Abba Kyari: Why FG May Not Extradite Him To United States

The request by the United States government to have the former Head of the Inspector-General of Police (IGP) Intelligence Response Team (IRT) Deputy Commissioner of Police (DCP) Abba Kyari extradited to the US to face criminal charges of money laundering may be delayed due to his arrest and planned arraignment in court by the federal government.

This is because the Nigeria Extradition act restrains the government from acceding to any extradition request in a case of a person facing criminal charges in Nigeria.

The ex-IRT helmsman was on Monday declared wanted by the National Drug Law Enforcement Agency (NDLEA) over his alleged involvement in a 25kg drug deal. He was subsequently arrested by the police and handed over to the anti-drug agency same day where he is presently being detained pending the conclusion of investigations.

At a briefing on why Kyari was wanted, NDLEA Spokesperson Femi Babafemi said the NDLEA believed “strongly” that the suspended officer was “a member of a drug cartel that operates the Brazil-Ethiopia-Nigeria illicit drug pipeline, and he needs to answer questions that crop up in an ongoing drug case in which he is the principal actor”.

He said Kyari, despite being suspended, led a team that “intercepted” some traffickers.

Other police officers indicted together with Kyari are, ACP Sunday Ubuah, ASP Bawa James, ASP John Umoru (at large), Inspr. Simon Agrigba and John Nuhu.

Section 11 of the Nigerian extradition law states that “ Subject to subsection (2) of this section, where a fugitive criminal, (a) has been charged with an offence triable before any court in Nigeria; or (b) is serving a sentence imposed by any court in Nigeria, then, until such time as he has been discharged (whether by acquittal, the expiration or remission of his sentence or otherwise howsoever) he shall not be surrendered except as permitted by any law in force in Nigeria.

However, in the case of a request by a commonwealth nation, the law gives a condition for surrender.

And in section 3 “Restrictions on surrender of fugitives”, the law further states that “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”, or “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; or is serving a sentence imposed in respect of any such offence by a court in Nigeria, shall not be surrendered until such a time as he has been discharged whether by acquittal or on the expiration of his sentence or otherwise”.

Also the person “ shall not be surrendered to any country unless the Attorney General is satisfied that provision is made by the law of that country, or that special arrangements have been made, such that, so long as the fugitive has not had a reasonable opportunity of returning to Nigeria, he will not be detained or tried in that country for any offence committed before his surrender other than the extradition offence which may be proved by the facts on which the surrender is granted”.

However, the act provides that a prisoner serving such sentence as is referred to in subsection (1)(b) of this section, may at the discretion of the President, be returned temporarily to another country within the Commonwealth in which he is accused of a returnable offence to enable proceedings to be brought against the prisoner in relation to that offence, on such conditions as may be agreed between the President and that country requesting the surrender of the prisoner”.

But since the United States is not a member of the commonwealth, legal practitioners said the US cannot be a beneficiary of the above provisions of the law

Legal practitioners who spoke to Businessday said there are two options open to the government in the case.

One is to assent to the extradition request by ignoring whatever would be the outcome of the current NDLEA investigation since the request by the US government through the Federal Bureau of Investigations, (FBI) preceded the drug issue.

The second option is to await the report of the NDLEA investigations and if a prima facia case is established, charge Kyari to a Nigerian court and use that as an excuse to decline the extradition request.

In supporting the later argument, an Abuja-based senior lawyer Danladi Ephraim cited the ongoing case involving the Yoruba Freedom fighter Sunday Ighoho whom the Republic of Benin Government declined extradition request from Nigeria on the grounds that Igboho was facing a criminal case in their country.

A Beninese court had blocked the extradition move of Igboho to Nigeria while ruling that the activist be remanded in prison pending further hearing.

He was arrested at the Cotonou airport by West Africa’s national security forces while he was trying to visit Germany in July 2021. The 49-year-old agitator left Nigeria for the Benin Republic after the Federal Government declared him wanted and has so far spent over 200 days in detention in Benin Republic prison.

Another legal practitioner, Sam Nwosu, said extradition proceedings in Nigeria are strictly guided by the Extradition Act and Extradition proceedings rules stressing that the Federal Ministry of justice has the obligation to ensure that certain prerequisites are followed and fulfilled according to the law.

According to him, not all crimes are extraditable offences: “it is not enough to show that the alleged fugitive has committed an offence. It must be shown that the alleged offence is an extraditable offence. Any request for extradition aimed at prosecuting or punishing any fugitive on account of the person’s race, religion, nationality, or political opinions will be refused”, he said

Referring to the provisions of section 11 of the extradition act, Nwosu posited that should the federal government arraign Abba Kyari in court over drug-related cases, it could serve as grounds to decline the request for his extradition by the United States government. He however said it all depends on the disposition of the government to the case.

Nigeria has extradition treaties with several countries, prominent among which are the United Kingdom, United States of America, South Africa, and Liberia.

In the case of the United States, Nigeria signed the extradition treaty on December 22, 1931, which entered into force on June 24, 1935. Since then Nigeria has extradited several persons to the US for various reasons.

They include Adedeji Adeniran, in 1979, Lawal Babafemi 2013 and Buruji Kasahmau 2015. But there is no public record showing the extradition of any person TO Nigeria by the United States government.