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More reasons why Nnamdi Kanu can never be tried in any Nigerian court – By Aloy Ejimakor 

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Following his infamous extraordinary rendition, Mazi Nnamdi Kanu was – on 29th June 2021 – secretly arraigned and without benefit of his Counsel of record before the Federal High Court, Abuja on the 4-count pre-rendition Charges, standing against him as of that date.

The Charges were namely: treasonable felony; conspiracy to commit treasonable felony; illegal importation of radio equipment; and defamation of President Buhari. In extradition practice, these Charges are known as pre-extradition Charges or pre-rendition Charges, such as in this particular case.

Subsequently, in a slew of amendments of Charges, the then Attorney-General of Nigeria (Abubakar Malami, SAN) withdrew all but one of the said 4-count Charges and replaced them with an entirely new set of 14-count Charges that all bordered on terrorism and membership in a proscribed organization.

In the course of time, the Federal High Court, pursuant to applications made, reduced the Charges to the 7-counts that were later quashed by the Court of Appeal, thus leading to the celebrated judgment discharging Nnamdi Kanu and barring of his trial in Nigeria.

Without prejudice to any live judicial proceedings currently pending and concerning Nnamdi Kanu, the public has a right to be informed of whether, after the rendition, it is legal for the Attorney-General to abandone the pre-rendition Charges and array a whole new regime of Charges against Nnamdi Kanu, post-rendition. The simple answer is that it is illegal and below are the reasons:

Under the universally-recognized doctrine, known as the ‘Doctrine of Specialty’ which pertains to extraditions, a fugitive transferred from another country is subject to prosecution only for those offenses for which he or she was transferred. But where his transfer failed the muster of the law or constituted a rendition, he is not to be subjected to any trial or detention but promptly returned to whence he was brought. This is common law and Nigeria recognized it and enacted at Section 15 of Nigeria’s Extradition Act, which provides as follows:

“Where, in accordance with the law of any county within the Commonwealth or in pursuance of an extradition agreement between Nigeria and another country (whether within the Commonwealth or not), any person accused of or unlawfully at large after conviction of an offence committed within the jurisdiction of Nigeria is surrendered to Nigeria by the county in question, then, so long as he has not had a reasonable opportunity of returning to that country, that person shall not be detained (whether under this Act or otherwise), tried or otherwise dealt with in Nigeria for or in respect of an offence committed by him before his surrender to Nigeria other than- (a) the offence for which he was surrendered or any lesser offence which may be proved  by  the facts on which his surrender was granted; or (b) any other offence (being one corresponding to an offence described in section 20 of  this Act) of the same nature as the offence for which he was surrendered: Provided that a person falling within this section shall not be detained or tried for an offence by virtue of paragraph (b) of this section without the prior consent of the country surrendering him”

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To be sure, the foregoing provisions were, as regards Nnamdi Kanu, breached in all their material particulars. First, as of 19th June 2021 when Nnamdi Kanu was abducted in Kenya, he was facing a 4-count Charge, none of which included or bordered on terrorism or proscribed organization.

Today, the Charges have been expanded to 14 new counts, all of which virtually bordered on Terrorism. Unarguably, this is a clear violation of the Doctrine of Specialty, especially in view of the proviso ‘that a person falling within this Section (i.e Section 15 of Nigeria Extradition Act) shall not be detained or tried for any new offense without the prior consent of the country surrendering him’. This is also a double whammy because bringing up these new Charges assumes he is, consequent upon the rendition, triable for the pre-existing Charges, which is wrong.

In this particular case, the “surrendering country” is Kenya and there is no evidence that her consent was obtained before these new 14-count Charges were brought. To be sure, this Section 15 of Nigeria’s Extradition Act is iron-clad, as it went further to absolutely bar detention and trial of such person under any other law, like the Administration of Criminal Justice Act (ACJA) or the Terrorism Prevention Act, which the prosecution had sought to use in Nnamdi Kanu’s case.

To be clear, this is evident from the opening provisions of Section 109 of ACJA, which made commencement of criminal proceedings “subject to the provisions of any other law”. In this case, that ‘other law’ is the said Section 15 of the Extradition Act, because Kanu was brought from another country. And by the rules of conflict of laws, the Kenyan Extradition Act also applies in the same tenor.

And as the Court of Appeal held, this barrier to detention and trial of Nnamdi Kanu shall, upon his release, persist against any re-arrest consequent upon any new Charges. In other words, Kanu must first be returned to Kenya as a starting point of any hope of ultimately prosecuting him in Nigeria for any pre-rendition or post-rendition offense. There is no other way.

Conversely, Nigeria also strictly requires the selfsame Doctrine of Specialty to be respected when it comes to fugitives extradited from Nigeria to other countries, contrasted to fugitives surrendered to Nigeria. Section 3(7) of Nigeria’s Extradition Act states that:

“A fugitive criminal shall 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”.

The plain meaning of above provisions is at once clear, and that is: No country can abduct, rendition or otherwise be granted extradition of any person from Nigeria without the consent of Attorney-General of Nigeria. If perchance such illegality were to occur, such a person must first be permitted to return to Nigeria; and before then, the person can neither be detained, nor tried in such foreign country.

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The case of Abba Kyari best illustrates the provisions of this law and that is precisely why it appeared to many that Nigeria was blocking Abba Kyari’s extradition to America; or even the case of Sunday Igboho, whose extradition was spiritedly resisted by Benin Republic. So, you can easily guess what the outcome would have been had Nigeria legally applied to extradite Kanu from Kenya. It is such outcome Nigeria avoided by resorting to rendition which, by hindsight cannot save the day, simply because it cut Kanu off from his constitutional to fair hearing which applies in both Kenya and Nigeria.

Interestingly, Kenya, from which Nnamdi Kanu was renditioned, has similar provisions (or protection) before any person to be surrendered from Kenyan soil. Section 6(3) of the Kenyan Extradition Act provides that: “A fugitive shall not be surrendered, or committed to or kept in custody for the purposes of surrender, unless provision is made by the law of the requesting country, or by an arrangement made with that country, for securing that he will not, unless he has first been restored or had an opportunity of returning to Kenya, be dealt with in that country for or in respect of any offence 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 Attorney-General may consent to his being so dealt with”.

As can be seen from above Section 6(3) of the Kenyan Extradition Act, all the new post-rendition Charges contravened the pertinent provisions of Kenya’s Extradition Act and even that of Nigeria. For this reason, no Nigerian court has jurisdiction to try Nnamdi Kanu for these new Charges. In the celebrated case of Gabriel Ezeze versus The State, the Court held that a valid objection to an indictment arises “if it charges any offence in respect of which necessary consents to the institution or confirmation of the prosecution have not been obtained”.

To be clear, the ‘necessary consent’ strictly required before charging Nnamdi Kanu with any new Charges is that of Kenya, in line with Section 15 of Nigeria Extradition Act, which states that ‘a person falling within this Section shall not be detained or tried for any new offense without the prior consent of the country surrendering him’. Again, the ‘surrendering country’ is Kenya and there is no scintilla of evidence that her consent was obtained before the new Charges were levied against Nnamdi Kanu.

Accordingly, in addition to the insurmountable prosecutorial barrier created by the extraordinary rendition, the foregoing comprises of the legal reasons why Nnamdi Kanu ought not be detained, or tried for both the pre-rendition and post-rendition Charges.

Aloy Ejimakor, a constitutional human rights lawyer, writes from Alaigbo.

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