Why pact waiving sovereign immunity should be repudiated – Lawyers
Lawyers have alerted Nigerians to possible take over of the country if the contract waiving Nigeria’s sovereign immunity in respect of multi-billion dollar loans obtained from China to finance infrastructure is not repudiated.
According to them, the sovereignty-terminating loans are toxic and pose serious danger to the country, given that the capacity of the state to repay the debts is very unrealistic.
The Federal Government had entered into a contract with China with a clause that the sovereignty of Nigeria and its property are irrevocably waived.
The clause reads: “The borrower hereby irrevocably waives any immunity on the grounds of sovereign or otherwise for itself or its property in connection with the enforcement of any arbitral award pursuant thereto, except for the military assets and diplomatic assets.”
Speaking yesterday, under the aegis of Radical Lawyers Movement in the Nigeria Bar Association (RAMINBA), Mr. Sina Ogunlana, said the loans should be stopped as Nigerian government had applied for three loans for Lagos-Ibadan, Ibadan-Kano and Port Harcourt -Maiduguri rail projects. He said the government was sourcing for $5.3 billion for the projects.
“According to statistics, Nigeria has obtained 17 different Chinese loans to fund different categories of capital projects and will still be servicing the loans till around 2038, which is the maturity date for the last loans obtained in 2018,” Ogunlana declared.
He warned that other countries such as Zambia, Kenya, Sri Lanka, Pakistan, Bangladesh and Malaysia that took Chinese loans and defaulted had either lost their critical national assets to China or were on the verge of doing so.
“Sovereignty is the supreme, absolute and uncontrollable power by which any independent state is governed, the self-sufficient source of political power. It is the international independence of a state combined with the right and power of regulating its internal affairs without foreign dictation.
“Nigeria’s debt independent revenue is at 96 per cent now. What this means is that for every N1 the country earns as revenue, 96 kobo is used to refund loans. According to statistics, the Chinese Exim Bank has offered $6.6 billion to the Nigerian government. Out of 64 countries that host the Chinese Belt and Road Initiative projects, 20 have become distressed and eight are about to lose their sovereign debt sustainability if they should take further loans.
“Why this irresistible urge to borrow in the name of infrastructural development of Nigeria, particularly transportation, and at what cost? How can any government that sworn to protect and promote the interests of its people, freely and voluntarily enter into agreement that empowers another country to seize, control, use and appropriate any of its national assets except military or diplomatic assets?”
Describing the development as a state of emergency, Ogunlana charged Nigerians, lawyers, professional bodies, civil society organisations and labour unions to pressure government to cancel the deal, adding that all progressive forces should attend the House of Representatives public hearing on the loan issue on August 17 as the beginning of massive resistance against anti-people actions of the government.
Dele Farotimi said the government was ceding the country’s sovereign right to protect its territory against foreign power to China. According to him, the implication of the clause in the contract is that Chinese can take over Nigeria’s ports, police, railways and other critical infrastructure.
Ayo Ademiluyi described the clause as a “waiver of sovereignty of Nigeria to China in default of the loans with the right to take all assets of the country aside diplomatic and military assets.”
Lagos-based lawyer, Mr. Chris Okeke said where a sovereign country like Nigeria, with its eyes wide open, decided to exclude the benefits provided by its laws and affirmed by the Supreme Court, by way of a contract, it meant that everything was wrong with such a sovereignty.
“The distinction that the attorney general and the transport minister sought to make on types of sovereignties is of no effect. At best, they are playing with words. At worst, they are displaying unimaginable sentiments. In all, they are desperately putting our tomorrow up for auction. That they are dealing with China is enough to make us all to rise up and stop this desperation on the side of the Nigerian government,” he charged.
But Senior Advocate of Nigeria, Adekunle Oyesanya thinks differently. According to him, the hue and cry about the clause in the loan agreement is worrisome.
“There is this tendency for most Nigerians, especially those who are not even tutored in the area of controversy, to make the most noise about the issue and in the process mislead the general public, thereby causing unnecessary tension in the polity.
“Speaking for myself as a lawyer, I will be wary in making a definitive statement on the matter without having read the entire agreement, not just the said section 8 (1) of the agreement wherein the so-called offensive sovereignty issue is contained.
“Having said that, I want to say that I have read that clause as reported in the press and other social media platforms. My own interpretation of it, shorn of all sentiments and embellishments, is that if there is an arbitral award in favour of the lender, i.e the China Export-Import Bank, the borrower (i.e Nigeria) cannot stop the lender/judgment creditor from attaching any of its properties in the process of executing that judgment or award except for military and diplomatic assets, on the ground that the assets sought to be attached are immune from attachment or that they represent the sovereignty of Nigeria,” he explained.
According to him, it is hyperbolic to make a sweeping statement that the clause has ceded Nigeria’s sovereignty to China.
“I must also say that, as a country, we must stop this bad habit of signing international contracts with our eyes open, take benefits under the contract and then turn around to complain about clauses under the contract. I read somewhere that it was the chairman of the House of Representatives committee on Treaties, Protocols and Agreements that raised the alarm about the clause and I wondered if this is not an impotent cry after the horse has bolted out of the stable.
“Wasn’t this same committee or another organ of the House meant to have seen the agreement before it was signed? How about the attorney general’s chambers?” he asked.
Agreeing with the learned silk, immediate past chairman of the NBA, Ikorodu, Adebayo Akinlade said no loan agreement or any agreement of any sort could deprive the Nigerian state of her sovereignty.
“Can a clause in a contract contradict the constitution? Remember the basic principle of supremacy of the Constitution?” Akinlade said.
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