How And When Kyari Can Be Lawfully Extradited [2]

By Afe Babalola SAN

LAST WEEK, I commenced a discussion on the statutory regime of extradition in Nigeria, with the case of the suspended DCP Abba Kyari in perspective. As already discussed, extradition of a fugitive criminal is premised on either international comity or by the provision of an existing treaty between nations, and in Nigeria, all extradition proceedings must be negotiated through the office of the Attorney General of the Federation.

It must be emphasised that for the purposes of extradition proceedings, a warrant of arrest must be issued by a court of law in a foreign country. Only then will the person be deemed to be wanted for trial, and therefore extraditable.

In the unreported case of Attorney-General of the Federation v. Lawal Olaniyi Babafemi – Suit No. FHC/ABJ/CR/132/2013 – 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. Notwithstanding, extradition proceedings are not intended to constitute the trial of a Respondent but are premised on a notion that it is in the interest of every State that persons fleeing from justice must be disallowed from seeking refuge outside the territory of the State where the person is wanted. Lord Russell of Killowen, CJ noted in R v. Arton (No. 1) [1896] 1 Q.B. 108 that: “The law of extradition is without doubt founded upon the broad principle that it is to the interest of civilised 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.”

Since the promulgation of the Extradition Act, Nigeria had received several requests for the extradition of fugitive criminals, one of the earliest being in 1976 when the Australian government made a request for the extradition of one John Rooseriley, a British national, from Nigeria. After due compliance with statutory requirements, an order for the surrender of the fugitive was made by the then Attorney General of the Federation and he was subsequently surrendered. James Ibori, a former governor of Delta State, was extradited from the United Arab Emirates, in conjunction with the Federal Government of Nigeria, to the United Kingdom.

Procedural, operational and jurisdictional considerations in extradition

By the provision of the Extradition Act, only magistrates have jurisdiction in extradition matters. However, the Extradition Act (Modification Order) 2014, promulgated pursuant to Section 315 of the 1999 Constitution, has now vested exclusive jurisdiction on extradition matters on the Federal High Court. This position was well taken in Orhiunu v. Attorney General of Federation (2005)1 NWLR (Pt. 906) 39 where the Court of Appeal held that the exclusive jurisdiction conferred on the Federal High Court by the constitution cannot be limited otherwise than by the same constitution.

Upon the receipt of an extradition request, the Attorney General of the Federation may either exercise his discretion to apply to the Federal High Court for the exercise of the court’s extradition jurisdiction or refuse the request without giving any explanation for the refusal. In George Udeozor v. Federal Republic of Nigeria (2007) 15 NWLR (Pt. 1058) 499, the court held that the Attorney-General of the Federation, and not the court, is vested with the responsibility and powers to ascertain the condition for acceding to an extradition request. By the provisions of the Act, the Attorney-General, who is the Chief Legal Officer of the Federal Republic of Nigeria, has the discretion to exercise the power to initiate extradition proceedings. While by sections 6(1) and (2) of the Extradition Act, it is the duty of the Attorney-General to receive the request for the surrender of a fugitive criminal in Nigeria, section 6(2) reposes the discretion in the Attorney-General to signify to the court that such a request has been made and he does that only after he satisfies himself on the basis of the information accompanying the request, that the provisions of section 3(a) to (i) are complied with. It will be noted, however, that nothing in the Act gives the court the powers to question the exercise of the discretion of the Attorney-General.

Notwithstanding, the question of whether the Attorney-General has complied with the provisions of section 3(a) to (i) of the Act is a question of fact which can be brought to the attention of the trial court only by affidavit evidence. The applicable procedural rules in the Federal High Court in extradition matters is the Federal High Court (Extradition Proceedings) Rules 2014. The application for extradition shall be in a format provided in the form contained in the Schedule to the Rules, and supported by: 1. Particulars of the fugitive whose extradition is requested; 2. A request for the surrender of the fugitive by the requesting state; 3. A duly authenticated warrant of arrest or certificate of conviction issued in the requesting State; 4. The particulars of the offence specified in the extradition request; 5. Particulars of the corresponding offence in Nigeria; 6. Supporting affidavits 7. Written Address and 8. Any other relevant document.

The rules require that the application and supporting documents be served on the alleged fugitive offender who is at liberty to employ the services of legal practitioners. Thereafter, the Respondent may exercise his right to either consent to the extradition or file a counter affidavit in opposition to the extradition application, within five days of the receipt of the application, subject to such further extension as the Court may permit. In addition, the fugitive may file any other application within the time allowed for filing the counter affidavit. In accordance with the provisions of section 17(1) of the Extradition Act, the courts shall take judicial notice of the documents supplied by the representatives of the State making the extradition request, and such documents require no additional proof whether by means of oral evidence or otherwise.

While extradition proceedings are required to be public, the Extradition Proceeding Rules empowers the Court to impose reporting restrictions, withhold information from the public or order a hearing in private. As earlier noted, extradition proceedings, not being a trial of the alleged offender, does not require any arraignment. Consequent upon the grant of an extradition order, the law requires that the fugitive shall not be surrendered until after the expiration of a period of 15 days from the date of the order. As I noted last week, the existing extradition treaty between Nigeria and the United States of America came into force in 1935 when Nigeria was still a British Colony. As stated by the United States Supreme Court in Valentine v. US 299 US. 5, 57 S.Ct. 100, extradition treaties between countries are executory in character, and the existing treaty with the United States of America is binding on the courts in Nigeria. This therefore connotes that the courts will regard extradition treaties as being equivalent to local legislation, however subject to the provisions of the Extradition Act, 1966. However, the determination of whether the offence for which a surrender is sought is sufficiently proved, or whether the offence comes within the statutory extraditable offences and the applicable treaty, are matters to be left to the courts.

Conclusion

No doubt, DCP Abba Kyari has a pending criminal charge and a warrant of arrest issued against him by a court in the United States of America. However, the exercise of the discretion of the Attorney General of the Federation in accordance with the provisions of the Extradition Act, upon the receipt of a request by the US government, will result in DCP Kyari’s extradition or not. Crucially the office of the Honourable Attorney General of the Federation has stated that it is yet to receive a formal notification as required by the Act. Much therefore remains to be seen in the coming weeks not only in the determination of an impending request for the extradition of DCP Kyari, but even in the determination of bilateral relations between the Federal Republic of Nigeria and the United States of America.

AARE AFE BABALOLA, OFR, CON, SAN, FCIArb., FNIALS, LL.D (Lond.)