EMMANUEL OGEBE, ESQ. is a Washington DC based international lawyer from Nigeria
ANATOMY OF AN EXECUTIVE FUGITIVE
There are several diplomatic, legal and sundry implications of the flight from UK of arrested Governor of Bayelsa, Alamayeiseigha. The following is a quick and dirty analysis of the immediate scenarios that come to mind.
A. LEGAL IMPLICATIONS
1. WARRANT - The first legal recourse for the prosecutors is to seek a revocation of the escaped suspect's bail and an order for a bench warrant to be issued. This in effect means "arrest on sight" and the governor, by his latest actions, has automatically rendered himself a fugitive from justice aka a "wanted man."
2. BOND -The sureties of the governor in the various amounts totalling over 1.5 million pounds sterling will now be subject to forfeiture. The Court can order the forfeiture of the bail bonds posted by the sureties. In this case, they themselves will be charged to court and asked to produce the suspect whom they stood surety for. Failure to do so may result in their being held liable to pay to the court the amounts at which bail was posted. Again the governor has put in legal trouble the Nigerians who came to help him during his time of trouble. They also face jail or confiscation of their assets and bankruptcy in a foreign land.
3. EXTRADITION -The UK may request the Federal Government of Nigeria, depending on the nature and existence of mutual extradition treaties between the two nations, to repatriate His Excellency the Executive Fugitive back to London for trial. Nigeria will then be obliged to undertake a legal proceeding to determine if he is eligible to be repatriated. This hearing will of course have to overcome the fundamental question of immunity
The constitutional issue here is - does the immunity clause prevent only arrest relating exclusively to offences in Nigeria? If that is the case then would an arrest pursuant to offences committed outside Nigeria be permissible as not being under the purvey of the constitutional immunity from offences and prosecutions initiated by Nigerian authorities? By his actions, the governor has placed Nigeria in jeopardy of sanctions, an option open to Britain if Nigeria fails to repatriate him after a successful judicial determination that he is eligible to be returned to the UK. In addition, UK may decide that because of Nigeria's non-cooperation if it does not commence extradition proceedings, it will choose not to assist her with efforts to recover looted funds.
4. FORFEITURE - The UK may execute or finalize a writ forfeiting all his assets, currently frozen, to the Crown by a judicial decree nissi. By absconding, he has virtually acquiesced to his own guilt and loses standing to attempt to recover his possessions. By his actions, he has singularly donated approximmately 14 million pounds in cash exhibits and assets (plus the bail bond forfeitures)stolen from impoverished Bayelsans to the British government.
5. FORGERY - The UK now has a most compelling case of an additional offence committed by the governor, to wit, violation of its immigration laws by presentation of fake documents and or forgery/uttering. If he was innocent of the previous charges, he is clearly now guilty of new crimes and by implicating the Ijaw people as being responsible for his escape, conspiracy as well. By his actions, he has reaffirmed the western stereotype of Nigerians as expert crooks and con artists.and characterized the whole Ijaw nation tribe as accomplices.
6. INTERPOL - Finally, the UK may issue an international arrest warrant through the Interpol for his apprehension worldwide. This means, in any Interpol treaty country, the governor will be a wanted man and liable to arrest upon arrival. By his actions, he has single-handedly put a serving Nigerian official on a global most wanted list to be posted all over the world.
B. DIPLOMATIC IMPLICATIONS
7. UNILATERAL ACTION - The UK has the right as a member of the international community to impose whatever unilateral diplomatic sanctions it deems fit on a nation that runs afoul of expectations or obligations under bilateral agreements or understanding, in the context of their relations.
By diplomatic customary practice, the other nation is also entitled to impose reciprocal sanctions on the UK. It is probably arguable that sanctions against Nigeria by UK will hurt Nigeria more than if Nigeria imposes retaliatory sanctions against the UK given that it is Nigerians that are flocking to London on an hourly basis. Whereas Nigeria is looking for UK companies to invest in Nigeria, the intent of the UK law is expressly trying to dissuade the likes of the fugitive governor from "investing" funds stolen from Nigeria in the UK.
Examples of such sanctions include the visiting ban placed by the US on former Austrian Head of State, Kurt Waldheim, on suspicion of a criminal past in the Nazi era. Similar sanction was recently averted for Iran's new president for suspected involvement in the kidnapping of US diplomats in Iran, when the US allowed him attend the UN General Assembly in New York recently. General Ibrahim Babangida was also under travel restrictions from visiting the US as President. Just this year, the US Congress resisted debt-relief to Nigeria because she harbored Charles Taylor who is wanted by a UN tribunal. The fugitive governor has exposed Nigeria to probable tit for tat reprisals.
8. REVOCATION - The UK may resort to revoking the existing visas of all Nigerian governors since it is clear that they are
i) not only potential money launderers but
ii) above the law of Nigeria and
iii) a confirmed flight risk going by two precedents
The US recently revoked the governor of Plateau State's visa and Bayelsa governor has opened the sorry spectre that this can be extended to all Nigerian governors. Only this year, the UK banned a certain age group of Nigerians from eligibility for visas. Without going to the extent of a persona non grata, UK can by its consular processes deny visa or entry to whomever (except duly authorized persons bearing lasseiz passe or other UN recognized travel documents.)
His actions have rendered the respectability of diplomatic passports, when carried by Nigerians, suspect and Nigerian officials will abroad will now be presumed as guilty until proven otherwise. It is high unlikely that any Nigerian governor will ever be able to overcome the presumption of flight risk after 2 consecutive jumped bail precedents. No one will obtain bail again. An arrest will almost certainly result in incarceration via the so-called "protective custody."
9. MULTILATERAL SANCTIONS - The UK may extend its diplomatic offensive to the whole EU, G-8, Commonwealth or other multilateral organizations depending on the extent to which it feels violated by this second instance of high level executive rascality by a Nigerian official. In view of its veto power on the UN Security Council, the UK may justifiably be able to make a case that South Africa which is prosecuting its disgraced Vice President for corruption holds its leaders more accountable than Nigeria and thus is a better candidate for a permanent seat. At a time when UK PM Blair as G-8 chair is championing debt-relief based on leadership accountability, the governor has unilaterally undermined whatever goodwill Nigeria has garnered in our "debt diplomacy."
10. EXTRACTION - Finally, depending on the extent of the national outrage and political will to defend the rule of law, the UK may take the extreme action of an international intervention to bring the governor to book. While this is highly improbable, it is within the realm of possibility nonetheless and has historical precedent. The US invaded Panama and arrested President Manuel Noriega who is serving time in an American prison for drug dealing. Similarly the UK with the US, after failing to secure a diplomatic resolution through the UN, invaded Iraq and captured Sadam Hussein who is now in custody.
What is more probable though is a "commercial warrant" - a sizeable reward offer that would attract bounty hunters. British mercenaries, for instance, who were arrested in Zimbabwe for a coup plot which implicated ex-prime minister Margaret Thatcher's son, were reported to have targeted Equatorial Guinea. However other analysts suspect they were actually aiming for Calabar to abduct Charles Taylor who has a $2 million price on his head per a UN War Crimes tribunal.
While US law recognizes the activities of professional man-hunters, the UK legal system does not appear to. However mercenaries on their own initiative can "produce" a fugitive and where there is a reward, are entitled to payment no questions asked. Bounty hunters are not bound or limited by immunity or other legal niceties.
C. GENERAL RAMIFICATIONS
11. FAILURE OF BRITISH IMMIGRATION - It remains a mystery how the governor was able to elude British immigration who are not as corruptible as their Nigerian counterparts more so when, 21 years ago in 1984, they foiled the smuggling of Nigerian exiled fugitive Umaru Dikko. More baffling is how British law enforcement, who promptly identified the suicide bombers in the underground terrorist attacks, as a whole allowed another Nigerian governor to escape within a one year period. As the saying goes, "if you fool me once, shame on you; if you fool me twice, shame on me." This clearly exposes border insecurity inspite of the war on terror.
12. FAILURE OF NIGERIAN IMMIGRATION - Nigeria could have arrested the governor at an immigration port if he presented a fake document to obtain entry. Since he would have been disguised under a false identity, no immunity would have attached to him under the newly assumed name. Under international law, he could have been immediately deported back to the point of origin i.e. London or Paris from where he would have been recaptured. All of this would have been an exception from the immunity clause because until he is legally landed in Nigeria, he is not within her borders and does not have immunity.
Especially against the backdrop of the Federal Government's war on corruption, this is a huge blow to its credibility. The Attorney General of the Federation averred that the governor would abscond before the British courts, yet its borders were porous to prevent his infiltration.
It is bad enough that inspite of EFCC, ICPC and 40,000 new police recruits each year, Nigeria's law enforcement still has to depend on its colonial master, London Metropolitan Police, to do what our cops cannot do - arrest chief executhieves.
13. FAILURE OF BAYELSA LEGISLATORS - The state assembly having passed a resolution appointing the deputy as acting governor has a duty to sit and revisit the circumstances under which he was appointed and determine if there is any material change in circumstances that will allow for the restoration of the governor. The fact still remains that even though he is back, with the threat of repatriation, interpol arrest warrant, public opprobrium and scandal, he will be impeded in his ability to discharge his duties as governor of the state. They should not have allowed him resume business as usual. Indeed, impeachable grounds on the basis of gross misconduct involving both the tummy tuck overseas, money laundering, theft of public funds and jumping bail abound for his speedy removal. By resuming office, he has made the whole state of Bayelsa a laughing stock. Ironically this was how Charles Taylor who fled the US as a convicted embezzler went to Liberia and wreaked havoc from where he came to be harbored in Nigeria. (Ironically, if the US had extradited Taylor back from the beginning for his US theft conviction, thousands of Liberians would still be alive today.)
14. STATUS OF THE FIRST LADY - Since the first lady of Bayelsa was also charged in her own right with offences, the governor's flight does not eliminate her own case. Indeed, it complicates things for her own matter. Unless she also escaped, he has placed her in extreme legal jeopardy because she does not have immunity in Nigeria and may not only be prosecuted here but may also be extradited.
15. EFFECT ON NATIONAL COUNCIL OF STATES - the governor's effective participation in governors fora and other national events will be compromised as his peers will perceive him as having brought disdain and disgrace to the office of state chief executive on the world stage. Both in his state and without, he will be a lameduck governor that will be vulnerable to the demands/blackmail of diverse interest groups which will no doubt interfere with the smooth administration of the affairs of state.
16. EFFECT ON STATUTORY ALLOCATIONS - a knowledgeable but uncorroboratted highly placed source maintains that Bayelsa has the highest allocation from the National purse of all the states because of oil derivation ( over $50 million monthly.) It therefore creates a moral crisis and a practical dilemma for the Federal Government to release funds continually every month to a person they are convinced has pilfered those same funds in the past and who has just escaped prosecution. It is the equivalent of reinstating the fox to take charge of the hen house i.e. releasing a repeat offender to the scene of the crime. By providing funds to the governor, the FG is knowingly giving them to a known crook and thus facilitating the despoilation of the poor people of Bayelsa. Who is to say that he will not again loot to recoup the lost 12 million pounds and repay his sureties their forfeited 2 million pounds?
It is overwhelmingly clear from the above that the governor's actions have done incalculable harm to the nation's global image that no advert on CNN can reverse. If Nigerians were accused of being scammers quietly before, a top official has confirmed it loudly to the hearing of the whole world. I was personally ashamed when the Bellview plane crash occurred in Nigeria, I read on a blog online an American say it was nothing but a "bunch of scammers" who died. He has written down our names in infamy before the entire earth.
D. CONCLUSION: A PROPOSAL FOR RESOLUTION
However there is a solution to this peculiar mess. My proposal is straightforward:
i) the governor should enter a deal with the federal government of Nigeria to voluntarily resign from office to save the nation global embarasment.
ii) the governor will then be given amnesty from prosecution and or repatriation for stepping down and regorging looted funds
iii) Nigeria will then work with the UK to retrieve the stolen funds and frozen assets for the people of Bayelsa (twelve million pounds)
iv) UK will retain the 1.5 million pounds bail bonds to cover the cost of the prosecution and investigation as well as assuage their own bruised feelings on the escape
v) The World Bank will provide a Public Expenditure Management type monitoring program for the recovered funds to be partly funded from the funds.
If the governor does not agree to this arrangement in the interest of the nation, the FG may well be within its rights to:
vi) repatriate the first lady and or the governor
vii) prosecute the first lady
viii) withhold the derivation funds until he is removed or audited
Regardless the resolution, Nigeria cannot afford executive criminality at any level. In the US, officials at all tiers of government are currently in jail. A state governor, a congressman and a mayor are presently imprisoned. Incidentally the mayor is Nigerian and the first African to be elected to that office in America.
The world now knows what we are in denial of - we are ruled in large part by scoundrels and theives. Our democracy must find a solution that will show the military that we are capable of good governance and self-correction. Otherwise Nigerian masses will be forced to carry out citizen's arrest on their oppressors - immunity or no immunity.
In politics they say "greater love has no man that he lays down his friends (or country) for his life." That may be true of the governor who sacrificed his country for himself. But there is also a truism that a "patriot must be prepared to save his country from his government (or governor."
So help us God!