- Origins and Development of the Concept of Diplomatic Immunity:
The concept of diplomatic immunity was propelled by the evolution of inter-state economic and political relations, which necessitated the exchange of envoys across sovereign nations. In attempts to ensure peaceful co-existence and exchange of information between states, the custom of granting diplomatic envoys an inviolable status was implemented as a matter of public international law and diplomatic immunity was primarily based on custom and international practice until quite recently. In the period since World War II, several international conventions, particularly, the Vienna Convention on Diplomatic Relations (VCDR)[1] and the Vienna Convention on Consular Relations (VCCR)[2] had been concluded; thus, formalising the customary rules and making them of universal application.[3]
Diplomatic missions were established to facilitate communications either for political or business relations. The origin of diplomatic immunity in Nigeria dates to the reception of the Act of Anne[4] during the colonial era and Nigeria’s strong ties to Britain in the immediate period post-independence. Prior to independence in 1960, the Act of Anne (a statute of general application) sufficed for the protection of diplomats who visited British colonies. However, due to the increased frequency of political, educational, and economic relations between the protectorates and foreign countries, consular activities were well established. Therefore, the Consular Conventions Act 1949 of the United Kingdom was received and implemented in Nigeria in 1950.
The Consular Conventions Act 1950 (“CCA 1950”) and its subsidiary legislations were implemented to give effect to the provisions of the Consular Conventions concluded with foreign governments and regulated matters connected with consular missions. It had additional provisions establishing the inviolability of the consular office in execution of a legal process subject to the consent of the consulate or the Minister and set out exceptional circumstances where such inviolability can be waived. The CCA 1950 was the primary legislation governing immunity until the passing of the Diplomatic Immunities and Privileges Act 1962 (“the Act”).[5]
Previously, there had been several attempts to codify the principles of international diplomacy and diplomatic law globally. The first, although rather limited in scope, dates to the Congress of Vienna in 1815 and to the League of Nations in the 1920s. Prior to the Vienna Convention on Diplomatic Relations of 1961, the two most important documents were the 1928 Havana Convention on Diplomatic Officers and the Harvard Research Draft Convention on Diplomatic Privileges and Immunities of 1932.[6]
With Nigeria’s newly acquired independence and a strong desire to gain international recognition through diplomacy with other sovereign States, the Diplomatic Immunities and Privileges Act was enacted on 27th December 1962.[7] Its provisions cover the immunities and privileges of the following: Foreign envoys, Consular officials, international organisations, and Representatives of special missions. It also extends privileges to relatives as well as official and domestic staff of diplomats.
- Scope of Diplomatic Immunities and Privileges in Nigeria:
2.1 Sovereign Immunity:
Sovereign immunity, or state immunity, is a principle of customary public international law, by virtue of which one sovereign state cannot be sued before the courts of another sovereign state without its consent. Put differently, a sovereign state is exempt from the jurisdiction of foreign national courts. Thus, the question of immunity is at the same time a question of jurisdiction as it is only when the court already has jurisdiction that it becomes meaningful to speak of immunity or exemption from it. For this reason, sovereign immunity is also referred to as “jurisdictional immunity” or “immunity from jurisdiction.”[8]
The concept of sovereign immunity or crown immunity, is based on the legal doctrine that a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts historically or the courts of another country by extension of the required immunities and privileges. This rule was commonly expressed by the popular legal maxim “rex non potest peccare”, meaning “the king can do no wrong”.[9]
There are two forms of sovereign immunity, viz:
- Immunity from suit (also known as immunity from jurisdiction or adjudication), and
- Immunity from enforcement (also known as immunity from execution).[10]
Immunity from suit means th::at neither a sovereign/head of state in person nor in absentia or in a representative capacity (and to a lesser extent the state) can be a defendant or be subject to court proceedings and equivalent forums such as arbitration.
Immunity from enforcement or execution means that even if a person succeeds in securing judgment against a sovereign or state, there may be no means of enforcing the judgment as it would be improper for the courts of one state to seize the property of another state.
However, sovereign immunity of a state entity may be waived by either prior written agreement, instituting proceedings without claiming immunity, submitting to jurisdiction as a defendant in a suit, and intervening in or taking any steps in any suit (other than for the purpose of claiming immunity).
Also, submission to arbitration (as was the case in AFRICAN RE CORPORATION v. AIM CONSULT LIMITED[11]) is in many legal systems sufficient to demonstrate a waiver of immunity to jurisdiction by the state.
2.2 Consular Immunity:
A Consul is an official residing in a foreign country to protect the interests of citizens of his or her nation in that foreign country while a Diplomat is a person who is accredited, such as an ambassador, to officially represent a government in its relations with other governments or international organisations in another country.
Consular immunity privileges are described in the Vienna Convention on Consular Relations of 1963 (VCCR). Consular immunity offers protections similar to diplomatic immunity, but these protections are not as extensive, given the functional differences between consular and diplomatic officers. For example, consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction, they may be tried for certain local crimes upon action by a local court and are immune from local jurisdiction only in cases directly relating to consular functions.[12]
Without the immunity of the sovereign state, there would be no diplomatic or consular immunity. This position was affirmed by the Court of Appeal in OLUWALOGBON & 3 ORS vs. THE GOVERNMENT OF THE UNITED KINGDOM (2005)[13] per M. D. Muhammed, JCA (as he then was) who said:
“Without state or sovereign immunity, diplomatic and consular immunity would not have arisen. It is certainly the protection the state enjoys that is extended to such officers and organisations that serve the state in another state which recognises its immunity and agrees that same be extended to its officers and organisations as well.”
To facilitate mutual cooperation and assistance, states appoint diplomats, consuls and other categories of officers to oversee bilateral and multilateral relationships.[14] Therefore, their duties include representation, negotiation, and protection of their national interests, the ascertainment of conditions and developments by lawful means and the promotion of friendly relations between and amongst states.[15]
The privileges and immunities that are accorded diplomatic and consular staff are contained in the Vienna Convention on Diplomatic Relations, 1961[16] and the Vienna Convention on Consular Relations,1963.[17] There are generally three major categories of immunities and privileges enjoyed by sovereign states, foreign representatives, and international/multinational organisations namely:
- inviolability of premises and person.
- privileges relating to taxation and fiscal matters; and
- freedom of communication and movement.
Such immunities apply to their personal actions and actions taken in the performance of their official duties. However, members of staff who are citizens of the host country will enjoy immunity only with respect to their official duties.[18]
Further, if diplomatic relations are broken off, these immunities remain for some time to enable the mission to leave the host country peacefully. If, however, any of them remains in the host country permanently after the end of the diplomatic assignment, the immunities cease.
- Diplomatic Immunity through the Cases and Jurisdiction to Adjudicate
Generally, most courts within and out of jurisdiction have upheld the immunity accorded to diplomats. This universal rule of immunity, as contained in the Vienna Convention on Diplomatic Relations (VCDR), 1961[19] has been accepted by almost all nations and has been domesticated and enforced by the courts of these Nations. The USA domesticated the Vienna Convention with the passage of the Diplomatic Relations Act.[20] Similarly, in the UK the Vienna Convention has been domesticated in the Diplomatic Privileges Act.[21]
In Nigeria, diplomats are accorded absolute diplomatic immunity such that they cannot be subject to the jurisdiction of the Courts in Nigeria. In PRESIDENT OF THE COMMISSION OF ECOWAS v. NDIAYE,[22] the Claimant at the lower court sued the Defendant (now Appellant) and prayed the court to declare his suspension from the Commission unlawful. The Appellant objected to the case based on diplomatic immunity derived from the Revised Treaty of ECOWAS, the General Convention on Privileges and Immunities of ECOWAS, and the Headquarters Agreement between ECOWAS and the Government of the Federal Republic of Nigeria. The Court of Appeal ruled that the Certificate by the Minister of Foreign Affairs in Nigeria, which attested to the immunity of the Appellant is conclusive proof of the Appellant’s absolute immunity. The Court of Appeal upheld the objection raised by the Appellant and struck out the suit stating that the matter should not have been instituted.
It should be noted that since Nigeria has no separate law with respect to State immunity, State immunity is synonymous with diplomatic immunity as all diplomats and envoys draw their immunity from the state that they belong to.[23]
However, the diplomatic immunity must be proved before the court before this defence will be accepted by the Court. In VESE v. W.A.I.F.E.M.,[24] the Court of Appeal upheld the decision of the lower court that the Respondent could not be sued as he was covered by diplomatic immunity. The Court referred to Section 11 (1) and (2) of the Diplomatic Immunities and Privileges Act and stated that the proof of immunity should be by an Order made in the Federal gazette.
The Court stated that for any international organisation to use the defense of Immunity, the following must be proved:
- that the organisation was declared by the Minister to be an organisation member of which are entitled to immunity or the government thereof; and
- that the Minister has by an order in the Federal Gazette, specified that the organisation shall have the immunities and privileges set out in the First Schedule, including that from suit or legal process.
The Court further held that:
“Where in a case against an international organization, it raises and relies on the defence of immunity from the suit or other legal process under the Act, it has the duty to satisfy the trial court of the existence of the above facts, in order to avail itself of the immunity provided for thereunder and set itself free of the suit and other legal processes of the Courts in Nigeria and thereby divest them of the crucial jurisdiction to entertain or adjudicate over the case.”
The purport of the above decision is that the only way by which an international organization may be entitled to immunity in Nigeria is by fulfilling the conditions set out in Section 11 (1) and (2) of the Diplomatic Immunities and Privileges Act, and nothing less. The Act does not expressly contemplate or make provisions in respect to the effect of a non-gazetted immunity status or order of the Minister. This section of the Act relates only to international organizations. Therefore, foreign envoys and foreign consulars are not required to fulfil the conditions stipulated above.[25]
The Court also held that the admissibility of evidence does not depend on relevancy alone, as other factors may render evidence inadmissible even if otherwise relevant. The Court stated further that a certified copy of a public document is the only type of secondary evidence that is admissible in evidence for proof of its contents as provided in the Evidence Act. Thus, exhibit A – a copy of the headquarters agreement between the Government of the Federal Republic of Nigeria and the defendant and exhibit B – a copy of the Diplomatic and Consular List provided by the Ministry of External Affairs, Abuja being public documents required certification. The Court held that the documents were inadmissible and resolved the appeal in favour of the appellant.
In AFRICAN REINSURANCE CORPORATION v. ABATE FANTAYE,[26] the plaintiff, Abate Fantaye had commenced proceedings in the High Court of Lagos State against the defendant, an international organisation for wrongful determination of his employment with the defendant. The defendant then brought an application praying the court to strike out or dismiss the plaintiff’s claim for want of jurisdiction on the grounds that since the defendant was an international organisation, it enjoyed diplomatic immunity from suit or legal process. A certificate from the Ministry of External Affairs to this effect was relied upon by the defendant, but it was rejected by the court which ruled that the defendant had waived its diplomatic immunity. The defendant [now appellant] appealed against the ruling of the High Court, relying inter-alia, on the order issued by the Ministry of External Affairs, titled “African Re-insurance Corporation Order 1985”. The order was issued after the High Court ruling and conferred immunity on the appellant against all suits except those relating to re-insurance and where the appellant expressly waived its immunity.
On appeal, several articles of the treaty establishing the appellant as an international organisation founded by members of the African Union with headquarters in Nigeria were considered pertinent to the suit.
The appellant’s counsel submitted that the certificate and the order issued by the Minister were decisive. The respondent’s counsel conceded that the appellant was an international organisation, which enjoys diplomatic immunities and privileges but submitted that the immunity must be taken as having been waived by virtue of Article 48 of the treaty establishing the appellant or by virtue of the steps the appellant had taken to defend the action at the High Court.
The Court of Appeal dismissed the appeal on the ground that the framers of the agreement establishing the appellant did not intend to protect it from being sued once its main object was to undertake mercantile transactions and that at any rate the appellant had waived its immunity by taking steps to defend the matter. The court reasoned that “a corporation or other establishments dealing in commercial transaction are not normally accorded privileges and immunities from being sued”.
On further appeal to the Supreme Court, the apex court unanimously allowed the appeal holding inter-alia, as follows:
“(a) That the appellant was an International organisation so recognised by the minister by virtue of Section 11 of the Diplomatic Immunities and Privileges Act (1962).
(b) That by virtue of that fact and the order issued by the Minister to that effect, the organisation was entitled to immunity from jurisdiction.
(c) Although the immunity could be waived, such waiver must be expressly done by its board of directors in line with Article 53 of its treaty and that the requirement having not been met, the lower courts were in error to have held that the immunity had been waived.
(d) Article 48 of the organisation’s treaty which renders it capable of being sued at the locus of its headquarters can only be enforced between state members of the organisation and not by the respondent.”
Diplomatic immunity thus ensures that certain foreign government representatives and accredited officials are not subject to the jurisdiction of local courts and other authorities for both their official: and, to a large extent, their personal activities. Waiving immunity from execution may be difficult for a government to address. As a general proposition under most legal systems, certain assets belonging to the state should not be available for satisfaction of the execution of an arbitral award; for example, the country’s foreign embassies, or consular possessions. Therefore, some method may have to be made available for the private party to seize certain state assets, possibly through careful definition of those possessions available for seizure.[27]
- Reconsidering the Concept of Absolute Immunity:
The concept of absolute immunity is no longer in vogue in the international arena and Nigeria being a member of the comity of nations should no longer stick slavishly to the concept to avoid injustice to claimants, especially in the areas of commerce and tortious actions. It should be noted also that although the Conventions are not without their shortcomings, they attempt to broker a compromise and sustain the divergence in practice on the issue of how to characterise an activity either as commercial and private or as governmental and public.
Regardless of the foregoing, the only way to assure the correct application of restrictive immunity by the courts is by enacting a state legislation on foreign state immunity. The Nigerian state practice should be enacted into law by the National Assembly in line with the variously ratified international treaties and conventions on the subject. This should be done by the passage of a law to domesticate all these international legal instruments with a view to giving effect to restrictive immunity in consonance with international standards.[28]
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For further information on this article and area of law, please contact
Cynthia Njoku at S. P. A. Ajibade & Co., Abuja by
Telephone (+234.1.270.3009; +234.1.460.5091), Fax (+234 1 4605092)
Mobile (+234.818.024.7252, +234.813.860.9178)
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[1] 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.
[2] 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.
[3] See United States Department of State Office of Foreign Missions “Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities” (at p. 3) available at < https://www.state.gov/wp-content/uploads/2019/07/2018-DipConImm_v5_Web.pdf>, accessed on 7th March 2022.
[4] Acts of the English Parliament, 1706, Schedule 1, Short Titles Act 1896, available at <https://www.legislation.gov.uk/aep/Ann/6/8> and accessed on 6th March 2022.
[5] Diplomatic Privileges Act 1962 of the Federal Republic of Nigeria [CAP D9, Laws of the Federation of Nigeria (LFN) 2004].
[6] Ibid.
[7] See Samira Abubakar, “Diplomatic_Privileges_And_Immunities_In_Nigeria_And_The_United_Kingdom_A_Comparative_Analysis” available at < https://www.academia.edu/44304960/Diplomatic_Privileges_And_Immunities_In_Nigeria_And_The_United_Kingdom_A_Comparative_Analysis> accessed on 6th March 2022.
[8] See Xiaodong Yang (2020), Sovereign Immunity, available at < https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0018.xml> and accessed on 16th March 2022.
[9] Broom, Herbert (March 25, 1845). “A Selection of Legal Maxims, Classified and Illustrated”. T. & J.W. Johnson – via Google Books available at https://books.google.com.ng/books?id=NvJiAAAAcAAJ&pg=PA404&dq=Broom,+Herbert+(March+25,+1845).+%22A+Selection+of+Legal+Maxims,+Classified+and+Illustrated%22.+T.+%26+J.W.+Johnson&hl=en&sa=X&ved=2ahUKEwiwjvyV0P35AhUai_0HHamLAQkQ6AF6BAgCEAI#v=onepage&q=Broom%2C%20Herbert%20(March%2025%2C%201845).%20%22A%20Selection%20of%20Legal%20Maxims%2C%20Classified%20and%20Illustrated%22.%20T.%20%26%20J.W.%20Johnson&f=false and accessed on 16th March 2022.
[10] Victoria Rigby Delmon (April 2008), “Sovereign Immunity, Summary and Sample Wording, PPPIRC”, available at < https://ppp.worldbank.org/public-private-partnership/sites/ppp.worldbank.org/files/ppp_testdumb/documents/sovereignimmunity.pdf> and accessed on 16th March 2022.
[11] (2004) 11 NWLR 223.
[12] Curtis J. Milhaupt (1988), Columbia Law School, “The Scope of Consular Immunity under the Vienna Convention on Consular Relations: Towards a Principled Interpretation” available at < https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1149&context=faculty_scholarship#:~:text=In%20codifying%20the%20%22consular%20functions,personal%20inviolability%20and%20immunity%20from> and accessed on 16th March 2022.
[13] 14 NWLR (Pt. 946) 760 at 784, Para. H.
[14] Supra, n. 5.
[15] Article 3 of the Vienna Convention on Diplomatic Relations, 1961 available at <https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf>, accessed on 11th March 2022.
[16] Article 31, Ibid.
[17] Article 32 of the Vienna Convention on Consular Relations, 1963 available at <https://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf>, accessed on 11th March 2022.
[18] See generally, Dixon, M. (1990): Textbook on International Law (3rdEd.), London: Blackstone Press Ltd.
[19] Vienna Convention on Diplomatic Relations 1961, United Nations, Treaty Series, vol. 500,
- 95.
[20] Diplomatic Relations Act of 1978.
[21] Diplomatic Privileges Act of 1964.
[22] (2021) LPELR – 53523 (CA). See also Siewe v. Cocoa Industries (2013) LPELR – 22033 (CA).
[23] Oluwalogbon v. Government of UK & Anor (2005) 14 NWLR part 946.
[24] (2018) 2 NWLR (Pt. 1603) 336 (CA).
[25] Section 1 of the Diplomatic Immunities and Privileges Act, 2001.
[26] [1986] 1 NWLR (Pt. 14) 113 CA; [1986] 3 NWLR (Pt. 32) 811 SC.
[27] Ibid.
[28] Rasul Yomi Olukolu, “State Practices on Foreign State Immunity and Diplomatic Immunity: A Confusion of Legal Thoughts by the Nigerian Courts” (2019), US-China Law Review, Vol.16, No. 5, 197-214, available at <http://davidpublisher.com/Public/uploads/Contribute/5d81dcbb1d905.pdf> and accessed on 16th March 2022.
