Navigating Through the Labyrinth of Extradition; Hushpuppi’ as Case Study – Kolawole Emmanuel

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It is no longer news that Nigerian Instagram celebrity Ramon  Olorunwa Abbas popularly known as ‘Ray Hushpuppi’ was arrested in Dubai, UAE by INTERPOL and highly trained Dubai Police Officers on multiple fraud charges for crimes committed in different parts of the world. However, trailing the news were reports of plans to extradite him to Nigeria to face alleged multiple fraud charges and also efforts made by the Federal Bureau of Investigation (FBI) to extradite him to America on allegations of defrauding American citizens.

In this article, the concept of extradition would be examined alongside the basis and basic conditions for extradition. At the end of this article, would be the consideration of the possibility, in light of Hushpuppi’s planned extradition to Nigeria also the possible outcome in circumstances where two or more states are requesting for the extradition of a particular criminal.

Extradition 

Contemporary society with all its technological developments has become a play field to criminal activities. Criminals have assumed organized force. The spread of criminal activities assumed wider proportions and greater intensity. Consequently, many countries are experiencing devastating effects politically, economically as well as socially. Easier transportation and communication are aiding the criminals to easily flee from the jurisdictional clutches of victim states. Since the sovereign constraints stop the victim state to effectively exercise their jurisdiction, extradition alone offers the legal avenue to overcome the jurisdictional hardship in contrast to illegal abductions. In the era of organized crimes and other serious crimes threatening the national and international well being, international cooperation through extradition alone can be an effective solution to such a threat. There is a universal consensus that it is very desirable for all criminal acts and deliberate criminal omissions to attract deterrent consequences. It is equally desirable that the process for determining and enforcing the consequences be controlled and managed in the place where the crime was committed. This is arguably because mostly, proof of crime can best be adduced at the place where it was committed, on account of proximity to sources of evidence. The injury of a crime to society can arguably also be best measured at the place of its commission. Extradition arrangements between nations make it possible for this to happen and to ensure that criminals do not go unpunished by simply moving from the territory where they commit crimes to another territory. The incremental importance of extradition can be witnessed in the accommodation of this legal avenue in many international conventions being developed to control the crimes.

The term extradition has its origin in the Latin word “extradere” which means forceful return of a person to his sovereign. The modern word extradition is perhaps derived from the practice which was called “extra-tradition” because it was against the traditional hospitality offered to an alien by a state who had allegedly committed an offence and sought refuge or asylum to save himself from prosecution or punishment. The Court of Appeal in George Udeozor v Federal Republic of Nigeria,CA/L/376/05  defined extradition as the process of returning somebody, upon request, accused of a crime by a different legal authority to the requesting authority for trial or punishment. According to learned author, J.G. Starke, he opined that the term ‘extradition’ denotes the process whereby under treaty or upon a basis of reciprocity one State surrenders to another State as it’s the laws of the requesting State, such requesting state being competent to try the alleged offender.

Extradition proceedings involve diplomatic, administrative and judicial steps, which are aimed at ensuring that fugitives face trial for their alleged criminal acts. As noted by the Court in Attorney-General of the Federation v. Olayinka Johnson (AKA Big Brother), AKA Rafiu Kofoworola), (AKA Gbolahan Opeyemi Akinola),Suit No. FHC/L/16C/2013 extradition proceedings are not meant to serve as a trial of the Respondent. Rather, the proceedings serve as an expression of considerate practice based on the notion that it is in the interest of every State that persons fleeing from justice must be disallowed from seeking refuge outside the territory of the State where the person is wanted. As far back as 1896, Lord Russell of Killowen, C.J noted in R v. Arton (No. 1) [1896] 1 Q.B. 108.that: The law of extradition is without doubt founded upon the broad principle that it is to the interest of civilised communities that crimes acknowledged as such should not go unpunished and it is part of the comity of nations that one State should afford to another every assistance towards bringing persons guilty of such crimes to justice.

In addendum to the basis of extradition implicit from the foregoing , includes:

  • Extradition acts as a warning to the criminals that they cannot escape punishment by fleeing to another state. Extradition therefore has a deterring effect.
  • Criminals are surrendered as it safeguards the interests of the territorial state. If a particular state adopts a policy of non extradition of criminals they would like to flee to that state only. That state therefore, would become a place for international criminals, who indeed would be dangerous for it, because they may again commit crime in that state if they are left free.
  • Extradition facilitates reciprocity. A state which is currently requested to extradite the criminal may at a later point of time have the similar need of having to request the same requesting state to extradite the wanted criminal who fled to the current requesting state.
  • Extradition exudes the spirit of goodwill. Comity is the most sought after tool to maintain a sound international relationship with other countries. The spirit of comity exhibited through the extradition of the fugitive criminal can gain many political, economic or other goodwill gestures from the requesting state.
  • Extradition is a step towards the achievement of international cooperation in general required for solving international problems of a social character.
  • The state in which the crime has been committed is in a better position to try the offender. The evidence required is better available only in that state.
  • Punishment of the criminal in the same country in which the crime is committed provides a sense of gratification and security to the public of that country.
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However, for the extradition process to be possible, there are three basic conditions which must be present. 

Basic Conditions For Extradition

  1. Commission of an extraditable offence
  2. Jurisdictional and legal basis of requesting state to request for extradition
  3. Decision of requested state to extradite or not to extradite

1 . Commission of an extraditable offence:

It is not enough to show that the alleged fugitive has committed an offence, it must be shown that the alleged offence is an extraditable offence. Extradition treaties normally expressly identify the extraditable crimes. In George Udeozor v. Federal Republic of Nigeria,CA/L/376/05 it was stated that the general rule is that extraditable crimes must be those commonly recognised as malum in se (acts criminal by their very nature) and not those which are malum prohibitum (acts made crimes by statute). Extradition treaties normally incorporate the double or dual criminality principle. Under this principle, offences are considered as extraditable when they are punishable under the laws of both Parties by imprisonment or other deprivation of liberty for a maximum period of at least two year(s), or by a more severe penalty. Where the extradition proceedings relate to a treaty, the treaty will specify the extraditable offences. The inclusion of an offence in an extradition treaty is sufficient authority that the mentioned offence has fulfilled the double criminality requirement. The literal construction of this head implies that there are offences that are not extraditable. Political offences are not extraditable. Political offences are either pure political offences ‘or relative political offences’. The pure political offences are acts or conducts that are directed against government or sovereign authorities of state without elements of common crime. These crimes violate the State and not any individual person. Examples of such offences are treason, sedition, espionage and to a large extent disagreement with state ideology. Offences in this category are generally not extraditable.

The relative political offences involve a common crime committed in connection with a political act. Other acts traditionally deemed not to be extraditable are military and fiscal offences. The former are acts which are offences solely under military law, but not also under ordinary criminal law, such as, for example, desertion and insubordination. Military offences continue to be regarded as non-extraditable. However, more recent extradition treaties like the  Second Additional Protocol to the European Convention on Extradition 1978, the ECOWAS Convention 1984, the London Scheme for Extradition (1966 and 2002),  the UN Model Treaty on Extradition permit the surrender of persons accused or convicted of fiscal offences, that is, offences against laws relating to taxation, customs duties, foreign exchange control or other revenue matters.This development is linked to the increased need to fight transnational crime, and in particular, money laundering and the infiltration of criminal proceeds into national economies. Acts which constitute crimes under international law are also extraditable offences. This applies not only to States parties to the international treaties which establish a duty to extradite.

  1. Jurisdictional and Legal basis of Requesting State to request for Extradition 

It is trite law that jurisdiction is the critical legal issue underpinning the prosecution of criminals. In Obeta v Okpe (1999) 9 NWLR (473) 411, the court held that jurisdiction is the vires of the court to come into a matter before it. Jurisdiction is the oxygen and life wire of any adjudication….any objection on jurisdiction touches on the competence and legality of the court to entertain the matter in question. The requesting state must obviously have a basis to claim its jurisdictional authority over a criminal. International law recognizes five bases of criminal jurisdiction by a country.

  1. Territoriality:- the state in whose territory the offence has been committed
  2. Nationality:- accused being a national
  3. Passive Personality:- Victim being the national
  4. Protective Principle:-the national security interests of the state which has been affected by the offence in question
  5. Universality;-the crime in question is crime against mankind
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On any one of the above considerations a country can claim to exercise its jurisdiction over the concerned individual. However, these are only bases to exercise jurisdiction. Since the offender is present in the territory of another country, the state which has the jurisdiction has to have a further legal base on which it can legitimately get back the criminal. Treaties, bilateral, regional or multilateral treaties constitute the legal basis for the requesting state to seek the extradition of the fugitive criminal by the requested state. In the absence of such treaties also the requesting state can make a request for the surrender of the fugitive criminal by the requested state which may or may not be conceded by the other. 

  1. Decision of Requested State to extradite or not to extradite 

Since the fugitive criminal is present in the requested state the final decision over the extradition falls within the sovereign competence of the requested state. Based upon its treaty obligations, local law and consideration of comity and reciprocity the requested state arrives at a decision. Where there is a treaty creating an obligation to extradite and if it does not comply it as per the treaty framework the requested state incurs state responsibility and not otherwise. The decision would also depend upon the legal framework of its local law pertaining to extradition. The internal decision over extradition requests might be a matter of pure administrative discretion or could be completely judicial or a mix of administrative as well as judicial. It varies from country to country. The decision could even be subject to any regional arrangements. Where the offence committed by the fugitive is not political and is otherwise extraditable, an extradition request will nonetheless be rejected if the fugitive offender is likely to be prejudiced at his trial, or to be punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions.

What are the possibilities of Hushpuppi’  being extradited to Nigeria from UAU in line with the extant laws and principles of extradition? 

Considering Hushpuppi’s arrest in UAE, what are the prevailing possibilities in the light of his planned extradition to Nigeria? The Supreme Court of USA, commenting on legal duty to extradite clearly stated in Factor v Labubenheimer 290 US (1933) p287, “International law recognizes no right to extradition apart from treaty. While Government if agreeable to its own constitution and laws voluntarily exercise the power to surrender a fugitive from justice to the country from where he has fled, and it has been said that it is under a moral duty to do so…. The legal duty to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty.”  The apt question to ask in this circumstance is whether there exists an extradition treaty between Nigeria and UAE. The answer to the above is in the affirmative, alluding to the Extradition Pact signed by President Buhari on August 24, 2017  with the UAE _ pursuant to his constitutional powers by virtue of Section 5(1) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and, Article 7 of the Vienna Convention on the Laws of Treaties, 1969, consequently creating an obligation between the parties in international law.

The signed agreements with UAE include; agreement on mutual legal assistance in criminal matters, agreement on mutual legal assistance in civil and commercial matters, agreement on the transfer of sentenced persons and an extradition treaty. In considering this possibility of Hush Puppi being extradited to Nigeria, reference must also be made to the Federal Law No.39; the law that governs the extradition of criminals in UAE. Article 7 of Law No.39 sets out the condition for extradition request to be granted viz:

  1. The crime that is the subject of extradition must be punishable under the law of the country requesting extradition (‘Requesting Country’) with a freedom restricting or custodial penalty of at least one year or any other severe punishment.
  1. The act for which extradition is required, if committed within the UAE, must constitute a crime punishable with a freedom restricting penalty for at least one year or any other severer penalty.
  1. If the matter subject of extradition pertains to execution of a custodial penalty, the remaining unexecuted penalty shall be no less than six months.
  1. If the act subject of extradition constitutes a punishable crime under the laws of the Requesting Country and UAE, it is irrelevant if the crime is listed under a different name or description or if the elements of the crime are different.
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Where an extradition request involves multiple crimes, each of which is punishable under the laws of both UAE and the Requesting Country, the request to extradite may be granted in so far as one of the crimes meets the conditions for extradition, even if the other crimes do not. However, there are some instances where an extradition request may be refused in the UAE. These include where:

  1. The subject person is a UAE national.
  1. UAE law gives jurisdiction to the competent judicial authorities concerning the crime subject of the extradition request.
  1. The crime subject of the extradition request is a political crime or associated with a political crime.
  1. The crime subject of extradition is limited to violating military duties.
  1. There are sufficient reasons to believe that the extradition request is meant to pursue or punish a person due to his race, religion, nationality, political views or if these reasons are meant to undermine the position of such person.
  1. The subject person underwent investigation procedures or trial for the same crime subject of extradition and was acquitted; or convicted but served the punishment for which he was adjudged.
  1. A definitive judgment was issued by UAE courts concerning the crime which is the subject of extradition.
  1. The criminal lawsuit was forfeited or the penalty was dropped due to passage of time when the extradition application was filed.
  1. The person subject of extradition was subjected or could be subjected in the Requesting Country to torture, inhuman treatment, humiliating treatment or cruel punishment which does not conform to the crime, or the minimum assurances prescribed by the penal procedures code are not secured. Contingent on above, it is safe to say that the possibilities of Hushpuppi being extradited to Nigeria will depend largely not only on the general requirements of UAE law on the subject, but specific requirements of treaties and conventions to which the UAE and Nigeria are party.

What Happens in Case of Multiple Request for the Same Person?

Following the report of efforts by the FBI to extradite Hushpuppi’ to America and also plans by EFCC to extradite Hushpuppi’ to Nigeria the answer to the above question may shed light on the obscurity of this situation. Extradition proceedings are undertaken by the Attorney General of the requested state. The A. G is  regarded as the chief law officer of the ……and the minister of justice of the Government. The A. G has the powers to initiate proceedings, take over proceedings or withdraw proceedings on behalf of a state. If more than one State requests for the surrender of the same alleged fugitive criminal, whether for the same offence or different offences, the Attorney General has the discretion to determine which request is to be accorded priority, and accordingly may refuse the other request or requests. In determining which request is to be accorded priority, the Attorney-General considers all the circumstances of the case, especially, the relative seriousness of the offences, if different; the relative dates on which the requests were made; and the nationality of the fugitive and the place where he is ordinarily resident. However , it’s noteworthy that UAE can also assume jurisdiction to try Hushpuppi, based on the principle of territoriality  since most of the criminal acts were committed in Dubai, UAE the locus crimen (place where the crime was committed) . Upon his arrest by the Emirati Police force, 13 luxury cars worth 25 Dirhams, 150 Dirhams worth of items, 47 smartphones, 15 flash drives, 21 laptops and 5 Hard drives with about 200,000 files were found.

In light of the above considerations, asides extra-legal factors  the possibility of extraditing Hushpuppi from UAE may tilt towards the advantage of Nigeria, but based on the Territorial Principle, which is normally the strongest claim to criminal jurisdiction, particularly when combined with physical custody of the suspect and evidences available,  it’s highly possible for him to be prosecuted in UAE.

Kolawole Olaniyi Emmanuel writes from Lagos. He has keen interest in International law, Intellectual Property law, Corporate Practice and Maritime law. He can be reached @ Kolaniyi86@gmail.com

 REFERENCES

  1. United Nations Office on Drugs and Crime; ‘Cases and Materials on Extradition in Nigeria’ United Nations Office on Drugs and Crime Country Office  Abuja, Nigeria ,2016
  2. United Nations Office on Drugs and Crime Model law on Extradition
  3. G. Starke, ‘An Introduction to International Law’ (1977)
  4. http://www.hadefpartners.com/News/78/EXTRADITION-LAW-IN-THE-UAE-WHO-MAY—MAY-NOT-BE-EXTRADITED-
  5. https://www.premiumtimesng.com/news/headlines/397422-nigeria-u-s-fight-for-hushpuppis-custody-from-uae-sources.html
  6. https://www.google.com/url?q=http://ietd.inflibnet.ac.in/jspui/bitstream/10603/8652/10/10_chapter%25202.pdf&sa=U&ved=2ahUKEwiTp-3djJzqAhUqAWMBHZF-DqYQFjAAegQIARAB&usg=AOvVaw1ppc4AwQ4fA_aTCVMITeCV

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