By Chief Mike Ozekhome SAN

Let us today deal with Super Cop, Abba Kyari, and the tale of two jurisdictions conundrum. This is a serious constitutional, legal and political quandary matter.

The Diplomatic Representative of the U.S. Embassy in Abuja had made a request for the surrender of 46-year-old Abba Alhaji Kyari, over the pending charges against Abba Kyari in the U.S. This request is allegedly based on the relationship of Kyari with Ramon Olorunwa Abbas, a 37-year-old self-confessed international fraudster, popularly known as Hushpuppi. Hushpuppi had alleged that he bribed Abba Kyari to arrest and jail Kelly Chibuzor Vincent, one of his rivals in Nigeria, following a dispute over a $1.1 million scam on a Qatari business man. Kyari had denied any wrongdoing.

While on suspension over his role in the Hushpuppi’s case, Abba Kyari was arrested by the NDLEA in an alleged 17.5kg cocaine deal and allegedly tampering with 25kg worth of cocaine.

As investigation into the said NDLEA case was ongoing, Kyari applied for his bail on health grounds. The NDLEA then secured a court order for further detention of Kyari and six others for 14 days. Indeed, immediately the Attorney-General of the Federation, Abubakar Malami, okayed Kyari’s extradition, NDLEA suddenly slapped an eight count charge on him before the Federal High Court, Abuja. Was this a mere coincidence? Are some top level persons working hard to stall Kyari’s extradition for fear he may be squeezed and made to squeal when he gets to the U.S.? Can the ongoing investigation, subsisting court remand order and fresh charge stall the extradition of Abba Kyari to the United States of America? This is the kernel of our discourse today.

Extradition is a process by which a person accused or convicted of a crime is officially transferred to the State where the person is either wanted for trial or required to serve a sentence after being duly convicted by a court of law. Nigeria has an extradition agreement with the USA by virtue of an Extradition Treaty signed between the UK and the U.S., dated the 22nd December, 1931. The Treaty came into force on 24th June, 1935.

By virtue of Article 16 of the Treaty, it was made applicable to all British protectorates of which Nigeria was one. Article 16 of the Treaty provides: “This Treaty shall apply in the same manner as if they were Possessions of His Britannic Majesty to the following British Protectorates, that is to say, the Bechuanaland Protectorate, Gambia Protectorate, Kenya Protectorate, Nigeria Protectorate, Northern Rhodesia, Northern Territories of the Gold Coast, Nyasaland, Sierra Leone Protectorate, Solomon Islands Protectorate, Somaliland Protectorate, Swaziland, Uganda Protectorate and Zanzibar, and to the following territories in respect of which a mandate on behalf of the League of Nations has been accepted by His Britannic Majesty, that is to say, Cameroons under British mandate, Togoland under British mandate, and the Tanganyika Territory.”

By Article 1 of the treaty, the contracting parties agreed to deliver up to each other (under certain circumstances and conditions), persons who, being accused or convicted of any of the crimes or offences enumerated in Article 3, committed within the jurisdiction of the one Party, are found within the territory of the other Party.

There are 27 offences enumerated in Article 3. The crimes which touch on the substance of this article are the 18th and the 22nd: Obtaining money by false pretenses; receiving any money, valuable security, or other property, knowing the same to have been stolen or unlawfully obtained and the offering, giving or receiving of bribes respectively. Some elements of the offence for which Abba Kyari was declared wanted in the United States of America include obtaining money/assets through fraudulent means.

By Article 4 of the treaty, extradition shall not take place if the subject has already been tried and discharged or punished for the offences over which he or she is wanted. Article 5 states that extradition shall not take place if, after the commission of the offence or filing of criminal charges or conviction, exemption from prosecution was acquired by lapse of time according to the laws of the two countries involved.

By Article 6 of the Treaty, a fugitive criminal shall not be surrendered for extradition if the offence for which his extradition is sought is of a political nature, or if the subject could prove that the demand for the extradition was made in order to punish him for an offence of a political nature. Article 9 of the treaty states that extradition shall only take place if the evidence is found to be sufficient according to the laws of the contracting party applied to, to justify the committal of the prisoner for trial, in case the crime or offence had been committed in the territory of such High Contracting Party. In the case of ANUEBUNWA v. A.G., it was held that: “The whole essence of an extradition proceeding … is for the Applicant to establish by credible evidence, that is by producing to the judge in the case of a fugitive criminal accused of an offence claimed to be an extradition offence, a warrant issued outside Nigeria authorizing the arrest of the fugitive.”

Two doctrines come into play when the extradition of a person is sought.

There is the first- the doctrine of ‘Specialty’ or ‘Specialty Doctrine’. This doctrine requires that a person whose extradition is sought can only be tried for the crime for which his extradition was requested, and none other. Upon surrender of a fugitive, by a state where he sought refuge, the requesting state must only prosecute and convict such a person simply for the very crime for which his extradition was requested and for none other offence committed before the surrender of such fugitive. In the U.S. case of States V. Raucher (119 U.S. 407, 7S.Ct. 234, 30 L.Ed. 425(1886)), the court held that an accused shall not be arrested or tried for any other offence other than that for which he was charged in the extradition proceedings. In a situation where a state prosecutes a fugitive for an offence other than that which the fugitive was extradited, it will be tantamount to an abuse of the principles of extradition.

The second doctrine is the doctrine of ‘Double Criminality’. It states that before a person can be extradited for an offence, such extradition offence or the offence for which a person’s extradition is sought, must constitute an offence or crime in both jurisdictions. In the case of Collins V. Loisel (259 U.S. 309, 42 S.Ct. 49, 66L.Ed.956 (1922)), the American Supreme Court held that the name by which the crime is described in the two countries need not be the same; nor must the punishment be the same.

The requirement of double criminality is simply met if the particular act charged is criminal in both jurisdictions.

The Extradition Act, Cap E. 25, LFN, 2004, is the Act regulating the extradition of fugitive offenders/criminals in Nigeria. A “fugitive criminal” is defined in Section 21 of the Extradition Act as: a. “Any person accused of an extradition offence committed within the jurisdiction of a country other than Nigeria; or b. Any person, who, having been convicted of an extradition offence in a country other than Nigeria, is unlawfully at large before the expiration of a sentence imposed on him for that offence, being in either case a person who is, or is suspected of being, in Nigeria.”

Where an extradition request has been received by the Attorney General, he is obliged to decide (on available information), if the surrender is precluded by any of the provisions of section 3(1) to (7) of the Act. If the surrender of a fugitive criminal is not so precluded, 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 so precluded by Section 3(1) to (7), then he need not inform the magistrate of the receipt of any such request (Section 6 (2)).

In the case of George Udeozor V. Federal Republic of Nigeria (2007) LPELR-CA/L/376/05, the court held: “Nothing in the Act gives the court the powers to question the discretion of the Hon. Attorney General in those matters, as the Hon. The Attorney General exercises his constitutional duty under section 174 of the 1999 constitution.”

However, the Attorney General may, under section 8 (3), if he thinks fit, order the warrant cancelled and the fugitive released, if already arrested. Where a fugitive has been arrested, he shall, under section 8 (5) be brought before a magistrate as soon as is feasible and the magistrate shall either remand him in custody or grant him bail, depending on the receipt of an order from the Attorney-General. This order shall notify the Magistrate that a request for the fugitive’s surrender has been received; or give an order for the cancellation of the warrant and the release of the fugitive.

Nigeria and the U.S. have an existing Extradition Agreement for the surrender of persons wanted for prosecution or punishment. Section 3 of the Extradition Act stipulates instances where a person will not be surrendered for prosecution or punishment, notwithstanding the application for surrender by a foreign country. According to Section 3 of the said Act, a fugitive criminal shall not be surrendered if the Attorney-General or a court dealing with the case is satisfied that the offence in respect of which his surrender is sought is an offence of a political character; or that the request for his surrender, although purporting to be made in respect of an extradition Crime, was in fact made for the purpose of prosecuting or punishing him on account of his race; religion, nationality or political opinions or was otherwise not made in good faith or in the interests of justice; or that, if surrendered, he is likely to be prejudiced at his trial, or to be punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions.

A fugitive criminal shall also not be surrendered if the Attorney-General or a court dealing with the case is satisfied that the offence is of a trivial nature; or that due to the passage of time since the commission, of the offence, it would, be unjust or oppressive, or be too severe a punishment, to surrender the offender.

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 opposite 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 U.S. may not try Abba Kyari for another offence different from his alleged offence with Hushpuppi.

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. In the circumstance, those powers are preliminary to the eventual trial of the fugitive accused, such as the power to remand or to release on bail pending the completion of investigation. It is not a criminal trial but a preliminary to such trial which shall take place where the offences are alleged to have been committed.”

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 begin. 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.

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 emphasize 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 wire fraud and conspiracy to commit identity theft all in violation of U.S. 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 U.S. 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.” It is obvious from the above provision that no extradition proceedings shall be brought against a fugitive criminal when there is a pending criminal proceedings against him. In the instant appeal, it is evident that the Appellant failed and/or neglected to comply with the mandatory provision of the statute.”

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 was a decision taken by the Attorney General to want to surrender the fugitive. The Appellant is wrong to think that it is only at the point of surrender that Section 3 (5) comes into play. It is activated on the filing of an application for extradition. The Attorney General would have decided on extraditing a fugitive before filing the application. The section applies in this case. The simple expectation is that the prosecuting authorities should work in a coordinated fashion complimenting themselves and not to be at cross purposes. The EFCC was already prosecuting the Respondent on charges similar to those he was being sought to be extradited to face in the United States of America and the simple thing would have been some sort of coordination by the EFCC and the office of the Attorney General of the Federation so that whatever was pending should be withdrawn before the filing of the application or the office of the Attorney to ensure that no proceedings were pending before filing the application. This was not done.”

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 awaits the court’s decision. It is more honourable to do so.