Abba Kyari and the troubles of extradition by Pelumi Olajengbesi Esq.: What the law says

The Federal Bureau of Investigation (FBI) released a 69-page court document on July 28 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. According to the document, Abba Kyari is one of six people accused of being involved in a $1.1 million international fraud scheme. The FBI asked a US District Court in California to order Kyari’s arrest within 10 days in a case marked 2:21-CR-00203, USA VS Abba Alhaji Kyari, dated April 29, 2021, and the court agreed. As a result, Kyari is wanted in the United States for criminal prosecution.

Several resource persons have argued that a Nigerian citizen who enjoys the full force and protection of the constitution can be extradited to the United States to face criminal charges, despite the fact that Nigeria is a sovereign state and, under the doctrine of sovereignty, no state or country can interfere in the activities of another state or arrest its citizens. As a result, it is critical to comprehend what extradition entails.

Extradition is the legal process by which a person accused or convicted of a crime is transferred to the country (Receiving State) where he or she has been declared wanted for trial or sentenced to serve a sentence by a court of law. Extradition is the process of returning someone accused of a crime by a different legal authority to the requesting authority for trial or punishment, as defined by the Court of Appeal in George Udeozor v Federal Republic of Nigeria CA/L/376/05. To begin extradition proceedings, a person must be wanted for trial and have a warrant issued by a court requiring that the person be brought to court to answer criminal allegations.

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It is important to remember that no country can exist in isolation, as all countries engage in one or two bilateral relationships in order to strengthen their economic strength, military capability, and international influence, which are the three goals of sovereign nations. Countries sign or enter treaties to satisfy these needs, resulting in a legally binding document containing terms and agreements to ensure and maintain cordial relations at all times.

Nigeria has an extradition treaty with the US, which was signed on December 22, 1931, by the United Kingdom, Nigeria’s colonial masters, and the United States. It went into effect on June 24, 1935, and was applicable to all British colonies, including Nigeria.

The Extradition Act of 1966, which was enacted on December 31, 1966 and went into effect in January of 1967, is the primary law governing extradition in Nigeria. It was passed to repeal all previous extradition laws enacted by or applicable to Nigeria, as well as to establish a more comprehensive legal framework for the extradition of fugitive offenders. The Federal Ministry of Justice also issued the Extradition Modification Order 2014, Federal High Court (Extradition Proceedings) Rules 2015, and Guidelines. The court in General Sani Abacha & 3 Ors v Chief Gani Fawhenmi (supra) emphasized the applicable laws to extradition in Nigeria, holding, among other things, 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 of section 315(4); (B). As a result, Nigeria remains bound by the treaty, which was ratified in subsequent legislation such as the Extradition Act of 1966, the (Extradition Modification) Order, 2014, the Extradition Act (Proceedings) Rules, 2015, and other International Protocols.

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According to Article 1 of the Treaty, the contracting parties agreed to hand over persons in their territories who are accused or convicted of committing specific crimes within the jurisdiction of one of the parties. Then, under Article 3 of the Treaty, there are offenses for which accused persons or convicts can be extradited in accordance with the agreement, including obtaining money or other assets through fraudulent means and bribery, including receiving bribes, both of which are elements of the crime for which Kyari has been declared wanted in the United States.

It’s worth noting that the Dual Criminality Principle, which governs extradition, states that offenses are extraditable if they’re punishable under both parties’ laws by imprisonment or other deprivation of liberty for at least two years or a more severe penalty. When extradition proceedings are based on a treaty, the extraditable offenses will be specified in the treaty. By virtue of section 1, the Advance Fee Fraud and Other Related Offences Act of Nigeria 2006 criminalizes the same offence that Abba Kyari is accused of in the United States, putting it in line with this principle.

The US must formally apply to Nigeria for Kyari’s extradition through the Attorney General’s office, which will first determine whether there is sufficient evidence to initiate an extradition proceeding in the Federal High Court. In the case of GEORGE UZOR V FEDERAL REPUBLIC OF NIGERIA (ibid), it was emphasized that the Attorney General, not the court, has the responsibility and powers to determine the conditionality for granting an extradition request. The Attorney General, who is also the Chief Legal Officer of the Federal Republic of Nigeria, has the authority to initiate extradition proceedings under the Act’s provisions. The court emphasized that it is the AG’s responsibility to receive a request for a fugitive criminal’s surrender in Nigeria.

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However, not all circumstances or alleged crimes committed by an accused person will result in extradition. Article 6 states that a fugitive criminal may not be surrendered for extradition if the crime for which extradition is sought is of a political nature, or if the subject can show that the demand for extradition was made to punish him for a political crime. However, it is clear from the FBI document that the crime for which Abba Kyari is wanted is not a political crime. As a result, if sufficient evidence in connection with the charge is presented in a Nigerian court, the court will issue an extradition order in accordance with Article 9.

It’s worth noting that this isn’t the first time Nigeria has faced an extradition request. Extradition proceedings were filed in some cases, and the application was found to have merit, and the accused persons were extradited to face their crimes, while others were not. The following are some of these examples:

mmanuel Ehidiamhen Okoyomon

The United Kingdom requested that he be extradited so that he could face charges under the Prevention of Corruption Act 1906 of the English Law. The court found the application to be valid, and an order for his extradition was also issued.

Adedeji Adeniran

Adedeji Adeniran, 56, was extradited to the United States District Court for the Northern District of Florida. On November 3, he arrived in the United States. Adeniran was the leader of a criminal organization that perpetrated a $4.1 million bank fraud, mail fraud, and wire fraud scheme that involved 42 victims.

Kingsley Edgebe

The Netherlands filed an extradition request to bring him to face the charges brought against him by the National Public Prosecutor’s Office in Rotterdam, which include: 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, Partition of Minors from the Authority Having Legal Custody/Supervision over them, Partition The court dismissed the extradition application as incompetent after a thorough examination of Section 1 of the Extradition Act and Section 12 of the Constitution.

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Lawal Babafemi

Lawal Olaniyi Babafemi, alias Ayatollah Mustapha, was extradited to the United States to face charges related to al-Qaeda in the Arabian Peninsula, a militant Islamist group, according to documents. He was allegedly paid $8,600 (N3.5 million) to return to Nigeria and recruit English-speaking individuals for AQAP’s English-language media operation. He was extradited to the United States and charged with conspiracy to provide material support to a foreign terrorist organization and illegal firearms use.

Buruji Kashamu

In Nigeria, Buruji Kashamu was a senator. Kashamu was charged with conspiracy to import heroin, a controlled substance, into the United States by a grand jury in 1998. Three of his alleged co-conspirators provided incriminating evidence, which led to his indictment. Kashamu, on the other hand, has denied the allegations. The US was adamant in its demand that Kashamu be extradited to the country. Kashamu was ordered to answer his drug charges by a US Court of Appeal in Chicago, Illinois, in 2016. In light of existing judgments and orders in favor of the plaintiff that had gone unchallenged, the Federal High Court in Abuja ruled that neither the Federal Government nor any of its agents could validly initiate extradition proceedings against Kashamu. However, he died of COVID-19 complications in August 2020.

It is clear from the foregoing that the Nigerian government has an extradition treaty with the United States.