By Estine Okolo 

Introduction

Extradition is a process whereby a suspect or one already convicted of a crime is formally transferred to the State where he or she is wanted to face trial for the crime(s) committed or to serve a sentence after being convicted by the relevant court of law.

Extradition could also be described, as a surrender of any person who is sought by the requesting state for criminal prosecution and for extraditable offence(s) or for the imposition of a sentence in respect of such offence or offences. The laws guiding the process of extradition are not common, however, one basic principle that is associated with it is that it may involve bilateral and in some cases multilateral treaties or agreements. Though customary international law do exist, it does not carry with it an obligation that extradition from one place to another is compulsory among states.  Extradition process, as an aspect of law is based on the principles that criminal acts must be accompanied with the desired consequences, that crimes should not go unpunished and that states should assist one another towards bringing criminals to justice, irrespective of where are domiciled and how hard they try to evade justice. In Nigeria, Extradition process is a component of constitutional and statutory provisions, inherited colonial treaties, trans-border cooperation, mutual international relations, and domesticated treaties. With the express provisions of the constitution, the implication is that other tier of government are barred from legislating on it.

Crimes and its associated activities has transcend states and trans- border boundaries , making it difficult in some cases to  clearly and specifically categorize them on a specific aspect of law . The principle of respect for the sovereignty of nations, at a stage in nation’s history appeared to serve as impediment to bringing fugitives to justice. The sovereignty of states entails that the power of a state resides in the authority of that state and that the domestic affairs of that state should not be interfered with. It is also based on the presumption, that a state and its people have a right to exist without foreign aggression or unnecessary intervention by any other state.  To promote the capacity to extradite fugitives, nations now makes it a norm to enter into treaties with other nations for multifarious purposes and more particularly to foster the extradition of fugitives.

The need for criminals to face the consequences of their actions, irrespective of states borders, place of commission of the crime, has given impetus  to promoting nations cooperation in bring criminals to justice, irrespective of where the extraditable offence was committed.

The Laws on extradition in Nigeria are of colonial origin, though, some of them are still contained in our statute books. The process of extradition in Nigeria is a mixture of administrative, diplomatic, judicial and logistical steps. Firstly, there must be cognizance of the relevant laws guaranteeing the citizenship rights, constitutional provisions, preservation of rule of law and rules of courts. The process usually starts with the authorities of the requesting state investigating the matter and after being convinced of the culpability of the fugitive, will request the relevant Court in the requesting state to issue a warrant for the fugitive to be brought to answer for the allegations against him or her.

Extradition does not entail or envisage state sponsored abduction of wanted persons, which is a clear violation of the principles of International laws. Extradition matters are provided for in the Exclusive Legislative list, which only the National Assembly can legislate on. And it is the same Constitution that empowered the Federal High Court to assume jurisdiction on matters bothering on extradition[1].

Statutes and Rules

Over the years, a couple of legal instruments have either been passed into law, amended or made to regulate extradition proceedings in Nigeria and they includes;-

a.The Constitution of Nigeria 1999 (as amended)

The Constitution of Nigeria 1999 as amended is an Act of the National Assembly and it is the ultimate law of the land or what is commonly referred to as the grund norm. The duties, rights and obligation of the citizens are contained in this document. As earlier mentioned, it provides for extradition as a process under the exclusive legislative list of the constitution and the court to hear matters pertaining to it. Considering how important the issue of extradition is, constitutional provisions are grossly inadequate and not comprehensive enough.

b.The Administration of Criminal Justice Act  2015

This Law is a recent one, but entails the processes before extradition case gets to court and the procedures to be adopted in court. It provides for the rules of initiating the process in court and other several other related provisions. The Administration of Criminal Justice Act 2015 has repealed the Criminal Procedure Act (Cap C41 LFN 2004), Criminal Procedure (Northern State Act Cap C42) LFN 2004 and the Administration of Justice Criminal Act (CAP LFN 2004)[2] It is a comprehensive document for proceeding leading to initiating criminal process in court, proceedings in and out of court, depending on the rules, order or directives of the court

  1. Extradition Act of 1966

This Act was enacted in December 1966 and became operational in 1967. It repealed all previous Extradition laws made by or applicable to Nigeria and also provides for a comprehensive legal regime to extradite offenders who are fugitive. It contains a total of 23 sections and schedules

Section 2 of the Act makes it applicable to Commonwealth countries. It also states restriction on surrender of fugitives[3] and with interpretation section which explains some key words contained in the Act.

Formerly, the powers to hear extradition related matters used to be domiciled in Magistrates courts who were then saddled with jurisdiction to hear extradition proceedings. But this has since changed, with the coming into force of the Constitution of Nigeria (1999) as amended.

  1. Extradition Act Modification Order 2014

This particular Act modified the Extradition Act of 1966, by replacing the jurisdiction of the court capable of hearing extradition matter from Magistrate Court to that of the Federal High Court. It also empowered the Federal High Court with the supervisory powers, distinct from the initial supervisory powers bestowed on the High Court of a State. It is the practice that the Extradition Act of 1966 and the Extradition Act Modification Order 2014 are to be read together.

  1. Evidence Act 2011 (as amended)

The evidence Act applies to judicial proceedings in Nigeria, It provides for the nature of evidence to be given, the relevancy of facts in evidence, admissibility of evidence, taking of oral evidence, examination of witnesses, service and execution throughout Nigeria of process to compel attendance of witnesses before court of the state and the Federal Capital Territory, Abuja and the Federal High Court and a host of other miscellaneous and supplementary provisions. The evidence Act is applicable for extradition proceedings in Nigeria.

  1. Federal High Court (Extradition Proceeding) Rules 2015

The rules was made, pursuant to the powers conferred on the Chief Judge of the Federal High Court[4]. The essence is to expedite action and promote uniformity in the extradition proceedings. Despite the fact that Extradition Act has similar provisions, the Federal High Court (Extradition Proceeding Rules) are specific   and definite. The rules is however subordinate to the Extradition Act because the Act is a law of the National Assembly.

  1. Federal High Court Act 1973

The Federal High Court Act, established the Federal High Court. Section 251 of the Constitution of Nigeria 1999(as amended) confers exclusive jurisdiction of extradition matters on the Federal High Court. The Judge hearing an extradition matter can transfer same to any other Judge of the Federal High Court.

Other relevant statutory provisions which can be referred to, depending on the nature of the case includes

  1. Independent Corrupt Practices and other Related Offences Act 2000

i.Economic and Financial Crimes Commission (Establishment(Act 2004

j.Terrorism (Prevention Amendment) Act no25 of 2013

k.Terrorism Prevention Act 2011

l.Public Procurement Act 2007

m.Fiscal Responsibility Act 2007

n.Money Laundering Act 2011

o.Bank and Other Financial Institution Act of 1991,

  1. Economic Community of West African States Convention on Extradition 1994

q.Extradition Treaty between Nigeria and the Unites Arab Emirate 2016

r.Extradition Treaty among Benin , Ghana, Nigeria and Togo 1984   etc.

The dynamics of international relations and the accompanying intrigues and benefits, requires that no country lives in isolation. Countries engage in bilateral relationships to boost their economic, political, military and international influence. The Extradition Agreement signed between Nigeria and her former colonial master, Britain on the 22nd of December 1931, which came into force on 24th June 1935 was made applicable to the colonies, inclusive of Nigeria. Nigeria also has extradition treaty with the United States of America and several other countries. In Africa, the African Charter on Human and Peoples Rights has gained recognition in Nigerian Courts and several African countries because of its lofty provisions and as instrument for the pursuit of justice.

In GENERAL SANI ABACHA & 3 OTHRS V GANI FAWEHINWMI, Chief Gani Fawehinwmi, a Legal Practitioner and a human right activist was arrested in January 30th 1996, without a warrant of arrest by agents of the State Security Services and the Police. He was initially detained at the State Security Services office before been transferred to Bauchi Prison. In Consequence, by way of Exparte, he applied to the Federal High Court for the enforcement of his Fundamental Rights and for several other declarations, to wit;

a.that his arrest by officers, servants, agent and privies of the respondents constitute a violation of his Fundamental Rights guaranteed under sections 31, 32, 38 and Articles 4, 5, 6 and 12 of the Constitution of Nigeria 1999 as amended and African Charter on Human and Peoples Right (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990 is illegal and unconstitutional.

b.that the continual detention was illegal

  1. An order of mandamus that he be arraigned before a properly constituted court of law

d.a mandatory order for his release

e.an order of the court for the payment of  Ten Million Naira (#10,000,000.00) as damages for the unlawful arrest. At the lower Court, a preliminary objection was filed and raised by the respondent counsel, a Legal Officer who represented the Government and its agents and upon arguing same, the case was struck out. Aggrieved by the decision of the lower court, Chief Gani Fawehinwmi appealed to the Court of Appeal and the appeal upheld his prayers in part. At the Supreme Court, it was held per Honourable Justice Michael Ekundayo Ogundare thus;

Before the enactment into law by the National Assembly, an international treaty has no

                        such force of law, as to make its provisions justifiable in our courts…where however treaty

                      is enacted into law by the National Assembly, as was the case with African Charter which is

                       incorporated into our municipal (ie domestic) law, by the African Charter on human and

                       peoples right (Ratification & Enforcement) Act Cap 10 LFN 1990, it becomes binding and

                       our courts must give effect to  it. Other laws falling within judicial power of the court must

                      uphold the grund norm. The African Charter on Peoples Right is a statute of international

                     flavour but that is not to say, the charter is superior to the Constitution.

It was held further that apart from Nigeria been subject to treaty which has been ratified by subsequent Act of the National Assembly, it is also subject to other international protocols. The powers to accede to extradition request resides in the office of the Attorney General. It is the Attorney General’s discretion or duty to receive request for the surrender of a fugitive criminal in Nigeria.

Extradition Proceedings

Extradition proceeding is usually commenced by a requesting State making a request through the Diplomatic channel to the Attorney General of the Federation. Such request, must show that the person upon whom a request has been made, has committed an offence or has been convicted of an offence .And there must be an authenticated warrant of arrest or certificate of conviction issued by the requesting state.

Extradition proceedings are criminal in nature with the requirement of proof beyond reasonable doubt. The Attorney General cannot be compelled to initiate the proceeding through legal process or by an order of mandamus to do same. It is a discretionary powers exercisable by the Attorney General and it is only when the Attorney General has satisfied himself that the conditions for initiating extradition proceedings has been met, that he can proceed further. In the case of GEORGE UDEOZOR V FEDERAL REPUBLIC OF NIGERIA, the court held that the responsibility and power to ascertain the condition for acceding to extradition request resides in the Attorney General and not to any other body or the court.

There is no particular format or form for making this request but more importantly, is that it should be in writing. The law does not envisage or give room for verbal request. If two states  makes request  for the handover of a fugitive, after considering all the circumstance of the case,  especially  in relation to the seriousness of the offence, the date to which the request was made, in order of priority and other factors, the Attorney General may accede to any one he is disposed to. And if the  Attorney General decides  to proceeds by taking further steps  on the request, he will bring an application  for extradition to  the Federal High Court to ensure that the fugitive is surrendered to the requesting state .In line with the rules of fair hearing, the application and relevant documents must be served  on the fugitive who is at liberty to engage the services of a lawyer, accept the extradition  or contest it by filing the relevant counter affidavit, within the prescribed  5 days period. And if he files a counter affidavit, the office of the Attorney General may file a reply on point of law within 48 hours.

It is noteworthy, that the supporting evidence must be prima facie one of the allegation. It should not be frivolous or lacking in merit. Further, any extradition proceeding , warrant , disposition , statement on oath or certificate of conviction  issued in any such country shall be deemed to have being authenticated if it is in a manner provided by law

At the extradition hearing, the Attorney General or Counsel representing him will argue for the surrender of the fugitive and the fugitive’s counsel in reply may argue otherwise. Before a reply, if he has any, will then be made by counsel that argue first. The Court can then adjourn for it decision to be read in the open court at a fixed date. In arriving at a ruling or verdict, the court must consider whether the offences are those extraditable within the Extradition Act, whether the fugitive is a political offender, whether the offence for which the person is to be tried in the requesting country is of such nature that it will be punishable with death etc.

The application of the Attorney General is not for the trial of the fugitive on merit. The purpose is to invoke the exercise of the courts judicial power over whether the fugitive can be validly extradited or not.

On application by way of information, with the necessary evidence, a judge of the Federal High Court may issue a provisional warrant of arrest and direct that the fugitive be brought before him within 24 hours or for any such period stated by the court. The fugitive shall be informed of the allegation against him.

The fugitive may be remanded in custody or admitted to bail depending on the discretion of the court. It is noteworthy that  the post arrest   proceedings, as in above is different from arraignment proceedings, It is after the post arrest proceedings that the court will transmit  record of the proceedings to the Attorney General who shall then file an application for extradition of the fugitive  within 48 hours. The matter shall be set down for hearing within 14 days and if on the return date the Attorney General fails to inform the court of any request for extradition the fugitive shall be discharged not on the merit nor as a bar to future proceedings regarding the extradition.

Grounds for refusal to grant extradition

It is not every request for extradition that is granted by the court or acceded to by the Attorney General. Indeed, the Attorney General is not duty bound to accede to every such request.

Request for extradition could be denied on the ground that the offence for which the fugitive is to be tried is political in nature. However, there is no consensus on what constitute a political crime. The requesting state may not see the allegation against the fugitive as a political. .

Extradition may be denied when due process is not followed. It is expected that nations should respect the sovereignty of other nations. Any attempt to forcefully take a fugitive without following due process, will result in denial. And in furtherance of clearly articulating the requirements, in 1990, the General Assembly of United Nations adopted the Model Treaty on Extradition Resolution 4/116 of 14th December 1990.

Extradition shall not be granted if the punishment for which the fugitive is sought to be extradited is punishable with death penalty.

Extradition will not be granted, if it will amount to punishing the person on account of;-

a.race,, religion, nationality, ethnic  , origin , sex or gender

b.membership of an association or group

c.to be tortured or subjected to inhuman  and degrading treatment and punishment

d.if judgment has been conducted in absentia and the person does not have sufficient notice

e.if the proceeding will be by extraordinary or ad hoc court or tribunal.

  1. if the crime for which person sought to be prosecuted , is such, that it is caught up with statute of limitation ;

However, statute of limitation is not applicable to war crimes like genocide, apartheid, and crimes against humanity, just to mention a few.

g.If the offence is one provided for under a military law but not in the civil criminal law of the requesting state, the request will not be granted.

h.if the offence is of a nature that death penalty may be imposed, the person shall not be surrendered to the requesting state.

i.A person shall not be surrendered if a request has already been made  for his surrender  by the International Criminal Court

j.if an offence has been committed outside the territory of the requesting state and the law of the country(adopting the law) does not allow prosecution for the same offence when committed outside its territory.

Other crimes for which extradition can be requested includes murder, kidnapping, drug trafficking, terrorism, rape, sexual assault, burglary, embezzlement, fraud arson or espionage.

It is hoped, that the idea of entering into treaties with other nations for extradition purposes will continue to be given the important attention that it deserves, as it will go a long way in promoting smooth extradition of fugitives to face the consequences of their crimes.

Conclusion

As a legal component, extradition is governed by multifarious legal and statutory provisions. Often, the laws guiding it cuts across domestic laws of the requesting state, the state against whom the request is made and in some cases may be tilted with the provisions of international law.

The process of extradition usually throw up serious legal battles which is understandable because persons whom an extradition request has been made against usually do not give up without a fight and  without attempting to take advantages of the loopholes in the legal systems and  the laws. It is on this basis, that it is recommended, that the laws on extradition should be reviewed with a view at closing the loopholes associated with its implementation for a comprehensive, up to date and encompassing law on the subject matter. Certainly, criminals who hope to escape justice by absconding from a state where they committed a crime to another, with the hope that justice will be far from them will be disappointed. . It is hope that this piece will be able to throw up interrogatories on the subject matter amongst readers and on the need for a reform process with a view to strengthening the existing statutory provisions.

Estine Okolo, LLB, BL, LLM is a Legal Practitioner.

[1] Cases and Materials on Extradition in Nigeria .United Nation Office on Drugs and Crimes Country Office in Nigeria, United Nations 2016, accessed on 3rd August 2021

2 .United Nations Office on Drugs and Crimes Model Law on Extradition (2004)

3 Item 27 of the Constitution of Nigeria 1999 as amended

4 Section 251(1) (I) of the Constitution of Nigeria 1999 as amended. Others contained in this subsection includes citizenship, naturalization, alien, deportation of persons who are not citizens of Nigeria, immigration into and emigration from Nigeria, passports and visas.

5The citation of the Act is provided for in section 495 of the Administration of Criminal Justice Act 2015.

6 Section 493 of the Administration of Criminal Justice Act 2015, under the repeal provision

  1. SC/45/1997

8 CA/L/376/05

9 https;//www.britanical.com/topic/extradition,accessed on the 3rd August 2021.

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