THE SUCCESS OR FAILURE OF SOCIAL INVESTMENT AND NPOWER

THE SUCCESS OR FAILURE OF SOCIAL INVESTMENT AND NPOWER
As the Conference of Nigeria Political Parties (CNPP) embarks on fiscal performance monitoring  of  government policies the major one appears to be the social investment and NPower project.  The direction and implementation of Federal government’s policy on social investment and NPower remain unsatisfactory if the feedback from people across the nation is anything to go by. Feedback of any nomenclature is appropriate  for the government that put the scheme in place, for response and adjustment or scrapping. In other words its success and failure can be measured by the feedback so far.
I am aware that the scheme has three main layers with school feeding being implemented in phases of states across the country.  Just the same way 9 states were designated as pilot states. What criteria was adopted in the grouping of states that constitute the first, second and so on? Apparently asserting the equality of states the Finance Minister, Kemi Adeosun once said that “Every state is a center of prosperity”. Without further inquiry nothing  more than executive discretion appear to be the only criteria. This grouping of states has been criticized for the same reason why former Goldman Sachs economist, Jim O’Neil was criticized for coining group of nations: Mexico, Indonesia, Nigeria and Turkey as MINT and so on. The concept with economic problems of those nations as undertone was wrongly taken for investment concept.
However, for the conditional cash transfer scheme the first group of states comprising 9 states commenced the payment of N5,000 to the “most vulnerable” in the society amidst confusion as to what eligibility criteria is adopted or to be adopted by states and their communities.  Be that as it may, the implementation took off in earnest.  Meanwhile fingers are crossed as to how that pans out.
But judging from PMB’s first executive order on the recruitment of 10,000 police officers across the nation that failed to produce desired result because of eligibility criteria, one wonders whether the government learned any lesson from that experience which may come handy for application in the present scenario?  This was quickly followed by the proposed recruitment of 500,000 graduates across the nation as teachers.  Now one of the questions trailing the experiment is how ‘national’ is the scheme with the kind of disparity seen among the states with competing populations?
This issue of disparity were raised by the proposed beneficiaries from their different states. For instance looking at their data some states like Bayelsa, Akwai Ibom, Bornu produced poorer data (2000+) than Kogi, Lsgos (4000+).  What eligibility criteria led to this disparity? And why did federal character balance provided by s.43 of the 1999 Constitution not applied to assuage claims of improper balance?
Perhaps one of the perennial problems with governments when it comes to policies such as this social investment and NPower is inadequacy of publicity.  Since they are information-driven schemes, only major urban cities get the quantum of publicity that generate huge responses as opposed to relevant counterparts in non-urban remote states.  How was this acknowledged fact handled by the authority to balance the disparity? Or do we say that they were indolent to be domiciled in non-urban states as opposed to their cosmopolitan counterparts.
The stark result is that the policies are real and palpable in cosmopolitan states in relation to less urban states. I believe that the intensity of publicity of the information gave rise to the disparity of awareness  reflected on the response level by various states.  Therefore it c an be seen that enlightenment in one state appeared more in some communities than the others.  That brings to the fore the question as to whose responsibility it is to ensure that information of these critical policies receive grass-root awareness, mobilization and implementation.  Yet some of the problems appear circumstantial when you consider the fact that for instance no local government or community  is without cybercafés; whereas in states like Kebbi, Akwai Ibom, Ebonyi etc cannot boast of such luxury.  With programmes such as social investment and NPower and many others which are information-driven and online applicability the disparity is bound to be obvious, therefore shifting the burden of balancing the disparities on the authority.

Iyke Ozemena    Attorney

IKECHUKWU O. ODOEMELAM & CO
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ANTI-CORRUPTION AND TERRORISM WAR

ANTI-CORRUPTION AND TERRORISM WAR
As Prof. Itse Sagay-headed presidential Advisory Committee on corruption swings into action, few points deserve comment and note. The personification of corruption by president Muhammed Buhari (PMB) when he said: ‘If Nigeria fails to kill corruption, corruption will kill Nigeria’ left no one in doubt that the war would be between the hunter and the hunted.  It would be brutal and total, otherwise the repraisal or revenge would be grave for the government, Nigeria and the poor masses.  The reason is that it would present a graphic picture of where two elephants are fighting.
This point was aptly illustrated by the comment credited to the Chief Justice of Kenya, Willy Mutunga on the state of the government’s anti-corruption and terrorism war. For him the definition of corrupt practices includes terrorism and needs to be tackled with the same intensity as terrorism.  In order to gather the speed required to deal with the cankerworm in the life of this administration no one should be treated with kid gloves.

In this regard, the vice president Prof. Yemi Osinbanjo in one of his campaign speeches said “When you fail to reform the system, corruption increases.” In advancing the quest I found Dr Kolawale Olaniyan’s comprehensive definition of corruption in his new book ‘Corruption and Human Rights Law in Africa’ very apt: “…the deliberate, intentional mass stealing of public wealth and resources by senior state officials entrusted with its fair and honest management, for the common good and achievement of human rights, whether carried out individually or collectively, but with the support, encouragement, or acquiescence of the state, combined with a refusal to genuinely, thoroughly and transparently investigate and/or prosecute the mass stealing and recover stolen assets, which violates the human rights of the economically and socially vulnerable.”

Since the inauguration of this administration in May 2015, the signal sent across the world is that of total warfare against corrupt practices and terror.  Unjust enrichment is both criminal as well as a breach of trust.  It is rooted in the mindset of greed.  The first anti-corruption probe  by the late General Murtala Mohammed’s 200-day administration of the 9-year administration of General Yakubu Gowon, as unannounced as it was found some governors and ministers who served in the government incorruptible. No surprises at all; the species are available.

Similarly the president’s appointment of Dr Emmanuel Kachikwu as the new Group Managing Director may not necessarily have anthing to do with his being an “outsider” since he had been part of Nigerian private sector which has never been insulated from corruption.  In other words corrupt practices is a thing of the mindset.  Many would be tempted but some would still remain untainted.

When the word ‘corruption’ is mentioned any where in the world in connection with Nigeria, invariably what crosses the mind is Nigerian National Petroleum Corporation (NNPC) because of the mono nature of the economy.  There is no doubt therefore that whoever the president appoints to head that institution does not only receive the hardest search light on him but should also consider himself as anti-corruption war czar for the president.  That is why Dr Kachikwu’s appointment is critical and sensitive.

The ban on those Very Large Crude Carriers implicated in stolen crude oil and illegal bunkering, as well as the sack of some NNPC top officials including the managing director, are probably the best shots in the sector.  But beyond that the apprehension and trial of those implicated are necessary corollary to that preliminary purge.  Apart from savings from the down sizing purge, it clears the way to probe and audit the relevant accounts and connections, including  but not limited to Federal Inland Revenue Service (FIRS), Department of Customs, Central Bank of Nigeria (CBN), Nigerian Extractive Industries Transparency Initiative (NEITI), Department of Petroleum Resources (DPR) apparently not backed by legislation since 2010, Nigerian Maritme Administration and Safety Agency (NIMASA).

The next in the probe line is that of petroleum subsidy regime.  There was no transparency in the way it has been handled by succeeding governments through the NNPC.  More disclosures are called for about the transactions and their operations: the public needs more disclosures similar to those provided by the Petroleum Industry Bill.  Although Price Waterhouse & Cooper has started part of the probe those culprits in the deliberate refusal to pay incomes of NNPC into Federation Account according to s. 162 of 1999 constitution, should be dealt with according to the law.  The top officials sacked and those remaining at the NNPC should declare their assets as part of the ongoing war.
The former minister of petroleum was chairman of NNPC and until the NNPC Act is amended future ministers would keep the post.  In this dispensation it is imperative that no political office holder is allowed to be chairman of NNPC.  That way the institution would be insulated from corrupt tendencies of politicians.  Already NNPC has been accused by Transparency International to have the worst disclosure record out of 44 international and national energy companies analysed in a 2011 report.

As prices of oil dwindles fetching less and less income the tendencies for corrupt practices, especially by international oil companies (IOCs) even as the government  comes under pressure to reduce taxes and exploration costs of the up stream in response to global practices.  This led some governments to flaunt the shield of contractual obligation come rain, come shine.  It may not be possible to alter conditions and terms of agreement unless there is an arbitration clause or alteration of terms mid-way included in the agreement.

Corruption is bound to trail local content Act.  The IOCs were reluctant to receive Nigerian Content Development and Monitoring Board (NCDMB) because about 95% of assets in the industry belonge to them; all ownership and operatorship of off-shore Rigs and Marine Vesels belonged to them; oil field techniques; Research and Development came from foreign firms.  At the same time technical and complicated legal services are still being organized from abroad, as over 95% of industry spend was made outside Nigeria.  Naturally these details were threatened by the existence of the Act.  Therefore sabotage, which is act of war cannot be ruled out.

Often times combatant forces are accused of offences against humanity when acting on the orders of the government as principal.  Who is then culpable: the soldiers or the government? S. 218(3) of the 1999 constitution authorizes the president to “deploy armed forces for operational use” defined in S.8(3) of the Armed Forces Act to include the military power fo the purpose of maintaining and securing public safety and order in Nigeria. Accordingly PMB had recently ordered the Armed Forces to clear the insurgency stable in three months.  The order does not need assembly’s confirmation for efficacy.  What  determines the outcome is the preparation, warfare arsenal and professionalism of the military. This is where the probe of arms supplied to Nigerian Armed Forces from 2007 becomes relevant
.
That Ban Ki Moon’s invitation of PMB to World Leaders Forum taking place in New York for UN Resolution Against Terrorism is not  only a boost, it has already signaled global attack on Boko Haram.

Finally the Committee would probably consider how the first budget under this regime should reflect the anti-corruption stance of the government; as well as proposed reforms on the inadequacies of ICPC, EFCC, ACJA  Acts meant to fight corruption.

Iyke Ozemena
IKECHUKWU O. ODOEMELAM & CO
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OBAMA’S PRESIDENTIAL TRAVAILS

OBAMA’S PRESIDENTIAL TRAVAILS

It is ‘third time around’ for the homeboy! This time, for business: Global Entrepreneurial Summit, Kenya. Besides the scourge and travails of coming from one of the minority races in the land of opportunities, Barrack Obama pursued his dreams to power amidst numerous challenges.  There were successes recorded too; but none of them, according to his autobiographical account was given or thrust on him.  He achieved them by dint of hard work and detertmination that stood firm for success.

The tremendous work he did in Chicago attracted support to become the state’s congressman and later a senator.  Though he was not the first black senator but he became the first black senator that became the 44^th president of the United States of America in 2009.

Commentators on his ascendancy to power always refer to his speech at the California Democrat’s convention in 2004 to be the catalyst to his recognition of his capacity and political endowment to lead the party.  No other person than the present Secretary of State, John Kerry facilitated the momentum.

His citizenship and legitimacy to contest the presidency under US constitution was challenged to the Supreme Court and he won. Also his religious life was called into question, with his Church Pastor Jeremiah Wright castigated, when he was accused of making racial comment. The alleged racial comment adversely influenced many to believe that Obama being a member of his church  would be unsuitable to become neutral and unbiased president.

However, it was one of the Pastor’s sermon that Obama used with slight adaptation, as title to his best seller book: “Audacity of Hope”. Like the late minister and motivational author, Dr Myles Munroe noted: “Success is determined by the opposition a man has encountered and the courage with which he has maintained the struggle against overwhelming odds.”  The opposition against Obama’s candidacy was almost overwhelming, especially from Republican party and far right groups.  Yet Obama overcame all those odds.

Sometimes negative publicity meant to pull someone down do turn out to be beneficial.  Napoleon Hill, that great author of “Think and Grow Rich” said: “Every adversity, every failure brings with it the seed of even greater benefit”. Obama’s case proved that. When he rose from the ashes of that religious controversy and allegation  that he was not a Christian due  to his Kenyan family background, mostly non-christians, he became strong enough to contest the presidency.

His election thereafter broke the jinx that the White House was ment for white presidents.  His swearing-in was performed twice which made his presidency unique.  When a former White House staff, Sarah Fagen referred to him as “a lame duck” he looked the other way and went ahead to introduce a new tradition “Easter Prayer Breakfast” at the White House.  Christian leaders across American states gathered in attendance.

Obama administration has been stormy and challenging  especially assuming office at the peak of global economic melt-down.  Even though he commenced with democrat’s majority at the congress and representatives, he soon lost them to the Republicans due to mid-term elections.  He was fortunate to garner enough support to pass the Obamacare Health Insurance meant to extend health care to more ordinary Americans who could not afford better health care than ever before. Since the law came into force he had not slept with his two eyes closed because Republicans have threatened to repeal the law.  Litigations towards achieving the repeal commenced more than a year ago and just some weeks ago the president triumphed.  But John Borhner, Republican speaker inspite of the Supreme Court decision in favor of Obamacare , it is still “Aluta Continua”.

That is not the only success visible on the screen.  The first Latina Supreme Court judge in the name of Sonia Sotomayor  nominated  by Obama and confirmed congress came with criticisms which were also overcome.

His campaign promise to close Guantanamo Bay Detention Camp where terrorist and dangerous suspects were detained lingered on into his second term because of much controversy that trailed the decision.  Yet he overcame.

No less controversial was his nomination of Loretta Lynch as Attorney-General. The criticism and opposition that trailed the nomination manifested in the dilatory atmosphere that pervaded the congress. As the nomination tarried, it became quite clear that the congress never liked Mr President’s candidate a bit.

As Obama visits Africa the third time he would be fondly remembered for being the first sitting American president to visit Ethopia. Besides, his administration has maintained a policy of strengthening and empowering regional and sovereign nations to embrace and practice liberal democracy, through training, collaboration and exchange of policies and ideas. Those are the value Africa must take from his visit.

Iyke Ozemena

IKECHUKWU O. ODOEMELAM & CO

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THE CHALLENGES OF PUBLIC ADMINISTRATION: THE CASE OF RIVERS STATE

THE CHALLENGES OF PUBLIC ADMINISTRATION: THE CASE OF RIVERS STATE
As Nigeria celebrates Africa Public Service Day with other nations, studies and keen observation have revealed the development of Nigeria’s political system and her constitutions since independence.  Tremendous progress have been recorded in terms of growth and stability in the application of the rules of engagement in a democracy, especially in the past 16 years of the Fourth Republic.  This was facilitated by the 1999 Constitution with all its frailties.
One of the challenges of public administration is therefore the inadequacies of the rules and  their provisions, in this case the 1999 Constitution.  Without referring to other states I deliberately chose  Rivers State where many of these inadequacies manifested. To acknowledge the aforesaid inadequacies of the constitution, it has gone through a fourth amendment so far.  Yet, there are many other sections glaring with unresolved controversies and remain un-amended till date, except the Supreme Court pronouncements on them.  I want to cite two major ones which are impeachment (removal) as provided in s.188 and defection in s.68(1)(g). There is hardly any of the 36 states that has not experienced  these phenomena.  The third challenge which is not provided by the constitution and therefore could not be resolved by amendment is high cost of governance.
As hinted earlier Rivers State witnessed many of the intriguing flash points and consequently rich opportunity for studies on  legal challenges in public administration.  Most, if not all commonwealth countries practice constitutional democracy, and it has become a global contemporary issue.
Perhaps the most critical point to start the discussion is a brief background of the election that produced Governor Chibuike Rotimi Amechi in 2007.  It was an election that produced a strange and unexpected result when the Supreme Court declared Amechi winner  having not contested or participated in the election.  He became governor by default, as Omehai who flew the PDP gubernatorial flag failed to comply with the rules.  The Supreme Court ruled that since the votes cast in an election belong to the party on whose platform the candidate ran, the runner-up in the race became the beneficiary of those votes thereby stepping into the shoes of Omehai.
The aftermath of the Supreme Court decision and the controversy led to calls for the amendment of the Electoral Act.  The amendment came through s.144 of Electoral Act 2010 to cure the effect of imposing candidates who did not fully participate in all electoral processes leading to an election.  Nevertheless, it has been argued that as long as votes cast at an election remain the proprietary rights of parties “participation” can be interpreted by the party concerned.
It was this controversial judgment that ushered in Rotimi Amechi as governor of Rivers State.  The controversy soon faded away since it was a pronouncement of the highest court in the land.  However, militancy was raging in the Niger Delta area including Rivers State and became controversial topical news.  The federal government’s response was confrontation.  Not much positive results came from this option raising the review for alternative options.
Therefore when Umaru Musa Yar’Adua was elected president in 2007 he opted for a constitutional resolution of amnesty under  s.175 of the 1999 Constitution.  However, granting presidential amnesty under that section is meant for convicted criminals. President Yar’Adua offered presidential amnesty without trial of those militants he offered to grant amnesty.  In Amechi’s view it was wrong and he said so eloquently at various fora that nominal charge and conviction were prerequisites for granting presidential amnesty; otherwise it would amount to odd application of the section.  Even as president Jonathan went ahead to implement the amnesty strategy without trial Amechi stood his ground on the issue.
One of the primary purposes of government is the provision of security to citizens and everyone in the state.  This power is vested in the Nigerian Police by s.214 of the 1999 Constitution.   In the same vein the governor becomes the Chief Security Officer of the state.  It is an irony that the governor at the pinnacle of this security organization chart in the state does not have constitutional backing to control police personnel posted and serving in his state.  The adverse effect of that manifested in Rivers State when Governor Amechi failed to control Police Commissioner Joseph Mbu when security challenges arose in the state.  It became obvious that the glaring disobedience of the governor’s directions and requests begs the question: could any of the commissioners appointed and serving in Rivers State disobey the governor and still remain in office?
The research I recommend for post-graduate studies on public administration is to find a balance between control of the police by the governor without making them state police. This subject is important if you consider the rise and fall of Senator Chris Ngige as PDP elected governor of Anambra state following the hedging  out of Governor Chinwoke Mbadinuju.  The subject assumed a more dangerous dimension when Governor Chris Ngige was stripped off police escort and security.  And you ask the question: how can a governor without security offer or provide security to the entire citizenry in the length and breadth of the state?
Then came the removal/suspension of Local Government Chairmen and councilors in River State, and of course across the entire country, were they constitutional? Maybe a few amendments to stem governors’ power to remove local government elected officers and replace them with transition staff.
In the course of hostilities at the state Assembly that led to fracas in the house and therefore ceased to perform their legislative duties.  How could they have performed their legislative duties when about a dozen of them were scattered at various  hospitals and medical centers  in Nigeria and abroad? The legal consequences of that was a take-over of its legislative duties by the national assembly under s.11(4) of the 1999 Constitution.  There was a major learning curve from the outcome of the court action when the Supreme Court ruled that the act was unconstitutional.
Perhaps the straw that broke the camel’s back was the National Judicial Council (NJC) and governor Amechi with reference to appointment of Chief Judge of the state.  The modalities of achieving this is set out in s.271(1) of the 1999 Constitution thus: “The appointment of a person to the office of Chief Judge of a state shall be made by the Governor of the state on the recommendation of the NJC subject to the confirmation of the appointment by the House of Assembly of the state.” The interpretation of this section which eminent scholars have concluded to be political, gave rise to conflicts, litigation, suspensions, legislation (amendments) and logjam.
The issues that featured in the unfolding melodrama and diverse comments turned on “recommendation” and “appointment” being two different entities belonging to two characters in the scheme.  The analyses led to confusion that held sway as to whether Justice Peter Agumagu, then at the helm of affairs at the Customary Court of Appeal could be properly ‘transferred’  to head the State High Court as Chief Judge? The Federal High Court objected to that initiative.  It was not a voting matter of “Aye or No”? It would have been  easier to determine if the provision allowed the NJC’s advice and consent but that was not the case.
That the Chief Justice of the Federation went ahead to appoint an administrative judge to fill the vacuum was salt to injury.  In reaction the agitating  government amended the State High Court Procedure Rules assigning the functions of CJ and Administration Judge to the Chief Registrar.  That piece of legislation  is probably the first legal obstacle cleared by the Rivers State legislature on inauguration.
Before that ,  governor Nyesom Wike had in a swift provided by his inauguration appointed an Acting CJ, in accordance with s.271(4) president Customary Court  of Appeal.  He had also declared financial autonomy for Rivers State judiciary which judgment was JUSUN’s reason for going on strike for several months.  So in a jiffy all the logjam was swept aside leading to the conclusion in many quarters that the civil service, whether in uniform or civil failed in their responsibility as disciplined and neutral career civil servants.
The civil service is a very important institution from colonial days to the present time.  Each passing era has civil servants that held the government together in their efforts to serve the people that elected them or none elected dictators.  It is difficult to exonerate the civil servants in all the challenges  that faced Rivers State public service especially in the second tenure of Governor Rotimi Amechi’s administration. These are some of the challenges civil service face across the federation.

Iyke Ozemena

IKECHUKWU O. ODOEMELAM & CO
Corporate Attorneys/Consultant

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ENFORCEMENT OF EXTRA-TERRITORIAL JURISDICTION AND DEFENSE OF IMMUNITY

ENFORCEMENT OF EXTRA-TERRITORIAL JURISDICTION AND DEFENSE OF IMMUNITY

Article 9 of United Nations Declaration on Human Right provided that: No one shall be subjected to arbitrary arrest, detention or exile. Individuals derive a form of immunity from this provision by international law. However, I intend to discuss the doctrine of immunity beyond the above provision, especially as it relates to government attorneys and representatives.

African Union  under the Chairmanship of President Robert Gabriel Mugabe,  held its 25th ordinary Session in Johannesbourg, South Africa with an Agenda of enhancing the economic, socio-political fortunes of member states. However, world attention shifted from these critical issues to International Criminal Court (ICC).

The ICC was established recently and heavily sponsored by the West. That the activities of this court regarding enforcement of extra-territorial jurisdiction has been causing stirs and ripples across the globe is no longer news. It has already left the world divided between those who support it and most African/third world countries who consider the court targeting them and so detest it. It may be an issue of perception since they are prosecuting war crimes most of which occur in the continent. But they cannot wish away the ICC, even if it a cruel necessity.

President Omar al-Bashir of Sudan, a retired military officer who fought a civil war that lasted about eight years is not the first leader to be so accused of war crimes and against humanity. President George Walker Bush (jr) was once accused  after the invasion of Iraq, Charles Taylor ofLiberia was also accused after their civil war and exile etc.  So when President al-Bashir was attending AU meeting in Johannesbourg an attempt was made to procure Arrest Warrant to arrest him.  A similar call was made by ICC while he was on AU mission in Nigeria. The Attorney-General called upon to obtain Arrest Warrant and detain him reportedly argued that he was not on a private visit. These attempts call for thorough examination of the state of international law on the issue. A case in point is Democratic Republic of Congo V. Belgium 2002 regarding arrest warrant issued for the arrest Congolese Foreign Minister.

Previous messagehttps://dub118.mail.live.com/ol/clear.gifThis warrant was issued by an investigating Brussels Judge on 11 April 2000 against the arrest of the current Foreign Minister of Democratic Republic of Congo, (DRC) Abdulaye Yerodia Ndombasi in 1998  who like, the South African Zulu King, Goodwill Zwelithini, was alleged to have incited racial hatred among Congolese that caused the death of hundred of  persons.

The charges before the court emanated from the breach of Geneva Convention 1- IV (1949); Geneva Convention Additional Protocol I &11 (1977). They were considered grave breaches against humanity.

Even though Belgians were not victims nor was Foreign Minister Ndombasi in their territory, Belgium law authorities commenced action under Belgium law of June1993. It must be noted that under those Geneva conventions the crimes were under Universal Jurisdiction, so Governments and Interpol were aware and on alert.

Under Belgium law it did not matter that Ndombasi was acting on official capacity when he committed the offence. Therefore, Belgium alleged that they had instructed Congolese authority to prosecute Minister Ndombasi in 2000. And they responded by filing an application at the International Court of Justice for the annulment of the warrant of arrest for two reasons supported by Article 2 UN Charter.

(a)DRC claimed mutual non-violation of state sovereignty,

(b)Principle of equality of sovereign states, and disputed Belgium’s claim of universal jurisdiction which violated those two principles against DRC.

(2) DRC further argued that the warrant of arrest disregarded the current Foreign Minister’s immunity under customary international law.

(3) DRC also argued for the application of Art 48 of ICJ statute which provides for interim (provisional) measures of protection) to alleviate Mr. Ndombasi predicament who had been crippled from performing his duty as Foreign Minister.

When this application came up for hearing in November 2000 the attention of the Court was called to the effect that Mr. Ndombasi was no longer DRC’s Foreign Minister consequently Belgium applied for the case to be delisted since it has been rendered moot when he ceased to be Minister. However on December 8, 2000 the court ruled against granting interim measure to the Minister who now have been  transferred to another government function not involving frequent Foreign travel. But the warrant was still in force and therefore the case was not rendered moot.

In her submission in May 2001 DRC rescinded her argument against Belgium’s universal jurisdiction but pressed on her argument that Belgium had violated her rights under customary international law as regards Foreign Minister Ndombasi’s inviolability and immunity from criminal jurisdiction. And so requested the ICJ to so hold.

DRC further submitted that the violation of customary international law on which the warrant of arrest was based prevented any state including Belgium from enforcing it. Therefore Belgium was urged to recall and cancel the warrant of arrest and thereafter notify international community.    

Belgium on its side raised 4 objections against the ICJ jurisdiction to entertain the case. It also went ahead to invoke the doctrine of non-ultra petita with regards to the dropping of DRC’s claim that Belgium had wrongly conferred on itself Universal Jurisdiction as being of less importance.

Jurisdiction: Delivering judgment on 14th February 2002 the ICJ said it assumed jurisdiction based on the declarations of both parties pursuant to Art 36(2) ICJ Statute. (International Courts and Tribunas Jurisdiction and Admissibility of Inter-State Applications). It therefore rejected the 4 grounds of objections raised by Belgium. And the Court noted that those objections were based on the fact that Mr Ndombasi had ceased to be Minister.  The court assumed jurisdiction at the time of filing the case regardless of subsequent events. Even though the case became moot, however it did not take away the jurisdiction of the court on whether the issue and circulation of warrant of arrest was contrary to international law.

The Court further ruled that the date for assessing the admissibility of a case and whether it revolves on diplomatic protection was the date of filing the application.

However, the Court admitted that the doctrine of Non Ultra petita barred it from considering whether Universal Jurisdiction was in conformity with international law. But the Court felt not bound by anyone to consider if anyway.

ICJ considered the critical question of whether Minister was entitled to full immunity from criminal prosecution under Customary International law during this tenure as a Minister as submitted by DRC.

Belgium objected to acts of the Minister before his assumption of office because immunity cannot be taken for impunity; only acts in official capacity should attract immunity.

The ICJ further held the immunity of DRC Foreign Minister was not defined by international treaties. However, by analogy it noted that the New York Convention on Special Mission 1969; Vienna Convention on Diplomatic Relations 1961 provided guide to some aspect of immunity. But noted that Foreign Ministers enjoy full immunity under Customary international law to enable them perform efficiently well, since they represent their government as attorneys/negotiators in international arena. It was the view of the ICJ that Foreign Ministers acts should enjoy full immunity from criminal prosecution beyond official functions; but it certainly did not include those acts committed before assuming office.

The ICJ considered Belgium’s argument that official toga should not be a barrier for arresting a Minister or government agent that has committed war crime or crimes against humanity which Omar al-Bashir is accused of. Statutes were used to corroborate this argument including decided cases such as: Boeru V. Gaddafi, French Highest Court of Ordinary Jurisdiction- Paris March 2000; Regina V. BOW Street Metropolitan Stipendiary Magistrate, ex-parte Pinochet UK, House of Lords, 24 March 1999.

The Court noted that nothing in the Statutes and cases quoted above indicated any exception under Customary International law to the immunity of Foreign Minister. However its non-applicability in international Courts  does not necessarily follow suit in local Courts. In addition the cases were not binding precedents on immunity suits before local Courts and so in the Court’s opinion Belgium lost the argument. The ICJ ruled that extradition treaties imposed on States signatory to them does not take away the full immunity granted to foreign Minister under Customary International Law.

It noted the procedural nature of immunity which it observed did not amount to impunity since criminal responsibility is a substantive law. There, the immunities enjoyed by Foreign Ministers did not bar Criminal prosecution in four situations:

(i) If they are prosecuted in their own States.      

(ii) If their States waive their immunity.

(iii) If they cease to hold office with regards to facts committed prior or subsequent to their term of office, or during their term of office in a private capacity.

(iv) Before certain international criminal courts where they have jurisdiction such as ad hoc tribunals for Yugoslavia and Rwanda (International Criminal Tribunal for the former Yugoslavia ICTY) (International Criminal Tribunal for Rwanda ICTR) and (International Criminal Court ICC) by 13 votes to 3.

The ICJ therefore ruled that since Mr. Ndombasi did not fall within the four exceptions listed above, the mere issuance of an arrest warrant together with its international circulation violated his immunity as a frequent traveler on official duties.

It was also decided by 10 votes to 6 that Belgium should cancel the warrant of arrest and notify international community that received the circulation, even as the Foreign Minister had ceased to be in that office before the judgment.

There were 4 separate dissenting opinions on Immunities and Universal jurisdiction (extraterritorial jurisdiction).  The deduction from the case is that Omar al-Bashir could not have been arrested anyway.

Iyke Ozemena

IKECHUKWU O. ODOEMELAM & CO

Corporate Attorneys/Consultants.

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