Femi Falana is a Nigerian human rights lawyer and the legal lead on the case between the controversial Venezuelan diplomat, Alex Saab, and the Cape Verde authorities before the ECOWAS Court.
In an interview with PREMIUM TIMES, Mr Falana discloses how the detained controversial diplomat got entangled in the U.S and Venezuela governments political feud.
He also hinted on what the outcome of the case would say about the ECOWAS influence over its member states.
PT: Could you give PREMIUM TIMES an overview of the charges levied against the detained Venezuelan government’s front man, Alex Saab?
Mr Falana: Well, Alex Saab is a Special Envoy of the Republic of Venezuela. He was on a special mission to Iran to procure humanitarian assistance when the aeroplane conveying him made a stopover to refuel in Cape Verde on June 12, 2020.
He was arrested on the basis of an Interpol warrant instigated by the United State of America.
As far as international law is concerned, being a Special Envoy of his country, he ought not to have been arrested. Even if he was arrested, once his country explains his status as a diplomat, under the Vienna Convention, that should have been the end of the matter.
But the U.S. claim to have filed charges against him in Florida, for which reason they wanted him extradited. From what I found out, there is no extradition treaty between Cape Verde and the U.S, even though both countries have ratified the United Nations’ convention against organised crimes but it goes beyond that.
The U.S has also gone further by subjecting that international convention law to its domestic law, saying unless we (the U.S) have an extradition treaty with a country, we are not going to extradite anybody.
What we are now asking is that, if you are not going to do that in the U.S, why are you asking Cape Verde to do that? It was at that stage that we were briefed, because the local court in Cape Verde had accepted the position of the U.S and their government by not listening to (the) law, considering his status as a diplomat, which entitled him to immunity.
PT: How best can you then explain the argument that Mr Saab’s status as a diplomat was not obvious until his arrest in Cape Verde?
Mr Falana: Like I earlier said, he was on a special mission to Iran and made a brief stop in Cape Verde to refuel.
There was no plan to stop there and there was no way the Cabo Verdean authorities could be told in advance but as soon as he landed, this issue of the Interpol warrant came up and Venezuela clarified his status, that should have ended everything.
You either inform a country in advance or after the person must have landed, so there is no law that says I must tell you in advance that my diplomat is going to pass through your country. Cape Verde does not have an excuse.
In fact, the moment you were told that this is an envoy, that should have been the end of the matter because it is the decision of the government of Venezuela, not that of the U.S. or the Cape Verde.
PT: Could you explain why the judgement of the ECOWAS court is not being adhered to by Cape Verde Authorities?
Mr Falana: The ECOWAS gave its ruling on November 2, after taking arguments from both sides, the lawyers to Alex Saab as well as lawyers to the government of Cape Verde.
The ECOWAS court ordered that he should be allowed to stay in the house and be allowed access to medical doctors ending the determination of the case, which has been adjourned to the 5th of February.
Cape Verde has flagrantly refused to comply with the order of the ECOWAS court, on the untenable ground that Cape Verde didn’t sign the supplementary protocol on the ECOWAS court that empower the code to entertain human right ramifications.
The supplementary protocol came into effect on the 19th of January, 2005, when it was signed by 14 out of the 15 member states of the ECOWAS. Article 11 of the protocol provides that once it is signed by 9 member states it shall come into provision of force. In this instance, it was signed by 14.
That meeting was attended by the then Prime Minister of Cape Verde. The meeting took place in Accra, Ghana. He was there, but towards the tail end, he had to rush home to attend to an emergency. Hence, he didn’t sign the supplementary protocol, but there has been no rejection of the protocol by Cape Verde.
As a matter of fact, in September 2009, when the Gambia wanted some amendments to the supplementary protocol, Cape Verde was among the countries that voted against the proposed amendment.
Furthermore, between then and now, Cape Verde has sponsored two of her nationals who are members of the court. The two judges decide cases together in the court along with their colleagues. As a matter of fact, the Alex Saab case before the ECOWAS court is being handled by three judges, including a Cape Verdean.
There has been resolutions of the court on the appointment of judges of the court, amendment on the rules of the court, which has been endorsed by the summit of the head of states, including Cape Verde.
In addition, there is a community of judges, made up of Chief Justices of member states of ECOWAS, the Chief Justice of Cape Verde is a member. That is the body in charge of the discipline of judges in the court.
So, as far as international law is concerned, Cape Verde cannot deny or claim that it is not bound by the supplementary protocol. It has also never disowned any of the instruments of the ECOWAS.
There is even another element to this case. On December 21, 2020, the government of Venezuela appointed Alex Saab as an Alternate Ambassador to the African Union. Again, as far as the law is concerned, even if you don’t recognise the fact that he is a Special Envoy, you cannot question the fact that he is an ambassador, appointed by his country.
Cape Verde is still silent on this because they know that the moment that appointment takes effect, they can no longer detain him irrespective of the crime levied against him.
PT: What does the continued detention of Mr Saab’s project about the continent’s (Africa) democratic tenets and international law?
Mr Falana: I must confess, the conduct of Cape Verde is very strange and alien to democratic practise. Once you subscribe to an international human instrument or treaties, you are binded by the provisions and you cannot go back to your own country and disobey the treaty.
In this particular instance, the conduct of Cape Verde is embarrassing and subversive of regional integration. It is an action that should not be tolerated and we are taking it up with the ECOWAS commission so that no state in the region will disregard the revised treaty and other protocols, and pretend not to be binded by the organization.
Once you are a member of ECOWAS you must comply not only with its revised treaties of member states but also the decision of its organs.
We have filed a contempt proceeding to the summit of head of states to impose sanctions on Cape Verde having violated the article 77 of the revised treaty as well as Article 24 of the supplementary protocol.
PT: Considering his health condition and his status as a Venezuelan diplomat, what do you portend could be the fate of Mr Saab if Cabo Verde authorities continue to negate ECOWAS and the U.S successfully extradite him?
Mr Falana: Again, I wouldn’t want to talk on this because we have put some legal process in motion and until the law and due process have been fully exhausted, we would not expect both Cape Verde and America to disregard the rule of law as far as this matter is concerned.
We are hopeful and confident that justice would be served; the U.S as well as Cape Verde, as members of an international community, would be expected to comply with the rule of law.
PT: How best do you think the ECOWAS court can actually ensure that justice is served on this case?
Mr Falana: I believe the ECOWAS court, at the end of the day, will decide based on the facts and evidence before it as well as the position of the law. These will form the basis of the decision of the court and that is when you can say that justice has been done in a case.
We are very confident that the ECOWAS court will not disappoint but ensure that justice is served in this case.
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