The ceding of Nigeria’s sovereign immunity to China in a loan agreement between the Federal Government of Nigeria and the Export Import Bank of the People’s Republic of China for the funding of critical rail infrastructure across the country has dominated national discuss as it continues to generate mixed feelings among Nigerians following an ongoing probe by the lower chamber’s Committee on Treaties.
The Committee had expressed worries over the insertion of a clause relinquishing the immunity of Nigeria to China should the country default on the terms of the memorandum.
Reacting to the development, former National Publicity Secretary of the defunct New People’s Democratic Party (nPDP), Chief Eze Chukwuemeka Eze, said the House of Representatives Committee Chairman on Treaties, Hon. Osai Osai, misconceived and garbled the purport of the clause and his phony slant sent shivers down every Nigerians and sparked needless reactions from different quarters.
Chief Eze first helped Nigerians to understand what a loan means, harping on an African proverb that says when people urinate together, it produces foam, showing that when capital comes together, it executes bigger projects that scattered funds could not execute.
He explained that the said clause generating the controversy is Article 8(1) of the agreement, which provides that “The borrower hereby irrevocably waives any immunity on the grounds of sovereign or otherwise for itself or its property in connection with any arbitration proceeding pursuant to Article 8(5), thereof with the enforcement of any arbitral award pursuant thereto, except for the military assets and diplomatic assets”.
In a press statement made available to The Story, Chief Eze, a chieftain of the All Progressives Congress said Article 8(1) does not in any way suggest the leasing of Nigeria or her sovereignty to China.
Simply put, Sovereign immunity is a legal doctrine by which the government of a foreign country is immune from suit in the courts outside its jurisdiction.
Eze, a seasoned media chief, said in common law jurisdiction, an independent sovereign state may not be sued in the courts against its will and without its consent. This doctrine of state or sovereign immunity evolved from rules of international law and same has been internalised and made part of the common law of England which forms part of Nigeria’s body of laws.
Under the common law, exercise of the court’s jurisdictions against the sovereign state is deemed incompatible with the superior authority of the sovereign state. The doctrine is founded upon the broad considerations of public policy, International law and comity rather than on any technical rules of law.
Flowing from the above and borrowing inference from the provisions of the very comprehensive and standard Foreign Sovereign Immunities Act (FSIA), a piece of legislation of the United States, a sovereign debtor, defending against a collection action may seek refuge in the FSIA. The Act was enacted to codify restrictive theory of sovereign immunity of states.
Although the FSIA serves as a jurisdictional bar to certain suits involving the official conducts of a foreign country, the Act provides several exceptions to that immunity. One of such is in the context of sovereign loan defaults; the sovereign may relinquish its immunity by express or implied waiver. Most sovereign bonds and loan agreements contain express waivers of sovereign immunity.
In addition and importantly too, the Act provides that a foreign state is not immune from jurisdiction in suits arising from acts that the Sovereign performs in connection with certain commercial activities.
This is the chief reason a waiver of sovereign immunity clause, like Article 8(1) quoted above, is usually inserted in a foreign loan agreement, such that Nigeria has entered into with China.
Succinctly, the clause only allows the lender to institute arbitration proceedings and enforce the arbitral award against a sovereign debtor (in this case, Nigeria) and its assets in another jurisdiction or country if the Sovereign fails to pay back the loan and not to take over the sovereignty and the running of the economy of the sovereign debtor as is being peddled around.
He emphasized that bilateral relations would be chaotic, if not impossible if the law had allowed a sovereign promissor to lean on the cloak of sovereign immunity to break contractual terms without at least placing it under obligation, by way of specific performance, to pay compensation for damages occasioned by the default.
Dismissing the fictitious insinuation that Nigeria may have been mortgaged to China, the party chief counselled propagators of the falsehood to seek proper clausal interpretation from experts and desist from rubbing the country’s image in the mud, stressing that Nigeria is full of intellects to be coaxed into an extravagant and monstrous lies.
Explaining further, Chief Eze said the loan agreement was signed on December 20, 2010, under the presidency of Dr. Goodluck Jonathan and that the current administration only activated the agreement.
He therefore submitted that the Jonathan’s administration which bargained and signed the agreement and the current administration that only activated and implemented the terms thereof would not have acted if the terms were in breach of the Nigerian laws.
On the erroneous assumption that the country has been enmeshed in excessive debt, Chief Eze explained that taking loans at low interest rates can be more desirable than raising taxes. He said the loans are essential to cover for domestic resource gaps and finance projects that will provoke economic fillip, reduce poverty and foster longer-term growth.
The party chieftain quoted the estimates of the Institute of International Finance (IIF), the Washington-based global association of the financial industry, as positing that the overall international borrowing rose to more than $246 trillion in the first trimester of 2019, nearly 320% of worldwide GDP. Simply put, the world borrows over three times more than it produces. It cannot be Nigeria alone.
He stated that the biggest economies of the world such as the US, UK, Germany, France, Japan, China, Italy, Canada, Netherlands etc are heavily involved in sovereign debts and rely on foreign loans for the financing of critical national projects. He maintained that no sovereign has achieved greatness without the support of other nations through loans.
The party stalwart described sovereign debt as the total capital that is owed to creditors outside of a country’s territory. He said Nigeria has maintained a very responsible level of external borrowing to save the country from distress which he said could affect the progress already recorded on the aggregate performance of the economy within the past few years.
He called on the House Committee on Treaties to place national interest beyond self, cooperate and give necessary support to the Transportation Minister, Rt. Hon. Amaechi, for the speedy completion of more rail infrastructure to create jobs and improve the economy, assuring that the country is safe under the President Mohammadu Buhari-led federal government. He appealed to political activists who only understand politics to allow experts to discuss and handle this matter. He said the House Committee can obtain other international loan deals to see if they have no single obligation clause upon the sovereign borrower.
Assuring Nigerians of more results from the Transportation Ministry under Rt. Hon. Rotimi Chibuike Amaechi, Eze called for a temporary halt on the probe to allow for the commitment and implementation of the terms of the loan on the part of the Chinese in order to see to the completion of the specific loan projects for the use and enjoyment of Commuters. He expressed confidence in the competence and dexterity of Amaechi in negotiating bilateral agreement terms to the advantage of Nigeria.
It is his advice that what should concern Nigerians is how those coming after this administration and could be the ones to manage the built railway system would have to maintain the same credibility and capability in managing the rails and repaying the loans.
In conclusion, Eze Vouches for Amaechi’s patriotism, experience and shrewdness in negotiation loans deals and described those linking him with the plots to sell Nigeria’s sovereignty as overly mischievous and misguided with political agenda whose plots to tarnish the image of the administration of President Buhari will fail accordingly.
He further expressed sadness of those asking for the head of Amaechi for just because of politics and pleaded with them to leave Amaechi alone so that he will continue with the great plans he has for a better and greater Nigeria.
