Accredited Ambassadors and Protection of the National Interest: The Case of Nigeria’s Former Service Chiefs

1

By Bola A. Akinterinwa

On Thursday, February 4, 2021 President Muhammadu Buhari (PMB) nominated the immediate past Service Chiefs as Ambassadors-designate and forwarded their names to the Senate for possible consideration and approval as provided for in Nigeria’s 1999 Constitution as amended. The Service Chiefs are Gabriel Abayomi Olonishakin, former Chief of Defence Staff (CDS); Tukur Buratai, former Chief of Army Staff (COAS); Ibok-Ete Ekwe Ibas, former Chief of Naval Staff (CNS); and Sadique Abubakar, former Chief of Air Staff (CAS). The four Service Chiefs were relieved of their appointments on Tuesday, January 26, 2021 and replaced with Major General Leo Irabor as CDS, Major General I. Attahiru as COAS, Rear Admiral A. Z. Gambo as CNS, and AVM I.O. Alao as CAS. As reportedly tweeted by presidential aide, Bashir Ahmad, ‘President Muhammadu Buhari has forwarded the names of the immediate past Service Chiefs to the Senate as non-career Ambassadors-Designate.’

Two points are noteworthy in this statement: the notion of a non-career ambassador and the concept of an ambassador-designate. Non-career ambassador as a notion is ambiguous: it gives the impression that the nominees are still in the professional public service or in the professional civil service, whereas they have not only illegally stayed beyond their statutory time of retirement, but have also been officially removed from public office. Thus ‘non-career’ as a notion only has a non-official or private connotation.

Indeed, who is a career ambassador? Ambassadorship is a responsibility and not a profession. It is not what explains it as a career per se. A Career Ambassador is the Principal Representative in any diplomatic mission. His office is the crescendo in the continuum of diplomatic representation. It refers to someone who takes the business of diplomacy as a profession. In general diplomatic practice, it refers to Foreign Service Officers who join the Foreign Service to begin a career as a Third Secretary, if a fresh graduate, and then rise through the ranks: Second Secretary, First Secretary, Counsellor, Senior Counsellor, Minister Counsellor, Minister, and to Deputy Chief of Mission and Chief of Mission who are generally people with ambassadorial ranking. A Deputy Chief of Mission can be an ambassador by career status, but not necessarily accredited to the host country as Ambassador, High Commissioner or High Representative. It is only the Chief of Mission, accredited to the host country as the Principal Representative of his country, that is considered the official representative. Consequently, a non-career ambassador is necessarily a political ambassador who is nominated on the basis of the whims and caprices of Mr. President.

On the second point of observation, an ambassador-designate, simply implies that, even though there may not be much of a problem in securing for him a senatorial approval in Nigeria, such a senatorial approval is still subject to the acceptance of the would-be host States to which the former Service Chiefs would be accredited. For various reasons, ambassadors-designate can be considered non-grata. It is only when a sending State is assured of the acceptability of an ambassador-designate that Letters of Credence (one of recall of current ambassador and the other introducing the new ambassador) are prepared.

Issues and Challenges
Considering that all nomination and presentation processes will be normal, what are the likely issues and challenges to be faced by the Service Chiefs as Ambassadors Plénipotentiaires and Extraordinaires and, particularly, in the context of protection of Nigeria’s national interest? There are three main issues, with their challenges, that are raised at the domestic, international, and mission levels. First, as regards the domestic level, the nomination of the former Service Chiefs as Ambassadors-designate has raised suspicions as to why they were nominated within ten days after their removal from office on Tuesday, January 26, 2021. Put differently, PMB had consistently refused to do away with the Service Chiefs in the face of their inability to shame the Boko Haram insurgency. When he eventually removed them, the Nigerian public appears to have been cut unawares about their impending re-appointment as ambassadors-designate.

In other words, how do we explain their re-appointment? Dr. Reuben Abati, during the anchoring of his ThisDay Live Show of last week Sunday, January 31, 2021, asked the discussants whether the Service Chiefs were fired, whether they retired or they resigned, etc. Answers provided by the panelistswere speculative. With their nomination as Ambassadors-designate, there is no disputing the fact that their removal is far from being a ”fire’, forced or voluntary resignation. The removal is apparently very strategic in design, objective, and expected outcome. The strategic removal brings us to the issue involved at the international level.

Ambassadors are required to serve in foreign countries, even though ambassadors in situ are also appointed by virtue of their diplomatic attainments and ranking in the system and are required to stay at home and carry out diplomatic supervision of national interests abroad. Since the Presidency is talking about ambassadors-designate, it necessarily implies that the Service Chiefs will be accredited abroad. Ambassadors-in-situ do not need any Senatorial approval to be so appointed.

The issue in serving abroad for the Service Chiefs is first at the level of the International Criminal Court (ICC) which had alleged that there had been violations of humanitarian rights and crimes against humanity under their watch when they were still in active service. The Chief of Army Staff was specifically accused of extra-judicial killing of hundreds of Shiites in Zaria in 2015, several innocent Nigerians during the EndSARS protests in Lagos, and many others in Oyigbo, Rivers State.

The ICC has been called upon to arrest and prosecute the Service Chiefs. In an attempt to prevent any arrest, prosecution and other embarrassments, PMB, decided to appoint them as plenipotentiary ambassadors, allegedly so that they can be protected under the rules of diplomatic protection provided for under Article 29 of the 1961 Vienna Convention on Diplomatic Relations, according to which ‘the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate step to prevent any attack on his person, freedom or dignity.’ In fact, Article 30 of the same Diplomatic Convention says further that ‘the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.’ This simply means that the diplomatic protection and immunity from arrest and prosecution is total regardless of whether the offence committed is civil or criminal.

What is noteworthy in the case of Nigeria’s Service Chiefs is that whatever offences they might have been accused of were committed before their appointment either as ambassadors-designate or as ambassadors plenipotentiary and extraordinary, and should therefore be differentiated from the offences likely to be committed by the Service Chiefs in the foreseeable future. The implication of this is that, for as long as the Service Chiefs are retained by their Government as diplomatic agents, the alleged extra-judicial killings by them cannot but remain in the cooler. Neither the ICC nor the host countries of the Service Chiefs can threaten them with any form of arrest.

Additionally, and perhaps more importantly, immunity from arrest and prosecution, applies, stricto sensu, only to offences committed on behalf of the sending State. It is only for actions taken in official capacity and does not include private engagements. The challenge here is that when a diplomatic agent, still in service, engages in activities considered to be incompatible with his or her diplomatic status, it may be difficult to prosecute such an agent because the line between what constitutes official and private activity is very thin.

And most importantly, at the third level of Nigeria’s diplomatic missions abroad, which are theoretically considered as exterritorial or an extension of Nigeria’s mainland territory, and therefore, on the basis of the rule of sovereign equality, it is governed not by the municipal law of the host country, the issues and challenges vary according to the status of each mission. Each mission has its peculiar, well-defined goals to be pursued, called Mission Charter. Each mission also falls under a particular categorisation: A, B, C, on the basis of their importance, etc.

In fact, there are what the Foreign Service Officers describe as hardship posts and which a diplomatist, Ambassador L.O. Oladejo Oyelakin, has explained as a post in which ‘an officer may not enjoy modern amenities but, instead, is exposed to perpetual failure of infrastructure like water, light and lack of good roads.’ And more important, in the eyes of Ambassador Oyelakin, in this category of hardship posts ‘are Missions situated in countries of circumscribed social interaction and or lacking in educational facilities (e.g. countries where there are no English-speaking schools), economically depressed areas, extreme climatic condition and countries experiencing civil war or state disorder’ (vide his The Nigerian Diplomatic Practice, NIIA, 2014, p. 259).

In spite of this clarification, which of Nigeria’s Mission is not a hardship post in light of poor funding and irregular or delayed payments and Nigerian government’s very poor understanding of challenges of contemporary international politics? Can the Service Chiefs living in luxury in Nigeria with various privileges and immunities, as well as retirement benefits, and now newly-turned ambassadors really live an ambassadorial, disciplined life-style abroad?

Service Chiefs and National Interest
The belief that the former Service Chiefs, now considered as ambassadors-designate, can escape investigation and prosecution is doubtful, especially in light of some critical factors. For instance, the application of a waiver of immunity can become a desideratum, and therefore, cannot be ruled out. PMB might have adopted the strategy of ambassadorial appointment as a technique of possible diplomatic protection, but any successor of his can waive the immunity of anyone, inclusive of that of the Service Chiefs, in the event of a force majeure in which the national interest is majorly at stake or when there is a request for extradition.

In this regard, it is generally considered that immunity from jurisdiction of courts does not imply that diplomatic agents enjoying immunity are superior or above the municipal law of their host country. As explained by Michael Akehurst, for example, ‘the obligations of municipal law remain binding on him (diplomatic agent), but are unenforceable. Consequently, both sovereign and diplomatic immunity can be waived. The effect is to change an unenforceable obligation to an enforceable one. The immunity is conferred in the interests of the State, and can be waived only by the State. A State may waive the immunity of one of its diplomats against the diplomat’s wish.’

Put differently, if one of the objectives of appointing the Service Chiefs as ambassadors is to secure for them an eventual immunity from criminal prosecution, it must be argued that the Buhari administration has strategically miscalculated politically and legally. Politically, the larger international community is very hostile to any form of engagement in acts of genocide, war crimes, crimes against humanity, etc. It is for this main reason that the principle of International Responsibility to Protect (IR2P) was adopted by the UN General Assembly in order to checkmate national leaders who refuse or who aid and abet the prohibited crimes aforementioned.

Legally speaking, the strategy of acquiring an ambassadorial status does not in itself erase the allegations or offences which can still be prosecuted under a different political environment. In fact, there are different types of immunities and particularly more relevant here is the Act of State Doctrine. There is Sovereign Immunity, which, on the basis of independence and equality of States, does not allow anyone or State to exercise jurisdiction over another State. There are also consular immunity, diplomatic immunity, particularly immunity from the jurisdiction of courts as provided for in Article 31(1) of the 1961 Vienna Convention on Diplomatic Relations.

Special Missions do also have their own system of immunities. Their own limitation is that members of Special Missions do not have immunity from claims for damages as a result of accidents caused by a vehicle used privately or outside the official functions of the member concerned. Additionally, the receiving State has the right to enact any law to limit the exemption of members from customs duties. The existence of different types of immunity, as well as privileges simply suggests that the enjoyment of a given type of immunity can be made difficult. The Act of State doctrine is quite exemplary at this juncture.

The Act of State Doctrine simply means that agents of government are immune from legal proceedings as regards acts engaged in, on behalf of their State. However, this doctrine also has its limitations: it cannot be pleaded either as a defence to charges of war crimes, crimes against peace and crimes against humanity, all of which Nigeria’s Service Chiefs may still be liable to and charged for in their post-ambassadorial era.
With an impending burden of ICC prosecution, to what extent can the Service Chief Ambassadors, if they can be so called, be really able to protect Nigeria’s national interest? Which category of countries will be prepared to accept them? Will they be posted to some international organisations which also have their own immunities or to any of the serious hardship posts?

Without jot of doubt, there is no disputing the fact that the Service Chiefs have the necessary training, experiences and exposure to be good ambassadors but there is nothing to suggest that they will be able to add value in the advancement and protection of Nigeria’s national interest, which is still, at best, ill-defined. First, the domestic environment of the foreign policy to be projected by them as ambassadors is chicanery-ridden and insecurity inflicted. Nigeria is currently fighting wars against itself. Second, if the Service Chiefs failed in ensuring security at the home level, how can they be expected to miraculously succeed in a more hostile international environment, especially in the management of of more sophisticated international questions, as ambassadors?

Beyond the war against Boko Haram insurgency which wants an Islamic or Sharia North and the Indigenous People of Biafra which wants a separate State for the Biafran people, there is the more critical factor of tug of war between the Fulani herdsmen and farmers, which has really taken a more serious dimension, threatening national unity. The Federal Government, and PMB in particular, has been seen to be quietly aiding and abetting boko haramism and Fulanisation agenda on the basis of which several Nigerians at home and abroad have been asking the international community to investigate war crimes in Nigeria. With this development, what type of political, diplomatic or military defence will any ambassador put forward to make Nigeria look good?

At the international level, the ICC Office of the Prosecutor announced on December 11, 2020 that it was concluding ‘a decade-long preliminary investigation into crimes against humanity and war crimes allegedly committed by Boko Haram and Nigerian security forces.’ In other words, of the period of ten years investigated, five years, representing half of the period, are under the PMB administration. There have been pointers to Nigeria’s liability. And true enough, more than 35,000 people have signed a petition asking for the investigation and possible trial of President Buhari allegedly for war crimes and crimes against humanity. Therefore, sending Service Chiefs abroad as ambassadors is an unnecessary luxury and exposure to more complex attacks for them.

Again, even though PMB was the only President invited to the 20th Anniversary of the ICC on July 17, 2018, probably thanks to Justice Chile Eboe-Osujji, a Nigerian judge who chaired the session, mistake must not be made by believing that PMB is in the good books of the ICC. The report by Tobi Soniyi in ThisDay newspaper of 18 July 2018 reminds of one of the problems: the Nigerian Coalition for the International Criminal Court (NCICC) called on the same day on the Court Prosecutor, Fatou Bensouda, ‘to engage President Muhammadu Buhari on the continued killings in the North-central and North-eastern parts of the country.’ The Coalition wanted accountability for the victims of the killings. This was in spite of the fact that it was PMB who gave the keynote address at the ICC 20th Anniversary hearing.

And perhaps most noteworthy, it is useful to remind that there is no absolute respect for the principles of sovereign immunity and diplomatic immunity in international relations. They are limited, regardless of whichever kind, by the exercise of brute power in the service of the national interest. One recent example is the United States drone strike and killing of Iranian Major General Qasem Soleimani on January 3, 2020 near the Baghdad International Airport in Iraq. Major General Soleiman was reportedly going to meet with the Iraqi Prime Minister, Adil Abdul-Mahdi in Baghdad. He was a government agent and, therefore under the functional protection of the Iraqi authorities. However, the drone strike only acted on instruction without any due regard for the rule of inviolability or immunity. In truth, the weak countries often complain while the strong always act. Consequently, a great caution must be exercised in determining where to accredit the Service Chiefs. With PMB’s mania of political governance in Nigeria, the country’s diplomats may, sooner or later, be subjected to inclement international terrorist campaigns. The mounting opposition at home is a pointer.