Ayorinde Tasks Law Students on Sovereign Immunity, Accountability of Leaders

Chief Bolaji Ayorinde, SAN

Former Pro-chancellor, and Chairman Governing Council, Ladoke Akintola University of Technology, Ogbomoso, Chief Bolaji Ayorinde, SAN has called on law students, and future generation lawyers who will practise law locally and internationally to think deeper on the topic of sovereign immunity and accountability of leaders.

Ayorinde who was the Guest Speaker at the maiden edition of the postgraduate seminar series organised by the Faculty of law, University of Ibadan stated that Nigerian law on the subject of sovereign and diplomatic immunity leaves much to be desired.

According to him, 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.

Speaking on the theme “The Trials of Agusto Pinochet and the Law of Sovereign Immunity”, Ayorinde said the notion of Sovereignty is a significant aspect of international law, adding that every sovereign state or nation is bound to acknowledge and respect the independence and individuality of other sovereign states.

He said “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.

Highlighting the case of Augusto Jose Ramon Pinochet Ugarte he said “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.

“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).

“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.

“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.

“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.

“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 on 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 conclusion, the legal icon noted that the International Criminal Court, (ICC) has increased the intensity of its work over the years, submitting that erstwhile dictators and strongmen are being made accountable for their misdeeds while in office, hence sovereign immunity does not count for much.

Ayorinde added that issues of International Rule of Law are now engaging the attention of National Courts and domestic Judges in different jurisdictions.