By Mike Ozekhome

INTRODUCTION

Last week, we commenced our discourse on this festering matter. Our conclusion is that Abba Kyari cannot be extradited to the US for as long as his trial is pending before the Federal High Court in Abuja. Let us see some circumstances under which a citizen of Nigeria may not be surrendered for the purpose of extradition.

A fugitive criminal shall also not be surrendered if the Attorney-General or a court dealing with the case is satisfied that, whether in Nigeria or elsewhere, such fugitive has been convicted of the offence for which his surrender is sought; or has been acquitted thereof, and that, he is not unlawfully at large.

Similarly, a fugitive criminal shall also not be surrendered if criminal proceedings are pending against him in Nigeria for the offence for which his surrender is sought.

In the same vein, by virtue section 3(6) of the Act, a fugitive who has been charged with an offence under the laws of Nigeria or any part thereof, not being the offence for which his surrender is sought, or who is serving a sentence imposed in respect of any such offence by a court in Nigeria, shall not be surrendered until such time as he has been discharged whether by acquittal: or on the expiration of his sentence or otherwise.

The last two scenarios pointed above are apposite in Abba Kyari’s case. He is now standing trial under the NDLEA criminal charge. The extradition request must therefore await the outcome of this trial by the Federal High Court, Abuja.

A fugitive criminal shall also not be Surrendered to any country unless the Attorney-General is satisfied that provision is made by the law of that country, or that special arrangements have been made, such that, so long as the fugitive has not had a reasonable opportunity of returning to Nigeria, he will not be detained or tried in that country for any offence committed before his surrender other than any extradition offence which may be proved by the facts on which his surrender is granted. Has Abubakar Malami ensured this? Let him tell Nigerians if the US may not try Abba Kyari for another offence different from his alleged offence with Hushpuppi.

THE EXTRADITION HEARING

If at the end of thirty days from the day of the arrest, no order was received from the Attorney General, the fugitive offender must be released. There must be a hearing in order to determine if the fugitive ought to be extradited or otherwise. The magistrate is free to receive evidence that proves that the offence for which the fugitive is wanted is not an extradition offence; or any evidence that proves that his extradition is prohibited either under the act or under any relevant extradition agreement. The Court in Udeozor V. FRN, (supra), in stating the purpose of a hearing in extradition proceedings held thus:

“The purpose of a hearing which is in fact purely at the discretion of the Attorney General is not to ask the fugitive criminal if he desires to be extradited. That will be ridiculous. The purpose is to determine whether the requisition made shows sufficient cause to warrant extradition… to hold otherwise will be ridiculous…… “The purpose of the hearing in a trial court upon the application Hon. Attorney General is not for the trial of the fugitive criminal. Rather, it is to invoke the exercise of the judicial powers of the court over the fugitive accused as the court would over an accused person standing trial before it…”

HOW EXTRADITION REQUEST IS MADE

By virtue of Section 6(1) of the Extradition Act of Nigeria, a request for the surrender of a fugitive criminal in Nigeria must be made in writing to the Attorney General of the federation by a diplomatic representative of the requesting state and this should be accompanied by a duly authenticated warrant of arrest in the case of a fugitive criminal accused of an extraditable offence; and where the fugitive has been convicted of an extraditable offence, the written request must be accompanied by certificate of conviction issued in the requesting country. It should be noted that the essence of attaching a warrant of arrest or a certificate of conviction is to prevent frivolous requests that have no basis supporting the request. It is also important as it helps to prove that there exist sufficient facts necessitating the request for extradition. Where an extradition request has been received by the Attorney General, it is required that on the basis of the information available to him, he is obliged to decide if the surrender is precluded by any of the provisions of Section 3(1) to (8) for the refusal of extradition request. The Magistrate, under section 8 has powers to remand the fugitive, or grant him bail; or cancel a warrant and release a fugitive; as if he was trying the fugitive for an offence committed within his jurisdiction.

Consequently, if the surrender of a fugitive criminal is not precluded by the provisions of that section, he is to inform a magistrate that an extradition request has been received by him and thus require the magistrate to deal with the case in accordance with the provisions of the Act. However, where the extradition of a fugitive criminal is precluded by the provisions of section 3(1) to (7), then he need not inform the magistrate of the receipt of any such request.

From the above provisions, it is fundamental to note that the authority conferred on the Attorney General to determine if an application is competent in relation to section 3 cannot be contested. It is only when the request has been transferred to the magistrate that the judicial process of inquiring into the case and the competence of the request can be begun. However, where the Attorney General decides that the request is precluded by section 3, then nothing can be done about it. It must be reiterated that in the process of extradition, the powers of the Attorney General are wide; but limited once he approaches a Magistrate, who thereby become dominus litis.

THE PENDING NDLEA CHARGE AND ABBA KYARI: THE NEXUS

Abba Kyari NDLEA’s pending charge before the Federal High Court has definitely put the whole extradition process on hold if the court decides to remand him pending the determination of the suit against him.

It is also important to emphasis that while the matter is pending in court, Abba Kyari is presumed innocent until proven guilty as contained in Section 36 (5) provides that:
“every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”.

This is also sanctioned by Article 1(1) of the UDHR, 1948; Article 14 of the International Convention on Civil and Political Rights, 1966; and Article 7(b) of the African Charter on Human and Peoples’ Rights Cap A9, LFN, 2004. Presumption of innocence is the golden thread that runs through our criminal justice system. See the case of The King v. Richardson & Anor (1985) Leach 387; Woolmington v. DPP (1935) AC- 462; Ali v. State (2012) 190 NWLR (Pt 1309) 642;

Even if the Federal High Court were to give its judgment against Abba Kyari, he is still entitled to appeal such a judgment at the Court of Appeal, and even further to the Supreme Court.

Section 3(6) of the Extradition Act makes it clear that a fugitive criminal who has been charged with an offence under the law of Nigeria or any part thereof, not being the offence for which his surrender is sought, shall not be surrendered until such time as he has been discharged whether by acquittal or on the expiration of his sentence or otherwise. As stated above, the NDLEA has filed an eight count charge against Abba Kyari and six others for their alleged involvement in drug trafficking, barely 24 hours after the Attorney-General filed an application for the extradition of Kyari. It is important to note that Abubakar Malami, SAN, the Attorney-General of the Federation, is also the Minister of Justice. By virtue of Section 2(1) (f) of the NDLEA ACT, the Federal Ministry of Justice, headed by Abubakar Malami, SAN, has a representative in the Board/composition of the NDLEA. So, now that he is aware of the NDLEA charge, can the Chief Law Officer of the Federation consent to the prosecution of someone whose application for extradition is pending? What is the legal implication of this?

The case of A.G FED v. JONES (2017) LPELR-43551(CA), is worth considering. Though, the case was decided under Section 3(5) of the Extradition Act, some key observations made by the learned Justices of the Court of Appeal are worth noting. The Appellant (A.G. Fed) had filed an application before the trial court seeking to extradite the Respondent on a diplomatic request from the United States of America on indictment, in Case No.11-CR0299, filed on the 28th day of April, 2011, for the offences of conspiracy to commit wired fraud and conspiracy to commit identity theft all in violation of US Laws. The Application was duly supported by an affidavit and exhibits, which inter alia, included a certified true copy of the indictment issued against the Respondents; certified true copy of the warrant of arrest issued by the US District Court for the arrest of the Respondent; and a photograph of the Respondent. The Respondent contested the proceedings, contending that the application was incompetent because as at the time of the application, there was an existing charge at the Akure High Court on charges similar to those he was being sought to be extradited to face in the United States of America. The Appellant contended that as at the time the application for extradition was ripe for hearing, the existing charge had already been withdrawn. The trial Court disagreed and found against the Appellant and discharged the Respondent.

The Appellant being dissatisfied with the judgment filed an appeal in the Court of Appeal. The Court of Appeal was emphatic that the main thrust of the appeal failed. It was consequently dismissed. Abimbola Osarugue Obaseki-Adejumo, JCA, concurring with the lead judgment, held at page 26, that:

“… The provision of Section 3(5) of the Extradition Act is clear and unambiguous. It states: “A fugitive criminal shall not be surrendered if criminal proceedings are pending against him in Nigeria for the offence for which his surrender is sought…”

Regarding the uncoordinated role the Attorney-General played with the EFCC, Yargata Byenchit Nimpar, J.C.A. (delivering the Lead judgment) held that:
“The issue is not the timely withdrawal of the pending charges because the statutory requirement is that no proceedings should be pending when the application for extradition is made. The point of filing the application a decision was taken by the Attorney General to want to surrender the fugitive…”

As is provided in Section 3(6) of the Extradition Act and in line with the above judgment, a person such as Abba Kyari, who is charged with any offence not being the offence for which his surrender is sought, shall not be surrendered until such time as he has been discharged, whether by acquittal or on the expiration of his sentence or otherwise. The statutory requirement is that no extradition proceedings for Kyari’s surrender should be going on until such time as he has either been discharged acquitted or convicted. By his actions, the Attorney-General of the Federation appears to be stalling, tacitly, the extradition of Abba Kyari, by allowing or consenting to the prosecution of Kyari for his alleged involvement in drug trafficking simultaneously as the pendency of an application for his extradition by the same Attorney-General. Since the court will assume jurisdiction on the criminal matter the moment Kyari is arraigned and his plea taken, the Attorney-General of the Federation still has the time to quietly back-off before the criminal court assumes jurisdiction and await the court’s decision. It is more honourable to do so.