A few politically exposed persons, who escaped justice in Nigeria, have been successfully tried and jailed abroad. There are also reported extradition requests pending against others. How can the process of extradition be made less cumbersome so that those who have cases to answer abroad can do so? Robert Egbe sought lawyers’ views.
The prosecution of politically exposed persons in Nigeria is usually a complex process. More often than not, trials involving influential former office holders drag on for years and may be susceptible to being compromised.
With the never-ending injunctions obtained by lawyers, and other loopholes they exploit in the laws, there is uncertainty about when justice will be done.
However, the case is usually different where such suspects are found to have committed elements of their offences abroad, particularly in the jurisdictions of some western nations. For instance, the judicial systems of the United States (US) and the United Kingdom (UK), not bogged down by the ethnic, cultural, historical or socio-political pressures of Nigerian society, have administered justice timely and impartially in cases involving some members of the Nigerian political elite.
A case in point is the James Ibori saga where, in 2009, a Federal High Court sitting in Asaba, Delta State, discharged and acquitted the former governor of the 170-count charge of corruption brought against him by the EFCC. But, five years later, a London court convicted him of money laundering and conspiracy, on charges similar to the ones he was cleared of in Nigeria.
Also, in September 2005, the late ex-Bayelsa State governor Diepreye Alamieyeseigha was detained in London on charges of money laundering at a time he was not even under investigation in Nigeria and could not even be prosecuted because of his constitutional immunity.
There are other cases of Nigerians wanted abroad. The extradition to the UK of a former Managing Director of the Nigerian Security Printing and Minting Company (NSPMC), Emmanuel Ehidiamhem Okoyomon, has been ordered by a Federal High Court in Abuja. Okoyomon’s extradition is being sought by the UK government over his alleged role in the bribery allegation involving officials of the Central Bank of Nigeria (CBN), NSPMC and Securency International Pty of Australia between 2006 and 2008.
The case of Mr. Buruji Kashamu, who was recently sacked by an election tribunal as senator representing Ogun East Senatorial District, is another example. Former Attorney-General of the Federation (AGF) and Minister of Justice Mohammed Adoke (SAN) had stated in an application for extradition of the Nigerian businessman at the Federal High Court in Lagos, that Kashamu was the subject of a one-count charge superceeding indictment in a criminal case filed before an Illinois court on May 21, 1998.
Two Fridays ago, Britain’s National Crime Agency (NCA) invited Nigeria’s former Minister of Petroleum, Diezani Allison-Madueke and four others for talks concerning a case of bribery and money laundering.
In almost all of these cases, voices of discontent have been raised by party loyalists or ethnic groups of the suspects, who have raised allegations of witch-hunting and selective prosecution. In some cases, the potential for violence if convictions are secured against the suspects is not inconsequential. This is particularly true of the potentially-volatile Niger Delta region, home of most of Nigeria’s oil reserves.
The advantages of trial abroad
The government of President Muhammadu Buhari recognises the limitations of the administration of justice system in Nigeria and has repeatedly emphasised the need for judicial reforms that will aid his administration’s anti-corruption war and strengthen democratic governance.
The president has since appointed a Presidential Advisory Committee against Corruption headed by Professor Itse Sagay, a prominent professor of law and civil rights activist. The Committee will, among other things, advise the present administration on the implementation of required reforms in Nigeria’s criminal justice system.
Nevertheless, many politically exposed Nigerians are suspected of owning property abroad. If such property are found to be evidence of money laundering, like in the Ibori saga, they could form the basis of prosecution in foreign courts. Nigeria’s role would be limited to supplying information and approving extradition requests, should the foreign government make a legitimate request. This would relieve the country of the financial burden of carrying out the trials locally. It would also put paid to allegations of selective prosecution and witch-hunting.
Constitutional lawyer and author Mr. Sebastine Hon (SAN), explains how extradition works.
He said: “Extradition by Nigeria of its citizens for trial abroad is lawful and legal. The procedure is covered under the Extradition Act 2004, and once Nigeria has a reciprocal agreement with any country, it is bound by that agreement, which is in the form of an international treaty, to extradite any person requested by that country.
“Unless that agreement is no more in force, if a request is made while that agreement is still in force, Nigeria is under obligation to comply, under international law, to extradite that person.
“Extradition in international law ensures “the smooth working of the system across international borders, to achieve worldwide peace and the fight against crime,” Hon said.
He continued: “So, without that every country is a sovereign nation that will refuse incursion into its own territory for the purpose of arrest and trial abroad.
“Nations realising the importance of fighting crime using lawful means, enacted various prosecution laws to help and situate that right of prosecution for crimes committed on their soils by foreigners.”
Lawyers prefer trial at home
Nevertheless, where elements of a crime are committed in Nigeria and also abroad, the learned silk opined that the suspect could be tried abroad, after Nigerian courts have already failed to do justice.
He said: “If certain elements of a crime are committed in Nigeria and some are committed abroad, the courts of both countries have jurisdiction to deal with those cases.
“So, if a Nigerian court fails to convict and somebody secures a conviction abroad, fair enough. It means the judicial system of that country is stronger than ours.”
He explained that by the intendment of the criminal law, anybody that commits a crime should expect punishment.
He added: “So if you escape in Nigeria and you’re found culpable elsewhere, that is good. There’s nothing wrong with that, it’s even better to have it so.
“Especially those people, who commit high crimes, they just milk the nation of billions and billions of naira and they muscle their way through in Nigeria, so to speak, and because of the weak legal and judicial system, if they’re convicted abroad, there’s nothing wrong with that. I fully support that.”
Mr. Hon dismissed allegations of witch-hunting made by suspects in corruption trials.
He said: “Without being a witch, nobody will witch-hunt you. If you’re no witch, you shouldn’t be afraid of being hunted. I support extradition. It is in our laws and in so far as no one has abrogated those laws, the full process of the law should go on, no matter whose ox is gored or no matter whose interest is affected.”
Lagos lawyer and human rights activist, Festus Keyamo, wants all accused persons, no matter how highly placed, tried in Nigeria. Although Keyamo supports lawful extradition, he opined strongly that the Nigerian judicial system must be made effective enough to see prosecutions through.
“If there’s a genuine request for extradition, Nigeria has a duty to oblige any country that asks for anyone for trial,” Keyamo said. “The reason is that Nigeria is part of the global community and we’re part of various treaties – bilateral, multi-lateral – that guarantee or prescribe the ways and methods by which people can be extradited for trial.
“So, if we’re part of all of these treaties and there’s a genuine request for extradition for anybody, we have a duty to oblige those countries. If we start turning down extradition requests on flimsy excuses, it will mean that we’re not serious in the fight against corruption,” he said.
He explained that if a Nigerian commits an offence here and elements of that offence abroad, Nigeria should not go begging that other country to try its own citizen.
He said: “Once the person is arrested here and there is jurisdiction to try the person here, we have a duty to make our system work and try the people and convict them.
“However, if there are elements that happen here and elements that happen abroad and it will not amount to double jeopardy, then we can as well try the person here and convict the person, if the person is in our custody.
“It will amount to cowardice and evidence of a weak sovereignty if we just voluntarily tell the person to go abroad, to send the person away when we have the jurisdiction to try the person here.”
For Lagos-based lawyer, Mr. Malachy Ugwummadu, he understands why there is a perception that the judiciary doesn’t seem to be formidable enough when it comes to the administration of the criminal justice system. Nevertheless, he rejects any idea of the government encouraging foreign trials for its citizens, likening it to outsourcing the administration of the Nigerian criminal justice system.
“To make such a proposal is to encourage the government to abandon or abdicate its responsibility,” Mr. Ugwummadu said. “A government that will have to outsource the administration of its criminal justice system, has abandoned or abdicated all the crucial purpose of that government, and so it’ll be farfetched in terms of recommendations to suggest that that should happen,” he added.
He continued: “However, I did say that I understand why this is coming up, because if you take a closer look at the records of prosecution so far, it’s difficult to identify any politically exposed state actor, who has gone down in this country on account of an effective prosecution.
“That is already an indictment, but what to do is not to hand over the security of the country to another country, including those who may not even have the patience to follow the due process of the law.”
The way out
The key to an effective judicial system, said Keyamo, is to reform it. He said: “So, the fact that our system is slow and not working does not mean that we should give up our sovereignty, I do not subscribe to that, we should not.
“We have a duty to make our system work, but, if it’s only when there’s no offence here, the person has not committed any offence here but has committed an offence abroad and there’s a request for the person to be tried abroad, we must send the person away. Like the case of Buruji Kashamu, we have a duty, no matter the legal gymnastics.”
Even where the Nigerian justice system fails, Keyamo, a socialist, critic and columnist, feels it must not be given up on.
He said: “That does not mean that we should shy away from our responsibility to try people and convict them, we have a duty to make it work. So, if at the end we avoid trying people like that, in preference for sending them abroad, when will our system work?”
Mr. Ugwummadu recommends several measures that will better aid the fight against corruption. He said: “What we need to do is to strengthen the agencies of government that we have, campaign a lot more for the government to make the judiciary a lot more independent, punish judicial elements, be they judges of the High Courts, Customary Courts, Court of Appeal, Supreme Court, wherever they may be. Discipline those dissidents, who are in the habit of perverting justice and then fund properly the anti-corruption agencies.”
He continued: “The welfare and security of this country are the primary responsibility of government. The administration of criminal justice in any country borders also on security. The reason is that if you’re unable to deal with crime and criminality using the instrumentality of the law and the judiciary, you’re exposing every other law-abiding citizen to another degree of violence, because at that point you’ll be talking of self-help.
“So, a government that throws its hands up in defeat and says well, the only thing we can do is to outsource our judicial system to the United Kingdom or United States; that is not creative. Secondly, it does nothing to correct the wrongs. My recommendation, therefore, is that our government should become a little introspective, look inwards, correct the anomalies in the system that have made it possible to frustrate effective criminal prosecution.”