AUnited States court, presided over by Judge Karen Mason, sentenced a 73-year old Nigerian, Mrs Oluremi Adeleye, to fifteen years in prison for child abuse and second-degree murder on Monday, 6th May, 2019 in Maryland, United States. Mrs. Adeleye is a live-in nanny and is looking after an 8-month old baby, Enita(n) Salubi at a couple’s home in Glenarden in October 2016. Mrs. Adeleye was found guilty of forcing milk down the throat of Enita(n) Salubi, thus suffocating the child and ending the life of the child on October 26, 2016.

The prosecutors, relying on the video surveillance camera, have it that Mrs Adeleye ‘tried to feed the baby, but without success. Adeleye then pulled the baby from her walker, removed the nipple from her bottle and forcefully fed her… Adeleye poured eight ounces of milk down the child’s throat in less than 30 seconds, essentially drowning her’ (vide ThisDay Report on the basis of www.courtroom mail.com).

In a bench trial, Judge Karen Mason admitted that the nanny might have not been an evil-intentioned baby slayer but she should have also known that her actions could result in the death of the baby girl, and on this basis, decided to sanction Mrs. Adeleye with a jail term of 15 years. This is the jail sentence that has been generating much interest and debate.

There are four schools of thought on this matter. The first school argues that the sentence is unfair in light of the unintended act to kill. Emphasis is placed on the fact that Mrs, Adeleye is a Yoruba woman and she grew up with Yoruba culture, in which forcing milk down the throat of children is common practice up till now. In the eyes of Taiwo Akinrowo, ’15 years is excessive in the circumstances. Considering the age of the nanny and the reckless nature, according to the judge, of the offending, I would have thought that 5 years would be appropriate sentencing. I was force-fed too by my mum over 50 years ago and I saw her do it to my younger sister subsequently. It was widely practised while I grew up and I never saw any child die or even get rushed to the hospital for it. Accidents do happen and people, even adults, have choked on their food before resulting in their deaths. This could very well have been the case here – accident.’

A second school of thought argues from the perspective of the parents of the deceased, and do consider the reasonableness of the court sentence. As seen by Ed. Okeke, ’15 years seems to be too much for you folks because the dead child is not yours. There is no amount of time she spends in jail that will amount to the lost child. Imagine the emotional toll the death of the child is having on the parents. They will never come out of this soon. Who knows the real intention of the nanny. She may be annoyed with the child for disturbing her sleep. I have seen this with my former nanny. People are wicked. I bet you that this nanny did not do this in the interest of the child.’

While the first school argued along the probability of a possible accident, the second school raised the possibility of an act of wickedness. A third school looks at the issue from a detached perspective, admitting the arguments of the earlier schools, but not only argued that the sentence of 15 years is harsh and that there should have been a diplomatic intervention in the spirit of advocacy. For instance, Olofa has opined that the Nigerian ambassador to the United States is supposed to have come ‘into the case before (the) judgment’ and the sentencing would not have been up to that ‘because the judge is going to listen to more intensive advocacy.’ In the same vein, Yemi Balogun specifically asked: ‘Nigerian Embassy and Honourable Abike Dabiri, where were you before, during and after this judgment?’

The fourth school holds the parents of the deceased partly responsible. Ngozi, a native of Ekpeyeland in Ahoada, Rivers State, has argued that ‘the unfortunate thing though is that the woman (nanny) was not instructed properly by the parents of the baby. Why did she not call 911 right away and why was the father carrying the child to the hospital?… Were there no EMS personnel at the home before getting to the hospital that would have facilitated the child’s recovery? The Maryland Judiciary system should reconsider that sentencing because it was indeed a clash of culture that resulted tragically.’

There are some critical observations of note from the various comments. The first is that the culture of the Yoruba people in Nigeria is not tenable in the United States setting. Mrs. Adeleye now has to suffer from the conflict of cultures. The alleged harsh sentence might have been given to send strong signals to people with foreign tradition to reckon with a new life-style in America. A second important observation is the factor of advocacy with which Nigerian foreign policy makers are not much conversant. To an extent, advocacy might have considerably impacted on the sentencing process if advocacy had been factored in on time.

Whatever is the case, one point is particularly noteworthy about the various arguments. It is that some of the commentators asked: where was Honourable Abike Dabiri-Erewa during the trial? Some specifically called on her to quickly come and appeal against the court decision. The argument is not that Mrs. Adeleye should not have been convicted but that the sentence should not have been up to 15 years. In fact, some commentators opined that it is because Mrs. Adeleye is not an American and that was why she has been given that type of very harsh sentence.

What is particularly noteworthy again is that the calls on Abike Dabiri-Erewa are coming against the background of the Senate’s confirmation of her appointment as the Chairman and Chief Executive Officer of the newly created Nigerian Diaspora Organisation. And perhaps most importantly, many commentators believe, but wrongly, that the Government of Nigeria, either through Abike Dabiri-Erewa or the Ministry of Foreign Affairs, should be able to provide diplomatic protection in this matter.

For instance, Uzoh said: ‘it is unfortunate that when you need your government to weigh in on a situation, she is nowhere to be found. I was born in Lagos and was fed like that several times, especially when I was sick and didn’t have an appetite. It was principally akamu/ogi. Given the lady’s age and the cultural explanation associated with the practice… the judge was being unnecessarily high handed.’

Calling for diplomatic intervention is a good and patriotic wish. As noted above, the call is good and coming at the time of confirmation of Honourable Dabiri-Erewa as Chief Executive Officer of the Nigerian Diaspora Commission. The appointment of Honourable Dabiri-Erewa is perfectly in order. It is an issue of round peg in a round hole. She is on record to have been a major defender of the common man when she was moderating the NTA Newsline Programme. During her 15 years at the NTA, her main interest was how to eradicate poverty and ensure social justice. Even when she was Chairman of the House Committee on Media, in the period from 2003 to 2015, the defence of the media in the monitoring of political governance, as provided in Nigeria’s 1999 Constitution, as amended, emphasis was still on the wellbeing of the poor. In fact, it was her who introduced a bill on the need to create a Diaspora Commission. To have been confirmed for appointment as Chairman and Chief Executive Officer of the Nigerian Diaspora Commission is only natural and welcomed a development, especially that she had also served as Chairman of the House Committee on Diaspora affairs.

But as Chairman and Chief Executive Officer of the Diaspora Commission, one of her main responsibilities cannot but be how to better to protect all Nigerians living abroad, especially that the conception of Diaspora is no longer limited to those who migrated and have been living for a very long time abroad. Casual migrants are now also referred to as members of the Diaspora. In this regard, to what extent does the case of a nanny fall under the Diaspora question? To what extent does it also fall under diplomatic protection? Is it the responsibility of the Diaspora Commission or that of the Ministry of Foreign Affairs to seek diplomatic protection of the nanny? This question is particularly necessary because the number of those people calling on Honourable Abike Dabiri-Erewa is increasing? What is the expected working relationship between the Foreign Ministry and the Diaspora Commission? Will there be any special entente between the two institutions? Whatever are the answers, it is important to note that diplomatic protection is only carried out on the basis of some universal fundamental rules and these rules should be explained and understood in their appropriate context.

Understanding Diplomatic and Functional Protection

The principle of diplomatic protection can apply in both public and private international law. Under private international law, the subjects to be protected are non-governmental citizens residing outside of their home countries. In other words, they are citizens living in their private capacity in other countries. Whereas, under public international law, the subjects to be looked after are the diplomats, and therefore, they fall under the 1961 and 1963 Vienna Convention on Diplomatic and Consular relations, as well other bilateral, plurilateral and regional diplomatic agreements.

The fundamental difference between diplomatic protection under public and private international law is that a government, under private international law and through its diplomatic mission in a receiving State, can only make a case for diplomatic protection if it can be established that an individual who is a citizen of the claiming state has been denied justice. Denial of justice means an individual must have sought and exhausted local redresses but could not secure justice, hence the need for his/her governmental intervention. This is what is generally referred to as initial exhaustion of local remedies.

On the contrary, diplomatic protection at the level of accredited diplomats under public international law is governed by various diplomatic conventions and some unwritten rules. For instance, diplomatic protection is largely a resultant of capacity to protect. It is also subject to the rule of reciprocity. Diplomatic protection hardly applies in the case of competing nationalities. In other words, if an injured person has a dual nationality, no country would want to quickly jump at seeking redress, although in some cases, the rule of effective nationality can also be considered.

In this regard, like we are considering the case of the Nigerian nanny in the United States, does she have the nationality of the United States in addition to that of Nigeria? If yes, there cannot but be conflict of nationality in the event of need to engage in diplomatic protection. This situation necessarily raises another attribute of diplomatic protection: discretion of the state of the injured citizen, and this is in spite of the fact that, etymologically speaking, diplomatic protection as a doctrine is largely predicated on the consideration that a State has a right to protect its people who are living abroad. Emmerich de Vattel has observed that ‘whoever ill-treats a citizen indirectly injures the State, which must protect that citizen.’

Put differently, diplomatic protection is necessarily a subject under State responsibility and treatment of aliens. From the foregoing therefore, a State is believed to have the responsibility to protect its citizens but the international admissibility of any claim to diplomatic protection is governed by Article 44 of the Articles on Responsibility of States for wrongful Acts. It stipulates that ‘the responsibility of a State may not be invoked if (a) the claim is not brought in accordance with any applicable rule relating to the nationality of claim; and b) the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.

And perhaps most importantly, diplomatic protection should not be confused with ‘functional protection’ which is applicable to agents of international organisations.

As explained by the International Law Commission at its fifty-eight session in 2006 and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/61/10), ‘diplomatic protection is traditionally a mechanism designed to secure reparation for injury to the national of a state premised largely on the principle that an injury to a national is an injury to the state itself. Functional protection, on the other hand, is an institution for promoting the efficient functioning of an international organisation by ensuring respect for its agents and their independence.’ This consideration prompted the Commission to also ‘conclude that protection of an agent by an international organisation does not belong in a set of draft articles on diplomatic protection.’

It is against this background that the calls on Honourable Abike Dabiri-Erewa for possible diplomatic protection of the Nigerian nanny who has been given a very severe jail sentence should be explained and understood: is Mrs. Oluremi Adeleye a diplomat qualified to be protected under public international law or under the Vienna diplomatic conventions? She is not. Is she an international functionary under public international law to qualify for functional protection? she is not. Is she eligible to be protected under private international law? Yes, she is, but subject to the condition that she still has the effective nationality of Nigeria and that she also does not hold the citizenship of the United States, who can also claim that she is a citizen of the United States and has been duly prosecuted under the law of the United States. In this type of possible situation, what can or should Nigeria do within the framework of the Nigerian Diaspora Organisation or the Ministry of Foreign Affairs?

The case of Mrs Oluremi Adeleye gives a lot of room not only to learn many lessons but to also do a lot in protective strategic calculations in Nigeria’s foreign policy. First, it has become a desideratum to evolve the culture of advocacy in Nigeria in both foreign and parliamentary diplomacy. Some observers have noted that, had there been advocacy intervention during the trial of Mrs. Adeleye, the sentencing might have been less severe.

Secondly, many Nigerians run into unnecessary troubles abroad because they wrongly believe that the world is simply an extension of Nigeria or that their living rooms abroad have an exterritorial status to which the domestic laws of their host States do not apply. Without any whiff of doubt, the arguments for and against the court judgment are quite interesting, but also quite disturbing, with the implication of unnecessarily tainting the good image of the American judicial system, there is the urgent need for both the Government of the United States and the Government of Nigeria to revisit the judgment with a more objective quest for fairness and justice. The matter, regardless of the death of the baby involved, is indeed a clash of cultures if not an expression of conflict in civilisations.

African children are generally brought up in a more difficult environment than their counterparts in Europe and America. And true, they appear to be more protesting when eating, hence the need to compel them to eat. While the Euro-Americans talk about milk-feeding, it is the very bitter local herb that children are first given in the village setting in Nigeria. And without jot of gainsaying, they are quite stronger than the children of the elite in the metropolitan cities.

The likely truth in the matter of Mrs. Adeleye cannot be that she is a murderer. She could not have intentionally forced milk down the throat of the baby with the ultimate objective of killing. In the Yoruba land of Nigeria, forcing children to eat is not only common but also requires a dose of professionalism. It is an art that modern day scientists can still learn from. The court judgment appears to have been aimed at suggesting that the Yoruba culture should simply be thrown away into the garbage of history. It should not be. Lessons should be learnt from those who have more skills in doing so.

Consequently, regardless of who will be representing the Government of Nigeria in seeking diplomatic protection for Mrs. Adeleye, the sentence is currently presenting America as fighting the Yoruba culture. The judge sees Mrs. Adeleye’s offence as a crime, and for that matter as second degree murder, and not even as manslaughter, while the people of Nigeria see the offence as a non-deliberate mistake. In fact, it is useful to ask how the judge would have admitted that Mrs. Adeleye could not have deliberately forced the milk down the throat of the baby to kill, and yet, the severest of punishment was what the judge reserved for her.

Government of Nigeria will need to develop a foreign policy of general public enlightenment on the dos and don’ts in foreign countries, as well as have a carefully articulated policy of how to defend and protect Nigerians living abroad. This is where the Foreign Ministry, the Nigerian Diaspora Organisation and the Ministry of Defence will need to collaborate and require some research and tertiary institutions to evolve some analytical frameworks for the mistreatment of Nigerians abroad.

The case of Mrs. Adeleye cannot be regarded as a case of mistreatment. She was duly tried in a law court for an offence. The sentence might have not been commensurate with the offence committed, it cannot be rightly argued that there was a case of denial of justice. What is doable now is to plead for leniency by virtue of the old age of Mrs. Adeleye. Under normal circumstance, there is no reason why she should still be working as a nanny at 73 years. And if she has been working for 25 years as nanny, and there has not been any known or record of remissness, how best can we explain her offence if not as an accident? both the parents of the deceased and Mrs. Adeleye deserve public sympathy There is the need for diplomatic protection.

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