Minister of Justice and Attorney General of the Federation, Abubakar
Malami today joined Minister of Transportation, Rt Hon. Chibuike Rotimi
Amaechi to set the records straight on Nigeria’s sovereignty not being
at risk in the country’s loan agreements with China.
There is a difference between international diplomatic immunity ‘which
has to do with a nation’s sovereignty, independent existence’ and
commercial immunity which has to do with a commitment to ensure
repayment of loans’, Malami explained while answering questions
alongside Amaechi on a TV programme, Tuesday.
He said the misconception is that the National Assembly is looking at
the diplomatic immunity as against the commercial immunity of a country
when it has to do with loans, adding that there is no concession
whatsoever made as it concerns Nigeria’s diplomatic immunity.
“If you talk of immunity within the context of diplomatic immunity which
has the implication of the independence of a state and its institutions
in its own right, there is no concession whatsoever made by Nigeria as
it relates to diplomatic immunity that has to do with its independent
existence as a nation, neither was any concession made as related to the
institutional diplomatic immunity of the Nigerian institutions.
“But when you talk of immunity within the context of commercial sense,
that is where I think we need to clarify issues with particular
reference to the loans and commercial transactions among nations.
“Concessions relating to immunity for the purpose of provision of the
commercial guarantee are a normal, traditional ritual. Nations enter
into respective interstate agreements and in the course of so doing,
surrendering their jurisdictional immunity. It is on account of that for
example that you see Nigeria signing an agreement with other
institutions or nations and agreeing to a choice of territorial
jurisdiction for the purpose of determining disputes when they arise. So
that is how eventually you see Nigeria submitting to the jurisdiction
for determination of a trade dispute in the UK, in Paris and in other
international fora or jurisdiction even when Nigeria as a nation has
diplomatic immunity.
“And now that brings you to commercial immunity. The context and the
implication of a commercial immunity or sobriety. It’s indeed embedded
in an appreciation that country A requests for a loan facility from
country B and then country B is entitled as a matter of right to extract
a commitment, an understanding that at the end of the day, the loan
advance will eventually be paid. So it is indeed a concession and
sobriety, giving an undertaking, providing a guarantee for repayment of
the facility when the need arises.
“So commercial immunity is in essence a mere guarantee that allows an
advancing state an opportunity, right and power to claim back the
financial advances made to a party state and that in its own right is
indeed to an asset for the purpose of repayment of the loan. It is in no
way extended to perhaps concession to diplomatic immunity by which you
now surrender the rights, privileges, and independence of a
nation-state. But it is a commercial term that is restrictive, exclusive
to an asset, a commercial asset for that matter in the event of
default,” Malami said.
The AGF added that the clause is a mere guarantee, a commitment that
allows an advancing state (the lender) the powers to claim back an asset
for the purpose of repayment of a loan and is in no way connected to the
sovereignty of a country.
“The bottom line is to appreciate the difference between International
diplomatic immunity which in its essence and right is an immunity
relating to the independent existence of a state, and a commercial
immunity which in essence is a commitment that you are now conceding
that in the event of default of payment of an advanced amount of money,
you will have the right to now attach the commercial asset of a
borrowing state for the purpose of satisfaction. So that is where I
think the misconception set in. Misconception to the effect that the
National Assembly is, in essence, looking at the international
diplomatic immunity as against commercial immunity which in its own
right is operated only to guarantee the repayment of the advanced loan,”
he stated.
On his part, Minister of Transportation, Chibuike Amaechi again
dispelled the notion that Nigeria’s sovereignty has been signed off to
China in obtaining the loans.
He said, “Nobody has signed out anything. A sovereign nation is a
sovereign nation, nobody can recolonise us. We must learn to pay our
debts and we are paying, and once you are paying, nobody will come and
take any of your assets.
Amaechi said the previous administration cannot even be blamed for the
loan or clause in the agreement because it is a standard clause.
“We will not blame President Goodluck Jonathan’s government for taking
the loan, because like I said, it is a standard clause in every loan
agreement. That clause enables the lending country to go to arbitration.
It creates an avenue for them to be able to retrieve their funds in the
case of a default. If therefore there’s an asset that has been
mortgaged, they must be able to get to that asset. If you don’t waive
that immunity, they cannot. It’s a standard clause in every
international loan agreement.
“If the National Assembly says we have signed out the sovereignty of our
country, so why did they approve? Didn’t they see it before approving?”