The Federal Bureau of Investigation (FBI) on July 28 published a 69-page court document revealing that Deputy Commissioner of Police (DCP) Abba Kyari had been under intense investigation as an accomplice of Ramon Olorunwa Abbas also known as Hushuppi who had already pleaded guilty to fraud related charges. The alleged offences contained in the document were that Abba Kyari is among the six suspects indicted in a $1.1 million international fraud conspiracy. In a case marked 2:21-CR-00203, USA VS Abba Alhaji Kyari dated April 29, 2021, the FBI asked a US District Court in California to order the arrest of Kyari within 10 days in which the court ordered that he be arrested. As a result of this, Kyari is wanted for criminal prosecution in the United States.
Arguments have been made from several resource persons on whether a citizen of Nigeria who enjoys the full flavour and protection of the constitution can be extradited from Nigeria to the United States to face criminal charges taking into account that Nigeria is a sovereign state and by virtue of the Doctrine of Sovereignty, no State/Country can interfere in the activities of other state or arrest its citizens. It is pertinent to therefore understand what extradition means.
Extradition is a process by which an individual accused or convicted of a crime is officially transferred to the country (Receiving State) where the individual has either been declared wanted for trial or has been convicted to serve a sentence by a court of law. As defined by the Court of Appeal in George Udeozor v Federal Republic of Nigeria CA/L/376/05, an extradition is the process of returning somebody, upon request, accused of a crime by a different legal authority to the requesting authority for trial or punishment. Therefore, in order to activate extradition proceedings, a person must be wanted for trial where a court of law has issued a warrant requiring that the person be brought to answer criminal allegations in court.
It is important to note that no country can live in isolation as all countries engage in one or two bilateral relationships in order to boost its economic strength, military capability and international influence which are the tripartite goal of sovereign nations. It is in satisfaction of these that countries sign or enter into treaties in order to have a binding document containing terms and agreements to ensure and maintain cordial relations at all times.
Nigeria has an extradition agreement with the United States by virtue of an extradition treaty signed between the United Kingdom, Nigeria’s colonial masters, and the US on December 22, 1931 which came into force on June 24, 1935, and was applicable to all British colonies, including Nigeria.
The primary law governing extradition in Nigeria is the Extradition Act of 1966 which was enacted on 31 December 1966 and came into operation in January, 1967. It was enacted to repeal all previous extradition laws made by or applicable to Nigeria and to provide for a more comprehensive legal regime with respect to the extradition of fugitive offenders. Also is the Extradition Modification Order 2014, Federal High Court (Extradition Proceedings) Rules, 2015 and Guidelines issued by the Federal Ministry of Justice. In stressing the applicable laws to extradition in Nigeria, the court in General Sani Abacha & 3 Ors v Chief Gani Fawhenmi (supra) held, inter alia that: the extradition treaty between the United States of America and the United Kingdom dated December 22, 1931 and made applicable to Nigeria by a Legal Instrument on June 24 1935 is an existing law by virtue of the provisions or section 315(4)(B). Therefore Nigeria is still subject to the treaty which had been ratified in subsequent legislation including the Extradition Act of 1966, (Extradition Modification) Order, 2014, Extradition Act (Proceedings) Rules, 2015 and other International Protocols.
Article 1 of the Treaty states that the contracting parties had undertaken to deliver up to each other, persons in their territories who are accused or convicted for committing specific offences within the jurisdiction of a party to the agreement. Then Article 3 of the Treaty further provided for offences for which accused persons or convicts can be extradited in accordance with the agreement and they include obtaining money or any form of assets through fraudulent means and bribery, including receiving bribes, which are elements of the crime for which Kyari has been declared wanted in the US.
It is important to note that The Dual Criminality Principle guiding extradition provides that 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 years to a more severe penalty. Where extradition proceedings relate to a treaty, the treaty will specify the extraditable offences. The Advance fee Fraud and other Related Offences Act of Nigeria 2006 by virtue of section 1 criminalizes the same offence which Abba Kyari is accused of in the United States, which makes it in tandem with this principle.
An extradition is not made by a mere application to the sending state, the US must formally apply to Nigeria for Kyari’s extradition through the office of the Attorney General who will first ascertain whether there are sufficient evidence to initiate an extradition proceeding in the Federal High Court. This has been stressed in the case of GEORGE UZOR V FEDERAL REPUBLIC OF NIGERIA (ibid) that the Extradition Act reposes the responsibility and powers to ascertain the conditionality for acceding to an extradition request on the Attorney General and not on the court. By the provisions of the Act, the Attorney General who is the Chief Legal Officer of the Federal Republic of Nigeria has the discretion to exercise the power to initiate extradition proceedings. The court emphasized that it is the duty of the AG to receive the request for the surrender of a fugitive criminal in Nigeria.
However, it is not all circumstances nor offences alleged to have been committed by an accused person which will warrant extradition. Article 6 states that a fugitive criminal shall not be surrendered for extradition if the offence for which his extradition is sought is of a political nature, or if the subject could prove that the demand for the extradition was made in order to punish him for an offence of a political nature. But it is very clear that from the document released by the FBI, the offence for which the embattled Abba Kyari is wanted for is entirely not a political offence. Therefore, where sufficient evidence in connection with the charge is led in the Nigerian court, the court will grant an order for extradition in line with Article 9.
It is worthy to note that this is not the first extradition case that has come before Nigeria. There are cases were extradition proceedings where filed and merit was found in the application and the accused persons were extradited to face their crimes and some were not successful. Some of these cases will be highlighted below:
Emmanuel Ehidiamhen Okoyomon
The United Kingdom requested to extradite him to face trial for certain offences with which he was accused under the Prevention of Corruption Act 1906 Law of England. The court found merit in the application and the order for his extradition was equally granted.
Adedeji Adeniran, aged 56, was extradited to the Northern District of Florida. He arrived in the United States on November 3. Adeniran was the leader of a criminal group that committed a large bank fraud, mail fraud, and wire fraud, a conspiracy that involved a loss of $4.1 million and involved 42 victims.
The Kingdom of Netherlands filed an extradition to enable them take him to face the charges preferred against him by the National Public Prosecutors Office in Rotterdam which are: Commission of Human Trafficking, Commission of Human Smuggling, Falsification of Travel Documents, Acts of Forgery of Documents, Abduction of Minors from the Authority having legal custody/supervision over them, Participation in a Criminal Organization. The court, after a careful examination of section 1 of the Extradition Act and section 12 of the Constitution, dismissed the application for extradition as incompetent.
Lawal Olaniyi Babafemi, alias Ayatollah Mustapha, was extradited to stand trial in the US Court as documents alleged that he was linked to al-Qaeda in the Arabian Peninsula, a militant Islamist group. He was alleged to have received about $8,600 (N3.5m) to return to Nigeria and recruit English-speaking individuals to work in AQAP’s English-language media operation. He was extradited and was charged in the US with conspiracy to provide material support to a foreign terrorist organization and unlawful use of firearms.
Buruji Kashamu, served as a senator in Nigeria. In 1998, Kashamu was indicted by a grand jury for conspiracy to import heroin, a prohibited substance, into the United States. He was indicted following incriminating evidence provided by three of his alleged co-conspirators. Kashamu however denied the allegations. The US was relentless in its request that Kashamu is extradited to the United States. In 2016, a US Court of Appeal in Chicago, Illinois, ruled that Kashamu must answer his drug allegations. However, the Federal High Court, Abuja, ruled that neither the Federal Government nor any of its agents could validly initiate extradition proceedings against Kashamu in view of subsisting judgements and orders in favour of the plaintiff, which had remained unchallenged. However, he died in August 2020 from COVID-19 complications.
From the above exposition, it is glaring that the Nigerian Government has an extradition treaty with the United States which till date remains in force. As such if the US makes an application to the Attorney General of the Federation and credible evidence is led to establish the fact that Abba Kyari indeed committed the said offence, the court will readily grant the order for his extradition. Where, however, it finds none, Abba Kyari will remain in Nigeria and as a sovereign nation, Abba Kyari cannot be forcefully arrested by the US within the shore of Nigeria.
Pelumi Olajengbesi Esq., is a Legal Practitioner and the Principal Partner at LAW CORRIDOR, Nigeria. [email protected]
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