By Barr Robert Uma Omai

What would be the legal effect of illegal extradition, otherwise known as extraordinary rendition, of Mazi Nnamdi Kanu from Kenya to Nigeria on the jurisdiction of the Court to try him in Nigeria? For the Court to be properly seised of jurisdiction, extradition of an alleged fugitive criminal found in another country must be carried out in full conformity with due process requirements, and in accordance with relevant international human rights law. But this was conspicuously lacking here.

Would the accused fugitive be deemed to have relinquished his rights to challenge jurisdiction of the Court to try him by the fact that he has taken a fresh plea on the amended charges? I think not. Parties cannot confer jurisdiction on a Court where none exists. Jurisdiction, whether civil or criminal, can be challenged at any stage of the proceedings, even at the Supreme Court.

It is important to note at the outset that under the both the Nigerian and Kenyan law, every individual has the right, when persecuted to seek and obtain asylum in any other country in accordance with the laws of that country and international conventions. An example is article 12(3) & (4) of the African Charter on Human and Peoples’ Rights, which says that a non-national, legally admitted in a territory of a State party to the Charter, may only be expelled from the territory by virtue of a decision taken in accordance with the law.

In this regard, Part IV of the OAU (now AU) Convention on the Prevention and Combating of Terrorism makes elaborate provisions for extradition procedures for member States. State parties to article 8 of the Protocol to that Convention undertake to treat the extradition provisions of the Convention as an adequate legal basis for extradition for those State parties that have no extradition treaties between or amongst them.

Both Nigeria and Kenya are State parties to article 3 of the Convention on Prevention and Combating of Terrorism, which provides that notwithstanding the definition of ‘terrorism’, any struggle waged by a people in accordance with the principles of international law for their liberation or self-determination, such, for instance, as is laid down in article 20 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act of Nigeria, shall not be considered as terrorist acts.

By section 19(d) of the 1999 Constitution as altered, Nigeria pledged itself to respect international law and observe all its treaty obligations. Specifically, article 20 of the African Charter is in these terms: “(1) All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. (2) Oppressed people shall have the right to free themselves from the bonds of domination by resorting to any means recognised by the international community.”

Government Agents Engaged in Acts of Terrorism in Kenya: It is no longer news that the Nigerian-born Nnamdi Kanu is a British citizen, and had entered Kenya on his British passport. While in Kenya, he was forcibly kidnapped by the Nigerian Security Forces working in cahoot with the Interpol and rogue Kenyan agents in Kenya. On the instructions of the Nigerian Government, Kanu was kidnapped and ‘disappeared’ to parts unknown where he was detained and subjected him to gruesome torture for days on end before the agents illegally removed him blindfolded from Kenya to Abuja, Nigeria. This illegal method of forcible abduction or kidnap was planned and executed by the Nigerian Government whose functionaries struggle daily to convince the World that it respects human rights of citizens and upholds the rule of law. The Nigerian Government has not been able to provide any explanation as to how much it respected Kanu’s human rights and upheld the rule of law in his rendition to Nigeria from Kenya in June.

The Kenyan Government has denied that Nigeria respected the rule of law in the forcible abduction and illegal removal of Kanu from its territory. Kenya says it has no knowledge of this blatant violation of principles of international law, human rights law and several international conventions prohibiting terrorism and torture.

Despite the denial, Kenya remains an accomplice in that it has since becoming aware of the outrageous illegalities perpetrated within its territory failed, refused and/or neglected to file a complaint against the Nigerian Government, protesting in clear terms the odious acts of terrorism sponsored by the Nigerian Government in forcibly seizing, kidnapping, ‘disappearing’, detaining and torturing a British citizen whom it was Kenya’s duty under international law to protect while he was in its territory. The Kenyan Government cannot pretend not to know that Nnamdi Kanu and his IPOB group have been at odds with the Nigerian State over the latter’s agitation for political control of the part of the Nigerian territory inhabited by the indigenous people of Biafra as an independent nation.

Under the Kenyan extradition law, a fugitive cannot be surrendered, or committed to or kept in custody for the purposes of surrender, unless by virtue of a treaty arrangement for ensuring that the fugitive will not, unless he has first been restored or had an opportunity of returning to Kenya, be tried in the requesting State in respect of any offence he is alleged to have committed before his surrender, other than – (a) the offence in respect of which his surrender is requested; or (b) any lesser offence proved by the facts proved before the Court of Committal; or (c) any other extradition offence in respect of which the Kenyan Attorney-General may consent to his being so tried.

If the offence in respect of which the fugitive’s surrender is required, or the offence specified in the warrant of surrender, as the case may be, is one of a political character or if it appears to a Kenyan Court or the Minister that the request for his surrender, or the application for endorsement of a warrant of surrender and the return of the person named therein, has in fact been made with a view to try or to punish him for an offence of a political character, the application shall be refused.

The Government of Nigeria well knew the following would constitute a stumbling block: (1) that the offences with which Nnamdi Kanu was (to be) charged were of a political character and non-extraditable; (2) that he was (to be) charged with offences other than any in respect of which his surrender could have been granted, and (3) that he was going to be put through political persecution rather than a fair trial in Nigeria.

All these were reasons why an extradition request would have been refused by Kenya. And these explained why the Nigerian Government resorted to terrorist acts of forcible seizure and removal of Nnamdi Kanu from Kenya without due form of Kenyan extradition process.

Non-Extraditable Offences of a Political Character: It clear from the above that offences that are of a political character are not within the scope of Kenyan extradition law. Its courts cannot inquire whether a fugitive criminal was engaged in a good or a bad cause. Once the cause is of a political nature, he cannot be extradited.

Kenyan law on this is not different from Nigerian law. Our law also prohibits the extradition of fugitives for the purpose of his being dealt with or persecuted by the requesting State for holding political opinions.

There is neither a statutory nor judicial definition of an ‘offence of a political character’. Thus, the nature of the offence must be considered in relation to circumstances under which it is alleged to have been committed, and the motive of the fugitive is equally relevant and decisive.

As was suggested by the English Law Lords in the celebrated case of Schtraks v Govt of Israel [1964] AC 556 at p 589, a political offence includes acts of underground resistance movement as well as open insurrection if the motive of the fugitive is to force or promote a change of government or government policy or to achieve a political objective.

Again, the attitude of the State requiring a transfer of a fugitive must be considered in determining whether the fugitive’s offence is a political one. For instance, whatever be the motive of the fugitive, an offence would not be held to be of a political character if the Government stands apart and unbiased, but is genuinely concerned to enforce the criminal law of the land. But where there had either been in existence or in contemplation a struggle or conflict between the State and the fugitive over the latter’s political beliefs, any offence he is alleged to have been committed in furtherance of those beliefs would easily be characterised as a political offence. So also cases where, as here, charges have been framed for the purpose of detaining or punishing a man on account of his ethnicity or recalcitrant refusal to give up his political opinion, which happens to collide with that of the government of the day.

Nnamdi Kanu has been made to plead to amended charges of treasonable felony, terrorism, seditious broadcast or libel of the President. There is no doubt that these are political offences, framed against the backdrop of the lingering struggle or conflict between the Nigerian Government and Nnamdi Kanu’s IPOB over the latter’s political views or insistence on the actualisation of the sovereign State of Biafra.

The Jurisdictional Question: Does Honourable Justice Nyako have jurisdiction to try the amended charges? The Federal High Court has inherent power to enquire into the circumstances in which an accused fugitive, a British citizen enjoying political asylum in another country, was brought within the jurisdiction from a third country and, if satisfied that it was in disregard of extradition procedures as required by international law, it should stay the prosecution and order his discharge. The English Law Lords so held in Bennett v Horseferry Road Magistrates Court [1993] 3 All ER 138.

That case is clearly of a strong persuasive authority. The facts are similar to Kanu’s case to the extent that the police and the prosecuting authorities bypassed the due process of law, and tricked a fugitive into England within the Court’s jurisdiction in connivance with a third country, South Africa. The House of Lords rightly extended the concept of abuse of court process to include abuse of the criminal justice system. The Court explained: “If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law”.

Grounds for Declining Jurisdiction: In all instances when it comes to the attention of the Court that there has been a serious abuse of power the Court should express its disapproval by refusing to act upon such abuse. Extradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country. This is because sufficient evidence has to be produced to show a prima facie case against the accused and the rule of speciality protects the accused from being tried for any crime other than that for which he was extradited.

If a practice was allowed to develop in which the State agents or prosecuting authorities of this country ignored extradition procedures and secured the return of an accused by forcible seizure, kidnapping, disappearance, detention and torture in another country and illegally removing him from the country to Nigeria, the State agents would not only be flouting the extradition procedures but also depriving the accused of the safeguards built into the extradition process for his benefit.

As is now abundantly clear, the Nigerian Government employed terrorism and kidnap as a means of smuggling Nnamdi Kanu into Nigeria and hauling him before its Court to try and punish him on new charges based solely on his groups demonstrations against the obnoxious policy of the Nigerian State against the people of Biafra.

Lord Griffiths was emphatic: “It is to my mind unthinkable that in such circumstances the Court should declare itself to be powerless and stand idly by; I echo the words of Lord Devlin in Connelly v Director of Public Prosecutions [1964] A.C. 1254, 1354: ‘The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused.’”

The Judicature, as an independent arm of the Government can refuse to allow its process to be used in aid of illegalities perpetrated by the Executive arm of Government, including its security agents and prosecuting authorities. They should not be allowed to take advantage of their gross abuse of power. Such illegal conduct does not merit the aid of the Courts. The Court can properly prevent a prosecution and discharge Nnamdi Kanu, and order that he first be returned to Kenya from where he was abducted.

It must be pressed on his lordship, Honourable Justice Nyako, that the Court has no jurisdiction to try or continue to hear the amended charges. The only course open to the Court is to decline jurisdiction, discharge Nnamdi Kanu and order him to be returned to Kenya. The Government and its prosecuting authorities cannot be allowed to take advantage of their gross abuse of power and violation of principles of international law.

Respectfully submitted this 6th day November 2021 by Robert Uma Omai, Esq of Akanu Ohafia.