DCP Abba Kyari Cannot Be Extradited To The United States Of America:

BY JOHNMARY CHUKWUKASI JIDEOBI, Esq.

INTRODUCTION:

One of the most popular quotes credited to Friedrich Wilhelm Nietzsche a [German philosopher, whose work has exerted a profound influence on intellectual history] is that “He who fights with monsters should look to it that he himself does not become a monster . . . when you gaze long into the abyss the abyss also gazes into you”. The Latin phrase, “Quis custodiet ipsos custodies”, originated from the Satires of Juvenal, [the 1st–2nd century Roman satirist]. It is literally translated as “Who will guard the guards themselves?” These two nuggets plucked from the works of Friedrich Nietzsche and Juvenal, very aptly, in their aggregate, describes the mood of the Nigerian nation since the warrant of arrest issued against ABBA ALHAJI KYARI, by the United States Court, became a public knowledge.

FACTUAL BACKGROUND:

On the 12^th day of February, 2021, the United States of America filed a Criminal Complaint before the United Stated District Court for the Central District of California in Case No. 2:21-mj-00760-DUTY against six (6) named Defendants of Nigerian origin. Of the six Defendants, the name of the 4^th Defendant, ABBA ALHAJI KYARI has raised enormous dusts yet to settle within the firmament of Nigeria for reasons that are all too obvious. The reason is because of the personality of the 4^th Defendant that seems to loom large within the Nigerian law enforcement circle particularly the Nigerian Police Force where he currently ranks as a Deputy Commissioner of Police. Who then is ABBA ALHAJI KYARI? At paragraphs 28 and 29 of the Affidavit in support of the Criminal Complaint filed against him before the US District Court, the Deponent, ANDREW JOHN INNOCENTI, who described himself as “a Special Agent with the Federal Bureau of Investigation (“FBI”) and have been so employed since approximately March, 2015”, has this to say about the personality of ABBA ALHAJI KYARI:

28: I reviewed online articles about KYARI, which indicated that KYARI is an Inspector General of the Police’s Intelligence Response Team and a Deputy Commissioner of Police in Nigeria. KYARI previously managed the Special Anti- Robbery Squad, commonly known as SARS, as the Officer-In-Charge for several years. Articles referred to KYARI as a “super cop” of the Nigeria Police Force, and described him as “The Most Decorated Officer In The History Of The Nigerian Police.” KYARI has been awarded many accolades, including recognition for his performance by the Nigerian House of Representatives in June 2020, which KYARI informed ABBAS of via the news article discussed above. I also reviewed other articles, from October and November 2020, which indicated that KYARI had been accused of falsely arresting and extorting a businessman in Lagos. Based on those articles, KYARI’s work, in general, appears to have related primarily to kidnapping cases, and I did not see any articles suggesting that KYARI worked on fraud cases.

29. Finally, I have reviewed a certified NIV application submitted by ABBA ALHAJI KYARI, in April 2019. This application included one of the aforementioned phone numbers (09099999131) that KYARI used to communicate with ABBAS, as well as a date of birth in March of 1975, and KYARI’s Nigerian passport number ending in 3677. The NIV application also included the following photograph, which is consistent with the other photographs of KYARI shown above:

In his article titled: “ABBA KYARI AND THE MAGGOTS IN HUSH PUPPIES’ PHONE” Dr. Ugoji Egbujo described Abba Kyari as “an enigma. A detective who craves the limelight.”

Suffice it to add that the charges piled up against ABBA KYARI and other Defendants border largely on internet fraud running into Hundreds of Thousands of United States Dollars.

OBJECT OF THIS WRITE-UP:

The focal objective of this write-up is to examine the position of the law as to whether the Extradition Treaty which the United States of America is banking on as the legal basis for seeking ABBA KYARI’S extradition is one cognizable under the extant Nigerian Law. The Treaty under consideration here is the Extradition Treaty between the United States of America and Great Britain, signed at London, on 22nd December 1931. This article contends, vociferously, that the application of Extradition Treaty between the United States of America and Great Britain, signed at London, on 22nd December 1931 in extraditing ABBA KYARI will do violence to the impregnably inviolable Section 12(1), (2) & (3) of the amended 1999 Constitution of the Federal Republic of Nigeria. Coterminous with the foregoing, the Federal High Court and indeed every other Court in the land is drained of the requisite jurisdiction to enforce unincorporated treaties, like the Treaty under consideration, just as the Honourable Attorney-General of the Federation [and indeed all Agencies of Government] are without the locus standi to activate or seek to enforce unincorporated treaties whose application in Nigeria are clearly forbidden by the Constitution, the organic law.

THE KERNEL:

To get our bearings right, we shall proceed to pluck out from the Statute book the provision of Section 12(1), (2) & (3) of the amended 1999 Constitution couched in this unmistakable language:

(1) No treaty between the Federation and any other country shall have the force law except to the extent to which any such treaty has been enacted into law by the National Assembly. 

(2) The National Assembly may make laws for the Federation or any part thererof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.

(3) A Bill for an Act of the National Assembly passed pursuant to the provisions of sub-section (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the Houses of Assembly in the Federation.

There is no doubt that under international law, treaties are seen as contracts between states and if they do not receive the consent of the various states, their provisions will not be binding upon them. The fundamental principle of treaty law is undoubtedly the proposition that treaties are binding upon the parties to them and must be performed in good faith. Under Article 11 of the 1969 Vienna Convention on the Law of Treaties, it is now firmly settled that among other ways, a state may signal its consent to international agreements by signature, exchange of instrument constituting a treaty, ratification, acceptance, approval or accession. All students of international law would recall the never-ending battle between domestic and foreign courts. Thus, the place/fate of foreign laws/treaties before domestic courts vis-a- vis the place/fate of municipal laws before foreign courts have remained an enduring debate in the field of International law world over. While foreign courts/international tribunals have consistently held that municipal laws are amenable to foreign laws/treaties, the municipal courts of many nations have taken the opposite direction in consistently holding that foreign laws/treaties are amenable to domestic laws. In this regard, while interpreting Article 46(1) of the 1969 Vienna Convention on the Law of Treaties, the International Court of Justice held in the case of Cameroon V. Nigeria (Judgment) (2002) that a state cannot plead a breach of its constitutional provision as to the making of treaties as a valid excuse for condemning an agreement and resiling therefrom.

In contradistinction to the above position held by foreign courts, the House of Lords in England has come to the settled conclusion that “except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual” and further reaffirmed in the very recent case of A (FC) and Others (FC) v. Secretary of State for the Home Department (2005) UKHL 71 where it was held that “a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or expresses principles of international law”. The position is no different in the United States of America. The question of a possible conflict between treaty obligations and domestic legislation was raised in Diggs v. Schultz 470 F. 2d 461, where the Supreme Court of the United States came to the conclusion that “under our constitutional scheme, Congress can denounce treaties if it see fit to do so, and there is nothing the other branches of government can do about it”. In Nigeria, the position is no different as our own Supreme Court has had the opportunity to show the Nigerian position. When called upon to interpret and apply Section 12 of the 1979 Constitution, which is identically worded with and a replica of Section 12 of the amended 1999 Constitution, the Nigerian Supreme Court in Abacha v Fawehinmi [2000] 6 NWLR Part 660 at page 340 [through Ogundare, J.S.C. who wrote the leading judgment] magisterially intoned thusly:

Before its enactment into law by National Assembly, an international treaty has no such force of law as to make its provisions justiciable in our courts. See the recent decision of the Privy Council in Higgs & Anor. V. Minister of National Security & Ors. The Times of December 23, 1999 where it was held that-

“In the law of England and the Bahamas, the right to enter into treaties was one of the surviving prerogative powers of the Crown. Treaties formed no part of domestic law unless enacted by the legislature. Domestic Courts had no jurisdiction to construe or apply a treaty, nor could unincorporated treaties change the law of the land. They had no effect upon citizen’ right and duties in common or statute law…”

In my respectful view, I think the above passage represents the correct position of the law, not only in England, but in Nigeria as well. [italics and underlining supplied by us for emphasis].

In the same report, Per Iguh, J.S.C. with authoritative finality intoned thusly:

“…unincorporated treaties cannot change any aspect of Nigerian Law, even though Nigeria is a party to those treaties. Indeed, unincorporated treaties have no effect upon the rights and duties of citizens either at common law or statute law… By the time-honored doctrine of precedent as it operates in Nigeria and all common law countries, the decision on a given issue of law handed down by the apex court, which for us in Nigeria is the Supreme Court, is not only superior but binds all subordinate courts, including all courts exercising appellate jurisdiction… Consequently, it is an exception rather than the rule for a state party to a treaty to contract out and defeat the legitimate operation of a treaty to which it is a signatory by derogating from the treaty through passing a municipal law inconsistent with the treaty. Since a state at any moment despite the provisions of a treaty that it is a signatory to, is at liberty to withdraw its involvement in the treaty, it follows that a state’s treaty obligations can be neutralized by enacting a new legislation inconsistent with those obligations. But this is without prejudice to any remedies available against the recalcitrant slate in international law at the instance of the other states parties to the treaty. In variably, this is a political decision involving such sanctions that the other states signatory to the treaty may deem fit to impose, See AH. Robertson Human Rights in National and international Law, (1968 Ed.) p. 12, Ian Brownlie, Principles of’ Public international Law (4th Ed.) J.G. Starke, introduction to international Law, 9th Ed, pp. 413 – 415, and Macurthys Ltc!. v. Smith (1979) 3 All E, R. 325 at 329 pg 22.”

In his own effulgent contribution, EJIWUNMI, J.S.C, in casting his lot with the Leading Judgment, adroitly ventilated the seasoned view in sync with the Leading Judgment. This is what His Lordship said:

It is therefore manifest that no matter how beneficial to the country or the citizenry an international treaty to which Nigeria has become a signatory may be, it remains unenforceable, if it is not enacted into the Jaw of the country by the National Assembly. This position is generally in accord with the practice in other countries. In the recent case of Higgs & aI/or. v. Minister of National Security & Ors….If such a treaty is not incorporated into the municipal law, our domestic courts would have no jurisdiction to construe or apply it. Its provisions cannot therefore have any effect upon citizens’ right and duties.

The law is abecedarian to the effect that a trial without jurisdiction is a nullity and that where a court takes upon itself to exercise power under jurisdiction which it does not possess; its decision is tantamount to nothing. It has been stated that jurisdiction is the very basis on which any court tries a case as it is the life of all trials. This is because a trial without jurisdiction is a nullity, Garba v. Sheba Int. (Nig.) Ltd. (2002) 1 N.W.L.R. (Pt. 748) 372 @ 388-389, per Muhammed, J.C.A. In ventilation of this trite view, the Supreme Court, per KARIBI-WHYTE, J.S.C, in MATARI & ORS V DANGALADIMA & ANOR (1993) 3 NWLR (PT 281) 266 authoritatively pronounced thusly:

The issue of jurisdiction is without doubt, fundamental and decisive of the question of adjudication. It is well settled that the decision of any Court reached without jurisdiction is void ab initio and the decision is of no effect, see U.A.C. Limited v. Macfoy (1961) 3 All ER 1169.”  

The argument, in some quarters, that the Extradition Treaty between the United States of America and Great Britain, signed at London, on 22^nd December 1931 is part of Statutes of General Applications is inherently false. This why; Section 32(1) and (2) of Interpretation Act provides for the grafting of statutes of general application into Nigerian laws. We shall pluck it out from the statute book and reproduce it ipsissima verba thusly:

(1) Subject to the provisions of this section and except in so far as other provision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st day of January, 1900, shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria.

(2)Such Imperial laws shall be in force so far only as the limits of the local jurisdiction and local circumstances shall permit and subject to any Federal law.

Implicit in the above provision is that it is only those statutes of general application that “were in force in England on the 1st day of January, 1900, shall” be in force in Nigeria and NOT those AFTER 1^st January, 1900. Express mention of one thing is the express exclusion of the other. In AG. ONDO V. AG. EKITI STATE (2001) LPELR-622(SC), the Supreme Court explained this principle of interpretation well. This is what ThierLordships taught:

“… This is in accord with the accepted principle of interpretation expressed in the Latin maxim expressio unius est exclusio alterius or expressum facit cessare taciturn. The two related principles mean firstly that “to state a thing expressly ends the possibility that something inconsistent with it is implied.” Secondly “to express one thing is impliedly to exclude another” which is an aspect of the latter. This principle of, construction is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them. Unless those mentioned are mentioned only as examples, or ex abundanti cautela, or for some other sufficient reason, the rest are taken to be excluded from the proposition.” 

In BUHARI & ANOR V. YUSUF & ANOR (2003) LPELR-812 (SC) Their Lordships of the Apex Court gave a path-marking insight into this interpretational canon thusly:

“The principle is well settled that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This is the expressio unius est exclusio alterius rule, meaning that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication. see Ogbunyiya v. Okudo (1976) 6-9 SC 32; Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 139.” 

The lines which Their Lordships have drawn in the above cases lead us to safely surmise that the Extradition Treaty between the United States of America and Great Britain, signed at London, on 22nd December 1931 is not part of Statutes of General Applications that “were in force in England on the 1st day of January, 1900” and therefore has no force of law in Nigeria.

Having expressly mentioned statutes which “were in force in England on the 1st day of January, 1900”, the Interpretation Act, has expressly excluded every other statutes which came into force in England “after the 1st day of January, 1900”. Extradition Treaty between the United States of America and Great Britain, signed at London, on 22nd December 1931 having come into force in England after the 1st day of January, 1900”, it is not to be applied as part of statutes of general application and falls outside the scope and contemplation of Section 32 of the Interpretation Act, a provision which the Supreme Court, described as a “nebulous provision”, Bernard Chigbu v Tonimas Nigeria Ltd & Another [2006] 4 SCNJ 262, per Tobi, J.S.C. [of blessed memory].

In any event, assuming, without conceding, that the Extradition Treaty between the United States of America and Great Britain, signed at London, on 22nd December 1931 is one of the statutes of general application, we vociferously argue that it cannot still apply to Nigeria being that it came into force at a time when Nigeria was still a British Colony but now the Nigerian nation enjoys untrammeled sovereignty by which it enthroned its own constitution particularly Section 12 of the amended 1999 Constitution that now governs how treaties are to be incorporated into Nigerian laws if ever they will be valid. This was the view ably expressed by this Court in Nze Bernard Chigbu v Tonimas Nigeria Ltd & Another [2006] 4 SCNJ 262. This is what Their Lordships of our Apex Court said:

Much as I appreciate the colonial tie between England and Nigeria, it will seriously hamper and compromise our sovereignty if we continue to go on a borrowing ‘spree’, if I may so unguardedly call it, to England for the laws of that country without any justifiable reason. Nigeria is Nigeria and England is England. Statutes of England cannot apply to Nigeria as a matter of course, even the so-called statutes of general application [Emphasis supplied by the writer]

 END:

This write-up tackled as the object of its enquiry the misconception that there is a valid and subsisting Extradition Treaty between Nigeria and the United States of America. The true position of the law is that as it stands today, there is none. Sad as it may appear, it is a strong position which if well advanced before the courts, ABBA KYARI, will not removed from Nigeria to the United States of America in the event the Honourable Attorney-General of the Federation decides to apply to the Federal High Court for his removal.

In signing off, I strongly note that this piece contributed is by no means an expression of support for the embattled cop, DCP Abba Kyari. The mountainous allegations for which the United States Court wishes to try him are seemingly overwhelming. Their insipid content and nature are such that anyone who means well for the image and health of Nigeria’s security architecture should be deeply worried. This is quite apart from other truckloads of allegations levied against the same cop in some quarters bordering on rape, abuse of official powers, and grave destruction of fundamental human rights, large-scale extra-judicial killings which the now defunct Special Anti-Robbery Squad [SARS], once under his supervision, egregiously perpetrated against numerous Nigerians which have left innumerable families in grave sorrow, eternal agony, excruciating anguish, wrapped in irreversible consequences! All these are rather too many for one proclaimed to be a cop, and here, we are talking of a supposed ‘super cop’. That this litany of lurid, horrific and ghoulish allegations is swarming all around DCP Abba Kyari raises a huge integrity question mark on the policing system that we have, perhaps, a wake-up call for urgent fundamental reforms. The time for such radical overhaul is now. I choose to stop here.

This Writer could be reached on: 08131131942 OR joannesmaria2009@yahoo.com