Nigeria under treaty to free Kanu without court order

In addition to the permanent prosecutorial barriers created by the extraordinary rendition of Mazi Nnamdi Kanu by virtue of the provisions of the Nigerian and Kenyan Extradition Acts, there are other laws, particularly treaties that have irreparably robbed Nigerian courts of the jurisdiction to subject Nnamdi Kanu to trial or even detention under the present circumstances.

In plain terms, Nigeria cannot legally levy its sovereign rights of criminal prosecution or detention against Nnamdi Kanu without first proving that the act of transferring him from Kenya to Nigeria conformed to the basic tenets of treaties to which Nigeria is subject by ratification or by an Act of the National Assembly.

This is but a basic condition precedent without which trial or detention of Nnamdi Kanu is unsustainable as a matter of black letter law. The whispering notion that extraordinary rendition is a quaint concept in international law and thus does not apply to Nigeria is profoundly false and retrograde. In particular, there is a little-known (often-ignored) Nigerian law, enacted by the National Assembly in 1983 that prohibits extraordinary rendition or unlawful cross-border exclusion.

That law is known as the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, codified 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 12th 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’.

Unarguably, both Nigeria and Kenya are State Parties to the parent African Charter that grandfathered the version (cited above) that Nigeria later domesticated into its municipal laws in 1983. In effect, Nigeria became bound to this Charter both by treaty (ratification) and by domestication (Act of National Assembly).

Additionally, the ‘Mutual Assistance in Criminal Matters within the Commonwealth (Enactment and Enforcement) Act’ – another little-known Nigerian Law – clearly specified at Sections 4 to 6 – the strict procedures that must be followed in any situation, such as the case of Kanu, where Nigeria is requesting assistance in a criminal matter, including transferring or extraditing a fugitive from a Commonwealth country, of which Kenya is one.

These procedures absolutely require 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”. In this case, Nigeria is the requesting country.

The same African Charter (the continental version) provides in its ‘Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa’ (at Part 5(A) provides 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”.

What immediately jumps out from this law is the phrase “extraordinary rendition or any other transfer without due process of law is prohibited”. Since Nigeria is – by treaty – bound by this Instrument, the case of Kanu must be strictly guided by the celebrated precedent set in 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’. Thus, the trial of Kanu is barred by virtue of the provisions of this treaty (the African Charter) and that expressly prohibited extraordinary rendition.

Further, in anticipation that any African State can turn lawless and commit extraordinary rendition (such as in this case), the African Charter’s Instrument known as the ‘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’. In reading these provisions, keep in mind that the Charges leveled against Kanu all bordered on countering terrorism.

And 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’ which is Kenya, in the case Kanu. It is beyond argument that Nigeria is, by virtue of being a member of United Nations and ratification of its Instruments thereof, bound by these provisions.

In view of the foregoing, it is a basic precept of the law that a renditioned fugitive suspect can neither be subjected to detention, nor trial in the country that rendition him. The only legal window is to restitution or restore such person to the status quo or return him to the country from which he was renditioned.

It is pertinent to stress the point that extraordinary rendition inherently destroys every prospect for a fair trial in the country that levied the rendition. This was precisely the reason Britain denied Nigeria’s formal application to extradite Umaru Dikko after his aborted rendition.

Therefore, the next best thing for Nigerian authorities to do is to toe the path of the pertinent laws and treaties by releasing Nnamdi Kanu, forthwith. Anything to the contrary will be egregious and stigmatize Nigeria as a nation that chooses impunity over rule of law.

History teaches that it is such impunity that stokes the palpable tensions that quickly metamorphoses into spiraling insecurity that ultimately boomerangs against the State and disquiets the citizenry.
Ejimakor is a constitutional and human rights lawyer.