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Effects of Sovereign Immunity in Africans States

3291 words (13 pages) Essay in International Relations

08/02/20 International Relations Reference this

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ABSTRACT

This projects aims to analyse the effects of sovereign immunity in Africans States. The concept of sovereign immunity has been abused and violated drastically especially in most African states. This is because it is seen as a shield from judicial reproach in event of civil or criminal liability that occurs as a result of actions by the head of state during his or her tenure. This has therefore created an avenue for corruption by these heads of state. It is the aim of this work to attempt to solve the following problems associated with the concept.

AIMS AND BACKGROUND

The concept of Sovereign immunity dates back to ancient times, it was first seen in its primitive form in the Holy Bible where Kings were excluded from all kinds of liability in regard to their actions when they were in power, this position was justified by the perception that kings were seen to be Earthly gods and were entitled to everything. For example King David took Uriah’s wife and killed Uriah, he was not liable for this action under the laws of the land, and even King Ahab took the properties of his subjects in addition to several other excesses. Also in Great Britain which practiced absolute monarchy it was a rule that the “King could do no wrong’ and therefore they were immune from any liability for acts done by them, this gave birth to the modern concept of sovereign immunity. 

The concept of sovereign immunity is seen as a shield which protects the head of a state from judicial reproach during his or her tenure. It is described as a privilege given to the heads of state which exempt them from any civil and criminal proceedings, during their tenure or term in office.

Sovereign Immunity have been grossly violated by the executives of most African states for example, In Nigeria most of the executives see their positions as an avenue for enrichment, they embezzle funds and acquire properties because they cannot be held accountable by the judiciary and after their tenure, they either travel out of the country for fear of prosecution or hide the stolen funds in Swiss accounts which cannot be easily traced. In other African states like Liberia, Chad, Zambia this violations are prevalent.  This Sovereign immunity  clause has encouraged corruption in the society ,most individuals aspiring to get into this key positions in order to take a piece of the ‘’national cake’’ this privilege which was meant to be tool for effective governance has become a tool of enrichment. It is therefore the view of this work that the doctrine of Sovereign immunity has caused greater harm than good and should either be amended or abolished, this would prevent the executives from abusing their power because they know they will be prosecuted for actions when they are in power. The essence of this doctrine has been abused and violated, it is for this reason I delve into this topic in order to show the flaws and abuse of this doctrine in African states and seek for abolishment or amendment of it in African states.

AIMS

This work seeks to achieve the following:

  1. The definition of Sovereign immunity
  2. History and development of Sovereign immunity
  3. Sovereign immunity in African states
  4. The Effects of Sovereign immunity on African states

LITERATURE REVIEW

Sovereign immunity is a tool used to protect the sovereign or head of state so they can perform their functions effectively, but this immunity has been abused. The concept of sovereign immunity seeks to protect the heads of state from criminal and civil liability in order to ensure good and proper administration of the state. The aim of this doctrine is to ensure the independence of the executive arm of government; it is a means to check the powers of the judiciary. Since this doctrine makes the heads of state immune to litigation process, it is important to ensure that this immunity is not abused or violated.Africa as a whole has lost an alarming sum of $850bn between 1970 and 2008(Mark Anderson 2016), a majority of these funds are being looted by the head of states. The Former South African President Thabo Mbeki stated that large corporations are liable for most of the embezzlement of funds from African states (thabo Mbeki 2010). These corporations are owned by top official in the states which include the governor and president of the state. On the surface they are legitimate companies but they serve as fronts for embezzlement of funds. An example of these corrupt companies in Nigeria, KBR and Siemens bribery scandals, Malabu oil scandal and other scams by Oil Corporations.

Nigeria has a high record of embezzlement of funds by its executives, the former governor of plateau state Joshua Dariye was alleged to have stolen N700million of state funds, also Jolly Nyame the former Governor of Taraba State was alleged to have stolen a whooping some of N1.3 billion, Attahiru Bafarawa the former governor of Sokoto was said to have embezzled N15 billion from his state. The African Union stated that Nigeria has lost an estimated sum of N6.87trillion from (2001 -2010) as a result of corrupt practises (Sani tukur2016).  The embezzlement of funds has caused decadence in the growth of the country. Nigeria is noted for being one of the most corrupt states in Africa. Embezzlement of resources is a contributory factor and this is because of the free pass given by the immunity clause. 

Ghana is also one of the Africans most corrupt states this is because of the level of corruption prevalent in the country. These corrupt practices were mostly committed by either president or governor of state who are protected by the immunity clause. President Mahama was said to have embezzled the sum of GH2.8 billion during his tenure in 2012 and other. No African state applying the Soveriegn immunity clause has been spared from its detriments.

Most African states have faced economic recession due to the embezzlement of funds meant for the growth development of the country.  This funds which are essential for the development of the economy are being siphoned into private accounts by top officials in this case Presidents and Vice president. In most situations this funds are borrowed from monetary firm’s e.g. IMF, World Bank and other firms, which put the country in debt, since this funds are not used to develop the economy. These states are both in debt and lacking of economic growth, over a period of time this would lead to economic recession. Taking a look at Nigeria this state is running into a monetary debt of billions of naira but still there has not been any form of economic growth or development even presently it is facing worst economic recession it has faced in years.     Corruption on a large scale associated with some executives can involve embezzlement of enormous sums of public funds the mismanagement, wastage, inequity, and social decay that come along with it, can be an impediment to the development of an economy. The devastating impact of misconduct on such a massive scale, especially for poor countries that are facing perennial and severe foreign exchange shortages, is obvious and requires no further (William Agbodohu, Ransford Quarmyne Churchill)2014.  This has caused an unequal distribution of income where the looters of the funds control and own a majority of distributed income in the state.  This eventually makes the rich, richer and poor poorer; this would amount to a high rate of inequality in the society. Due to this inequality most people aspire to get into this key positions to control income distribution instead of promoting the growth and development of the country.  In some of this African states salaries meant for the civil servants are being embezzle by these executives and in most case they get away with it due to the presence of the immunity clause.
Corruption negates investment, both domestic and foreign, it is noted to be particularly harmful to a developing economy. Without investment a developing economy cannot grow and this has affected most African states that are third world countries still undergoing developments. This is because of the high rate of corruption which is linked to embezzlement of funds. Nigeria is a classic example the Governor of Rivers state Amaechi who was meant to establish electric power project instead of doing this he embezzled this funds through 3 companies in transamadi located at Port Harcourt. This has affect the power supply in rivers state. Using this scenario foreign or private investors would not want to invest in state with little or no power supply, therefore this reduced investments in the state.  Hence, corruption not only raises the initial costs of investment but by substantially increasing risks and uncertainty for a venture, can significantly reduce the incentive to invest. As for foreign direct investment (FDI), the benefits it can bring to a developing country are well known. FDI helps to boost the capital resources in a poor country (William Agbodohu, Ransford Quarmyne Churchill 2014). In short, FDI can play an important role in assisting a country to modernize and to more fully develop its productive potential. The above advantages of FDI will be forthcoming to a country only if it provides a conducive climate for foreign investment. FDI will not come in a big way where policies are unclear and inconsistent, relevant and reliable economic information and data to plan and make sound business decisions are hard to come by, and the courses of action and measures the government is likely to pursue on the major issues facing the economy are difficult to fathom and to predict. Long term investment decisions cannot be taken under such conditions. Both the quantity as well as quality of foreign capital inflows into the country will therefore be adversely affected. The type of investment that foreigners would be willing to undertake in this uncertain economic climate would mostly consist of activities to exploit the country’s natural resources or to engage in quick yielding ventures that have little beneficial spread effects and backward and forward linkages with the domestic economy. Above are the benefits of investment but this benefits cannot be attained if there is no a conducive environment for it. The immunity clause has made an unfit atmosphere for its development by allowing impunity and corrupt practices even if it is within a particular period of time.

The immunity clause has served has also impediment to the function of the judiciary by preventing them from administering justice.  ‘’Justice delayed is Justice Denied’’ failure of the court to grant relief to persons who bring grievances before it denies of them of the justice they need at that particular time. It might be too late after tenure of the executive has lapse. Some African states protect the executives for acts done within their tenure even after it has lapse what then happens to the powers of the Judiciary to dispense justice. It is suspended indefinitely. The immunity clause is a tool of separation of power which prevents other arms of government from interfering in the functions of the sovereign but this tool is working at the detriment of the function of the Judiciary.

SIGNIFICANCE OF STUDY

The concept of executive immunity seeks to protect the heads of state from criminal and civil liability in order to ensure good and proper administration of the state. The aim of this doctrine is to ensure the independence of the executive arm of government; it is a means to check the powers of the judiciary. Since this doctrine makes the heads of state immune to litigation process, it is important to ensure that this immunity is not abused or violated

SCOPE OF STUDY

This project shall encompass the effects of Sovereign immunity in African states therefore in order to achieve this, works of scholars and jurists relating to the concept of Soveriegn immunity would be of great significance. Also the rules and principles governing the concept of Sovereign immunity in Africa states such as Zambia, Nigeria, Ghana and Uganda would be examined in order to achieve the objective of this project.

METHODOLOGY OF STUDY

In the course of this work, recourse and reliance shall be placed on the primary and secondary sources of law. The source of information in this work is library based and essentially documentary, legal framework both local and international, as well as the opinion of text writers and jurists. The primary sources of law to be consulted include, but not limited to; statutes like the 1999 Constitution Federal republic of Nigeria, Zambian Constitution, Indian constitution, Ghana Constitution and other such related enactment. The secondary sources of law to be consulted are textbooks written by season jurists, articles by learned scholars and law teachers. The writer will also make use of articles in the newspapers, on the internet, legal dictionary and law reviews to achieve the objectives of the work.

RESEARCH QUESTION

It is my objective to analyse, tackle and criticize and suggest recommendation to the topic of study which is ‘’ THE EFFECTS OF SOVERIEGN IMMUNITY IN AFRICA STATES ’’.

However, in the process of conducting and writing this work, the following question will also be answered:

  • What is sovereign immunity , its history and development
  • What is the framework of Sovereign Immunity of African states
  • The Effect of sovereign Immunity in African states

PROJECT OUTLINE (100-200)

  1. Chapter 1:Introduction
  • Abstract
  • Background and Aims
  1.  Chapter 2:Literature Review
  2. Chapter 3: What is Sovereign Immunity
  • Historical development of Sovereign Immunity
  • Soveriegn Immunity and other types of Immunity
  1. Chapter 4:Sovereign immunity  in African States
  • Soveriegn Immunity in Nigeria
  • Soveriegn Immunity in Ghana
  • Soveriegn Immunity in Zambia
  1. Recommendations

REFERENCES

Mr Tunji Abayomi quoted in No Common Sense in Removing the Immunity Clause, www.African legal centre .org    date assessed 09/03/16

Mowoe M(2008), Constitutional Law in Nigeria (Malthouse Press Limited, Lagos 2008).165

 Akande J(2000), Introduction to Nigerian Constitution,(MIJ Professional Publishers, Lagos 2000).

Ponnle Solomon Lawson ,Immunity clause in Nigeria’s 1999 constitution: Its implications on executive capacity      Department of General Studies, Federal Polytechnic, Ede, Nigeria Published online November 30, 2014.

William Agbodohu, Ransford Quarmyne Churchill. Corruption in Ghana: Causes, Consequences and Cures. International Journal of Economics, Finance and Management Sciences. Vol. 2, No. 1, 2014, pp. 92-102. doi: 10.11648/j.ijefm.20140201.20

Momoh.C.S(2008), The Significance Of The Immunity Clause For Democratic Consolidation In Nigeria BY  Olaoye, Ebenezer Olugbenga (Ph.D.), Department OF Political Science, Ekiti State University, Nigeria   African Journal of Criminology and Justice Studies: AJCJS, Vol.6, #s1 &2 November 2012 pg. 98

Balogun O, ‘African leaders and Constitutional Immunity’: the Moral Question. (Paper presented
at the interdiscipilanary Conference on ‘Ethics and Africa’, co-sponsored by Jean Blumenfeld
center for Ethics, Georgia State University and philosophy department, University of Cape Town,
South Africa, 29-31 May 2006)

Kelvin Rodgers, Does The Immunity From Criminal Liability To President During His Leadership Defeats The Principle Of Rule Of Law?

Christopher Gevers, Immunity And The Implementation Legislation In South Africa, Kenya And Uganda Faculty Of Law, University Of Kwazulu-Natal http://ssrn.com/ abstract=1975788

Mr Tunji Abayomi quoted in No Common Sense In Removing The Immunity Clause, www.African legal centre .org    date assessed 09/03/16

Oluyede P.A.O 2001, Constitutional Law in Nigeria (Evans Publishers Ibadan, Lagos 2001). 486

Antonin Scalia, Assistant Attorney General Office of Legal Counsel, (1975)  A Proposal to Codify Executive Privilege Brian D. Smith The George Washington Law ReviewJune 2002 Vol. 70 No. 3  pg 570

Thomas Paine, quoted in Executive Immunity in Nigeria: Putting Off Old Garments  by Ibraheem Ojo Tajudeen

Oladele, K., 2006. Removing Immunity clause from the Constitution will Undermine Executive Capacity, Community Plus, January, 2006

 Nwabueze B.O (2005), Constitutional Democracy in Africa (Vol 2, Spectrum Books Ltd. Lagos,
2005)340.

Dr Dayal Shir (1981), Constitutional Law of India, Allahabad Law Agency (Law Published; Allahabad, India,
1981) 235

Anyakoku 2010,The Challenges of Nationhood, Nigerian Institute of Management Lecture, October, 2010

Ibraheem Ojo Tajudeen Executive Immunity In Nigeria Putting Of Old Garments By Journal Of Politics And Law; Vol. 6, No. 3; 2013 ISSN 1913-9047

 

Olaoye, Ebenezer Olugbenga , The Significance Of The Immunity Clause For Democratic Consolidation In Nigeria  (Ph.D.),Department OF Political Science, Ekiti State University, Nigeria

 Ify Okwuchi, Executive Immunity under the 1999 Constitution: Retention or Removal?  Pg. 1

Allotey –Okai, James. To sue or not to sue the president. Http: www.ghanaweb.com/GhanaHomepage  Student. Knust, Kumasi date assessed 17/01/2016

Ddamulira Mujuzi, Presidential Immunity From Criminal Prosecution I N The Ugandan Constitution: Drafting History And Emerging Jurisprudence  JAMIL African Journal of International and Comparative La Goddy Uwaurike ,quoted in Ogunranti Adewunmi (2012) , Immunity Clause Under The 1999 Constitution As Amended A Blessing  Or A Cause  , www.academia.edu.ng date assessed 20/10/2015  pg 62

 Nwabueze B.O(2005), Constitutional Democracy in Africa (vol 2, Spectrum Books Ltd. Lagos,
2005)340.

w 22.1 (2014): 140–154 Edinburgh University Press

 Kayode Oladele , Removing Immunity Clause From the Constitution will undermine Executive Capacity http:  www.Gamji.com NEWS 5492 date assessed 01/03/16

Ebo Quansah, Ghanian Journalist (2011) Why the immunity clauses Should Stay  November 30 2011   The Chronicle  date assessed  01/03/16

Chief Achike  Udenwa  Governor of Imo State (1999 – 2007) quoted in E-wash News,17 December 2008  date assessed  20/02/16

Dr  Kuti Beko  human right activist  This Day Newspaper,(Nigeria 18 April 2001)13

  General Salihu Ibrahim was The former Chief of Army Staff General in The Nigerian Army between (1990-1993)The Guardian Newspaper,(Nigeria 22 April 2004)

 Mr Tunji Abayomi quoted in No Common Sense In Removing The Immunity Clause, www.African legal centre .org    date assessed 09/03/16

 www.Dictionary.com date assessed 10/03/16

 Anyaoku Emeka former secretary General of common wealth (2010). The Challenges of Nationhood, Nigerian Institute of Management Lecture, October, 2010

 Lawal Aliyu Majority leader of the kastina House of Assembly quoted in Konye obaji Ori: Nigerian lawmakers’ battle to drop immunity clause for top politicians The African Report July 2013.

Mark Anderson “Africa Losing Billions From fraud and tax avoidance” www.The guardian.com  date assessed  2/03/2016

  ibid

 www.Premium Times.com 6.87 trillion stolen from Nigeria 2/03/16

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