Extradition; Where Is Kyari Going?

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By Ezugwu Okike Esq

INTRODUCTION

A rehash is important: as a result of an investigation by the US Bureau of Investigation (FBI), the United States of America Grand Jury unsealed the allegations against Abba Kyari, one of Nigeria’s most decorated senior police officers, who was also admirably called the; “super cop”. On the strength of an application filed by the FBI in that respect, a District US Judge, Honorable O. Otis, issued a warrant for the arrest of Kyari who was described in the document as; “a high-risk defendant,” as well as other conspirators at large.  This was coming after the Grand Jury, on the 28th day of July 2021 similarly unsealed indictment against a Nigerian Dubai-based Instagram celebrity and Big Boy, Ramon Oloruwas Abbas, commonly known as “Hushpuppi”, and other conspirators in a spectacular fraud to steal $1 million from a Qatar businessperson who was seeking funding for his school project. Abba Kyari, much-admired Nigeria senior police officer and the former Deputy Commissioner of Police would come to allegedly have a hand in the pie after Huspuppi fell out with one of his Nigerian confederates, one Kelly Chibuzor Vincent. The dispute started after Chibuzor felt shortchanged in the sharing of the proceeds of the fraud and made desperate efforts to alert the victim and warn him off. Miffed, Hushpuppi allegedly contacted Kyari and requested the arrest and detention of Chibuzor. Kyari complied and kept Chibuzor out of circulation while the fraud sailed on smoothly. For his part, the unsealed document revealed that Kyari was rewarded with the sum of N8million through an account number he furnished.  Following an investigation, Abba Kyari was suspended from the Nigeria Police by the Nigeria Police Service Commission on the recommendation of the Inspector General of Police, Usman Baba. Since then, Nigerians have kept wondering where Kyari is headed and the possibility or otherwise of his extradition to the United States to answer for the allegations against him.

In this considerably short opinion, attempt will be made at this question in the light of existing domestic laws on extradition, international treaties or conventions to wit; United Nations Convention against Transnational Organized Crime adopted by General Assembly Resolution 55/25 of 15th November, 2000 and already in force as at since 29th September, 2003; the United Nations Convention against Corruption adopted by General Assembly Resolution 58/4 on 31st October, 2003 and came into force since 14th December, 2005; and of course the Nigerian extradition act, the historicity of which shall be shortly highlighted from the opinion of a learned author.  For a start, this writer does not make light of the fact that suspended Abba Kayri is a Nigerian citizen and enjoys the presumption of innocence made possible by the important provision of section 35(6) of the 1999 Constitution, as amended. As such, there is no suggestion whatsoever that Kyari is guilty of the allegations leveled against him by the US authorities.

UNDERSTANDING EXTRADITION.

It might be important to define extradition. About this, I will fall back on George Udeozor v Federal Republic of Nigeria, where the Court of Appeal 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.” Extradition proceeding, it might be pointed out, is not the same thing as the trial of the respondent. It was the well-considered ruling of the court in Attorney-General of the Federation v. Olayinka Johnson that extradition was founded on the notion that in the interest of states, fugitives from justice must not be allowed to get sanctuary outside territories against which crimes have been committed. On the rationale for extradition, nothing can possibly be more apt than the opinion of Lord Russell of Killowen, C.J noted in R v. Arton (cited with admiration).

The law of extradition is without doubt founded upon the broad principle that it is to the interest of civilized 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.”

DISTINQUISHING EXTRADITION FROM EXTRAORDINARY RENDITION.

It might as well be necessary to tell extradition apart from extraordinary rendition. The latter is an unlawful, government-funded arrest, or abduction of persons wanted, accused or convicted of a criminal offence either to the state which sponsored the arrest or a willing third-party state. It involves a breach of international law, especially where the party abducted is subjected to torture, inhuman or degrading treatment.  Interestingly, we might have witnessed two cases of extraordinary rendition in Nigeria. MIGHT is used here in exercise of caution as there has been no judicial of Nnamdi Kanu’s case as extraordinary rendition. First was the case of Umaru Dikko in 1984 wherein the Nigerian state, impatient with the pace of the response of the British Government to its request for the extradition of the Respondent, planned with three Israeli nationals and abducted the respondent and made attempt to cargo him to Nigeria.  The attempt was foiled by the British security apparatus and the abductors jailed. In a paper published by the United Nations Office on Drugs and Crime Country Office, the Dikko case was called an attempt by Nigeria to go against international norms in expressing its political will.  This year, again, the Nigerian state, now, possibly and successfully, extraordinarily renditioned the fire-spitting leader of the proscribed Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu, from Kenya. The dual national is agitating for the independence of Biafra or the Southeastern part of the country from the Nigerian federation. His possible rendition might have involved some mindless disregard for international law and conventions by the Nigerian state in its haste and indignation, as his lawyer revealed that his client was subjected to dehumanizing and tortuous treatment. Interestingly again, the two cases of possible and actual extraordinary rendition there-above sampled happened at two different periods where President Muhammadu Buhari had been Nigeria’s leader.

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THE NIGERIAN EXPERINCE

In a learned opinion published on 10.08.2021 in the Disco, Francis Moneke had this to say on the Nigerian Extradition Act;

Extradition proceedings are usually treaty-based. The governing treaty is the Nigeria’s International Extradition Treaty with the United States, which was originally signed by the United Kingdom on December 22, 1931, and came into force on June 24, 1935. Nigeria assumed this treaty on her independence on October 1, 1960, and the treaty is still in force. Nigeria’s Extradition Act of 1996 is the applicable domestic legal framework, supplemented by the Extradition Act (Modification) Order 2014, the Extradition Act (Proceedings) Rules 2015 of the Federal High Court, and the Guidelines issued by the Federal Ministry of Justice on Extradition.”

The extradition Act is the primary legislation on extradition and recognizes two categories of states. States in the first category consists of states which have extradition agreement with Nigeria in respect of which publications have been made in the Federal Gazette and commonwealth states. While separate bilateral treaty is necessary with a non-commonwealth state, it is not necessary with a commonwealth state. Before the coming into force of the 1999 Constitution, the Magistrates had jurisdiction with respect to the extradition of fugitives from the law. Section 251 (1) (i) of the 1999 constitution took jurisdiction from the Magistrates and granted same exclusively to the Federal High Court.

It has therefore been more than satisfactorily demonstrated that there is an existing Extradition law in Nigeria. But most important of all, that Nigeria has an existing extradition agreement with the United States. This invariably goes to show that a Nigerian who commits fraud or crime against the American state or its citizens, can, after the due processes of law are complied with, be extradited to the United States for trial and vice versa. It might be relevant to state that in the absence of any extradition treaty or agreement, the injured country would be confronted with a horse of different color. It follows, quite inevitably, that in a situation where the Nigerian law on extradition is complied with by the relevant authorities and persons, that Abba kyari could be flown to the United States to face trial for his alleged involvement in a dubious scheme to defraud a Qatar business person of $1million. But in certain special cases, even the existence of a treaty agreement may not suffice. Thus, it is important to answer the question as to whether Kayri is an extraditable person. In the light of prevailing legal traditions, this question becomes especially necessary because, as it has been hinted, albatrosses could still be found around the neck of a valid treaty in certain special circumstances. In this regard, I readily instance diplomatic immunity which could make it difficult for elected executives or officials working in the diplomatic offices of countries to be extradited during the pendency of their tenure. The question regarding Abba Kyari extraditability, so to express, is loudly answered in the affirmative.  This opinion is founded on the combined reading of the Nigerian Extradition Act and the aforstated transnational treaties or conventions (to be hereunder examined) as well as Nigerian case laws.

The case of Attorney-General of the Federation v Lawal Olaniyi Babafemi aka “Abdullahi”, “Ayatollah Mustapher (Babafemi) Suit No: FHC/ABJ/CR/132/201 is important. Therein, the Federal High Court curtly stated that all that is required to warrant extradition proceeding is for the Federal Government of Nigeria to show that there is an indictment against the party against whom extradition proceeding is instituted. Following from the indictment unsealed against Kyari, the principle in Attorney-General of the Federation v Lawal Olaniyi Babafemi is likely to be satisfied.

TRANSNATIONAL LEGAL INSTRUMENTS.

United Nations Convention Against Transnational Organized Crime; accompanied by other protocols, this convention has been an important instrument in the struggle against transnational organized crimes. The convention targets specific crimes. I consider the following provisions as important. But just before I go on to highlight the relevant provisions of this treaty, it is important to note that 180 countries are currently parties to this convention and that both Nigeria and the United States are signatories as well as parties to this convention.

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“For the purpose of paragraph 1 of this article, an offence is transnational in nature if: (a) It is committed in more than one State; b) It is committed in one State, but a substantial part of its preparation, planning, direction or control takes place in another State; (c) It is committed in one State, but involves an organized criminal group that engages in criminal activities in more than one State; or (d) It is committed in one State, but has substantial effects in another State”.

Article 16 of the Convention provides for the extradition, with respect to the extraditable offences recognized under this Convention. It therefore, provides:

“This article shall apply to the offences covered by this Convention or in cases where an offence referred to in article 3, paragraph 1 (a) or (b), involves an organized criminal group and the person who is the subject of the request for extradition is located in the territory of the requested State Party, provided that the offence for which extradition is sought is punishable under the domestic law of both the requesting State Party and the requested State Party”.

For the avoidance of doubt, Article 2(a) defines what an organized criminal group and what constitutes serious crime means when it provides:

“For the purposes of this Convention: (a) “Organized criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefits; (b) “Serious crime” shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty;.”

From the above, it is not difficult to see that the super cop is generously accommodated by the Articles 2 and 3 of the convention. Again, it bears repeating that the two relevant countries, the United States and Nigeria are both parties to this convention. Let us look at one more convention.

The United Nations Convention Against Corruption

This convention was welcome by majority of the members of the United Nations Organization. About this convention, the remark made by Dr. Ayodele Akenroye is illuminating;

 “The Convention is favored with majority members of the United Nations. Thus, it has far reached operational effects. It is worthy to note that the Convention covers five main areas which are: preventive measures, criminalization and law enforcement, international cooperation, asset recovery, and technical assistance and information exchange. The Convention covers various forms of corruption, such as bribery, trading in influence, abuse of functions, and various acts of corruption in the private sector.” Article 1 of the convention expectedly made provision for the purpose of the convention and states as follows;

a) “to promote and strengthen measures to prevent and combat corruption more efficiently and effectively;(b) to promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery; (c) to promote integrity, accountability and proper management of public affairs and public property”. Article 3 of the Convention provides for the scope of the Convention and states as follows:1. “This Convention shall apply, in accordance with its terms, to the prevention, investigation and prosecution of corruption, and to the freezing, seizure, confiscation and return of the proceeds of offences established in accordance with this Convention. 2. For the purposes of implementing this Convention, it shall not be necessary, except as otherwise stated herein, for the offences set forth in it to result in damage or harm to State property.”

Other relevant provisions of the convention are found in its explanation as to who should be taken as a public official by the scope of the convention. Now take a look at the following provisions.

For the purposes of this Convention: (a) “Public official” shall mean: (i) any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority; (ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined the domestic law of the State Party and as applied in the pertinent area of law of that State Party; (iii) any other person defined as a “public official” in the domestic law of a State Party. However, for the purpose of some special measures contained in chapter II of this Convention, “public official” may mean any person who performs a public function or provides a public service as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; (b) “Foreign public official” shall mean any person holding a legislative, executive, administrative or judicial office of a foreign country, whether appointed or elected; and any person exercising a public function for a foreign country, including for a public agency or public enterprise; (c) “Official of a public international organization” shall mean an international civil servant or any person who is authorized by such an organization to act on behalf of that organization;.”

By Article 2, Abba Kyari falls within those who perform public functions as he had headed, before his suspension, the Intelligence Response Unit, a Department in a Nigerian Public institution, the Nigeria police. It needs hardly pointing out that he might have used his office as well as his position as a senior officer in the Nigeria police to facilitate the committing of fraud and to corruptly obtain the proceeds of crime. It is not also hard to see that he had criminally and corruptly traded his influence whilst in office. It is therefore the opinion of this writer that he does not escape the dragnet of this convention to which Nigeria and the United States are parties.

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USA, NIGERIA, KYARI AND FINAL REMARKS:

Having in some measure established that an extradition agreement exists between Nigeria and the United States, that Kyari might have contravened some conventions to which Nigeria and the United States are parties which have provisions for extradition, and that Abba Kyari passes for an extraditable individual, let me now consider the processes of extradition, assuming a request is made to this respect by the United States. Frist of all, the US authorities will send a diplomatic request to the Attorney General of the Federation (AGF), through the Federal Ministry of Foreign Affairs. This written request will be compulsorily accompanied by the following documents;

  1. an affidavit deposed to by a designated officer
  2. a copy of the indictment against Abba Kyari
  3. a duly authenticated warrant of arrest issued by a US judge
  4. a copy of the law on which the indictment is predicated and founded.

When these conditions are satisfactorily met, the ball will be left in the AGF’s court. He will decide whether to approach the Federal High Court and initiate extradition proceeding or to look the other way. It is worth stating in case the AGF prosecutes and a ruling entered for extradition, the option of appeal, right up to the Supreme Court, will be open to the respondent.  The authority of George Udeozor v Federal Republic of Nigeria CA/L/376/05, made it crystal clear that the AGF enjoys unfettered discretion as even the courts cannot compel him to initiate proceedings. This again, to this writer’s mind, is an unjustifiably powerful position; another indication that the AGF is way too powerful.

Nobody can quantify the amount of ink already spilled in bitter criticism of Sections 174(c) & 211(c) of the 1999 constitution which empower both the AGF and the AGs of state to discontinue any criminal proceeding irrespective of the stage. The AG need not furnish any reason for his decision and have his answers as to what is in the interest of justice, the public and what amounts to the abuse of legal process. And the courts are similarly powerless to inquire. In our unevolved and corruption-ridden jurisdiction where the AG is a mere obsequious employee of the executive and its principal defense Attorney, this power is dangerous and prejudicial to any fair justice administration. Qua Abba Kyari, the ball, as I said earlier, will be in the AGF’s court and the world will be curiously watching.

Here, Nigeria will be faced with two options—a diplomatic scuffle with the most powerful country in this planet and allowing the normal, due and fair processes to happen respecting the extradition or otherwise of Abba Kyari. The latter, me thinks, looks like the saner choice. On the 14 of August 2021, newsmen obtained the disconcerting information that the United States Congress slammed embargo on arms sale to Nigeria. They cited concerns over Nigeria’s now worsening human rights record and; “a drift towards authoritarianism.” The deal, worth over $873 million was suspended, because, according to the law makers, the arms could be turned on the citizens. This decision was made despite a full knowledge of Nigeria’s dire security situation compounded by long-running terrorism in the Northeastern part of the country, commonplace banditry and pockets of insurgency happening in various parts of the country. You need not be told again that this is not the most propitious of times for Nigeria to be seen obstructing the course of justice on a transnational scale.

Ezugwu Okike is based in Enugu State (ezugwuokike@gmail.com)

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