Following the sudden appearance of Mazi Nnamdi Kanu in a Federal High Court in Abuja on 29th June, 2021, the Attorney-General of Nigeria (Abubakar Malami, SAN), at a press conference on the same date, stated that Kanu was “intercepted through the collaborative efforts of Nigerian intelligence and Security Services”. He added that “recent steps taken by the Federal Government saw to the interception of the fugitive Kanu on Sunday the 27th day of June 2021”.
Beyond this bland use of the word ‘interception’, neither the Attorney-General, nor any other Nigerian official has explained how and where this infamous interception occurred or whether it occurred under the pertinent legal framework or not. From published accounts, all efforts by the media (domestic and international) to elicit details of this interception have met a stubborn official silence. And it appears that the same is true with myriad diplomatic inquiries issuing to Nigeria from the international community, notably from the United Kingdom and United Nations.
Conversely, Nnamdi Kanu had, in various sworn statements, given credible accounts and details that prove that the so-called interception is simply that he was officially kidnapped, disappeared, tortured in Kenya, and extraordinarily renditioned to Nigeria. During the hearing of Kanu’s fundamental rights suit in Abia State (which he won), the Nigerian government could not explain how Kanu ended up in Nigeria, thus confirming that Kanu was not extradited but illegally renditioned. If Kanu was extradited, the Nigerian government would have been very forthright with it, especially given the insurmountable prosecutorial barrier that comes with extraordinary rendition.
It is therefore instructive that, to date, the Nigerian government has neither – in court or public – contradicted Kanu’s accounts, nor offered any alternative account that may suggest that Kanu’s return to Nigeria was secured through some due process of law. On its part, the Kenyan Government has, in the public and in processes filed in court, vehemently denied that Kanu was subjected to any extradition (or even deportation) proceedings in Kenya; and Nigeria has deadpanned to Kenya’s self-righteous denials.
In view of the foregoing, there are several questions and answers well-meaning Nigerians and the international community must demand from Nigeria. These questions and answers are very crucial, because under the domestic and international legal order, Nigeria cannot properly levy its sovereign rights of criminal prosecution against Kanu without first proving that the act of transferring Kanu from Kenya to Nigeria conformed to the basic tenets of the law – municipal and international, including particularly treaties to which Nigeria is subject.
As a sovereign nation and member of comity of nations, and a country with a Constitution and laws, Nigeria must first explain to her domestic courts and the international community (particularly Britain) how Kanu ended up in Nigeria in chains. This is but a basic condition precedent without which prosecution of Nnamdi Kanu cannot ensue.
The whispering notion that extraordinary rendition is but a concept in international law that does not apply to Nigeria is false and it borders on crass ignorance. The Nigerian Constitution provides in its fundamental rights at Section 35(1) that ‘No person shall be deprived of his liberty save in accordance with a procedure permitted by law’. The operative phrase here is ‘procedure permitted by law’. This, if there is absence of extradition proceedings in Kenya for Nnamdi Kanu, it means that the deprivation of his personal liberty (the interception and detention) was not in accordance with procedure permitted by law. At law, such gross misconduct must surely complicate any criminal prosecution by the complicit State.
A lot of people might not be aware but there’s a Nigerian law, enacted by the National Assembly in 1983, known as the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act. You can see this Law at CAP A9, Laws of Federation of Nigeria, 2004. Article 12(4) of this Law provides that “A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law”.
To be sure, Nnamdi Kanu, a non-national of Kenya, was legally admitted to Kenya on 5th May, 2021 and then expelled or was transferred from Kenya to Nigeria on 27th June, 2021 without ‘a decision taken in accordance with the law’. Both Nigeria and Kenya are State Parties to the parent African Charter that grandfathered the similar law Nigeria later domesticated into its municipal laws.
Additionally, the ‘Mutual Assistance in Criminal Matters within the Commonwealth (Enactment and Enforcement) Act’ – another Nigerian Law – clearly specified at Sections 4 to 6 the procedure that must be followed in any situation, such as the case of Kanu, where Nigeria is requesting assistance in a criminal matter or a fugitive from a Commonwealth country, of which Kenya is one. The procedure strictly requires the consent of the State of refuge where such fugitive is found. In particular, Section 6(5) stated clearly that “The provisions of sections 4, 5 and 6 of this Act shall apply mutatis mutandis to any case in which Nigeria is either the requesting or requested country, as the case may require”. Thus, before Nigeria can prosecute Nnamdi Kanu, it must show that it complied with provisions of this Law.
The continental version of the earlier mentioned African Charter on Human and Peoples Rights which Nigeria ratified and is thus thereby bound provides at Article 6 that: “No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular no one may be arbitrarily arrested or detained”. Given that Nigeria claims that it ‘intercepted’ Kanu, the question that arises is whether said interception amounted to arbitrary arrest and detention. If it did, then no prosecution ensuing therefrom can stand in law.
The same African Charter provides in its ‘Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa’ (at Part 5(A): Transfers of Individuals) that: “A State may not transfer (e.g., deport, expel, remove, extradite) an individual to the custody of another State unless it is prescribed by law and in accordance with due process and other international human rights obligations. Deportation, expulsion, and removal cannot be used to circumvent criminal justice processes, including extradition procedures. Extraordinary rendition, or any other transfer, without due process is prohibited”.
With particular reference to the preceding paragraph, what immediately jumps out is the phrase “extraordinary rendition or any other transfer without due process of law is prohibited”. Since Nigeria is, by treaty, bound by this, it should be guided by the celebrated case of General Sani Abacha v Gani Fawehinmi, where the Supreme Court held that: ‘Where a treaty is enacted into law by the National Assembly as was the case with the African Charter, it becomes binding and our courts must give effect to it like all other laws falling within the judicial powers of the courts’.
Further, in anticipation that an African State could commit extraordinary rendition, such as Nigeria has done to Kanu, the African Charter’s ‘Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, (at Part 1(F) provides that: ‘States shall provide full and effective reparation to individuals who have suffered violations of their human rights as a result of acts committed in the name of countering terrorism. Full and effective reparation should include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition’. As the Charges leveled against Kanu indicate, Nigeria justified its interception of Kanu in the name of countering terrorism.
On what constitutes ‘restitution’, the United Nations ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ provides in Part IX (19) that ‘Restitution should restore the victim to the original situation before the gross violations of international human rights law occurred. Restitution includes restoration of liberty and return to one’s place of residence’. Nigeria is, by virtue of being a member of United Nations, bound by these provisions.
In view of the foregoing, it is trite that a renditioned fugitive suspect cannot be subjected to trial. Thus, Mazi Nnamdi Kanu should be restitutioned or restored to the status quo, whether to Kenya or Britain, at his option. It is inherently contradictory to postulate that a renditioned suspect will get a fair trial from the jurisdiction that renditioned him.
By its infamous nature, extraordinary rendition destroys every prospect for a fair trial. Therefore, the next best thing for Nigerian authorities to do is to toe the path of honor and contrition by releasing Nnamdi Kanu unconditionally. In the interim, it may choose the easier option of forbearing any objections to reinstatement of Nnamdi Kanu’s bail, which will instantly clear the judicial path to his release.
Going forward, the authorities can be guided by the recent judgment of the Abia State High which exonerated Kanu from the supervening event that disquieted his bail and ultimately culminated in the extraordinary rendition.
Ejimakor Is Special Counsel To Kanu/IPOB
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