Abba Kyari and the Sufferings of Extradition: What the Law Says By Pelumi Olajengbesi Esq.
The Federal Bureau of Investigation (FBI) released a 69-page court document on July 28, stating that Deputy Police Commissioner (DCP) Abba Kyari was an accomplice to Ramon Olorunwa Abbas, also known as Hushuppi, who had pleaded guilty , has been extensively investigated into fraudulent allegations. The alleged crimes contained in the document were that Abba Kyari was among six suspects indicted in a $ 1.1 million international fraud conspiracy. In a case dated April 29, 2021, dated 2: 21-CR-00203, USA VS Abba Alhaji Kyari, the FBI ordered a U.S. district court in California to order the arrest of Kyari within 10 days of the court’s arrest ordered. Because of this, Kyari is being prosecuted in the United States.
Several sources have made arguments as to whether a Nigerian citizen who enjoys the full taste and protection of the Constitution can be extradited from Nigeria to the United States for prosecution because Nigeria is a sovereign state and based on doctrine sovereignty, no state / country may interfere in the activities of another state or arrest its citizens. Therefore, it is important to understand what extradition means.
Extradition is a process whereby a person charged or convicted of a crime is officially transferred to the country (host country) where the person was either tried or sentenced by a court to serve a sentence. As defined by the Court of Appeal in George Udeozor v Federal Republic of Nigeria CA / L / 376/05, extradition is the process of returning a person charged with a crime by another judicial authority to the requesting authority for trial or punishment upon request . Therefore, in order to initiate extradition proceedings, a person must be sought in court if a court has issued an arrest warrant that requires the person to be brought to justice to answer criminal allegations.
It is important to note that no country can live in isolation as all countries enter into a bilateral relationship or two to reinforce its economic strength, military capabilities, and international influence, which are the tripartite goal of sovereign nations. To their satisfaction, the countries sign or conclude contracts in order to have a binding document with conditions and agreements to ensure and maintain cordial relations at all times.
Nigeria has an extradition treaty with the United States based on an extradition treaty signed between the United Kingdom, the colonial rulers of Nigeria and the United States on December 22, 1931, which came into force on June 24, 1935 and applied to all British colonies, including Nigeria.
The primary extradition law in Nigeria is the 1966 Extradition Act, which was enacted on December 31, 1966 and which came into effect in January 1967. It was enacted to repeal all previous extradition laws enacted by, or applicable to, Nigeria and another comprehensive legal regime related to the extradition of fugitive offenders. Likewise, the extradition amendment ordinance 2014, federal court order (extradition procedure), 2015 and guidelines of the Federal Ministry of Justice. The court in General Sani Abacha & 3 Ors v Chief Gani Fawhenmi (above) emphasized the applicable laws on extradition in Nigeria, noting, among other things: the extradition treaty between the United States of America and the United Kingdom of December 22, 1931 and made applicable to Nigeria by legal instrument on June 24, 1935, is an existing law by virtue of Regulations or Section 315 (4) (B). Therefore, Nigeria is still subject to the treaty that has been ratified in subsequent statutes, including the Extradition Act 1966, the Extradition Amendment Order, 2014, the Extradition Act (Proceedings) Rules, 2015, and other international protocols.
Article 1 of the treaty states that the contracting parties had undertaken to extradite in their territory persons who had been charged or convicted of committing certain offenses within the jurisdiction of one of the contracting parties. Then Article 3 of the Treaty also provides for offenses for which the accused or convicted may be extradited under the Convention, and that includes obtaining money or any form of property through fraudulent means and bribery, including taking bribes, the elements of the crime are wanted for the Kyari in the USA.
It is important to note that the extradition principle of dual crime provides that criminal offenses are considered extraditable if they are punishable by imprisonment or other deprivation of liberty of a maximum of two years up to a heavier sentence under the law of both parties. If the extradition procedure relates to a contract, the contract determines the extraditable offenses. The Advance Feed Fraud and other Related Offenses Act of Nigeria 2006 criminalizes, under Section 1, the same offense that Abba Kyari is charged with in the United States, in line with that principle.
Extradition does not take place through a mere application to the sending state; the US must formally request the extradition of Kyari to Nigeria via the Attorney General, who will first check whether there is sufficient evidence to initiate extradition proceedings before the Federal Court of Justice. This was emphasized in the case of GEORGE UZOR V. FEDERAL REPUBLIC OF NIGERIA (ibid.) That the Extradition Act places the responsibility and powers to determine the conditions for accepting an extradition request on the Attorney General and not on the court. Under the terms of the Act, it is at the discretion of the Attorney General, the Chief Legal Officer of the Federal Republic of Nigeria, to exercise the authority to initiate extradition proceedings. The court stressed that it was the duty of the AG to accept the request for the surrender of a fugitive criminal in Nigeria.
However, not all circumstances or criminal offenses allegedly committed by an accused person are not sufficient to justify extradition. Article 6 states that a fugitive offender may not be handed over for extradition if the offense requested for extradition is political or if the person concerned can prove that the extradition request was made in order to punish him for a criminal offense of a political nature. But the document released by the FBI makes it very clear that the crime for which the embattled Abba Kyari is wanted is by no means a political crime. Therefore, if sufficient evidence related to the indictment is presented to the Nigerian court, the court will issue an Article 9 extradition order.
It is worth noting that this is not the first extradition case off Nigeria. There are cases where extradition proceedings have been filed and the request has been found to be well founded, and the defendants have been extradited to face their crimes and some have been unsuccessful. Some of these cases are highlighted below:
Emmanuel Ehidiamhen Okoyomon
The United Kingdom applied for extradition to try him on certain offenses that he was charged with under the UK Corruption Prevention Act 1906. The court found the application well founded and the extradition order was also granted.
Adedeji Adeniran, 56 years old, was extradited to the Northern District of Florida. He arrived in the United States on November 3rd. Adeniran was the leader of a criminal group that committed major bank fraud, postal fraud, and wire transfer fraud, a conspiracy that resulted in a loss of $ 4.1 million and 42 victims.
The Kingdom of the Netherlands has requested extradition so that they can bring him up against the charges brought against him by the Rotterdam Public Prosecutor: Commission on Trafficking in Human Beings, Commission on Smuggling of People, Falsification of travel documents, acts of forgery of documents, kidnapping of minors from the authority, who have custody / supervision over them, participate in a criminal organization. After carefully examining Section 1 of the Extradition Act and Section 12 of the Basic Law, the court rejected the application for extradition as having no jurisdiction.
Lawal Olaniyi Babafemi, aka Ayatollah Mustapha, was extradited to the US Court of Justice as documents alleged he was affiliated with Al-Qaeda in the Arabian Peninsula, a militant Islamist group. He is said to have received approximately $ 8,600 (N3.5 million) to return to Nigeria and recruit English speakers for AQAP’s English language media operation. He was extradited and charged in the United States with conspiracy to provide material aid to a foreign terrorist organization and the illegal use of firearms.
Buruji Kahamu was a senator in Nigeria. In 1998, a grand jury charged Kahamu with conspiracy to import heroin, a banned substance, into the United States. He was charged after three of his alleged co-conspirators presented incriminating evidence. However, Kashamu denied the allegations. The US relentlessly demanded the extradition of Kashamu to the US. In 2016, a U.S. appeals court in Chicago, Illinois ruled that Kahamu must answer his drug allegations. However, the Abuja Federal Court of Justice ruled that neither the federal government nor any of its agents can legally initiate extradition proceedings against Kahamu, as the judgments and orders in favor of the plaintiff have remained unchallenged. However, he died of COVID-19 complications in August 2020.
From the illustration above, it is clear that the Nigerian government has an extradition treaty with the United States that remains in force to this day. If the US files a motion to the Federation Attorney General and there is credible evidence that Abba Kyari did indeed commit the said crime, the court will readily grant his extradition order. However, where it cannot be found, Abba Kyari will remain in Nigeria and, as a sovereign nation, Abba Kyari cannot be forcibly detained by the US within the Nigerian coast.
Pelumi Olajengbesi Esq. is a lawyer and main partner at LAW CORRIDOR, Nigeria. [email protected]
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