The attention of many Nigerians was drawn to the current matters arising from the arrest and arraignment of Governor Diepreye Alamieyeseigha of Bayelsa State in London. He was arrested on September 15 at Heathrow Airport on his way from Germany to Nigeria after undergoing a tummy tuck surgical operation. He was prosecuted by the Crown Prosecution Service on a three-count charge of money laundering offences contrary to Section 93C (1) (a) of the Criminal Justice Act, 1988 (as amended), and Section 327 (1) of the Proceeds of Crime Act. 2002.

Governor Alamieyeseigha through his counsel applied for the prosecution to be quashed on the grounds that he enjoys immunity. The Court, however, ruled against him. Meanwhile, the governor was granted bail on a £1.25m surety and under the condition that he was not to go three miles near any seaport or airport.

The elaborate theatrical display staged in London entered into a new episode with the hard to believe news of the return of the Governor on November 20, some five days before the Court rejected his application for the quashing of criminal proceedings instituted against him which he rested on immunity from court process.

Now, there has been calls from many people for the arrest and extradition of the governor for trial in the U.K. It is clear that Alamieyeseigha remains Governor of Bayelsa State in so far as he has not resigned or has been impeached by the State House of Assembly in accordance with the provisions of Section 188 of the 1999 Constitution. Accordingly, the privilege of immunity as conferred by section 308 of the Constitution would debar the police or law enforcement agents or any person whatsoever from arresting him.

In that connection, no criminal proceedings can be validly instituted against him, and no court process compelling his appearance can be applied for or issued during his period of office as Governor of Bayelsa State. This is in line with the decision of the Court of Appeal in Alamieyeseigha v. Yeiwa [2002] 7 NWLR (pt 767) 581 where Musdapher, JCA held at page 599 that “section 308 should be given wide and liberal interpretation. The immunity conferred on the appellant is to prohibit the issuance of any court process, civil or criminal in any way whatsoever against the appellant while he acts the office to which he is elected.”

This position has already been reiterated in a plethora of other decided cases for instance, Tinubu v. IMB securities Plc (2001) 16 NWLR (pt 740) 670; Fawehinmi v. IGP [2002] 7 NWLR (pt 767) 606; Media Technology (Nigeria) Ltd. V. Adesina [2005] 1 NWLR (pt 908) 461 etc. The effect of all these, which favour the Governor is that arresting him for extradition would be an extreme illegality and a brazen breach of the Constitution. The only place where this may appear possible is in Britain, but the governor would be no fool to set his foot in that land.

Tayo Oyetibo, SAN (Vanguard, 26 Nov. 2005 pg 11) suggested that getting the governor into the British High Commission, arresting him there, and driving him in the official car of the High commissioner to the airport and flying to Britain is a way of avoiding the breach of the Nigerian law. By reduction ad absurdum that line of thought is wrong for at law the slightest infraction of his liberty with a view to bringing him to book is inferably an arrest given the provisions of section 4 of the Criminal Procedure Act. In fact, such persons may be criminally liable for treason contrary to section 37 (1) of the Criminal Code for overawing the Governor!

There has been divided opinion among legal minds in Nigeria with regard to his arrest and trial in the U.K. One of Nigeria’s foremost lawyers, Chief Gani Fawehinmi, SAN, strongly held that Governor Alamieyeseigha has no immunity in the U. K. his reason being that neither the U.K. State Immunity Act of 1978, the Criminal Justice Act 1993 of U.K. nor the Vienna Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular Relations, 1963 immune him from Criminal Prosecution as they do not apply to him. (see Vanguard October 1, 2005 pg 18)

But Professor Itse Sagay, SAN, rebutted Chief Fawehinmi’s argument and opined that Governor Alamieyeseigha “is entitled to absolute immunity. They should not have arrested him or detain (sic) him or take him before their court, given the state of International Law and the record of England in this area in terms of the judgments they have given” (Daily Sun, November 4, 2005 pg 4) Section 14 of the U.K. State Immunity Act, 1978 which Chief Fawehinmi relied on provides that: (1) The immunities and privileges apply to any foreign or commonwealth state other than the United Kingdom; and references to a state include references to:

(a) The sovereign or other head of that state in his public capacity;
(b) The government of the state, and
(c) Any department of that government but not to any entity which is distinct from the executive organs of the government of the state and capable of suing or being sued.

A literal construction of the words of the above statute, which Chief Fawehinmi apparently adopted would show that immunity would not avail Governor Alamieyeseigha in the U.K. It is trite law that words of statute are constructed literally when they are clear and unambiguous and would not occasion a substantial miscarriage of justice, following the authority of Nabhan v. Nabhan [1967] 1 All N.L.R. 47 (which has an English equivalent). The motive for this is to discover the intention of the legislature for the making of that particular enactment.

It is also true that in making a statute, such as the U.K. State Immunity Act 1978 under review, it is not always possible for the legislature to foresee events that may occur in future such as the Alamieyeseigha saga. Accordingly, the Court, when seized with the matter, may interpret paragraph (c) of section 14 (1) which reads:

“any department of that government but Not to any entity distinct from the executive organs of the state and capable of suing or being sued” to include a governor or government of a state in a sovereign state as part of the “executive organs of the (sovereign) state” since it can sue and is capable of being sued.

It is therefore the view of this writer that Governor Alamieyeseigha may after all enjoy immunity in the U.K., which, is subject to the court’s construction of the provisions of a statute. It follows that the House of Lords when seised with the appeal from Alamieyesiegha’s counsel (depending on the ground of appeal) can still reverse the decision of the lower court. In doing this, it would set a precedent for the courts to follow in future cases. This type of saga, when meted out to a head of government or a component of a sovereign state, may ruin economic and diplomatic relationship between the U. K. and that country. So, the writer foresees the House of Lords, if not in this case, in a later one, taking this position.