THE EXTRADITION OF ABBA KYARI: The Legal standview and The Position of the International Law

Lord Olasunkanmi Israel, Akeredolu.

1.Equity Private Chambers, Adekunle Ajasin University, Akungba Akoko, Ondo State.

Introduction

Nigeria’s most decorated cop, DCP Abba Kyari, was recently caught in the web of allegations brought against a renowned fraudster, Raymond Igbalode known by the sobriquet “Hushpuppi” in the United States District Court for the Central District of California, as a conspirator abetting fraudulent activities, thereby necessitating his appearance before the court outside Nigeria, as the court had issued a warrant of arrest on Kyari. The issue of granting his appearance has, thus, become a national topical issue, visited by different legal experts on whether or not Kyari be allowed to appear without little check into the law as to what the law (municipal and international) says about extradition. 

Extradition

Crime is fast becoming a norm in the society today, the recent trend of such being fraudulent transactions across countries, which most times when apprehended in the external country, in most cases, makes the criminal liable in the external country where he could be summoned and tried. The processes of summoning, questioning and arraigning a suspected criminal outside a suspected criminal or a criminal’s country often involve rigorous process which is called extradition. Extradition grants the court ability to reach the suspect from the receiving country, indemnifying the requesting country the right to commence trial according to their laws, without interference of any sort from the receiving countries. As defined by the Court of Appeal in George Udeozor v Federal Republic of Nigeria  "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. In the words of Lord Russell of Killowen, the law of extradition was summarized interalia:

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. 

Extradition is also the handing over of an alleged offender (or convicted criminal who has escaped before completing his term) by one state to another. 

Before the law of extradition comes to play between countries or comity, certain agreements in form of treaties and international law must have been entered into such that when the need arises, appropriate guidelines and principles will be adhered to. 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 of section 315(4)(B). Although these treaties are received into our laws through our constitution, they only take force when the matter concerns parties to the treaty ensues, in other words, they have no hierarchy or influence over the municipal laws of a state where there is no joinder of issue nor be inconsistent with it .

In A.G Federation v. Olayinka Johnson,  it was argued on behalf of the respondent that there was no extradition treaty in existence between Nigeria and the United States of America. This erroneous argument was based upon the contention that Legal Notice No. 33 of 1967 made pursuant to the Extradition Act is not applicable in Nigeria because it has not been domesticated by the National Assembly pursuant to section 12 (1) of the1999 Constitution. This argument was rejected by the court on the basis that the Legal Notice is an integral part of the Extradition Act which is valid existing law under the Constitution. The Legal Notice adopts the extradition treaty between the United Kingdom and United States of America of 1931 as binding on Nigeria. The extradition treaty between Nigeria and the United States of America is embodied in the Legal Notice No. 33 of 1967 published in the official Gazette No. 23 Vol. 54 of the 13th day of April, 1967, known as an Extradition (United States of America). Such treaties enumerate what offences the two nations consider extraditable. The general rule in the treaty is that, extraditable crimes must be those commonly recognised as malum in se (acts criminal by their very nature) and not those which are malum prohibitum (acts made crimes by statute). 

Having established the principle of extradition and the fact that a treaty exists between Nigeria and the United States, we can now examine the processes vis-à-vis Abba Kyari’s case.

Extradition proceedings in Nigeria involves diplomatic, administrative and judicial steps. These steps are so strictly guided by constitutional and statutory provisions that they may be invalidated if done in a manner inconsistent with or contrary to the law. Specifically, for the purpose of this discuss, extradition proceedings commence when a person is only deemed to 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. This is quite different from where a person is wanted for questioning, for example, as a witness. In Attorney-General of the Federation v Lawal Olaniyi Babafemi aka “Abdullahi”, “Ayatollah Mustapher (Babafemi)”,  the Respondent was wanted for conspiracy to provide support to a Foreign Terrorist Organization in the United States. It was enough to show to the Federal High Court that there was a subsisting indictment against the Respondent as well as a warrant issued by a United States Magistrate Judge for the Respondent’s arrest. These qualified the Respondent as an extraditable person. In this case, the respondent, Kyari, has been indicted too with conspiracy and abetting fraudulent activities and the US court has issued a warrant which qualifies him first as an extraditable person. 

Extradition treaties between nations are executory in character  and are binding on domestic courts. However, it is pertinent to note that for extradition treaties to be justiciable before Nigerian Courts and implemented by the executive arm of government, they must be domesticated by means of an order made pursuant to the Extradition Act. The Extradition Act categorically states that:

Where a treaty or other agreement (in this Act referred to as an extradition agreement) has been made by Nigeria with any other country for the surrender, by each country to the other, of persons wanted for prosecution or punishment, the President may by order published in the Federal Gazette apply this Act to that country. 

The procedure for extraditing a fugitive or alleged criminal according to the extradition act vest discretionary power on the Attorney-General of the Federation to, upon request, either accept or decline the request issued from the other state.  

It has become a well-guarded legacy that this Court does not undermine the doctrine of the separation of powers enshrined in the Constitution of the Federal Republic of Nigeria. The discretion to accede to an extradition request is that of the Hon. Attorney-General of the Federation, not of the Court according to the provisions of Sections 6 of the Extradition Act, Cap E.25 LFN 2004. 

However, the act also grants jurisdiction to the Federal High Court to issue an order regarding the extradition of any fugitive or accused person. The jurisdiction of the Federal High Court to adjudicate on extradition proceedings is based on the presence of the fugitive on Nigerian territory. It does not matter if the fugitive is a Nigerian or not. In Attorney General of the Federation v. Dion Kendrick Lee,  the fugitive was a non-Nigerian who was found in Nigerian territory and extradited to the UK by order of the Federal High Court sitting in Lagos. Upon receiving the request, the Attorney-General may either exercise his discretion to apply to the court for the exercise of the court’s extradition jurisdiction or refuse the request without giving any explanation for the refusal. Where s/he intends to process the extradition request, an application for extradition will be made to the Federal High Court for the purpose of surrendering the alleged fugitive criminal to the requesting State. Prior to the conferment of extradition jurisdiction on the Federal High Court, the Attorney General used to give an order to the magistrate court to deal with an extradition case in accordance with the Extradition Act. Now, however, the Attorney General cannot order the Federal High Court rather s/he applies to the Federal High Court to deal with the case in accordance with the Extradition Act.  Thus, the power to accede and commit an accused or criminal over to any requesting state is vested in the Attorney-general, however, if he accepts and grants the extradition, he must file an application to the Federal High Court for an order to extradite the offender.

Following the words of the AGF of Nigeria, Abubakar Malami, that due process will be observed in the committal of Kyari to the requesting State, it could be inferred that the AG has granted the request of the US court of California, and hence is ready to file a case in the Federal High Court to seek the order to extradite Kyari. Although the AGF claimed that he has not officially received any document from the FBI or NPF as regards the matter, due process must be followed. As posited in GEORGE UDEOZOR v FRN  

The extradition treaty between Nigeria and the United States of America is embodied in the Legal Notice No. 33 of 1967 published in the official Gazette No. 23 Vol. 54 of the 13th day of April, 1967, known as an Extradition (United States of America). Such treaties enumerate what offences the two nations consider extraditable. The general rule in the treaty is that, extraditable crimes must be those commonly recognised as malum in se (acts criminal by their very nature) and not those which are malum prohibitum (acts made crimes by statute)

CONCLUSION 

In conclusion, the crux of this work revealed that Kyari, by virtue of allegations levied against him, qualifies to be extradited. Also, following the treaties and Extradition Act, the allegation against Kyari, is an offence recognized ad malum in se, and that also qualifies him to be extradited to the US for trial. However, it should be noted that the AG of the federation is vested with the power to accede the extradition request, after which he can proceed to court to receive an order to extradite Kyari.