Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
Let me start by thanking you my beloved readers, for your readership throughout the year. I wish you all a merry Christmas, and a happy and prosperous 2024 and beyond. Amen.
Background
Nnamdi Kanu was abducted in Kenya, and forcibly brought back to Nigeria in June 2021, without being lawfully extradited to face terrorism etc charges. He and his co-Defendants had pleaded not guilty to a four-count charge, and Kanu was granted bail on April 25, 2017, before he jumped bail and ran for dear life in September, 2017. We saw that the system of ’extraordinary rendition’ which simply means abduction, that failed when Major General Buhari’s military regime attempted to abduct Alhaji Umaru Dikko from London and repatriate him to Nigeria in 1984, was finally perfected! In Udeozor v FRN 2007 15 N.W.L.R. Part 1058 Page 499 at 522 per Monica Dongban-Mensem, JCA (now PCA), the Court of Appeal held thus: “Extradition is the process of returning someone upon request, accused of a crime by a different legal authority for trial or punishment – Page 170 Dictionary Law by L.B. Curzon, 6th Edition 2002”.
In Kanu’s case, the process of extradition should have been followed, since Section 2(1) of the Extradition Act 1967 (EA) makes the process of extradition binding on all Commonwealth countries including Nigeria, Kenya and UK (Kanu is also a British citizen and was travelling on a British passport); the three countries are also members of INTERPOL (The International Criminal Police Organisation). By law, the three Governments should have been involved in Kanu’s extradition process, but the British were unaware, while the Kenyans feigned ignorance of his arrest, claiming no involvement in it! And the truth is that, even when the world became aware of Kanu’s illegal arrest, the British and Kenyan Governments didn’t seem particularly concerned, nor did they seem to take umbrage at his extraordinary rendition!
The point must however, be made that, Nnamdi Kanu didn’t just wake up and decide to jump bail; he ran to save his life when the military descended on his country home, which resulted in some deaths.
Litigation
Immediately upon his return, Kanu’s 2015 case at the Federal High Court, Abuja Division before Nyako J. (FHC/ABJ/CR/383/2015) resumed, and in April 2022, the trial court retained seven counts of an Amended Charge against him. On appeal to the Court of Appeal (CA/ABJ/CR/625/2022), in the lead judgement delivered by Oludotun Adefope-Okojie, JCA, the charges retained by the trial court were terminated and struck out, the judgement of the trial court was set aside, and Kanu was discharged. This decision, was based upon the illegal way and manner in which Kanu ended up in Nigeria. Kanu was however, not acquitted, meaning that he had not been set free from the charges of his alleged offences by a verdict of the court. The case had not been heard on its merits. The matter was akin to being struck out. See the case of Chief of Air Staff & Ors v Iyen (2005) LPELR-3167 per Niki Tobi, JSC. A further appeal was filed to the Supreme Court, and last Friday, the Apex Court set aside the judgement of the Court of Appeal, and ordered that Nnamdi Kanu’s trial at the Federal High Court be resumed.
Pertinent Questions and Answers Provided by the Supreme Court Judgement
In my piece of 25/10/22 – “ Kanu: Untangling the Court Orders”, I had asked some pertinent questions that I believed would be answered by the Supreme Court, the first being whether the fact that Kanu was unlawfully/illegally repatriated to Nigeria, had any bearing on the court proceedings against him. It appeared that the Court of Appeal believed that it did, and somehow shared the same opinion as the trial Judge in the American case of Mr Lanre Shittu, who, with the connivance of the Nigerian and American Governments, instead of being properly extradited, and while extradition proceedings were ongoing in court, was forcibly taken to America to face money laundering charges in December 2000. The District Court in New York freed Mr Shittu, on the ground that it lacked jurisdiction to try him, because Nigeria and USA had violated their Extradition Treaty by using the method of extraordinary rendition to get him to America. Extraordinary Rendition is contrary to several Protocols and Conventions which Nigeria has ratified, like the International Covenant on Civil and Political Rights, and the UN Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment(also see Section 34 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution).
Even though the Supreme Court denounced the way and manner that Kanu was brought back to Nigeria as illegal (it was the same way Mr Shittu was taken to USA), and counselled against using this type of unlawful means to repatriate people, going forward, the Apex Court didn’t go as far as the New York Court to decline jurisdiction, and the charges against Kanu were reinstated. The Apex Court held inter alia that: the extraordinary rendition of Nnamdi Kanu didn’t rob the Federal High Court of jurisdiction to entertain his trial, because under Nigerian law, illegally obtained evidence is admissible. In short, to answer the first question, unlike the USA, the Supreme Court more or less ruled that the illegal way in which Kanu was brought to Nigeria, didn’t have any bearing on the case. With all due respect, the position of the law in USA and that of the Court of Appeal seems more tenable, as it is hard to justify the building of legality (resumption of trial) upon an illegal act (extraordinary rendition).
I had also asked whether the Court of Appeal could have ruled that Kanu be returned to Kenya (as Mr Shittu was returned to Nigeria), so that proper extradition proceedings which he would be able to fight, would be lawfully instituted against him there. And, indeed, a Federal High Court sitting in Umuahia per Anyadike J., sometime in October 2022, had ordered that Kanu be returned to Kenya, adding that the Federal Government of Nigeria should pay N500million in damages to Kanu for the violation of his rights. Obviously, the Apex Court didn’t share the view of returning Kanu to Kenya, but held that there are civil remedies available to him for the violation of his rights, I suppose like the damages awarded by Anyadike J. against the Government.
Conclusion
Igbo Elders requested that there be a political solution/alternate dispute resolution, in Nnamdi Kanu’s matter. The jury is definitely still out, on that suggestion. While the right to self-determination is certainly a legitimate right recognised under international law (also see Sections 38(1), 39(1), 40 & 42(1)(a) of the Constitution), when it escalates to violence, killing, maiming and disruption of normal daily activities of the people and the State by intimidation and outright force (for example, the weekly Monday-sit-at-home order that has been unlawfully enforced by the proscribed IPOB for the past few years), it goes beyond the clamour for self-determination to criminal offences like insurrection, terrorism, assault, murder, to mention but a few. In the event that Nnamdi Kanu is granted bail, there must be conditions attached thereto, which include but are not limited to a public renouncement of the Monday-sit-at-home order and violence in the South East, and calling Finland based Simon Ekpa to order, which must be strictly adhered to, failing which his bail shall be revoked. Infact, Nigerians are wondering why the Government hasn’t extradited Mr Ekpa, to come and face his own terrorism etc charges here.
