judgment, order or decision of a court is presumed to be correct unless and until that presumption is rebutted and the judgment is set aside. it subsists and must be obeyed. See the case of Babatunde v Olatunji (2000) 2 SC 9.

Even though it may be a tough task the Supreme Court has always stated its preparedness to reverse its own decision in appropriate cases. See the case of Samauel Oke v Lamidi Aiyedun (1986) 4 SC 81, Ukpe Orewere & Ors v. Rev. Moses Aberigbe & Ors (1973) 1 ANLR pt 14 pg 1, Attorney General of Federation v. Guardian Newspapers 1999 5 S.C (Pt III) 59.

The rationale behind this power was graphically and elegantly stated by Oputa JSC in Adegoke Motors Ltd v Dr Adesanya & Anor (1989) 5 SC 113, (1989) 3 NWLR (pt 109) 250 @ 274. The learned jurist said inter alia "We are final not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be short – sighted arrogance not to accept this obvious truth. It is also true that this court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this court has been given per in curiam, such decision shall be overruled. This court has the power to over – rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error."

9] THE SECOND APPEAL

The second House of Lords appeal on the Extradition of Pinochet from the United Kingdom to Spain began almost immediately after the first appeal decision was set aside. A new panel was set up to now include Lords Browne Wilkinson, Goff of Chievely, Hope of Craighead, Hutton, Saville of Newdigate, Millet and Phillips of Worth Matravers, a full panel of law lords. After taking fresh arguments judgment was delivered on 24th March 1999 and reported in (1999) 2 All ER 99, the Times Report of 25th March 1999 and also at (1999) 2 WLR 827. In allowing the appeal, the House of Lords again reversed the decision of the Divisional Court of the Queen Bench Division and held that General Pinochet could righty be extradited to Spain to face criminal charges and prosecution. The court specifically held that;

The requirement in Section 2 of the Act of 1989 that the alleged conduct which was the subject of the extradition request be a crime under United Kingdom law as well as the law of the requesting state was a requirement that the conduct be a crime in the United Kingdom at the time when the alleged offence was committed and; that extraterritorial torture did not become a crime in the United Kingdom until Section 134 of the Criminal Justice Act 1988 came into effect on 29 September 1988; and that, accordingly, all the alleged offences of torture and conspiracy to torture before that date and all the alleged offences of murder and conspiracy to murder which did not occur in Spain were crimes for which the applicant could not be extradited,

ii) Allowing the appeal in part that, a former head of state had immunity from the criminal jurisdiction of the United Kingdom for acts done in his official capacity as head of state pursuant to Section 20 of the State Immunity Act 1978 when read with article 39(2) of Schedule 1 to the Diplomatic Privileges Act 1964.

Torture was an international crime against humanity and jus cogens and after the coming into effect of the International Convention against Torture and other Cruel Inhumane or Degrading Treatment or Punishment 1984, there had been a universal jurisdiction in all the Convention State parties to either extradite or punish a public official who committed torture and in that light of universal jurisdiction, the State parties could not have intended that an immunity for ex – heads of states for official acts of torture would survive the ratification of the Convention.

10] IMPLICATIONS OF PINOCHET'S FAILURE TO SECURE SOVEREIGN IMMUNITY

The above court proceedings literally changed the law and 'opened the eyes of the law'. The decision in the Trendtex case which disallowed sovereign immunity from being a shield against commercial liability had gone full circle to recognize that irresponsible leadership or leaders who traumatise, torture, oppress and maltreat their subjects and others can be held accountable anywhere in the world, even if their government or successors seek to protect them. For example, torture as an act that is condemnable globally and where the state is involved, the condemnation is even louder. Even though faced with tough decisions in its effort to combat terrorism, the George W. Bush led administration in the United States of America could not defend its adoption of torture like interrogation techniques of suspects detained at Guantanamo Bay. The attempt was seriously condemned within and outside the United States and the 1863 "famous instruction" by President Abraham Lincoln that "military necessity does not admit of cruelty" should not be discarded. In fact the new interrogation techniques employed by the Bush administration was found to be in violation of the Geneva Convention in the case of Hamdan v. Runsfeld by the United States Supreme Court.

The world has witnessed trials of war criminals since the 2nd World War. These include world the indictment and trials of persons accused of crimes against humanity (torture included). The world is also now witnessing trials and extradition of government leaders and Heads of State, who commit financial crimes in their countries but seek to find safe havens overseas. The Trial of Pinochet has changed the jurisprudence of sovereign immunity. We wait to see how far this change would go. African leaders, particularly Nigerian leaders should take note as the law of sovereign immunity is eroding fast and they may not have a shield when the day of reckoning comes.

Pinochet's last years saw his health failing rapidly. Apart from the London Trials, in 2004 a Chilean Judge, Juan Guzman Tapia, ruled that Pinochet was medically fit to stand trial and placed him under house arrest. By the time he died in December 2006, he had about 300 criminal charges pending against him worldwide for numerous human rights violations, tax evasion and embezzlement of over US $ 28 million of Chilean state funds.

11] CONCLUSION

I am inclined to support the view that official corruption is a crime against humanity. Official corruption denies people basic amenities such as electricity, water, roads, hospitals, emergency services, security and other essentials of life thereby leading to unnecessary deaths, abject poverty and suffering by the people if a country. Official corruption can be equated to torture under which Pinochet was to be extradited and prosecuted.

I began this paper by stating that international law and the doctrine of sovereign immunity is still in a formative stage and it has continued to witness changes as witnessed in the Trendtex and more significantly, the trials of Augusto Pinochet. It is however regrettable that Nigerian law is yet to establish clear principles on this important aspect of law. While the United Kingdom has the State Immunity Act of 1978, their courts have also had occasion to pronounce on the law in cases. Nigeria .is even yet to participate and be a signatory to the United Nations Convention on Jurisdictional Immunities of States and their Property. Senegal became a signatory in 2005, while Sierra Leone became a signatory in September 2006.

The changes in the attitude of the law towards the notion of Sovereign Immunity is further confirmed by the comments posted on page 52 of "The Commonwealth Lawyer" Vol. 20, No1, April 2011 which is the journal of the Commonwealth Lawyers Association. The journal noted "that in the face of regional and international developments, former understandings of State and Nation and of Sovereignty were increasingly out-dated". It continued further: "At a Supranational level, this idea has already raised the sceptre of a new legal order based on a European super state with the potential further to transcend traditional views of sovereignty and the sovereign state.

There is thus a move towards a gradual erosion of many areas hitherto covered by sovereign immunity. The International Criminal Court has increased the intensity of its work over the years. Erstwhile dictators and strongmen are being made accountable for their misdeeds and sovereign immunity does not count for much. Even issues of International Rule of Law are now engaging the attention of National Courts and domestic Judges in different jurisdictions.

I wish to end this paper with the words of learned author Olasupo Shashore SAN in his work which I referred to earlier where he wrote at pages 193-194.

"At present Nigerian law on the subject of sovereign and diplomatic immunity leaves much to be desired. Case law does not show any real consistency in approach to the subject, sometimes leaving the impression that one or the other doctrine of immunity applies in Nigeria. Even where the restrictive immunity has been alluded to by the courts in the absence of any real authority decisions all open to doubtful application and ambiguity. Furthermore, there is no legislation for state immunity leaving the judiciary to struggle with the present state of customary international law of other countries.

This is not to suggest that one advocates a total adoption of developments obtaining in other countries such as United Kingdom and United States. The purpose of reform is to recoginze the need to provide predictable outcomes to proceedings in which the plea of immunity is taken and the scope of its application in this jurisdiction."

As students of Law and future generation lawyers who will practise law locally and internationally in the global village, I invite you to think further and deeper on the topic of sovereign immunity and accountability of our leaders.

Thank you for your attention.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions