There seems to be more than meets the eye in the on-going trial of former Commander of the Police Intelligence Response Team (IRT) DCP Abba Kyari especially the apparent double standard of the Attorney- General of the Federation and Minister of Justice, Abubakar Malami, SAN in the case.
By his actions, the Attorney-General of the Federation appears to be stalling, tacitly, the extradition of Abba Kyari, by allowing or consenting to the prosecution of Kyari for his alleged involvement in drug trafficking simultaneously as the pendency of an application for his extradition by the same Attorney-General.
It is important to note that the Attorney-General of the Federation, is also the Minister of Justice. By virtue of Section 2(1) (f) of the NDLEA Act, the Federal Ministry of Justice, headed by him has a representative in the Board/composition of the NDLEA. So, now that he is aware of the NDLEA charge, can the Chief Law Officer of the Federation consent to the prosecution of someone whose application for extradition is pending? What is the moral and legal implication of this?
As provided in Section 3(6) of the Extradition Act and in line with previous court judgments, a person such as Abba Kyari, who is charged with any offence not being the offence for which his surrender is sought, shall not be surrendered until such time as he has been discharged, whether by acquittal or on the expiration of his sentence or otherwise.
The statutory requirement is that no extradition proceedings for Kyari’s surrender should be going on until such time as he has been discharged, acquitted or convicted. But this is not the situation right now.
On March 7, 2022, the National Drug Law Enforcement Agency (NDLEA) arraigned DCP Abba Kyari and 6 others in an Abuja Federal High court over drug trafficking related offences.
Earlier on Wednesday, March, 2nd 2022 Malami had filed an application before the chief judge of the federal high court in Abuja for Kyari’s extradition to the United States of America.
The application marked FHC/ABJ/CS/249/2022 was filed under the Extradition Act. The AGF said the application followed a request by the diplomatic representative of the US embassy in Abuja.
Can the Chief Law Officer of the Federation consent to the prosecution of someone whose application for extradition is pending? What is the moral and legal implication of this?
”It is for the surrender of Abba Alhaji Kyari, who is a subject in a superseding three counts indictment,” the AGF stated.
In the affidavit filed in support of the extradition application, the AGF said he is satisfied that the offence in respect of which Kyari is being surrendered is neither political nor trivial.
Malami also said the request for the surrender of Kyari was not made to persecute or punish him on account of his race, religion, nationality or political opinions but in good faith and in the interest of justice.
It will be recalled that in July 2021, the Federal Bureau of Investigation (FBI) indicted Kyari in a $1.1 million fraud involving Hushpuppi, self-confessed international fraudster. The suspended police officer denied the allegation, claiming that his “hands are clean”.
And in August 2021, Usman Baba, inspector-general of police, received the report of a panel set up to probe the allegation against Kyari which was sent to Abubakar Malami, attorney-general of the federation and Minister of Justice.
But Abba Kyari NDLEA’s pending charge before the Federal High Court has definitely put the whole extradition process on hold if the court decides to remand him pending the determination of the suit against him.
It is also important to emphasise that while the matter is pending in court, Abba Kyari is presumed innocent until proven guilty as contained in Section 36 (5) of the constitution provides that:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”.
This is also sanctioned by Article 1(1) of the UDHR, 1948; Article 14 of the International Convention on Civil and Political Rights, 1966; and Article 7(b) of the African Charter on Human and Peoples’ Rights Cap A9, LFN, 2004. Presumption of innocence is the golden thread that runs through our criminal justice system. See the case of The King v. Richardson & Anor (1985) Leach 387; Woolmington v. DPP (1935) AC- 462; Ali v. State (2012) 190 NWLR (Pt 1309) 642;
Even if the Federal High Court were to give its judgment against Abba Kyari, he is still entitled to appeal such a judgment at the Court of Appeal, and even further to the Supreme Court.
Section 3(6) of the Extradition Act makes it clear that a fugitive criminal 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, shall not be surrendered until such time as he has been discharged whether by acquittal or on the expiration of his sentence or otherwise.
As stated above, the NDLEA has filed an eight count charge against Abba Kyari and six others for their alleged involvement in drug trafficking, barely 24 hours after the Attorney-General filed an application for the extradition of Kyari.
According to senior lawyer, Mike Ozekhome, SAN, the case of A.G FED v. JONES (2017) LPELR-43551(CA), is worth considering. Although, the case was decided under Section 3(5) of the Extradition Act, he said some key observations made by the learned Justices of the Court of Appeal are worth noting. The Appellant (A.G. Fed) had filed an application before the trial court seeking to extradite the Respondent on a diplomatic request from the United States of America on indictment, in Case No.11-CR0299, filed on the 28th day of April, 2011, for the offences of conspiracy to commit wired fraud and conspiracy to commit identity theft all in violation of US Laws. The Application was duly supported by an affidavit and exhibits, which inter alia, included a certified true copy of the indictment, issued against the Respondents; certified true copy of the warrant of arrest issued by the US District Court for the arrest of the Respondent; and a photograph of the Respondent.
The respondent contested the proceedings, contending that the application was incompetent because as at the time of the application, there was an existing charge at the Akure High Court on charges similar to those he was being sought to be extradited to face in the United States of America. The Appellant contended that as at the time the application for extradition was ripe for hearing, the existing charge had already been withdrawn. The trial Court disagreed and found against the Appellant and discharged the Respondent.
The Appellant being dissatisfied with the judgment filed an appeal in the Court of Appeal. The Court of Appeal was emphatic that the main thrust of the appeal failed. It was consequently dismissed. Abimbola Osarugue Obaseki-Adejumo, JCA, concurring with the lead judgment, held at page 26, that:
“… The provision of Section 3(5) of the Extradition Act is clear and unambiguous. It states: “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.” It is obvious from the above provision that no extradition proceedings shall be brought against a fugitive criminal when there is a pending criminal proceedings against him. In the instant appeal, it is evident that the Appellant failed and/or neglected to comply with the mandatory provision of the statute.”
Regarding the uncoordinated role the Attorney-General played with the EFCC, Yargata Byenchit Nimpar, J.C.A. (delivering the Lead judgment) held that:
“The issue is not the timely withdrawal of the pending charges because the statutory requirement is that no proceedings should be pending when the application for extradition is made. The point of filing the application a decision was taken by the Attorney General to want to surrender the fugitive. The Appellant is wrong to think that it is only at the point of surrender that Section 3 (5) comes into play. It is activated on the filing of an application for extradition. The Attorney General would have decided on extraditing a fugitive before filing the application. The section applies in this case”, the judge ruled.
In the case of Abba Kyari, since the court has already assumed jurisdiction on the criminal matter the moment Kyari was arraigned at the Federal High Court Abuja, and his plea taken, the Attorney-General of the Federation will find it difficult to proceed with his request for Abba Kyari’s extradition to the United States knowing the position of the law on this matter.