An Analysis of the Rights And Privileges Of Foreign Diplomats and Foreigners Under Nigerian Law…

Ibrahim Mohammed Majidadi is a Senior Associate at Path Solicitors LLP and also holds a Masters Degree in International Affairs and Diplomacy.

INTRODUCTION

The Black’s Law Dictionary 11^th Edition by Bryan A. Garner defined a Diplomat as: “someone who officially represents a government in a foreign country; specific., a representative of one sovereign state at the capital or court of another.”

A Diplomat is someone who is sent by his home country or goes to a foreign country on a temporary basis. They include non career diplomats who go for conferences or a staff of an international Organisation [which countries constitute the membership]. Equally, the domestic and official staff of diplomats are covered by most privileges accorded diplomats they are attached to and treated as diplomats.

While a foreigner in simple terms is someone who is not a citizen of the country he is visiting, working or residing at the moment. 

While both diplomats and foreigners [other than diplomats] are not Nigerian citizens, they enjoy a different set of rights under the law, and have limitations to the said rights.

The intent of this article is to discuss the rights and privileges that a diplomat and Foreigner [Expatriates, foreigners married to Nigerians etc] enjoy and the limitation to those benefits, duties and responsibilities assigned to them. 

RIGHT AND PRIVILEGES OF A DIPLOMAT UNDER THE [DIPA], 2004

In Nigeria, the law that regulates diplomatic rights and privileges is The Diplomatic Immunities and Privileges Act Cap D9 Vol 5 LFN 2004. [herein referred to [DIPA] which was judicially corroborated and held as such by the supreme court in the case of A.R.C. V Fantaye [1986] 3 NWLR [part 32] 811. which is the locus classicus in Diplomatic rights and immunities.The brief facts of the case is that the appellant is a corporation carrying on re-insurance business in Nigeria while the respondent is a civil engineering company incorporated in Nigeria. By a written contract between the parties, the respondent agreed with the appellant to construct the appellant’s head office building at Victoria Island, Lagos for a tentative sum of US $6,234,989.66. One of the clauses in the agreement provides that the parties agreed to subject themselves to the jurisdiction of the High Court of Lagos in the resolution of any dispute arising from the contract. 

the case has since then laid and explained certain principles enshrined in the DIPA.

DIPA confers diplomatic immunities and privileges to natural and artificial persons under the law. The natural persons here are the people occupying diplomatic positions while artificial persons are International Organisations whose members are countries and as such the organisations become clothed with diplomatic immunities.

For clarity I will categorise the Immunities and privileges vis-à-vis the beneficiaries provided for under the DIPA as captured in the act:

1. Immunities and privileges of foreign envoys, consular officers Chief representative of a commonwealth country [and their family members, domestic and official staff [sections 1-10 of the DIPA]
2. Immunities and privileges of international organizations [Sections 11-16 DIPA]
3. Persons conferred with Consular Immunity.
4. International Organisations[UN and related agencies, AU, EU etc]

The rights, privileges and protections the DIPA provides are:

1. Immunity against suit and legal process: this immunity protects diplomats, their official and domestic staff and the family members of the diplomats and their staff from any legal action which may be instituted against them in any Nigerian court of law and any other legal issues or process against them. This was given life in the case of  Noah V British High Commissioner suit No. S.C. 79/1980;(1980) 12 N.S.C.C 265 at 266 where Pr Fatai CJN held thus “it is my view…….that such an action against a foreign envoy in Nigeria shall be void”.  in that case an action against the British High Commissioner in Nigeria was brought before the supreme court, the court held such as null and void and dismissed it.
2. Inviolability of residence or office and archives: this prohibits the residence and office and documents and luggage of diplomats from any enforcement action, search and surveillance etc by customs, immigration, police or any law enforcement and also prohibits searching their baggage at airport or sea or any channel of entry or exit from Nigeria.
3. Exemption from direct taxes, duty, rate, levy, stamp duty and other charges: Diplomats and persons entitled to diplomatic protections are exempted from taxes on official items imported or exported and other direct taxes.
4. Body corporate status
5. Exemption of duty chargeable on estate upon death
6. Exemption of instrument or document made for or relating to the appointment of an executor or administrator or to the administration or distribution of estate from stamp duty. 
7. Exemption of goods from any duty chargeable under the law relating to customs and excise.
8. immunity from personal arrest or detention while exercising functions during journey to and from places of meeting.
9. Immunity from seizure of personal baggage and inviolability of all papers and documents while exercising functions.
10. Immunity from legal process of every kind in respect of words spoken or written and all acts done by representatives of Organizations conferred with immunity in their capacity as such or in exercise of their functions.
11. Another distinguishing rights of a diplomat which differentiate them from foreigners is that a diplomat can not be denied entry into the receiving country  or hindered by any immigartion law.

The above rights and immunities captured in the DIPA are a replica of the Vienna Convention on Diplomatic Relations 1961 which Nigeria has signed and ratified and as such any Nigeria Diplomat on foreign diplomatic missions abroad is entitled to same rights and immunities.

Exceptions To Diplomatic Immunities And Privileges

In as much as Diplomats are entitled to the aforementioned privileges, the privileges have limits and won’t apply where:

1. It is waived as allowed for under sections 2, 5[2] and 7 of the DIPA:

1. a foreign envoy, foreign consular officer or chief representative of a commonwealth country with the consent of the Government of his/her country can waive all protections provided by the DIPA, this was also re-echoed by Muhammad JCA in the case of Oluwalogbon & ors vs Government of United Kingdom & anor [2005] LPELR 11319[CA]
2. Where a foreign envoy, foreign consular officer or chief representative of a commonwealth country waives immunity or inviolability conferred on a member of his official or domestic staff or on a member of his family or of the family of a member of his official staff.

2. Section 10 DIPA excludes Nigerian citizens who are official or domestic staff of a foreign envoy, foreign consular officer or chief representative of a commonwealth country from enjoying any protection conferred under DIPA.
3. Furthermore, Article 32 of the Vienna Convention on Diplomatic Relations which Nigeria is a party to and has ratified, allows for a country sending a Diplomat to waive any rights and or immunity he is entitled to under the convention or the laws of the receiving country.

It is worthy of note that where a waiver is alleged, it must be expressed and a certificate to that effect will serve as conclusive evidence to that effect, this was the position as held by Uthman Mohammed J.C.A in the case of A.R.C V Fantaye supra.

Rights And Privileges Of Foreigners In Nigeria

A foreigner or a non-citizen is someone who is not a citizen of Nigeria. Foreigners here include:

1. Expatriates and Migrants: these are foreign workers in Nigeria either in Government employ, private entities, Multi -National Organisations, Int’l Orgs. [these does not include Diplomats]
2. Non-Nigerians married to Nigerians and non-Nigerian children of Nigerians.
3.  Tourists [those whose sole purpose of being in Nigeria is for holiday and vacation reasons] 
4. Foreign students studying in Nigerian Schools [with the exception of students who are family members of Diplomats in which they will be covered by the Diplomatic rights and immunities].
5. Asylum seekers and Evacuee [those on exile]
6. Refugees and Migrants
7. Aliens and undocumented persons: these are foreigners in Nigeria illegally and as such are subject to deportation unless they are running from war, persecution to which by international Law, Nigeria is liable to consider them.

For the record Non-Nigeria Diplomats are foreigners but the laws applicable to them are different from the above-named foreigners and we have discussed that above.

Generally, foreigners are entitled to certain rights in Nigeria but these rights can vary depending on the category a foreigner falls into, for instance aside the general rights to which all are entitled to, Diplomats can not conduct business or run business except the customary buying of necessities and the usual diplomatic business to which they were sent to Nigeria for.

General Rights And Benefits Of Foreigners

1. Right to life: All Foreigners just like Nigerians alike are entitled to Right to Life as guaranteed under the 1999 Nigeria constitution.
2. Protection against arbitrary or unlawful interference with privacy, family, home or correspondence 
3. Right to seek redress in Nigerian courts and all rights connected therein.
4. They can marry anyone of their choice of an opposite gender and start a family or bring their families from abroad [same sex marriage not applicable as it is a crime in Nigeria and unless the foreigners are diplomats covered by Diplomatic immunities if not so the same sex couple even if they have been married in their country prior to coming to Nigeria ,their marriage will be a crime and they will not be recognised as a couple under Nigeria Law and any same sex relationship in Nigeria will be prosecuted]
5. They have the Rights of thought, opinion and conscience and to practice a religion of their choice.
6. They have the Right to transfer money/capital abroad subject to certain Nigerian financial laws and regulations.
7. The Right to own and hold property subject to approval of the land use act and other legislations.
8. The Right to retain their Language, culture and tradition.

Furthermore, so long as foreigners in Nigeria do not interfere with the National security and stability, public safety, public health or morals or the rights and freedoms of others, they are entitled to and granted:

9. The right to leave Nigeria when they wish.
10. The right to freedom of expression and peaceful assembly
11. Freedom of movement and right to choose place of residence within the shores of Nigeria.
12. Right to work safe, decent and healthy working conditions and all labour rights due to foreigners subject to expat quota requirements.
13. Right to health care, social services, education and social security. 

Also, especially as it relates to Refugees, those on exile and Asylum seekers, they are entitled to;

14. Protection from torture or cruel, inhuman or degrading punishment
15. Protection against arbitrary or unlawful expulsion from Nigeria
16. Freedom from compulsory participation in the National Youth Service corps scheme [NYSC] or military enlistment.
17. Protection from being arbitrarily deprived of lawful acquired assets.
18. The right to defend oneself by court action and other legal means from expulsion except where compelling reasons of national security demands otherwise.
19. Protection from being subjected to medical or scientific experimentation without the foreigner’s consent.
20. The foreigner’s right to communicate to and access his/her consulate or diplomatic mission in Nigeria.

While foreigner’s resident in Nigeria for business purposes or other reasons have the aforementioned rights, they also have limitations and what they are not entitled to. Chiefly among limitations are:

1. They are not eligible to participate in Elections as it relates to voting or contesting for public office or forming political parties [they don’t have political rights].
2. Foreigners are barred from holding civil service offices or judicial offices.
3. Foreigners can only open companies subject to provisions of the Companies and Allied matters act and other regulatory provisions
4. Foreign Tourists.
5. Aliens/undocumented persons cannot work or move freely.
6. Children of Nigerians who are not Nigerians are not entitled to the free education scheme of the government, or the National Health Insurance
7. Foreign spouse of a Nigerian is not entitled to the free education scheme of the government, or the National Health Insurance
8. Requires a Visa each time they intend to visit Nigeria and not entitled to the Nigeria Passport.
9. They can be denied entry into Nigeria by Imigration or the Ministry of Foreign Affairs as  provided for under the imigration act 1963 Vol 7 LFN 2004. this was equally discussed in Awolowo V Sarki & the AG Suit No. S.C. 99/1964; (1966) All N.L.R 171 at 175; (1966) 4 N.S.C.C 209 at 211.

REFERENCES

1. Awolowo V Sarki & the AG Suit No. S.C. 99/1964; (1966) All N.L.R 171 at 175; (1966) 4 N.S.C.C 209 at 211.
2. A.R.C. V Fantaye [1986] 3 NWLR [part 32] 811
3. Diplomatic and immunities privileges act Cap D9 Vol 5 LFN 2004
4.  imigration act 1963 Cap 11, Vol 7 LFN 2004
5. Oluwalogbon & ors vs Government of United Kingdom & anor [2005] LPELR 11319[CA]
6. Vienna Convention on Diplomatic Relations 1961
7.  Noah V British High Commissioner suit No. S.C. 79/1980;(1980) 12 N.S.C.C 265 at 266