DIPLOMATIC IMMUNITIES & PRIVILEGES IN NIGERIA (PART 1): AN ANALYSIS OF THE RIGHTS AND PRIVILEGES OF DIPLOMATS IN NIGERIA.1
1. Introduction
1.1 The concept of Diplomatic Immunities and Privileges
Diplomatic immunity is a form of legal immunity that ensures diplomats are given safe passage and are considered not susceptible to lawsuits, prosecution, or execution of judgment under the host country's laws, although they may still be expelled/deported by the host country under certain circumstances. 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 and armed conflicts.2
Although diplomats are generally exempt from the criminal, civil and administrative jurisdiction of the host country, this exemption may be waived by the government of the diplomat's home country. In most cases, this happens only when the official commits or witnesses a serious crime not related to their diplomatic role. Many countries are hesitant or refuse to waive immunity, and individuals cannot waive their own immunity (except in cases of defection).3 If a government waives immunity to allow the prosecution of one of its diplomats or their family members, the crime must be serious enough to make prosecution in the public interest. For example, in 2002, the Colombian government waived the diplomatic immunity of one of its diplomats in London so he could be prosecuted for manslaughter.4
Further, the immunity of a diplomat from the jurisdiction of the host country does not exempt him/her from the jurisdiction of his/her home country. It is also within the discretion of the host country to declare any member of the diplomatic staff of a mission persona non grata (or unwanted person). This may be done at any time and there is no obligation to explain such a decision. In these situations, the home country, as a rule, would recall the person or terminate his/her function with the mission,5, and may take a further decision to retaliate against the action of the host state.
The Vienna Convention on Diplomatic Relations of 1961 (VCDR)6 and the Vienna Convention on Consular Relations of 1963 (VCCR)7 codified most modern diplomatic and consular practices, including diplomatic immunity; and about 193 countries, including Nigeria8 are parties to these treaties. Nigeria has also effectively ratified the Vienna Conventions on Diplomatic and Consular Relations. The Vienna Convention provides for specific measures that can be taken by both the home and host countries in cases of misuse or abuse of diplomatic privileges and immunities. Overall, diplomatic privileges and immunities have served as efficient tools for facilitating relations between States. Diplomatic immunities and privileges also guarantee that diplomatic agents or members of their immediate family may not be arrested or detained, have their residences entered and searched, be subpoenaed as witnesses, and be subject to civil or criminal prosecution.
Diplomatic Immunity may be “absolute” or “restrictive”.9 Absolute immunity offers complete immunity to diplomats from both criminal prosecution and civil lawsuits. Absolute immunity contrasts with restrictive immunity because under the “restrictive approach”, a diplomat or foreign state is only immune in relation to activities involving an exercise of sovereign power or actions carried out within its/his/her official capacity – especially where the case involves funds or property not related to diplomatic assignments. The diplomat may therefore be sued and have its/his/her assets seized in a foreign court in commercial or private matters, and important distinctions must be drawn between commercial versus sovereign activities and assets.10
1.2 The Relevance and Purpose of Diplomatic Immunity
Regardless of the challenges with the application of diplomatic immunities, diplomacy is a foundational fact of state interactions on the international sphere without which international relations will be at risk. The concept of Diplomatic Immunity is important for the promotion of friendly and healthy relations among states for the purpose of trade, security, peace, or cultural relations.11
Further, diplomatic immunity is not meant to benefit individuals personally; it is meant to ensure that foreign officials can carry out their duties effectively. Under the concept of reciprocity, diplomats assigned to any country in the world benefit equally from diplomatic immunity.
The purpose of diplomatic immunity therefore is to prevent diplomats from being inhibited in the performance of their functions for fear of civil or criminal litigation. In so doing, diplomats are exempt from the jurisdiction of the host country. Thus, it allows diplomats carry out their functions within the framework of necessary security and confidentiality while balancing interests between the sending and receiving state, because immunity does not entitle diplomats to flout local laws.12
2. The Diplomatic Immunities and Privileges Act 1962 - “Absolute” or “Restrictive”
As aforementioned, diplomatic immunity may be “absolute” or “restrictive”.13 Absolute immunity or personal immunity (also known as immunity rationae personae) offers complete immunity to diplomats from both criminal prosecution and civil lawsuits. It entails absolute immunity from the legal jurisdiction of the host state for private acts or omissions. This immunity subsists while the diplomat is in active service and ceases when he is no longer in the service of the sending state. Absolute immunity contrasts with restrictive immunity or functional immunity (also known as immunity rationae materiae) because under the “restrictive approach”, a diplomat or foreign state is only immune in relation to activities involving an exercise of sovereign power or actions carried out within its/his/her official capacity – especially where the case involves funds or property not related to diplomatic assignments. Thus, this immunity does not cover the personal acts of the diplomat. In contrast to personal immunity, it is the conduct itself and not the personality of the diplomat that forms the basis of that immunity.14 The diplomat may therefore be sued and have its assets seized in a foreign court in commercial or private matters, and important distinctions must be drawn between commercial versus sovereign activities and assets.15
The context for the above immunities to be granted and on whom they shall be granted are outlined in the VCDR and VCCR both of which were ratified by Nigeria.16 The VCDR accords absolute immunity from criminal prosecution and limited immunity from civil jurisdiction to diplomats and their families. Lesser levels of protection are accorded to technical and administrative staff members, who are given immunity only for acts committed in the course of their official duties. The VCCR accords restricted immunity to consular staff and makes them amenable to the jurisdiction of the host state in respect of grave crimes. They also enjoy absolute immunity for official acts.17
Like the United Kingdom (UK) and the United States of America (USA) before 1978 and 1976 respectively, Nigeria has no legislation on state immunity, but in line with its practice of absolute diplomatic immunity, the Nigerian Diplomatic Immunities and Privileges Act,18 enacted in 1962 is believed to have conferred absolute immunity on diplomatic and consular officers, their staff, and members of their family19 as well as on representatives of commonwealth countries20 and international organisations certified as such by the Nigerian Minister of Foreign Affairs.21 Although the immunity of diplomats, consular officers, and chief representatives of commonwealth countries are conferred on the basis of reciprocity, it is only the minister who can certify that grounds exist for withdrawal or restriction of immunity in respect of any foreign state's diplomatic or consular officers or chief representatives of any commonwealth country.22
Thus, although Nigeria ratified both the Vienna Convention on Diplomatic Relations (VCDR)23 and the Vienna Convention on Consular Relations (VCCR)24, both of which restrict the immunity of diplomatic and consular officers, the Diplomatic Immunities and Privileges Act still confers what amounts to absolute immunity.
2.1 The Application of Restrictive Immunity in Nigeria
Restrictive immunity confers immunity only on sovereign acts of a State – acta jure imperii, as opposed to actions of a commercial nature - acta jure gestionis – which are governed by private law just as it applies to a private person. This shift to the restrictive concept was reportedly triggered by the case of RAHIMTOOLA V. NIZAM OF HYDERABAD;25 where Lord Denning had stated that sovereign immunity should not depend on whether a foreign government is impleaded directly or indirectly, but rather on the nature of the dispute. He further held that if the dispute brings into question, for instance the legislative or international transactions of a foreign government, or the policy of its executive, the court should grant immunity if asked to do so, because it does offend the dignity of a foreign sovereign to have the merits of such a dispute canvassed in the domestic courts of another country; but if the dispute concerns the commercial transactions of a foreign government, and it arises properly within the territorial jurisdiction of the English Courts, there is no ground for granting immunity.26
Although Nigerian courts are yet to take a common position on the principle of restrictive immunity, some of our courts have decided against its application. In EHIOSU ODER V THE HIGH COMMISSIONER FOR MALAYSIA & ANOR,27 the learned trial judge of the Lagos High Court held that the intrinsic nature of the transaction is an essential factor for consideration in determining whether the transaction was of a commercial or governmental nature. He further stated that while a contract whereby an embassy takes a lease as a residence for the staff is a commercial transaction not in its governmental capacity but in a private and commercial one, he does not believe that such transaction should deprive a foreign state of sovereign immunity. He held that the High Commissioner of Malaysia was immune from suit and legal process because it would destroy the basis of diplomatic immunity granted in the 1962 Act if the defendant is made answerable in court for the action of his envoy who enjoys diplomatic Immunity. In effect, if this decision is to be reckoned with, it would appear that the concept of restrictive immunity has no place in Nigerian law.
Conversely, in AFRICAN REINSURANCE CORPORATION V AIM CONSULT LIMITED,28 the Court of Appeal, in dismissing the appeal, held that a government department that enters a commercial transaction is not immune from legal action instituted in respect of any dispute arising from the transaction. This decision seems to support the restrictive concept and is a departure from the earlier decision.
Similarly, the High Court of the Federal Capital Territory sitting in Abuja, Nigeria, has applied the concept of restrictive immunity in the unreported case of S.C MONTEL NIG LTD. VS. INTERNATIONAL ORGANISATION FOR MIGRATION (IOM) & ANOTHER29wherein the Court gave judgment against the IOM and made a Garnishee Order absolute; by which funds belonging to the IOM were attached in favour of the Judgment Creditor.
It is pertinent to note that Section 11 (2) of the Diplomatic Immunities and Privileges Act 196230 provides that:
“(2) The Minister may, from time to time, by Order in the Federal Gazette‐
(a) provide that any organisation to which this section applies (hereinafter referred to as "the organisation") shall, to such extent as may be specified in the Order, have the immunities and privileges set out in the First Schedule to this Act, and shall also have the legal capacities of a body corporate; … to such extent as are specified in the Order, the immunities and privileges specified in the Second Schedule to this Act;
(c) confer upon such other classes of officers and servants of the organisation as specified in the Order, the immunities and privileges specified in the Third Schedule to this Act to such extent as are so specified.”
It appears from the above provision that the two later judgments31 being restrictive in nature are contrary to the Diplomatic Immunities and Privileges Act because as far as the immunity of diplomats and other categories of persons covered by the Diplomatic Immunities and Privileges Act (1962) is concerned,32 until the Minister issues an order to that effect, the court is bound to apply the absolute standard of diplomatic immunity to them.
Thus, from a combination of the provision of Section 11 of the Diplomatic Immunities and Privileges Act and the decision of the Supreme Court, in AFRICAN REINSURANCE CORPORATION V ABATE FANTAYE,33 the Minister may execute this discretion and mandate with respect to absolute immunity via an Executive Order in a Gazette or by a treaty with respect to the sovereign body or both; and this can be exercised at any time prior or during any dispute on the issue.
3. Judicial Resolution
The jurisprudence of the Nigerian courts has not applied clear distinctions with respect to 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.34
The inference from the above conflicting decisions is that Nigerian courts are yet to take a common stand between the principle of absolute diplomatic immunity and the principle of restrictive diplomatic immunity. However, from the wording of the decisions on absolute immunity, suffice it to say that judgments based on the restrictive concept of immunity go contrary to the letter of the Diplomatic Immunities and Privileges Act because as far as the immunity of diplomats and other categories of persons covered by the Diplomatic Immunities and Privileges Act is concerned, until the Minister issues an order to that effect, the court is bound to apply the absolute standard to them.
The courts cannot ignore the provisions of an existing statute such as the Diplomatic Immunities and Privileges Act 1962, which confers absolute immunity on diplomatic and consular staff.35
4. Conclusion
In the light of the foregoing, particularly regarding doing true justice to the future of diplomatic immunity, it is indeed critical and imperative to consider the concept of restrictive diplomatic immunity as the key goal in adjudicating diplomatic immunity cases in view of, and in actively promoting public confidence in the administration of justice.
Footnotes
1 Cynthia Njoku,Associate, Cross-Department, S.P.A. Ajibade & Co., Abuja, Nigeria.
2 See Wikipedia, Diplomatic Immunities, available at https://en.wikipedia.org/wiki/Diplomatic_immunity and accessed on 15th March 2022 at 04.30pm.
3 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 at 07.54am.
4 Ibid.
5 See eDiplomat, Diplomatic Immunities, available at http://www.ediplomat.com/nd/diplomatic_immunity.htm and accessed on 15th March 2022 at 05.52pm.
6 See Vienna Convention on Diplomatic Relations 1961, United Nations, Treaty Series, vol. 500, p. 95. (VCDR) https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf.
7 See Vienna Convention on Consular relations 1963, United Nations, Treaty Series, vo1. 596, p. 261 (VCCR) https://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf.
8 See Privileges and Immunities, Diplomatic and Consular Relations, Etc., Chapter III, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=III-6&chapter=3, and accessed on 21st March, 2022 at 11.42am.
9 Ibid.
10 See Norton Rose Fulbright, State Immunity and International Arbitration, June 2017, available at https://www.nortonrosefulbright.com/en/knowledge/publications/1f4d07b1/state-immunity-and-international-arbitration and accessed on 15th March 2022 at 06.26pm.
11 Ibid.
12 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 and accessed on 11th March 2022 at 10:39am.
13 Ibid.
14 Cryer, R., (2007), “An Introduction to International Criminal Law and Procedure”, Cambridge University Press. 422, available at https://www.academia.edu/44304960/DIPLOMATIC_PRIVILEGES_AND_IMMUNITIES_IN_NIGERIA_AND_THE_UNITED_KINGDOM_A_COMPARATIVE_ANALYSIS and accessed on 22nd March 2022 at 04.37am.
15 See Norton Rose Fulbright, State Immunity and International Arbitration, June 2017, available at https://www.nortonrosefulbright.com/en/knowledge/publications/1f4d07b1/state-immunity-and-international-arbitration and accessed on 15th March 2022 at 06.26pm.
16 Supra, 7.
17 Diplomatic Immunity and Privileges of Diplomatic Envoys are provided in Articles 29, 31, 30, 32, 34, 35, 36, and 37 of VCDR while Articles 31, 32, 33, 40, 41, 43, and 45 provide those for Consular Officials.
18 CAP D 9, Laws of the Federation of Nigeria, 2004.
19 Section 1.
20 Section 3.
21 Section 11.
22 Section 8.
23 See Vienna Convention on Diplomatic Relations, 1961 available at https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf, accessed on 8th March 2022 at 08.20pm.
24 See Vienna Convention on Consular Relations, 1963 available at https://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf, accessed on 8th March 2022 at 08.20pm.
25 3 All ER,1957, p.572.
26 See Chike B. Okosa, “The Limits of Sovereignty and Diplomatic Immunity” available at https://journals.co.za/doi/pdf/10.10520/AJA15955753_60 accessed on 12th March 2022 at 11.10am.
27 (2005) 4 NWLR 760.
28 (2004) 11 NWLR 223.
29 CV/1623/2019 (FCT High Court, Abuja).
30 Supra, 24.
31 Supra, 28 and 29.
32 Sections 8 – 11, Nigerian Diplomatic Immunities and Privileges Act 1962.
33 [1986 1 NWLR (Pt. 14) 113 CA; [1986] 3 NWLR (Pt. 32) 811 SC.
34 See Ehiosu Oder v. The High Commissioner for Malaysia & Anor [2005] 4 NWLR 760; President of the Commission of ECOWAS v. Ndiaye, (2021) LPELR - 53523 (CA). See also Siewe v. Cocoa Industries (2013) LPELR – 22033 (CA) and Vese v. W.A.I.F.E.M (2018) 2 NWLR (Pt. 1603) 336 (CA).
35 See African Reinsurance Corporation v. Abate Fantaye [1986] 1 NWLR (Pt. 14) 113 CA; [1986] 3 NWLR (Pt. 32) 811 SC. See also Ehiosu Oder v. The High Commissioner for Malaysia & Anor [2005] 4 NWLR 760.
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