DIPLOMATIC IMMUNITIES & PRIVILEGES IN NIGERIA (PART 3): LIMITATIONS TO THE EXERCISE OF DIPLOMATIC IMMUNITY IN NIGERIA.1
The special privileges and immunities accorded foreign diplomatic and consular representatives reflect rules developed among the nations of the world regarding the way civilised international relations must be conducted. The underlying concept is that foreign representatives can carry out their duties effectively only if they are accorded a certain degree of insulation from the application of standard law enforcement practices of the host country. In essence therefore, the critical relevance of diplomatic immunity is that it has been developed to strengthen healthy international relations and cooperation among nations by the mutual protection of their representative citizens based on principles of peace, necessity, and reciprocity, amongst others.
Important theories propounded by international jurists that speak to the purpose of diplomatic immunity are summarized as follows:
a. Extraterritoriality Theory
This theory in international law exempts certain diplomatic persons and agencies operating in a foreign country from the jurisdiction of the host country. Also, it states that these diplomatic persons/agencies remain accountable to the laws of their native countries. The extraterritoriality theory was propounded by French legal theorist and jurist Pierre Ayraut. According to him "certain persons and things, while within the territory of a foreign sovereign; remained outside the reach of the local judicial process".2
b. Representative Character Theory
According to this theory, the host state should deal with the representative of other states as if it deals with the Sovereign state itself. This means the receiving state must treat the representatives or ambassadors similar to how it treats Presidential/sovereign representatives so that the diplomatic agents do not get subjected to the jurisdiction of the receiving state.
The diplomatic privileges and immunities were based on the fact or idea that attack against the diplomats should be understood as an attack against the ruler or sovereign of the sending state itself.
c. Functional Necessity Theory
The functional necessity theory is a practical one in diplomatic law. It is based on the thesis that diplomatic agents could only successfully perform their function in other countries, if they are protected or shielded with immunity and privileges in the receiving Nation.
The Preamble to the Vienna Convention clearly states that-
".... the purpose of the immunities and privileges is to make it ensure that the functions of the diplomatic missions are performed efficiently and effectively in the representing state..."
This makes it clear that functional necessity is a fundamental principle for the conferment of diplomatic immunity and privileges under the Vienna Convention.
d. Reciprocity Theory
The theory of reciprocity states that the favors, penalties, and benefits which are granted by one State to the citizens or diplomatic agencies of another state should be reciprocated with dignity and kindness. Like in many previous instances, reciprocity has been applied to the reduction of tariffs, relaxation of visa requirements, travel restrictions, etc.
e. International Peace Theory
International peace theory is propounded in the writings of Immanuel Kant, 18th-century German scholar. According to the theory, democracies are hesitant to engage in war or armed conflict with other identified democracies and several factors are held as motivating peace between democratic states one of which is special immunities and privileges accorded between states.
Codified in the Vienna Convention on Diplomatic Relations of 1961, diplomatic immunity grants foreign diplomats legal immunity to promote civilised international relations and prevent lawsuit or prosecution based on the host country's laws.3
Since its adoption in 1961, the convention has been ratified by about 193 countries including Nigeria. Countries commit to adhering to the principles contained in the Vienna Convention because they realise the benefit it provides to their own national diplomats, who may be subjected to criminal processes in host countries if the relationship was disrupted. However, the principle of diplomatic immunity is confronted with serious problems in its practical application.
2. Limitations to the exercise of Diplomatic Immunity in Nigeria
The courts have applied some limitations to the exercise of diplomatic immunity in Nigeria. In AFRICAN REINSURANCE CORPORATION v. J.D.P. CONSTRUCTION,4 the Court stated that as much as an international organisation can enjoy diplomatic immunity; the diplomatic immunity granted to it by the Nigerian government does not cover commercial activities and it also does not arise when the party had waived this immunity. The appellant is an international corporation jointly set up by some African States to carry on reinsurance business in various African States. The host states conferred on it certain immunities usually enjoyed by states but the immunity granted to it by the Nigerian Government specifically excluded its commercial activities.
The Court pointed out as follows:
"The practice of granting diplomatic immunity to States has in practice, been extended to government naval-ships, properties and government servants acting in their official capacities. But such immunity is no longer granted to a foreign State in respect of acts which are not governmental, which means in most cases, the acts of a foreign State as a trader."5
Also, in OLUWALOGBON v. GOVERNMENT OF THE UNITED KINGDOM & ANOR,6 the Court referred to some cases where diplomatic immunity was held not to be absolute:
"From its very beginning, the doctrine of sovereign immunity did not provide the absolute rule that a foreign sovereign or state cannot be impleaded in any circumstance. See Duke of Brunswick v. King of Hanover (supra); Lariviere v. Morgan (1872) 7 Ch. 550. In Gladstone v. Masurus Bey (1862) 1 Hem & M 495, an interim injunction was issued against a bank to restrain it from parting with funds deposited by a foreign ambassador on behalf of his government. Again in the Charkieh (1873) 3 BILC 847 an action against a foreign sovereign in respect of private property owned by him in his private capacity in England was entertained by the court. It has remained unclear in what cases the plea of immunity would not be available. See Thai-Europe Tapioca Services Ltd. v. Government of Pakistan (1952) 3 All ER 961 at 964.7
Further, a Diplomat can waive his/her immunity, and in such a scenario, the Court examines the circumstances of the case to determine whether or not there has been a waiver of immunity or submission to the jurisdiction of the court. To determine this, the court will take into consideration the nature of the transaction and the role of the sovereign therein.8
In AFRICAN REINSURANCE CORPORATION v. ABATE FANTAYE,9 the apex court held that a diplomat cannot be said to have waived his immunity just because he filed a conditional appearance in a suit.
Worthy of note is the decision of the Court of Appeal of Nigeria in the case of DIMITROV v. MULTICHOICE (NIG.) LTD,10 which established the court with jurisdiction where a diplomat waives immunity. The Appellant as Plaintiff in his capacity as the Bulgarian Ambassador to Nigeria, instituted this suit at the Federal High Court; and the trial court found that the Appellant having waived his right to immunity, the matter should be entertained at the State High Court rather than the Federal High Court. In overruling the decision of the trial court, the Court of Appeal held that "where a foreign envoy or foreign consular officer submits to the Nigerian jurisdiction, it is the Federal High Court that will exercise exclusive jurisdiction over their matters because diplomatic and consular matters are reserved under section 251(1)(h) for that court and the High Court of a State cannot share the jurisdiction with the Federal High Court".
Where a diplomat submits himself to the jurisdiction of the High Court of a state however, such a case can be commenced in the State High Court if the diplomat or its organisation have expressly submitted themselves to that court by the nature of its/his/her action. In AFRICAN REINSURANCE CORPORATION v. J.D.P. CONSTRUCTION,11 it was held that the Respondent had "by a contract" submitted itself to the jurisdiction of the Lagos State High Court.
Furthermore, the Supreme Court has no original jurisdiction with respect to diplomatic immunities and privileges. It has only appellate jurisdiction after the appeal has been determined at the Court of Appeal. In the case of NOAH V. BRITISH HIGH COMMISSIONER TO NIGERIA,12 the question before the Supreme Court was whether a suit against a diplomat could be instituted at first instance, at the Supreme Court. The plaintiff had earlier instituted an action against the Defendant at the Supreme Court and the Supreme Court had stated that it had no original jurisdiction. A month later, the plaintiff brought another application at the Supreme Court for declarative reliefs against the Defendant. The Supreme Court, while stating that the matter was an abuse of court process, also stated that it does not enjoy original jurisdiction over the matter.
In PRESIDENT OF THE COMMISSION OF ECOWAS v. NDIAYE,13 the Court stated that the power of the National Industrial Court of Nigeria (NICN) to apply international conventions does not confer jurisdiction on the court regarding diplomats. The Court of Appeal dismissed the appeal.
In many instances, where the court ruled that based on diplomatic immunity, a diplomat or an organisation that enjoys diplomatic immunity cannot be sued, the aggrieved persons are left without an option to pursue their rights. Though diplomats and organisations that enjoy diplomatic immunity can be sued in their home countries, this could be a very expensive venture.
3. Abuse of Diplomatic Immunity14
Due to the immunity afforded to diplomats, their infractions against the law are rarely prosecuted. Several cases of abuse of this immunity have been reported but regrettably, they are rarely ventilated in the courts.
Probably as old as the policy itself, abuse of diplomatic immunity ranges from non-payment of traffic fines to serious felonies like rape, domestic abuse, and murder. For example, in 2014, the New York City police estimated that diplomats from more than 180 countries owed the city over $16 million in unpaid parking tickets. Also, in April 2012, in Manila, Panamanian diplomat Erick Bairnals Socks was accused of raping a 19-year-old Filipino woman but was released from detention because he enjoyed diplomatic immunity.15
Even, in some instances where actions have been commenced against diplomats, these actions are rarely ever decided on their merits as the courts, locally and internationally, uphold/enforce the immunity of diplomats in dismissing such actions except there has been a waiver of immunity, a submission to the jurisdiction of the court or upon the application of the restrictive as opposed to absolute immunity principle.
For example, the Permanent Court of Arbitration in the Hague, in its decision delivered in 2020, found that two Italian marines, who had fired at a fishing vessel and killed two fishermen, while guarding an Italian oil tanker off the coast of the south-western Indian state of Kerala in 2012, were immune from prosecution in India but ordered Italy to pay compensation to India "for loss of life, physical injuries, material damage to the vessel and moral harm suffered by the commander and crew of the fishing vessel.16
Additionally, the courts locally and internationally have enforced the immunity extended to family members of diplomats. For instance, the US courts cases of FRIEDBERG V. SANTA CRUZ17 and PEOPLE v. VON OTTER18 which are suits against the wives of diplomatic agents for the negligent operation of motor vehicles are few examples. The defendants' wives pleaded the affirmative defence of absolute and unconditional immunity in these cases and the courts held for the defendants by extending the husbands' diplomatic immunities, as State Department diplomatic agents, to the wives as a matter of federal law.
4. Safeguards against Abuse of Diplomatic Immunity
Notwithstanding the above, the law has established certain safeguards to prevent the abuse of the immunity granted to diplomats, and they include the following:
- Firstly, a complainant may sue a Diplomat in the origin/sending state, on the basis that the sending state retains jurisdiction over its diplomats, and within the sending state he does not have any immunity. The obiter of a U.S. court in the locus classicus decision in DICKSON DELSOLAR19 is instructive in this regard. The court observed that - "even if execution could not issue in this country while Mr. Del Solar remains a diplomatic agent, presumably it might issue if he ceased to be a privileged person." However, there is no evidence that this safeguard has ever been applied.
- Secondly, the immunity availed to a Diplomat may be waived by the sending state. In REX A. B.,20 a United States Embassy clerk in England was convicted of criminal charges when, before the criminal proceeding, the clerk was dismissed from his employment, and his immunity was waived by the United States.
- Lastly, by Article 9(1) of the Vienna Convention on Diplomatic Relations of 1961, the receiving State may at any time and without having to explain its decision, notify the sending/origin state, that the head of the mission or any member of the diplomatic staff of the mission is persona-non-grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending state shall, as appropriate, either recall the person concerned or terminate his functions with the mission.
This safeguard is usually activated where a diplomat regularly breaks the law of the receiving state or where his actions have been found to threaten the national security of the receiving state. Most countries prioritise state security over a diplomat's immunity.
Diplomatic immunity was developed to facilitate safe passage of diplomats and promote amicable foreign relations between the governments of different countries, especially during periods of difficulties or armed conflict21 and ensures that diplomats are exempt from the criminal, civil and administrative jurisdiction of the host country.
Having regard to the challenges associated with the abuse of diplomatic immunities, although it may prove extremely difficult to amend the Vienna Convention on Diplomatic Immunity of 1961; if the interests of the various signatory states are aligned, it is not impossible to accomplish. Also, just as the International Court of Justice decides legal disputes in accordance with international law, there have been proposals for the establishment of a Permanent International Diplomatic Criminal Court with compulsory jurisdiction over alleged criminal acts committed by diplomats, foreign envoys, consular staff, and their relatives.22
Moreso, there are good reasons to rationalise a change in Nigeria's state practice from absolute to restrictive diplomatic immunity. This is because the jurisprudence of the Nigerian courts has not applied clear distinctions regarding the alternative concepts of restrictive as against absolute diplomatic immunity. Even though the courts have occasionally expressed the view that the restrictive concept of immunity is applicable in line with global trends, most local cases have applied the concept of absolute diplomatic immunity.
The absolute standard was only adopted based on reciprocity23 and Nigeria has since the 1962 Act ratified a number of treaties which accord more with restrictive immunity concept.24 Although individual litigants are not parties to those treaties and are thus unable to enforce them (coupled with the fact that the treaties have not been domesticated), the fact of their ratification by Nigeria constitutes evidence of the country's intended practice. Nigeria, by ratifying these conventions, has agreed that the less than absolute standard contained in them should be applied by other state contracting parties to Nigeria, and that Nigeria will apply this standard to other state parties as well.
In the famous words of Lord Denning in the case of TRENDTEX v.V CENTRAL BANK OF NIGERIA (which applied the restrictive immunity principle):25
"If a government department goes into the market places of the world and buys boots or cement - as a commercial transaction - that government department should be subject to all the rules of the market place. The seller is not concerned with the purpose to which the purchaser intends to put the goods".26
Nigeria has nothing to gain but everything to lose by religiously adopting the absolute rather than restrictive immunity principle as state practice. Comity or reciprocity cannot justify the extension to any state a favour which that state will not extend to Nigeria.
1 Cynthia Njoku, Associate, Cross-Department, S.P.A. Ajibade & Co., Abuja, Nigeria.
2 Sebunya Marvin, "An Examination of the Principle of Diplomatic Immunities in Relation to International Crimes", available at https://ir.kiu.ac.ug/bitstream/20.500.12306/11915/1/Ssebunnya%20Marvin.pdf, accessed on 11th March 2022.
3 Nathaniel Reed "A Call for the Reform of Diplomatic Immunity" available at https://www.prindlepost.org/2018/03/call-reform-diplomatic-immunity/ accessed on 12th March 2022.
4 (2007) 11 NWLR p. 224.
5 Ibid. p. 234, paras. F-G.
6 (2005) 14 NWLR (Pt. 946).
7 Ibid. p. 785 paras E-H.
8 Oluwalogbon v. Government of UK & Anor (2005), 14 NWLR Pt. 946 at p. 785, para. H.
9  3 NWLR (Pt. 32) 811 (SC).
10  13 NWLR (Pt. 943) 575 (CA).
11 (2007) 11 NWLR p. 224.
12 (1980) LPELR – 2063 (SC).
13 (2021) LPELR - 53523 (CA).
14 Robert Longley (2022) – "How far should Diplomatic Immunities Go?" – available at https://www.thoughtco.com/diplomatic-immunity-definition-4153374 and accessed on 17th March 2022.
15 See the Indian Express - The diplomatic immunity row sparked by Belgian envoy's wife 'hitting' two in Seoul, available at https://indianexpress.com/article/explained/diplomatic-immunity-belgian-envoys-wife-seoul-7318980/ and accessed on 11th March 2022.
16 See the British Broadcasting Commission - Italian marines: India closes criminal cases in 2012, available at https://www.bbc.com/news/world-asia-india-57479761, accessed 8th March 2022.
17 193 Misc. 599, 86 N.Y.S.2d 369 (1949).
18 202 Misc. 901, 114 N.Y.S.2d 295 (1952).
19  1 K. B. 376 (1930).
20 Rex v. A.B.,  1 K.B. 454 (1941).
21 See Wikipedia, Diplomatic Immunities, available at https://en.wikipedia.org/wiki/Diplomatic_immunity and accessed on 15th March 2022.
22 Diplomatic Immunity: "Everything Important you should know", 14th May, 2020, available at https://blog.ipleaders.in/diplomatic-immunity-everything-important-you-should-know-about/ and accessed on 15th March, 2022.
23 See Section 8, Nigerian Diplomatic Immunity and Privileges Act, 1962.
24 Namely, the VCDR, VCCR, and the Rome Statute of the International Criminal Court [ICC].
25 (1977) 2 WLR 356.
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