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Will Supreme Court Okays Kashamu’s Extradition?

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Supreme Court in July this year commenced hearing on the appeal entered by Senator Buruji Kashamu against the judgement of the Court of Appeal sitting in Lagos giving nod to the Federal Government to arrest and extradite him to the United States of America.

The appellate court had on May 4, 2018 set aside a Federal High Court order that perpetually restrained the Federal Government from arresting Senator Kashamu who is currently representing Ogun east senatorial district in the senate.

Court of Appeal had also set aside another order which nullified a warrant for Kashamu’s arrest and restrained the Federal Government to commence extradition proceedings against him.

Kashamu has been wanted by the U.S. government to stand trial for alleged importation of hard drugs into her country. Justice Okon Abang of Federal High Court in Lagos had on May 25, 2015, perpetually restrained the National Drug Law Enforcement Agency (NDLEA) and other agencies of the Federal Government from “arresting, detaining, attacking or abduction” of Kashamu upon charges based on allegations of drug trafficking levelled against him by the US Government.

Justice Abang had also set aside and nullified a warrant for the Senator’s arrest for extradition proceedings issued by another Federal High Court judge, Justice Saliu Saidu.

The extradition attempt followed a complaint and application by the US government requesting the Federal Government of Nigeria to extradite Kashamu based on the ‘Extradition Treaty’ between Nigeria and US.

Dissatisfied however with the orders made by Justice Abang, the Minister of Justice and the Attorney-General of the Federation (AGF), Abubakar Malami (SAN) appealed against both decisions. In his submissions, the AGF who was represented by Chief Emeka Ngige (SAN) argued that Justice Abang erred in granting some of the injunctive reliefs and urged the appellate court to set aside both lower courts’ judgment on the ground of miscarriage of justice. The AGF, further claimed that Kashamu suppressed facts before the lower court to secure the restraining order against his extradition.

Kashamu’s lawyers, Lateef Fagbemi (SAN), Chief Akin Olujinmi (SAN) , Dr Alex Izinyon (SAN) and Hakeem O. Afolabi (SAN), on November 7, 2017, urged the court to dismiss the AGF’s appeal.

But in a unanimous judgment a three-man panel comprising Justices Yagarta Nimpar, Joseph Ikyegh and Anthony Ogakwu, upheld the government’s appeal and set aside the high court’s orders. Justice Nimpar, who delivered the lead judgment, held that the high court, having struck out several paragraphs in the affidavit relating to allegations that former President Olusegun Obasanjo was behind the Senator’s travails and alleged plans to forcibly extradite him to the US, the same court was wrong to retain other paragraphs of the same affidavit containing hearsay allegations against Mr Dapo Abiodun and Chief Godwin Obla SAN.

Justice Nimpar held that the lower court relied heavily on speculations and conjectures in arriving at the judgment “which is not permitted in law.” The appellate court berated the Justice Abang for not giving the AGF’s counsel opportunity to file a counter affidavit in opposition to the case file presented by Kashamu, when under the rules they still had three days to react to the processes.

Kashamu who was dissatisfied with the Court of Appeal judgement brought an appeal against the appellate decision before the Supreme Court

In his notice of appeal to the Supreme Court, Kashamu averred that the Court of Appeal erred in law by voiding and setting aside the two judgments of the Federal High Court which barred Federal Government from going ahead with his extradition, and consequently asked the apex court to set aside the Appeal Court’s decisions.

AGF however, urged the Apex Court to uphold the judgments of the Court of Appeal, claiming the Appeal Court was right by setting aside the judgments of the High Court because they were based on hearsay evidence Kashamu before the court.

The main issue for the Supreme Court to decide is whether the AGF, NDLEA IGP, SSS, NCS and other agencies of the government be granted fiat or order to arrest Kashamu and commence extradition proceedings on him for the purpose of extraditing to the U.S. for him to face trial for charges drug trafficking allegations levelled against him by the US Government.

There are some salient attendant backgrounds Supreme Court should averse their minds as it takes steps to guide the government and the governed in this highly tempting appeal/matter; because the Supreme Court is not just a court of law and order but a court of justice.

Kashamu allegedly trafficked drugs between Europe and South-east Asia through Chicago’s O’Hare International Airport between 1993 and 1995. He was later arrested and detained in United Kingdom for four years, before he was released and discharged in relation to the alleged offence. Since then, US government had wanted Kashamu extradited to US to answer for the alleged crime committed on its soil.

Nigeria signed the Extradition Treaty with the United State in December 22, 1931 and entered into force in June 24, 1935. Since then Nigeria has extradited several persons to the United States for various reasons ranging from drug, advance fee fraud, and terrorism related offenses, yet not a single person has been extradited to Nigeria from U.S.

Kashamu extradition case all began on May 27, 2015 when the ex-AGF, Mohammed Bello Adoke (SAN), applied to a Federal High Court sitting in Abuja asking for the extradition of Senator Kashamu on allegations of certain indictments of a criminal act he allegedly perpetrated in violation of the United States Drugs Law. The suit delineated FHC/ABJ/CS/479/2015 was filed on the eve of Adoke’s departure from office as the AGF while a similar case was already before a Federal High Court sitting in Lagos. Ruling on the case, Justice Gabriel Kolawole on July 1, 2015 dismissed the suit on the ground that it amounted to abuse of court process since there was a pending case in another Federal High Court sitting in Lagos.

However, Kasamu wrote a letter to draw attention of the AGF’s Office to the two British judgments in his favour which was proved by the British High Commission in a letter dated April 27, 2015 indicating that he was free from extradition proceedings in their country between 1998 and 2003 because the Magistrate was not satisfied that he had a case to answer.

He also asked “whether the AGF is aware that the purported extradition suit that was instituted against him after the 2015 abduction plot orchestrated by the immediate past administration failed, was dismissed by Justice Kolawole who described the action of the NDLEA as “a show of shame.”

“With all these facts of my exoneration by two British courts in a case instituted by the American government, the facts of which are available to the Honourable Minister of Justice, how can anyone rightly seek to subject me to another round of extradition proceedings when we had joined issues in a foreign land (the United Kingdom) – which is better known as US’ closest ally – and the courts found that I am not the person being sought for the drug crime? What is more, the two British court judgments in my favour were not and have not been appealed till date

Kashamu also added: “The Extradition Act LN 33 1967 between Nigeria and USA recognised the Extradition Treaty between USA and Great Britain. Signed in London on 22nd December, 1931, the treaty reads in part, ‘Whereas the extradition Treaty concluded between the United States of America and Great Britain and signed at London, on 22nd December 1931 for the surrender of fugitive offenders, has been recognised as binding on Nigeria subject to the modification specified in Schedule 1 hereto.’

The extradition Treaty signed between the United States and other countries allows the United States to request from countries that have signed the Extradition Treaty to extradite persons who are wanted by the United States Security Authorities for criminal offences.

The Extradition Treaty being invoked by the US was signed by her and UK while Nigeria was still a British colony. The British courts relied on the provisions of this treaty to give judgement for the defendant/accused.

According to Chief Wole Olanipekun (SAN), the judgments of the two British courts are judgments that are binding on all persons and parties to the proceedings, including but not limited to the Nigerian government. As the parties await the outcome of the apex court, the case at hand will determine how firm our courts are in dispensation of justice.

Indeed, Olanipekun, was succinct in his opinion that there is no justification in pushing for extradition of Senator Kashamu by the Federal Government as there is nothing in any of the two judgments of the Court of appeal calling for his extradition from within or without Nigeria as the appellate court did not dismiss any challenge by the senator to his extradition process.

Come to think of it, will the same US government extradite an American citizen to Nigeria to be tried for similar offence if Kashamu happened to be an American-born citizen who allegedly committed a similar offence in Nigeria? Were American citizens involved in Haliburton bribery, Siemens scandal and hosts of others committed in Nigerian soil not tried in the US courts?

In Valentine v. United States, 299 U.S. 5 (1936) case, the respondents, native-born citizens of the United States, were charged with the commission of crimes in France. These crimes were among the extraditable offenses listed in the Franco-American Extradition Treaty of 1909. The respondents fled to the United States, were arrested in New York City on the request of the French authorities, and were held for extradition proceedings. The respondents sued to prevent their extradition from the United States to France under the Treaty of 1909. The respondents challenged the court’s jurisdiction, arguing that because Article V of the Treaty of 1909 excepted citizens of the United States from extradition, the President had no constitutional authority to surrender the respondents to France.

Article V of the Treaty of 1909 stated that “Neither of the contracting Parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention.” The Circuit Court of Appeals reversed the orders of the District Judge, sustained the contention of the respondents, and directed their discharge. Certiorari was granted by the U.S. Supreme Court.

On December 6, 2016, the Polish Supreme Court rejected a government request to extradite Roman Polanski, the Oscar-winning filmmaker, to the United States over a decades-old conviction for having sex with a 13-year-old girl.

Polanski, a dual citizen of France and Poland, lives in France, which does not extradite its citizens. Judge Michal Laskowski ruled that a lower court’s verdict was not a “flagrant violation of the law,” as the request for an appeal had claimed. “The regional court of Krakow considered and verified all evidence exceptionally carefully,” Judge Laskowski said.

In a related case, the founder of Wikileaks, Julian Assange, ran into the embassy of Ecuador in London to escape being extradited to Sweden to answer for sexually-related offences he allegedly committed in 2010. Despite being an Australian by birth and the formidable diplomatic pressures mounted on the Ecuadorian government by both UK and US to release Assange to the British authorities, where he would be extradited to Sweden for trial on sexually offences or possibly extradited to US to answer for his role in leaking confidential US diplomatic information, which prompted US government to declare him a fugitive, the Ecuadorian government refused to release Assange to the British authorities. Assange stayed in the Ecuadorian embassy in London for more than two years under Ecuadorian protection not minding the legal battle against Ecuadorian government by the UK which cost British tax’s payers over seven million pounds. He ran into the embassy to seek asylum and got protection from that country even though he is not in possession of its citizenship passport. A senior legal adviser to the country’s embassy in London where Wikileaks founder sought sanctuary was quoted as saying that “the Ecuadorian government sought to avert the ‘evil’ of the extradition of Julian Assange to US”. If the Ecuadorian government would go this far to uphold the rights of a foreigner just because he ran into its embassy for asylum in a foreign land, why is our AGF, NDLEA and others so poised to extradite Kashamu at all costs to US even at the expense of Nigeria’s sovereignty?

Judges are not altogether detached from the law-making process, talk more of the Supreme Court that is consistently shaping the polity. Of course, a judge that is confronted with a legal problem does not have to resign helplessly where the established laws are inadequate in resolving the problem. It is a cardinal maxim of our law that where there is a wrong there must be a remedy.

Judges are, therefore, encouraged to formulate fresh rules of law or to extend the existing ones to deal with novel cases. By so doing, they add to the corpus of existing laws through their judicial pronouncements. This law making function of the courts is sustained by the operation of the doctrine of judicial precedent.

Such pronouncements of courts of records, especially the Supreme Court as contained in our various law reports are laws, which can be referred to and applied, in subsequent cases, if the facts and circumstances are impari-material. Under common law, the method of applying the ratio decidendi of previous cases to the case in hand is called stare decisis (let what was previously settled or decided not be disrupted or altered). It is expected that the decision of the apex court in this appeal shall go a long way to review our extradition laws or treaties which have remained as they were entered by nation’s erstwhile colonial master.


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