Courses of action in the US request for extradition




It is no longer news that a US court has issued a request for the extradition of Abba Kyari. Debates have ensued should the FGN extradite him or not? Permit me to say my piece: It is first important to note that extradition as a process is not governed by an international treaty or overseen by the United Nations. It typically involves a treaty between two states. If one country agrees to extradite a person to another, this is done as a matter of comity rather than because of a legal obligation.

The first question to be asked thus is :
Does Nigeria have extradition treaty with US? Yes! There is a 1931 Extradition Treaty between the UK (colonial master of Nigeria then) and the United States. The treaty was signed on 22 December , 1931, and entered into force on 24 June 1935. The treaty covered all British possessions and colonies. On gaining independence on 1 October 1960, there was a formal exchange of on the inheritance of international rights and obligations between United Kingdom and Nigeria 1960. One letter was sent by the High Commissioner for the United Kingdom in the Federation of Nigeria to the Prime Minister and Minister of Foreign Affairs and Commonwealth Relations of the Federation of Nigeria whose text is as follows:


Sir,
I have the honour to refer to the Nigeria Independence Act, 1960, under which Nigeria has assumed independent status within the Commonwealth of which Her Majesty the Queen is Head, and to state that it is the understanding of the Government of the United Kingdom of Great Britain and Northern Ireland that the Government of the Federation of Nigeria agree to the following provisions:


(i) all obligations and responsibilities of the Government of the United Kingdom which arise from any valid international instrument shall henceforth, in so far as such instrument may be held to have application to Nigeria, be assumed by the Government of the Federation of Nigeria;(ii) the rights and benefits heretofore enjoyed by the Government of the United Kingdom in virtue of the application of any such international Treaties, Schemes and Arrangements, instrument to Nigeria shall henceforth be enjoyed by the Government of the Federation of Nigeria.
I shall be grateful for your confirmation that the Government of the Federation of Nigeria are in agreement with the provisions aforesaid and that this note and your reply shall constitute an agreement between the two Governments.
I have the honour to be, Sir, Your obedient Servant,


(Signed) HEAD
A response Letter from the Prime Minister and Minister of Foreign Affairs and Commonwealth Relations of the Federation of Nigeria to the High Commissioner for the United Kingdom in the Federation of Nigeria dated 1st October, 1960 reads:


My Lord,
I have the honour to acknowledge the receipt of your note of today’s date.
I have pleasure in confirming that the Government of the Federation of Nigeria are in agreement with the provisions set out in your note of today’s date, and that your Excellency’s note and this reply shall constitute an agreement between the two Governments.


I have the honour to be, My Lord,
Your obedient servant,
(Signed) Abubakar T. BALEWA
Since then Nigeria has extradited several persons to the United States for various reasons ranging from drug, advance fee fraud, and terrorism-related offenses. However, there is no public record showing the extradition of United States citizens to Nigeria since the treaty became effective in 1935.

How the Nigerian extradition process works?
While the Constitution provides the general foundational legal framework for extradition law and practice, the Extradition Act is the primary legislation for specific matters. Extradition proceedings in Nigeria are strictly guided by the Extradition Act 1966 and Extradition Proceedings Rules. When a country request for a person to be extradited, the Nigeria’s Federal Ministry of Justice has the duty to ensure that certain extradition prerequisites are fulfilled. All citizens have rights relating to movement, liberty and dignity of the person backed up by the 1999 Constitution. This means a citizen or non-citizen alike cannot be handed over to another country in the name of extradition unless the court is satisfied with the facts and position of the law. The person to be extradited must have committed the offence and evidence relating to those facts must be presented to the court before an extradition application can be granted.
Who can be extradited and for what crime?


Not all crimes are extraditable offences. This implies that it is not enough to show that the alleged fugitive has committed an offence, it must be shown that the alleged offence is an extraditable offence. The crimes which may be subject to extradition are listed in. With respect to the Kyari case, the extradition Treaty between Nigeria and US 1931 Article lists the offenses to include bribery.


Has Nigeria extradited Nigerians to the US in the past?
Yes. On 2 November, 2019, Nigeria extradited Adedeji Adeniran, age 56, to the Northern District of Florida. He arrived in the United States on November 3. Adeniran was the leader of a criminal group that committed a large bank fraud, mail fraud, and wire fraud, a conspiracy that involved a loss of $4.1 million and involved 42 victim financial institutions. Between 2002 and 2004, members of the criminal group fraudulently obtained the identities of others and opened numerous bank accounts in the United States and deposited counterfeited or forged checks into those accounts and then wired the proceeds of the fraud to Hong Kong, Turkey, Nigeria, and the United Arab Emirates.
On 28 August, 2013, Lawal Olaniyi Babafemi, also known as Ayatollah Mustapha, was extradited to stand trial in the US Court as documents alleged that he was linked to al-Qaeda in the Arabian Peninsula (AQAP), a militant Islamist group. He had travelled to Yemen between January 2010 and August 2011 to receive training and to make contact with Al-Awlaqi, a Yemeni-born American cleric, and Khan, who were subsequently killed in a drone strike. Babafemi received about $8,600 (N3.5m) to return to Nigeria and recruit English-speaking individuals to work in AQAP’s English-language media operation. He was extradited and was charged in the US with conspiracy to provide material support to a foreign terrorist organisation and unlawful use of firearms.


Another case was that of late Buruji Kashamu, a politician who served as a senator in Nigeria. In 1998, Kashamu was indicted by a grand jury for conspiracy to import heroin, a prohibited substance, into the United States. He was indicted following incriminating evidence provided by three of his alleged co-conspirators. Kashamu denied that he was not the leader of the drug-smuggling conspiracy. He claimed the drug-smuggling kingpin was his brother, Adewale Kashamu, who was allegedly killed in 1989 by the personnel of the Nigerian Customs. The US was relentless in its request that Kashamu is extradited to the United States. In May 2015, the National Drugs Law Enforcement Agency (NDLEA) made an attempt to arrest and send him to the US but he refused to attend a court hearing on the 20-year-old drug charges. To restate its commitment to the case, in 2016, a US Court of Appeal in Chicago, Illinois, ruled that Kashamu must answer his drug allegations. However, the Federal High Court, Abuja, ruled that neither the Federal Government nor any of its agents could validly initiate extradition proceedings against Kashamu in view of subsisting judgements and orders in favour of the plaintiff, which had remained unchallenged. However, he died in August 2020 from COVID-19 complications.


Has the US ever extradited anyone to Nigeria?
No, Nigeria signed the Extradition Treaty with the United States on 22 December 1931, and since then , while Nigeria has extradited several persons to the United States for various reasons ranging from drug, advance fee fraud, and terrorism-related offenses, there is no public record showing the extradition of United States citizens to Nigeria since the treaty became effective in 1935.


WHAT OPTIONS FOR FGN ON KYARI?
It depends on what investigation reveals. IF, IF push comes to shove and the allegations against Kyari are found to have basis, what options are open to FGN ? To extradite to US or not?
For the answer we have to look at the subsisting 1931 extradition treaty between the US and UK possessions.
The US request would most probably based on the Two of the extraditable offenses under ARTICLE 3 (18) is Obtaining money, valuable security, or goods, by false pretences; receiving any money, valuable security, or other property, knowing the same to have been stolen or unlawfully obtained. Article 3 (22) is . Bribery, defined to be the offering, giving or receiving of bribes.


Should Nigeria not wish to extradite Kyari FGN can take umbrage under ARTICLE 4 which provides : “The extradition shall not take place if the person claimed has already been tried and discharged or punished, or is still under trial in the territories of the High Contracting Party applied to, for the crime or offence for which his extradition is demanded. (And I believe this is what the Police authorities is doing now by immediately suspending Kyari and placing him under investigation) . With this move, allowed by the treaty, the US would have no option than to stay request for extradition (even though argument may be made that US request came earlier than the beginning of investigation).


Should, IF, subsequently Kyari is found guilty and punished by Nigerian courts , for the same offense quoted by the US, then any request for extradition would no longer be tenable as ARTICLE 5 prevents double jeopardy: “The extradition shall not take place if, subsequently to the commission of the crime or offence or the institution of the penal prosecution or the conviction thereon, exemption from prosecution or punishment has been acquired by lapse of time, according to the laws of the High Contracting Party applying or applied to.


In sum : There is an inherited 1931 Extradition Treaty between Nigeria and the United States. Since the signing of the treaty Nigeria has extradited several Nigerians/dual citizens to the US but no record of US extraditing Nigerians/US citizens to Nigeria. Nigeria is a net extraditer as far as its extradition relationship with the US is concerned. Depending on the outcome of investigations, Nigeria has the option of instituting investigations/prosecuting Kyari in Nigeria, or handing him over to the US based on the existing treaty. If Nigeria disposes the Kyari case by either finding him guilty and punishing him, or finding him not guilty and acquitting him, the US request for extradition will not stand as he is protected against double jeopardy.
Shehu is a retired Group Captain

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