Worldwide: A Look At The Law Of Extradition In Nigeria Vis A Vis Buruji Kashamu And The Possible Implications For DCP Abba Kyari

Background

In the early hours of the morning, sometime in June, social media was agog with the news of the arrest of a famous Instagram celebrity with an opulent lifestyle. Ramon Abbas, popular known as Hushpuppi had been arrested by the UAE police and subsequently handed over to the FBI in the US. For many, this may not have come as a shock as the celebrity loudly showcased his luxurious lifestyle in each Instagram picture he posted with smug motivational captions. His gaudy display of affluence made his narrative of a legitimate source of income born from hard work difficult to believe, but all that the public has been mere speculations till that faithful day in June.

What led to the arrest? And how is the celebrated Deputy Commissioner of Police Abba Kyari involved? I guess we need a background Insight into the Ramon Olorunwa (A.K.A Hushpuppy) fraud saga and his link to the Deputy Commissioner of the Police Force, Abba Kyari

Hushpuppy is claimed to be involved in several syndicated cyber fraud activities. According to Complaints filed by Federal Prosecutors in the California Department of Justice on the 25th of June, he allegedly laundered hundreds of millions of dollars from about 1.9 million victims mostly through what is known as Business Email Compromise (BEC). The affidavit filed alongside the complaint explained that BEC schemes typically involve a computer hacker gaining unauthorized access to a business' email account, blocking or redirecting communications to and/or from that email account, and then communicating with personnel from a victim company via the compromised email account or a separate fraudulent email account in an attempt to dupe them into making an unauthorized wire transfer. He currently facing conspiracy to defraud organisations such as a US law firm out of approximately $922,857 in October 2019., a scheme to launder funders stolen from a foreign bank to the tune of $14.7 million, and conspiracy to steal £100 million (approximately $124 million) from an English premier league club. The particular crime he was apprehended for is the defrauding a Qatar businessman of the sum of about a 1.1million dollars in an exaggerated cyber fraud scheme with accomplices such as; Abdulrahman Jumma (Abdul); Vincent Kelly Chibuzor (Kelly); Rukayat Motunrayo Fashola (Morayo); and Bolatito Tawakalitu Agbabiaka (Bolamide) who have also been arrested. The report detailing how this fraud deal went south for Hushpuppy and his cohorts can be found in the Channels online News report.

This case is being prosecuted by Assistant United States Attorneys Anil J. Antony and Joseph B. Woodring of the Cyber and Intellectual Property Crimes Section. The Criminal Division's Office of International Affairs provided substantial assistance in this matter. Hush Puppi is said to face 21 years Jail term if found guilty.

Abba Kiyari's involvement

So, what is Abba Kiyari, the decorated crime buster's business in all of this? Well, while Abba Kiyari may not have been directly linked to the fraudulent activities of Huspupi and his crew, evidence abounds that he did in fact, collect proceeds from the scam from Hushpuppi to imprison one of Hushpuppi's colleagues who fell out with him once they all started getting greedy. Like the popular saying goes; there is no honour amongst thieves. The fellow by name of Vincent Kelly Chibuzo feeling unsatisfied and thinking Hushpuppi was keeping all the loot to himself, decided to rat out to the fraud victim. He informed him that he was being scammed. Unfortunately for him, Hushpippi got wind of the betrayal and promised to make his life miserable and the way he enforced his threat was through the Deputy Commissioner of Police, Abba Kiyari. According to screenshots of the conversation between Hushpuppi and Abba Kiyari, Hushpuppi promised to send money to Kiyari and his men to mobilise and encourage them into torturing the said Vincent Kelly Chibuzo. Kiyari from the conversation seemed quite pleased and complaint. Evidence shows that Kiyari did receive the funds as promised. A report by Peoples Gazette highlighted how Abba Kyari travelled to Dubai on the invitation of Hushpuppi and was treated to a good time with airport pickup, luxury hotel accommodation and city tour.

So, this is what got Kiyari into this mess and Hushpuppi in his Confessional Statement made on July 29 202,1 listed Kiyari as his accomplice to the crime. Presently, the FBI wants Kiyari to dance to the tunes of the mess he got himself into and has issued a warrant of arrest and requested for the extradition of Kiyari.

This then is where we get to the grit of the matter. Huspuppi was arrested in Dubai but managed to be extradited to the US where he is currently answering for his crimes before a US Court, Abba Kiyari is expected to join him there. Abba Kiyari is a Nigerian national and thus, for this to happen, he has to be extradited by the FBI into the US. This presents a legal dynamic. Can the US government rightfully extradite Abba Kiyari? What is the legal basis for the extradition of a Nigerian national from one country to another? Are there International Laws governing extradition between Nigerians and the US, what happens if there is a conflict of law? How is the extradition process conducted? What are the chances of Abba Kiyari escaping extradition from Nigeria?

Extradition Law in Nigeria

Extradition is the legal process by which one country hands over a person to another for prosecution or punishment for crimes committed within the jurisdiction of the requesting country. A bilateral or multilateral pact is usually required. Some countries will extradite people without a treaty, but this is uncommon. The notion of territorial sovereignty is of paramount importance, especially for the benefit of peace and world order. This is accordingly recognised in many rules that govern international relations. Summarily, the extradition process respects the law of the country in which the fugitive is sought to be taken. Extradition is a procedure that can only be employed at the international level because it necessitates the removal of a person from one jurisdiction to another. As a result, it must be initiated by approved empowered individuals such as the Attorney General of a Federal of Nigeria.

In the case of Abba Kiyari, the law that would govern the process of extradition would be the Extradition Act of Nigeria 1966. The Extradition Act of 1966 governs extradition matters in Nigeria. Section 1 of the Act provides that the President can extend the application of the Act to any country with which Nigeria has signed a treaty regarding the surrender of persons wanted for prosecution or punishment. As a result, the president may apply the Act to such a country by issuing an order that is published in the federal gazette. However, when applied to the other country, the Act shall be applied subject to the provisions of the order made by the president and subject to the terms of the extradition agreement. Section 2 of the Act further states that the Act shall apply to every separate country within the commonwealth.

Additionally, Nigeria also has an extradition treaty with the United States, which was signed on December 22, 1931, by the United Kingdom, Nigeria's colonial overlords, and the United States. The treaty was signed on behalf of the United Kingdom and all of her then-colonies, including the Nigeria Protectorate, which is now Nigeria¹. Article 16 of the treaty provides as follows:

"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. Nigeria Protectorate".

Nigeria is bound by the treaty, which was ratified through subsequent laws such as the Extradition Act of 1966, the (Extradition Modification) Order, 2014, the Extradition Act (Proceedings) Rules, 2015, and other international treaties.

According to Article 1 of the treaty, the contracting parties agreed to hand over persons in their territory who are accused or convicted of committing particular crimes within the jurisdiction of one of the parties. Article 3 lists a range of offences for which accused persons or convicted can be extradited in compliance with the agreement. The basis for issuing an extradition order for Kiyari can be found in List 18, Article 3 of the Extradition treaty between Nigeria and the USA. List 18 provides thus; 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. The treaty also states that extradition shall be granted for any of the listed offences, provided that the criminal activity is punishable by the laws of both the country seeking the extradition and the country that is asked to extradite the accused person. Under Nigerian Law, it is a criminal offence to bribe a public official and for a public official to collect a brib².

To extradite a suspect, the proof must be judged sufficient under the laws of the contracting party to which the extradition request is made.³ If sufficient evidence for extradition is not made available two months after his capture, a fugitive wanted for extradition would be let free.⁴

Procedure to extradite from Nigeria

Extradition proceedings usually begin with a diplomatic request to the sending state, where the suspect or defendant is located, for extradition. The requesting countries must give facts about the suspect, the alleged offences, and supporting documentation, such as warrants, indictments, statute showing that the offence accused is an offence under the statute of the requesting country, as well as evidence of the crime. If those materials are sufficient, officials in the sending state will arrest the suspect and hold a hearing to assess whether extradition under the treaty is warranted, if found, a court order is granted and then the Attorney General can instruct that the accuses be given to the requesting country to answer to his crimes there.

Section 6 of the Extradition Act, CAP E25, LFN 2004 sets out in full the procedure for submitting an extradition request to Nigeria but can be briefly summarized as followed:

The Attorney General of the Federation however has the power to refuse extradition. According to section 3 of the Extradition Act which places restrictions on extradition, it provides:

1. 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.
2. A fugitive criminal shall not be surrendered if it appears to the Attorney-General or a court dealing with the case- (a) 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 interest of justice; or (b) that, if surrendered, he is likely to be prejudiced at his trial, or to be punished, detained or restricted in his personal liberty, because of his race, religion, nationality or political opinions.
3. A fugitive criminal shall not be surrendered if the Attorney-General or a court dealing with the case is satisfied that, because of- (a) the trivial nature of the offence for which his surrender is sought; or (b) the passage of time since the commission of the offence, it would, having regard to all the circumstances in which the offence was committed, be unjust or oppressive, or be too severe a punishment, to surrender the offender.
4. A fugitive criminal shall not be surrendered if the Attorney-General or a court dealing with the case is satisfied that, whether in Nigeria or elsewhere, he- (a) has been convicted of the offence for which his surrender is sought; or (b) has been acquitted thereof, and that, in a case falling within paragraph (a) of this subsection, he is not unlawfully at large.
5. 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.
6. A fugitive criminal- (a) 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; or (b) who is serving a sentence imposed in respect of any such offence by a court in Nigeria, shall not be surrendered until such a time as he has been discharged whether by acquittal or on the expiration of his sentence or otherwise.
7. 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 the extradition offence which may be proved by the facts on which the surrender is granted.
8. A fugitive criminal shall not be surrendered until the expiration of the period of fifteen days beginning with the day on which he is committed to prison to await his surrender.
9. In this section "a court dealing with the case" in relation to a fugitive criminal means any magistrate dealing with the fugitive's case in pursuance of section 8 of this Act or any court before which the fugitive is brought on or by an application made by him or on his behalf for a writ of habeas corpus.

The Attorney General typically has broad powers in extradition procedures. In the case of George Udeozor V. Federal Republic of Nigeria⁶, the court stated: "Nothing in the Act gives the court the powers to question the discretion of the Hon. Attorney General in those matters, as the Hon. Attorney General exercises his constitutional duty under section 174 of the 1999 constitution." The court further held that: "the discretion to accede to an extradition request is that of the Hon. AG of the federation, not of the court. The role of the court is to issue a warrant and undertake such other adjudicatory functions as are required to enhance the statutory powers of the AG"

Challenging the extradition of Abba Kiyari Case, vis a vis previous similar matter

Reports indicate that Abba Kiyari is highly reluctant to get extradited. In this instance, an extradition order can be challenged in a court of law. Extradition is not automatic as it requires a court order before the accused can be handed over to the receiving country. In Udeozor V. FRN⁷ the courts in explaining the purpose of a hearing in extradition proceedings held thus:

A pertinent question to ask then, is, how likely are the Nigerian courts in granting the extradition order of Kiyari with a look at its extradition history. Although the extradition laws in Nigeria have been criticised by other countries as obscure, Nigeria is reasonably cooperative in its mutual agreement with handing over suspects. In 2013, an extradition order was granted to the United States by the Federal High Court for a suspect named Lawal Olaniyi Babafemi, aka "Abdullah" or "Ayatollah Mustapha," who is alleged to be a member of Al-Qaeda in the Arabian Peninsula (AQAP) and was indicted on four charges in the United States, including supporting a foreign terrorist group.

It is worth reiterating that if a country to which the Act applies by virtue of section 1 or section 2 of the Extradition Act wishes to request the extradition of any fugitive criminal in Nigeria, the request must be made by the Act's provisions, and if there is an extradition treaty with such a country, the request must be made following the extradition treaty. In the case of Udeozor V. FRN⁸, the Attorney General has received a request from the diplomatic representative of the United States of America for the extradition of the appellant notified the court of the request, and upon hearing the application, the application was granted, and the court ruled that the appellant be remanded in prison custody to await his surrender The appellant dissatisfied with the order of the court appealed, and the court of appeal dismissed the appeal, stating that the provisions of the law were complied with. Hardly would an extradition order be refused on the grounds of non-compliance with the provisions of an Act or Treaty as officials of foreign jurisdictions such as the US are well versed with extradition procedures in contrast to Nigerian officials.

A slight ray of hope for Kiyari may be found in Article 4 of the Extradition Treaty 1935 which provides that the 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. Also, extradition will not take place if the accused person is still undergoing trial for the concerned offence in the country that was asked to affect the extradition. In the same vein, if the accused person has been imprisoned, or is under trial, for a different offence, the extradition would be deferred until the conclusion of the trial or completion of the prison term. Therefore, in a bid to escape extradition, the AGF may also decide to file charges against Kyari in Nigeria since the offences were committed in the country. In addition to the defences that Kiyari may claim before the court in a hearing to grant/dismiss his extradition order, he may bring a defence on the ground of political manipulation. According to both the Extradition Act⁹ and Treaty, an accused cannot be extradited where the reasons for his extradition are political. He must however be able to prove this before the court and call credible witnesses and not rely solely on statements or mere speculation as the court will rule it as hearsay evidence as seen in what played put in the controversial extradition matter of Kashamu Buruji v. AG, FRN 3PLR/2009/65. In this case, it was claimed that Kashamu operated as a drug lord in the US and was sought to be extradited from Nigeria to the US. His extradition order was refused in the Federal High Court but it was appealed by the Attorney General of the Federation who was keen on getting an extradition order to hand him over to the US to answer for his crimes. The Court of Appeal set aside the decision of the Federal High Court and Kashumu further appealed to the Supreme Court which upheld the Judgement of the Court of Appeal in setting aside the Judgement of the FHC. The Supreme Court was of the opinion that the claims made by Kashamu that he was a victim of a political manipulation which was instigated by former President Olusegun Obasanjo were mere hearsay as he was not able to provide witnesses to testify to these claims and reports which he claimed to have received. The court of appeal ruled that Kashamu's affidavit on the subject was worthless in eyes of the provisions of the Evidence Act as there was no documentary evidence attached to corroborate his aversions. As a result, the injunction halting the extraction process was overturned and set aside.

In another extradition case involving Emmanuel Okoyomon, former Managing Director and Chief Executive Officer of the Nigerian Security Printing and Minting Company (NSPM) V. the Attorney General of FRN (2015)LCN/8027(CA, counsel to Okoyomon sought to challenge the jurisdiction of the Court in granting the extradition order and also held that no extradition treaty exists between Nigeria and the UK, the court of Appeal, however, affirmed the judgement of the Federal High Court and allowed the extradition order. the Court of Appeal held that contrary to Okoyomon's contention in his appeal, Nigeria had an obligation under the London Scheme for Extradition to extradite a person for an offence to another Commonwealth country. In the lead judgment by Justice Moore Ademein, the Court of Appeal held that the position was supported by sections 1 and 2 of Nigeria's Extradition Act 2004. "This provision is substantially supported by the provisions of sections 1 and 2 of the Extradition Act 2004. The lower court was right to have acted the way it did to avoid a situation whereby Nigeria could breach its obligations to threshold Commonwealth country, the UK."

Hence, even if Kiyari might want to try his luck with contesting the validity of the Extradition Treaty which was signed by the United Stated and UK-covering all its colonies and proceed to lay argument that because it came into force before Nigeria gained independence, it ought not to be valid, it is a long shot as similar provisions of the Treaty have been domesticated in the Extradition Act of 1966.

As it stands, the law seems to weigh heavily against Abba Kiyari. There is an existing and enforceable Extradition Treaty existing between Nigeria and the US, the offence for which he is being tried is an offence under Nigeria domestic Laws, an offence that the Extradition Act of Nigeria recognises as an Extraditable offence, and an offence under US law. The only loophole it would seem is if the Attorney General refuses the extradition request or he can produce convincing evidence in court that his extradition is discriminatory and political. He can also buy some time if proceedings begin in Nigeria to charge him for the same offence, and if found guilty and sentenced, he may be able to escape extradition entirely in accordance with Article 4 of the Extradition Treaty.

Footnotes

1. Article 16.

2. See, The Corrupt Practices and Other Related Offences Act 2000, 2. The Advance Fee Fraud and Other Fraud Offences Related Act 2006, 3. The Economic and Financial Crimes Commission Establishment Act 2004, 7. Code of Conduct Bureau and Tribunal Act 1991

3. Article 9

4. Article 11

5. Section 8(2) Ibid.

6. (2007) LPELR-CA/L/376/05

7. Supra

8. Supra

9. Section 3(a)

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