By Piribonimibo Isaac Harry
Introduction
The internet was once again agog on Sunday July 17, 2022 with a viral video showing a man videotaping one of the serving Ministers of the Federal Republic of Nigeria in what appears to be a restaurant located in one of the cities in the United States of America. The perpetrator, whose Nigerian identity was fairly exposed by certain words he uttered in Yoruba language, later identified himself in the video as a Nigerian based in the United States. The Minister in question, Mr. Rauf Aragbesola – Nigeria’s Minister of Interior, was seen resisting the invasion of his privacy by the unidentified man, thus creating an ugly scene of pandemonium in the restaurant to the utter dismay of spectators and embarrassment of the Honorable Minister. The unidentified man videotaping the Minister was heard arguing that his action was within ambit of the American legal system which entitles him to exercise such freedom.
A close consideration of the actions and arguments of both parties may appear a bit confusing in determining who among both of them is right. One may ask, is the purported act of the man videotaping the Minister against his will, right? Was his justification for perpetrating such action legally in order? Is the Nigerian Minister entitled to his right of privacy, especially as a public figure in America?
Before answering the above posers, I will start by commending the uncommon liberties enjoyed by citizens and residents of the United States of America as facilitated by its Federal Constitution together with the various amendments therein, even though same may be sometime susceptible to abuse as was evident in the extant case under consideration. However, unlike other climes in Africa, the replication of this U.S legislative feat is far from reality. No wonder the unidentified man under context appears somewhat too excited to do what he was doing, knowing fully well that similar privileges are not available to anyone back home where he came from.
Right to Press Freedom as Protected Under the First Amendment to the Constitution of the United States of America
The Federal Constitution of the United States of America, under its first amendment, enables the rights of individuals to photograph and videotape public figures in public places. First, it must be reemphasized that the person whom the action is carried against must qualify as a public figure (E.g., a government official, politician, celebrity, diplomat, business tycoon, royalty, anyone with high social standing etc.). Secondly, the place in which the person is located must qualify as a public place.
This law therefore, gives anyone in the U.S the right to photograph or videotape the actions of public officials like Police officer, when carrying out their official duties in public places. The law further denies these Police officers or public figures the authority to demand, seize, search, deletes or destroy either the device or the contents of the device used for such recording, unless upon the show of a search warrant validly issued by a competent court in the U.S and sighted by the perpetrator. It is also worthy of mentioning that the American Supreme Court, in the case of Burstyn V. Wilson, 343 U.S. 495 (1952), has further extended this right to include film making. It is submitted that the right of press freedom enabled by the first amendment to the Constitution of the United State of America is arguably the law that facilitates the now trending business of paparazzi in today’s America.
Having laid a brief foundation of the imports of the first amendment to the U.S Constitution with regards to press freedom, it becomes germane to critically examine its purports on the action of the unidentified man to the Nigerian Minister of Interior.
The American draftsmen were deliberate to use the word ‘public places’ in the first amendment. The issue for determination therefore, is whether or not a restaurant likened to the one which the Nigerian Minister of Interior was seen having his meal, could qualify as a public place within the contemplation of the first amendment.
Public places as far as the first amendment to the U.S Constitution is concerned, could be best described as government owned buildings, properties, businesses, establishments, or institutions which the government of the United States of America possesses certain equitable shares and which are located within the U.S. In other words, properties, facilities or businesses which the United States Government do not have direct or indirect pecuniary interest, and which in all ramification has no element of government ownership, cannot be said to qualify as public place. On the contrary, such places are deemed to qualify as private places, which entitles the private owners the right to set rules and regulations on how activities may be carried out within such facilities. Presumably, it may be safe to conclude that, given the physical appearance of the restaurant in the viral video, it depicts that same may be owned and operated as a private business.
Having alluded to the possibility of the restaurant being a privately owned business, it is submitted that same does not qualify as a public place withing the contemplation of the first amendment to the U.S Constitution. It is therefore, further submitted that the action of the unidentified man videotaping the foreign official is apparently wrong, as same violates the right to privacy of Minister Aregbesola. In this vein, the likely remedy available to the proprietors of the restaurant against the alleged offender is to hand over the man to the Police for harassing their client and for engaging in acts capable of breaching public peace. On the other hand, the Honorable Minister of Nigeria may elect to institute a private action under tort against the alleged perpetrator.
The above submission happens to be a segment of my argument and the attendant implications of the unruly actions against the Nigerian Minister. The second and most fundamental part of my argument and implication is the one facilitated by International Law, and whose effect may vary depending on the capacity in which the said Minister travelled to America.
US Federal Law that Protects Foreign Officials, Internationally Protected Persons and Official Guest.
Assuming that the Nigerian Minster of Interior travelled to the United States of America in his capacity as a serving foreign Minister, he is deemed to be protected under a U.S Federal Law known as the Protection of Foreign Officials – Internationally Protected Persons and Official Guest – 18 U. S. Code § 112. By the provisions of this law, the government of the United States of America is seen to have committed itself to protect any foreign official, foreign guest or internationally protected person from acts of endangerment whenever they are within the territory of the United States of America. In an attempt to paraphrase the said Federal Law, the law provides under paragraphs (a) to (c) that, anyone who attempts to, or willfully engages in acts of assaults, strikes, wounding, imprisonments, violence, intimidation, coercion, threats, harassment, attack, obstruction of officer from carrying out official functions and endangerment of the liberty of persons within the territory of the United States of America, would be liable to a fine, or 3-10 years imprisonment or both.
Paragraph (e) of that section of the law further provide that the alleged offender may not necessarily be a citizen of America, as an alleged offender who, though not a citizen of America, is later found in America, would also be apprehended and made to face the consequences of his/her actions. However, it must be mentioned here that by virtue of Paragraph (d) of the section of the law under consideration, these provisions are expressly made subject to the rights protected under the first amendment to the constitution of the United States of America as earlier discussed.
Following from the above cited legal provision, it is clear that the American Government have an obligation to protect the right of the Nigerian Minister of Interior, either as a Foreign Official – where his visit to the U. S is considered as official, or as an Internationally Protected Person and Official Guest – where it appears that he didn’t visit in his official capacity, and in view of his capacity as a high-profile visiting Government Official of the Federal Republic of Nigeria. Since the ‘did has been done’ the Government of the United States is left with the option of arresting and prosecuting the alleged offender in accordance with the dictates of this law regardless of the nationality of the offender, since the offence was committed within the U.S territory and the perpetrator is still domiciled within the U.S. This step, if taken, will build up diplomatic confidence between the government of the United States of America and Nigeria and would further strengthen the existing diplomatic ties between both governments.
Finally, if upon close investigation it is discovered that the alleged offender is a Nigerian citizen without any citizenship affiliation with the United States of America, the Nigerian Mission in the U. S may in collaboration with their American counterpart, commence the process of repatriation of the alleged offender back to Nigeria to face the weight of the law for his action as a citizen of Nigeria. This is in line with Nationality Principle recognized under international Law. This, in fact, should have been the action the Nigerian Government would have taken three years ago when the former Deputy Senate President – Senator Ike Ekweremadu – was assaulted in Nuremberg Germany in August 2019 by persons believed to be members of the Indigenous People of Biafra (IPOB). The same would have also been the approach of the Federal Government when a Vienna based Nigerian harassed some Nigerian Athletes in a bus in Austria in July 2021. Although I stand to be corrected, I am of the strong view that the governments of the United States of America, Germany and Austria all have bilateral ties on repatriation with the government of Nigerian, which would render the implementation of the above suggested approach possible.
Conclusion
Incidences of harassment of public officers from Nigeria by Nigerians in foreign countries is now very rampant. Conscious efforts are expected from the federal government to put an end to this ugly trend. The federal government of Nigeria must not just as usual, make official statements condemning such actions but take decisive steps towards putting an end to it. This could possibly be achieved by the Nigerian government if it takes advantage of the provisions of relevant international instruments and domestic laws of the receiving states where such public officials are being subjected to unwarranted harassments and abuse, to effect justice on perpetrators. This measure, if effectively explored, is capable of deterring future offenders, and making bare the likely implications for perpetrators of unpatriotic actions on foreign soil, thereby underscoring the truism of absence of territorial limitations for punishment of certain offences with extra-territorial flavours.
