A MUST READ BY LAWYERS*.
*Please take a time and read this post from
Dr. Mbeli Valentine Tebi. He holds a PhD in law from Nigeria and is
currently the dean of the faculty of law in a Ugandan university*.
He explains the worries most of us have on the arrest of the leaders of Ambazonia.
*CAN THE AMBAZONIA LEADERS BE EXTRADITED?*
*INTRODUCTION*
A few days ago i wrote on the arrest of the
leaders of the Federal Republic of Ambazonia by the Nigerian authorities
apparently at the behest of the Cameroonian authorities. In that
write-up i dwelt more on the socio-political dimensions
of the arrest and how possibly it will play out.
In this piece, i intend to engage some
topical legal issues relating to extradition in particular of whether
those arrested are extraditable.
*WHAT IS EXTRADITION?*
For purposes of this article, i will like to
adopt the definition of the Nigerian Court of Appeal in George Udeozor v
Federal Republic of Nigeria, where it defined extradition as "the
process of returning somebody, upon request,
accused of a crime by a different legal authority to the requesting
authority
for trial or punishment". In other words,
extradition is a legal process where one jurisdiction known as the
requested state is made to deliver to another jurisdiction known as a
requesting state, a person or persons accused or
convicted of crime in the requesting jurisdiction. Such a person or
persons are therefore returned to face trial or serve any punishment
validly handed down by a court of competent jurisdiction in the
requesting state.
*LAWS GOVERNING EXTRADITION*
As a rule of international law, extradition
is not automatic i.e. there is no obligation on states to extradite
suspects or offenders to other sovereign states. To that extent,
extradition is largely regulated by conventional international
law through the instrument of treaties. This rule however operates
subject to an exception as we shall see subsequently.
Even where there exists an extradition
treaty allowing a sovereign state to arrest and deliver a fugitive to
another state to stand trial of serve a punishment, there is an explicit
legal procedure that must be followed. This procedure
is espoused in the relevant statutory instruments. A key point to note
is that extradition is not simply an arrest and handover process. It has
to go through the rigorous process of court adjudication where an
application to that effect may either be granted
or rejected. A decision not favourable to any party to an extradition
suit may equally be appealed through the relevant appellate channels to
the Court of Appeal and eventually to the Supreme Court.
That having said, it is important to address
the question as to the applicable law in extradition cases. Where there
exist a valid extradition treaty between two sovereigns, and a request
has been duly made by the requesting state,
the matter has to be submitted to the jurisdiction of the requested
state in which case the applicable law is that of the requested state.
Assuming without conceding that a request has
been duly made by Cameroon to Nigeria to arrest and deliver the leaders
of the Federal Republic of Ambazonia, it will follow from the foregoing
analysis that the applicable law will
be that of Nigeria.
In Nigeria, there is a plethora of statutory
instruments governing extradition proceedings. The Constitution of the
Federal Republic of Nigeria, 1999 as amended lays down a broad legal
framework which vest exclusive jurisdiction
to hear extradition matters in the Federal High Court. The
constitutional framework is operationalised by a number of legislative
and regulatory instruments, notably, the Extradition Act and the Federal
High Court (Extradition Proceedings) Rules 2015.
*REQUIREMENTS FOR EXTRADITION*
It has already been mentioned that the
existence of a valid extradition treaty is condition sine qua non for
extradition to take place. This stems from the fact that there is no
obligation under international law to extradite. It
equally resonates with the rule of international law that parties to a
particular treaty should be bound by their agreement (pacta sunt
servanda).
Following this principle, the court in George
Udeozor v.Federal Republic of Nigeria, held that "the right of one
State (country in the present circumstance), to request of another, the
extradition of a fugitive accused of crime,
and the duty of the country in which the fugitive finds asylum to
surrender the said fugitive, exist only when created by a treaty"
Riding on the principle of law and the
decision of court cited above, it may easily lead to the conclusion that
the Nigerian Court will be in want of jurisdiction to grant an
extradition order for the simple fact that there is no
extradition treaty between Nigeria and Cameroon.
However, it does not end there. There is
indeed a leeway which the government of Cameroon may likely exploit.
This comes from the categorisation of states under the Nigerian
Extradition Act. Aside the general rule that the Extradition
Act is only applicable to a State that has an extradition treaty with
Nigeria, the Act, by way of exception makes special recognition of
Commonwealth states under section 2 (1) in that that the Act is
applicable to “every separate country within the Commonwealth"
The necessary implication here is that in the absence of an extradition
treaty, extradition proceedings are still maintainable having regards
to section 2(1) of the Extradition Act. This is similar to the common
law principle of rendition.
But still this does not come cheaply as the
court is bound to take into consideration all material facts and
principles of law relevant to extradition. While it is clear on the face
of it that Cameroon can make an extradition request
to Nigeria on the strength of its membership of the Commonwealth as
guaranteed under section 2(1) of the Extradition Act, it remains
arguable whether the Attorney General of Nigeria can successfully
initiate and secure the granting or an extradition order
by the Federal High Court. This takes us to the procedure for
extradition under Nigerian law.
*PROCEDURE FOR EXTRADITION*
Attention must be brought to the fact that an
extradition proceedings is in many ways similar to any other court
proceedings with the parties relying on all relevant facts and the court
guided by the rules of evidence in particular
of relevancy and admissibility.
The procedure for extradition starts with a
request for the surrender of a fugitive criminal, made in writing to the
Attorney-General of the Federation of Nigeria. The request is made by a
diplomatic representative or consular officer
of the country making the extradition request. Upon receiving the
request, the Attorney-General has the discretion as to whether or not to
initiate extradition proceedings. The discretion of the
Attorney-General means he cannot be compelled by order of mandamus
or otherwise to initiate extradition proceedings where he has exercised
the discretion to not proceed.
Where the Attorney General opts to initiate
extradition proceedings, he makes a substantive application to the
Federal High Court alongside the relevant supporting documents as
required by the Federal High Court (Extradition Proceedings)
Rules. On the basis of the application, an extradition hearing is then
slated with the A.G first addressing the Court and arguing for the
surrender of the fugitive to the requesting state. Where the court makes
an order for the extradition of the fugitive
then he may be surrendered after the time stipulated by the order.
WHAT ARE THE POSSIBLE
*DEFENCES AGAINST THE EXTRADITION REQUEST OF CAMEROON AGAINST THE AMBAZONIA LEADERS?*
Should it turn out that the Attorney General
of the Federal Republic of Nigeria decides to make a substantive
application to the Federal High Court for an extradition order against
the leaders of the Federal Republic of Ambazonia,
this will be a fiercely contested legal battle where the standard of
proof must be beyond all reasonable doubts. Here are some possible line
of defences that may be explored by Counsel to the respondent.
Failure to convince the court that the
application for extradition order is incompetent for want of an
extradition treaty between Nigeria and Cameroon, Counsel may proceed to
argue that the offences alleged to have been committed
by the leaders are not extraditable offences. This can successfully be
argued within the ambit of the Nigerian law.
1.) It is trite law that an extradition order
will not been granted where it is aimed at prosecuting or punishing the
fugitive on account of the fugitive’s race, religion, nationality or
political opinions. See Section 3(2) (a)
Extradition Act. Political offences are clearly not extraditable.
According to United Nations Office on Drugs and Crime Country Office
Nigeria these offences are "acts or conducts that are directed against
government or sovereign authorities of state without
elements of common crime. These crimes violate the State and not any
individual person". Examples of political offences have been given by
Kenelly J.J. to include: treason, sedition, espionage and to a large
extent disagreement with state ideology. The crimes
alleged to have been committed by the Ambazonian leaders by all
descriptions fit the notion of political crimes which as earlier
indicated, are not extraditable.
2.) The likelihood of an unfair trial in the
requesting country. The idea behind extradition is not to try the
accused for alleged crime but to ensure that the fugitive is delivered
to face trial under the relevant penal laws of
the requesting country. Although rules of private international law
forbid the application of foreign penal laws in Nigeria, the Nigerian
court must however take cognizance of the basic rules of criminal
procedure, in particular of the right to fair hearing.
Therefore even where the offence committed by the fugitive is not
political and is otherwise extraditable, an extradition request will
nonetheless be rejected if the fugitive offender 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. If the Attorney General makes a
request for extradition and the fugitive will be subjected to an unfair
trial or unlawful discrimination in the requesting
State, the fugitive may prove the relevant facts to the notice of the
Judge. A clear case of impermissible unfairness that is likely to result
from the extradition of those arrested and which the Nigerian court
must remain alive to is the fact that the said
offences are to be tried by a military tribunal in clear violation of
the fundamental rule of criminal justice which forbids the trial of
civilians in military court. Under the United Nations Model Treaty on
Extradition, it is a mandatory ground for refusing
extradition if the offence for which extradition is requested is an
offence under military law.
3.) Torture. The Nigerian Court will not
grant an extradition order where there is incontrovertible evidence to
show that the fugitive criminal will be exposed to torture by the
requesting state. This is because Nigeria is a party
to the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. Article 3 of the
Convention expressly prohibits state parties from expelling, returning
“refouler”, or extraditing any person to a state where there
are substantial grounds for believing that he would be in danger of
being subjected to torture. Evidence gathered from the Maximum Security
Prison in Yaounde, the cruel, inhuman and degrading treatment
administered on prisoners, and most especially those hidden
in BUNKERS can all attest to an eminent danger of torture. It fact,
there is informed public opinion that a release of the leaders of
Ambazonia will mean releasing for execution and nothing less. The is a
strong point which the court can rely on to dismiss
any application for an extradition order.
In summation, the Ambazonian leaders stand a
good chance of challenging the the request for their extradition by the
Federal Government of Nigeria to Cameroon.
*JUST TO INCREASE THE LEGAL KNOWLEDGE OF LAWYERS ON EXTRADITION LAW.*
*Courtesy BA SAMA II.*
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