Today let’s talk about SuperCop, Abba Kyari and the story of the enigma of two jurisdictions. This is a serious constitutional, legal and political dilemma.
Background to the US request to surrender Abba Kyari
The diplomatic representative of the United States Embassy in Abuja had requested the surrender of 46-year-old Abba Alhaji Kyari over the pending charges against Abba Kyari in the United States. This request is said to be based on Kyari’s relationship with Ramon Olorunwa Abbas, a 37-year-old avowed international fraudster popularly known as Hushpuppi. Hushpuppi had alleged that he bribed Abba Kyari to arrest and imprison Kelly Chibuzor Vincent, one of his rivals in Nigeria, following a dispute over a $1.1million scam on a businessman Qatari. Kyari had denied any wrongdoing.
Then NDLEA appeared on the scene
While suspended for his role in the Hushpuppi case, Abba Kyari was arrested by the NDLEA in connection with an alleged 17.5kg cocaine deal and allegedly tampered with 25kg of cocaine. While the investigation into the said NDLEA case was ongoing, Kyari applied for bail for health reasons. The NDLEA then obtained a court order for the continued detention of Kyari and six others for 14 days. Indeed, immediately the Attorney General of the Federation, Abubakar Malami, SAN authorized Kyari’s extradition, the NDLEA suddenly charged him with eight counts in the Federal High Court in Abuja. Was it just a coincidence? Are some high-level people working hard to block Kyari’s extradition, lest he be rushed and scream when he arrives in the United States? Can the ongoing investigation, the ongoing removal order and the new charge block the extradition of Abba Kyari to the United States of America? This is the core of our discourse today and next week.
What is extradition?
Extradition is a process by which a person accused or convicted of a crime is formally transferred to the state where they are either wanted for trial or required to serve a sentence after being duly sentenced by a court.
Nigeria has an extradition treaty with the United States.
Nigeria has an extradition agreement with the United States under an extradition treaty signed between the United Kingdom and the United States, dated December 22, 1931. The treaty entered into force on June 24 1935. Under Article 16 of the treaty, it was made applicable to all British protectorates of which Nigeria was a part. Article 16 of the Treaty provides:
“This Treaty shall apply in the same manner as if it were the possessions of Her Britannic Majesty to the following British Protectorates, namely, Bechuanaland Protectorate, Gambia Protectorate, Kenya Protectorate, Nigeria, Northern Rhodesia, Northern Territories of the Gold Coast, Nyasaland, Sierra Leone Protectorate, Solomon Islands Protectorate, Somaliland Protectorate, Swaziland, Uganda Protectorate and Zanzibar, and to the following territories for which a mandate in the name of the League of Nations has been accepted by His Britannic Majesty, namely, Cameroon under British mandate, Togo under British mandate and the territory of Tanganyika”.
By Article 1 of the Treaty, the contracting parties have agreed to surrender (under certain circumstances and conditions) persons who, accused or convicted of any of the crimes or offenses listed in Article 3, committed in the jurisdiction of one Party, are in the territory of the other Party. There are 27 offenses listed in article 3. The crimes that go to the substance of this article are the 18th and 22nd: Obtaining money by false pretenses; receive money, securities or other property, knowing that these have been stolen or obtained illegally and offer, give or receive bribes respectively. Some elements of the offense for which Abba Kyari has been declared wanted in the United States of America include obtaining money/assets by fraudulent means.
Under article 4 of the treaty, extradition will not take place if the subject has already been tried and acquitted or punished for the acts for which he is wanted.
Article 5 stipulates that extradition does not take place if, after the commission of the offense or the criminal charge or conviction, exemption from prosecution has been acquired by prescription according to the laws of the two countries concerned. .
Under Article 6 of the treaty, a fugitive criminal cannot be surrendered for extradition if the offense for which his extradition is requested is of a political nature, or if the subject can prove that the request for extradition was made to punish him. for a political offence.
Article 9 of the treaty stipulates that extradition shall take place only if the evidence is considered sufficient, according to the laws of the requested contracting party, to justify the committal of the prisoner for trial, in the event that the crime or misdemeanor would have been committed in the territory of that High Contracting Party. In the case ANUEBUNWA v AG, it was held that:
“The very essence of an extradition proceeding … is that the applicant establish by credible evidence, that is, by producing before the judge in the case of a fugitive criminal charged with an offense purported to be an extradition offence, a warrant issued outside Nigeria authorizing the arrest of the fugitive”.
Two doctrines come into play when the extradition of a person is requested. There is the first, the doctrine of “specialty” or “specialty doctrine”. This doctrine requires that a person whose extradition is requested can only be tried for the crime for which his extradition was requested, and for no other. Upon the surrender of a fugitive, by the State where he has sought refuge, the requesting State shall only prosecute and convict that person for the very crime for which his extradition was requested and for no other offense committed before the surrender of this fugitive. In the American case States v Raucher (119 US 407, 7S.Ct. 234, 30 L.Ed. 425(1886)), the court held that an accused should not be arrested or tried for any other offense other than that for which he was charged in the context of the extradition proceedings. In a situation where a state prosecutes a fugitive for an offense other than that for which the fugitive was extradited, this will amount to an abuse of the principles of extradition.
The second doctrine is the doctrine of “double jeopardy”. It states that before a person can be extradited for an offence, that extraditable offense or the offense for which a person’s extradition is sought must constitute an offense or a crime in both jurisdictions. In Collins v. Loisel (259 U.S. 309, 42 S.Ct. 49, 66L.Ed.956 (1922)), the U.S. Supreme Court held that the name by which the crime is described in either country does not need not be the same; nor should the punishment be the same. The dual criminality requirement is simply satisfied if the particular act charged is criminal in both jurisdictions.
Restrictions on the Surrender of Fugitives Extradition Act of Nigeria
The Extradition Act, Cap E. 25, LFN, 2004, is the law regulating the extradition of fugitive offenders/criminals in Nigeria. A “fugitive criminal” is defined in Section 21 of the Extradition Act as:
a. “Any person charged with an extraditable offense committed in the jurisdiction of a country other than Nigeria; Where
b. Any person who, having been convicted of an extraditable offense in a country other than Nigeria, is unlawfully at large before the expiration of a sentence imposed on him for that offence, being in both cases a person who is, or is suspected of being, in Nigeria”.
Where a request for extradition has been received by the Attorney General, he is required to decide (on the basis of the information available) whether surrender is excluded by any of the provisions of Article 3(1) to (7 ) of the law. If the surrender of a fugitive criminal is not so excluded, he shall inform a magistrate that a request for extradition has been received by him and thereby demand that the magistrate deal with the matter in accordance with the provisions of the law. . However, where the extradition of a fugitive criminal is thus prevented by Article 3(1) to (7), it is not necessary for him to inform the magistrate of the receipt of such a request (Article 6 (2)).
In George Udeozor v. Federal Republic of Nigeria (2007) LPELR-CA/L/376/05, the tribunal held:
“Nothing in the law gives the court the power to question the discretion of the Hon. Attorney General in these cases, as the Hon. The Attorney General exercises his constitutional duty under Section 174 of the 1999 Constitution.”
However, the Attorney General may, under section 8(3), if he deems it expedient, order the cancellation of the warrant and the release of the fugitive if he has already been arrested. Where a fugitive has been arrested, he must, under Article 8(5), be brought before a magistrate as soon as possible, and the magistrate must either remand him in custody or grant him bail, based on receipt of an order from the Attorney General. This order notifies the Magistrate that a request for surrender of the fugitive has been received; or order the cancellation of the warrant and the release of the fugitive.
Implications of the Treaty Agreement between Nigeria and the United States
Nigeria and the United States have an existing extradition agreement, for the surrender of persons wanted for prosecution or punishment. Section 3 of the Extradition Act stipulates when a person will not be surrendered for prosecution or punishment, notwithstanding the request for surrender by a foreign country. According to Article 3 of the said law, a fugitive criminal cannot be surrendered if the public prosecutor or a court hearing the case is satisfied that the offense for which his surrender is requested is a political offence. ; or that the request for surrender, although purported to be made for an extraditable crime, was in fact made for the purpose of prosecuting or punishing him on account of his race; religion, nationality or political opinions, or was not made in good faith or in the interests of justice; or that, if surrendered, he would be in danger of being prejudiced at trial, or of being punished, detained or restricted in his personal liberty, on account of his race, religion, nationality or Political Views.
A fugitive criminal should also not be surrendered if the Attorney General or a court hearing the case is satisfied that the offense is of a minor nature; or that because of the time which has elapsed since the commission of the offence, it would be unfair or oppressive, or would be too severe a punishment, to surrender the offender. (To be continued).
Sserious and trivial
“Action is the fundamental key to all success.” – Pablo Picasso
THOUGHTS OF THE WEEK
“Nations respect agreements, keep their treaties as long as they continue to benefit them.” (Linus Pauling)