Transparency International has published an interesting news feature on the numerous examples of corrupt senior politicians relying on immunities to avoid prosecution and legal proceedings. The feature, “When immunity becomes a licence to break the law” appears here.
The feature refers to some examples, including the case of Diepreye Alamieyeseigha, the Governor of Nigeria’s Bayelsa State between 1999 and 2005. An interesting aspect of that case was the firm rejection by the English Courts of the argument that Mr Alamieyeseigha enjoyed immunity from criminal prosecution in the UK because of the constitutional immunity he enjoyed under the Nigerian constitution.
During his period in office, Mr Alamieyeseigha accumulated (directly and indirectly) properties, bank accounts, investments and cash outside Nigeria exceeding US$20 million in value. His portfolio of assets included accounts with five banks in the United Kingdom and further bank accounts in Cyprus, Denmark and the United States; four London properties acquired for a total of US$9.6 million; a Cape Town harbour penthouse acquired for almost US$2 million, and about US$2 million in cash stored in one of his London properties. This was in addition to substantial domestic wealth.
Nigerian and UK law enforcement agencies alleged that his assets derived from a combination of the theft of public funds and bribes paid by contractors for the award of public contracts.
In September 2005, following investigations by the Proceeds of Corruption Unit of the Metropolitan Police in the United Kingdom and Nigeria’s Economic and Financial Crimes Commission, Chief Alamieyeseigha was arrested in London, questioned and charged with three counts of money laundering. A world-wide criminal restraint order was obtained by the Crown Prosecution Service over his assets.
Chief Alamieyeseigha was initially remanded in custody after failing to persuade the Court that he should be permitted to return to Nigeria to attend to the affairs of Bayelsa State. After three weeks in custody he was released on bail on conditions including the surrender of his passport, the payment of US$2.6 million into Court by sureties and daily reporting to the police.
He then sought to quash the decision to prosecute him in London on the grounds that, as a result of position as Governor and Chief Executive of the State of Bayelsa, he was entitled to state immunity in criminal proceedings brought in the United Kingdom. That argument was robustly rejected. The judgment of the Court has the reference R (on the application of Alamieyeseigha) v Crown Prosecution Service  EWHC 2704 (Admin).
The Court accepted that if a state is entitled to immunity, then the head of that state is also entitled to immunity. It also acknowledged that it was possible, in some circumstances, for a federal state to be entitled to state immunity. This was to be decided on a case-by-case basis.
Here, it was concluded that Bayelsa State was not entitled to state immunity, and this meant that Chief Alamieyeseigha could not claim it. In reaching that decision, the court noted that Bayelsa State has no legal powers to conduct foreign relations (typically an essential requirement for recognition as a state); that the UK’s foreign minister had issued a certificate stating that the Governor and Chief Executive of Bayelsa State is not to be regarded as the Head of State of the Federal Republic of Nigeria; that Bayelsa State had limited powers which could be overridden by the Federal Republic and that the Nigerian Courts have themselves concluded that its federal states are not sovereign states.
In November 2005, Chief Alamieyeseigha managed to flee the jurisdiction and return to Nigeria. His flight led to the confiscation of the bail monies put up by his associates (and subsequent scrutiny of the financial affairs of one of those associates led to his conviction in the United Kingdom for mortgage fraud and confiscation of the proceeds of that fraud).
Following his flight from the United Kingdom, various criminal and civil mechanisms were used to recover Chief Alamieyeseigha's assets. Edwards Wildman acted for the Federal Government of Nigeria in the proceedings outside of Nigeria.
Proceeds of crime legislation in the United Kingdom permits the confiscation of cash representing the proceeds of unlawful conduct. The legislation also permits the true owner of the proceeds of fraud to intervene to seek its return. This procedure was successfully used: the Metropolitan Police applied for the confiscation of the US$2 million in cash seized from Chief Alamieyeseigha and did not oppose Nigeria's application for its return.
The Federal Government also brought private civil proceedings in the English High Court against Chief Alamieyeseigha and others for the recovery of bank balances and properties in London, Cyprus and Denmark. Those proceedings commenced with a successful application by Nigeria for disclosure by the Police of the evidence gathered in the criminal investigation, on the basis that it was in the public interest for the documents to be provided to Nigeria to assist it to recover the proceeds of corruption, together with a successfully application for a civil freezing injunction. After various skirmishes, the proceedings ended with summary and default judgments over all of the assets claimed. The English judgment was successfully enforced over the bank balances in Cyprus and Denmark under European Community legislation for the reciprocal enforcement of civil judgments.
The Cape Town penthouse was forfeited in July 2006 by the High Court of South Africa under proceeds of crime legislation on the application of the National Director of Public Prosecutions acting through the Asset Forfeiture Unit. Nigeria successfully intervened in the proceedings seeking an order for the return of the proceeds of sale.
In Nigeria, following his impeachment and loss of immunity, Mr Alamieyeseigha pleaded guilty in Lagos to six charges of making false declaration of assets, and caused his companies to plead guilty to 23 charges of money laundering. He was sentenced to two years imprisonment and the assets of his companies were confiscated. He was recently pardoned, a decision which has caused some controversy in Nigeria and beyond.
The case therefore involved the full set of criminal and civil asset recovery mechanisms: criminal proceedings in Nigeria and the United Kingdom including criminal restraining orders over assets, requests for mutual legal assistances between these jurisdictions and others, criminal confiscation of assets in Nigeria, civil forfeiture of cash in the United Kingdom, private civil proceedings in the United Kingdom including a world-wide freezing injunction, enforcement of the civil judgment in Cyprus and Denmark, and civil forfeiture proceedings in South Africa. Each of these mechanisms has its own strengths and weaknesses, and the “correct” mechanism for a particular case or assets is very dependent on the facts and circumstances.
Our guidance note on the range of mechanisms available here.