On Monday, the Federal High Court sitting in Abuja rejected an application by the Federal Government seeking the extradition of Abba Kyari, suspended Deputy Commissioner of Police (DCP), to face charges on three counts in the United States: conspiracy to commit fraud; conspiracy to commit money laundering, and aggravated identity theft, aiding and abetting an offence.
The charges are affiliated with alleged internet fraudster and Instagram celebrity, Ramon Abbas, aka Hushpuppi who was arrested for his involvement in several syndicated cyber fraud activities. Abba Kyari is being charged in connection with a $1.1 million fraud by Abbas.
In dismissing the application, Hon. Justice Inyang Ekwo stated that “the application is in breach of Section 3(f) of the Extradition Act, and by that Act, it is incompetent.” Section 3(f) provides that, “a fugitive criminal who has been charged with an offence under the laws of Nigeria or any part thereof, not being an offence for which his surrender is sought shall not be surrendered until such a person has been discharged either by acquittal or on the expiration of his sentence”.
She added that Section 3 of the Act preserves the integrity of the municipal laws of the country from which a request is made for the surrendering of a fugitive criminal… and the consequence of the Extradition Act is that Abba Kyari shall not be surrendered until such as that he has been discharged or convicted at the conclusion of the trial.”
Given these provisions and the fact that there is a subsisting case against Abba Kyari by the NDLEA based on the NDLEA Act, she concluded that the application lacked merit and having been brought by the Federal Government – who is deemed to have knowledge of the laws, – was brought in bad faith.
a person cannot be extradited when there is a pending action against him in Nigeria.
Following the outcome of the application to extradite Abba Kyari, this article attempts to shed further light on the extradition laws in Nigeria, the extradition process in Nigeria, and the rationale for the judgment of the court.
Extradition under Nigerian Law
Extradition is the formal process of one state (the Sending state), upon the request of another (the Requesting state) surrendering a person(s) to Requesting State for prosecution or punishment for crimes punishable by the laws of Requesting State and committed outside the Sending State.
Extradition is regulated within states by an Extradition Act and between states by treaties, although in some cases extradition will be completed without a treaty between the states. Thus, generally, every extradition request must have recourse to the local governing act on extradition as well as the treaty (if any), between the states.
Read also: Court dismisses FG’s case seeking to extradite Abba Kyari to USA
Where a treaty exists, it usually defines the terms under which extradition will be permitted or denied between the parties. For instance, where some treaties contain a list of offences for which extradition is permissible, others take a dual criminality approach i.e. only crimes punishable in both jurisdictions are extraditable. Some may even restrict extradition to crimes where the sentence does not exceed a specified duration e.g. 1 year. Some instances in which a request for extradition may be denied include extradition for military or political offences, jurisdictions with capital punishments or some simply will not extradite their own citizens e.g. Slovenia and Colombia. In general, extradited persons may only be prosecuted for the offence for which the extradition request was granted.
Extradition matters in Nigeria are governed by the Extradition Act 1966 (“the Act”), the Extradition Act modification order 2014, Federal High Court Extradition Proceedings Rules 2015, Extradition Amendment Act 2018 and its various treaties with nation-states. Per Section 2 of the Act, its provisions govern Nigeria’s relationship with every country within the Commonwealth. However, Section 1 empowers the president to extend the application of the Extradition Act to any country with which Nigeria has signed a treaty regarding the surrender of persons wanted for prosecution or punishment.
Under Nigerian law, a fugitive criminal may be extradited. Section 21 of the Act, defines a fugitive criminal as “any person accused of an extradition offence committed within the jurisdiction of a country other than Nigeria; or a person, who, having been convicted of an extradition offence in a country other than Nigeria, is unlawfully at large before the expiration of a sentence imposed on him for that offence, being, in either case, a person who is, or is suspected of being, in Nigeria.” This means that a Nigerian citizen, as well as a non-citizen, can be extradited provided that such a person has been accused of a crime and proper application has been made for the surrender of such person to face trial.
Generally, the Attorney General of the Federation has the discretion to refuse extradition. However, Section 3 of the Act provides the boundaries within which a person may or may not be extradited, and a salient few are highlighted thus. A fugitive may not be extradited for political crimes. Again, a fugitive criminal would not be extradited if the extradition is being sought to be made for the purpose of prosecuting or punishing a person 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 in the case that if surrendered, the person is likely to be prejudiced at his trial, or to be punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions. Thirdly, a person cannot be extradited if criminal proceedings are pending against the person in Nigeria for the offence for which his surrender is sought. Where it is for an offence different from that for which he is being sought, he will only be surrendered when he has been acquitted. Therefore, a person may be extradited where the process for application has been complied with and is not hampered by the provisions of Section 3.
From the provisions of many treaties which Nigeria has with other countries, an offence is an extraditable offence if it is punishable under the laws in both contracting states. An offence is also an extraditable offence if it consists of attempting or conspiring to commit, aiding, abetting, inducing, counselling or procuring the commission of, or being an accessory before or after the fact to offences punishable under the laws in both contracting states. A person will therefore be extradited if he commits such an offence, conspires to commit, aids, abets or is an accessory to the fact of the offence.
At the Attorney General’s discretion, a Nigerian citizen may not be extradited unless there is a treaty to that effect.
The Extradition process in Nigeria
According to Section 6 of the Act, a request for surrender of a fugitive shall be made in writing to the Attorney General by a diplomatic representative or consular officer of the Requesting State and said request shall be accompanied by a duly authenticated warrant of arrest or certificate of conviction issued by the Requesting State.
On receiving such a request, once the Attorney General determines that said request is not precluded by the Act, he may transmit an order indicating that a request has been received in respect of such a fugitive. Once such order is transmitted, a judge may issue a warrant for the arrest of the fugitive, where evidence is provided that would in the opinion of the judge justify the issuing of a warrant if the offence in question has been committed in Nigeria.
By Section 9(c) of the Extradition Act, when such a fugitive criminal is brought before the court, and there is produced to the magistrate (now judge by virtue of the Extradition Act (Modification Order) a warrant issued outside Nigeria, and the judge is satisfied that the warrant was issued in a county to which this Act applies, is duly authenticated and relates to the prisoner; the offence is an extradition offence in relation to the Requesting country; the evidence will justify the committal of the fugitive for trial is it has been committed in Nigeria and the surrender is not precluded by the Act (in particular subsections (1) to (6) of Section 3 or the Requesting country is not prohibited from making such requests under the treaty between the countries, the court may commit the fugitive to prison to await the order of the AG for his surrender.
Where a request for a fugitive is made by more than one country, for the same or different offences, the Attorney General shall determine which request is to be accorded priority based on the relative seriousness of the cases, where different, the relative dates on which the requests were made, the nationality of the fugitive and his/her place of residence.
The Extradition treaty between Nigeria and US – 1935
Nigeria has an extradition treaty with the United States, which was signed on December 22, 1931, by the United Kingdom, before Nigeria gained independence. The treaty is still binding on Nigeria by virtue of the fact that it has been ratified through subsequent laws such as the Extradition Act of 1966, the (Extradition Modification) Order, 2014, and the Extradition Act (Proceedings) Rules, 2015.
Article 3 of the treaty lists the types of offences for which accused persons can be extradited. List 18 of Article 3 of the Extradition treaty between Nigeria and the USA provides that a person can be extradited where he is alleged to have committed such offences including 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.
Before the extradition application: The Hush Puppi Case
In June 2020, the popular Instagram celebrity, Ramon Abbas, “Hushpuppi” was arrested by the United Arab Emirates (UAE) police and subsequently handed over to the FBI in the US. It was alleged that Abbas was involved in and conspired to commit 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 unauthorised 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 mislead them into making unauthorised wire transfers.
Abbas has since pleaded guilty to the charges and the US court has fixed the date for sentence for September 2022. Ramon in his confessional statement, mentioned Nigeria’s highly celebrated police officer, Abba Kyari, as one of his co-conspirators.
According to the charge, Kyari arranged the arrest of a whistleblower, Vincent Kelly Chibuzo, at the request of Hushpuppi to prevent Chibuzo from interfering in the scheme of defrauding a victim of over $1,000,000. Also, in the detailed charge, Kyari allegedly held Chibuzor in custody for a month in order to prevent him from notifying the alleged victim of the impending fraud, and therefore, Kyari’s knowing involvement in the scheme allowed Hushpuppi to continue defrauding the victim undetected. On April 29, 2021, an indictment against Kyari was filed by a grand jury with the approval of the US district court for the Central District of California, after which a warrant was issued for his arrest.
Assessment of the Court’s decision on the application for Kyari’s extradition
Various issues are thrown up by the intended extradition of Kyari. One such issue is that a person cannot be extradited when there is a pending action against him in Nigeria. This is because shortly after the US government asked for the extradition of Kyari, an action was brought by the Nigeria Drug Law Enforcement Agency (NDLEA) on grounds of Kyari’s involvement in a 25kg cocaine deal. It is also on this basis that the Federal High Court rejected the application of the Attorney General of the Federation to extradite Kyari. Another issue and one canvassed by Kyari’s lawyer is that the wire fraud charge brought by the American government is not a known offence under the Extradition Act.
List 18 of Article 3 of the Extradition Treaty between Nigeria and the USA provides that a person can be extradited where he is alleged to have committed such offences as 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. Although, Kyari’s lawyer argues that there is no express mention of unauthorised wire transfers as crimes for which a person may be extradited, the intention for such an act is to obtain money, valuable security or other property by false pretences.
Furthermore, Section 3 (f) of the Extradition Act specifically provides that a fugitive criminal who has been charged with an offence under the law of Nigeria or any part thereof, not being an offence for which his surrender is sought shall not be surrendered until such a person has been discharged either by acquittal or on the expiration of his sentence.
As was rightly asserted by the Court, there is a pending action against the fugitive, and this by the provision of the governing Act, restricts the fugitive’s extradition.
Although, the Federal government argued that a application for the extradition may be granted before the case against the Kyari is determined, it seems to most legal minds, that this defeats the intention of the Act, as the restriction is specifically included as a restriction to the grant of an application to extradite, not to extraditing itself.
Regardless of which way the onion is cut, it seems that Abba Kyari will not be extradited until he has answered for the charges brought against him by the NDLEA.
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