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How AGF created estoppel against the trial of Nnamdi Kanu

By Aloy Ejimakor

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In 2016, the ‘United Nations Office on Drugs and Crime’ published a scholarly project document in a 691-page colorful compendium, titled ‘Cases and Materials on Extradition in Nigeria’.

This highly celebrated publication was accomplished with the assistance of the European Union, the Federal High Court and several top lawyers from the Office of the Attorney-General of the Federation.

Other project participants included eminent jurists who intellectually dwelt on ‘Extradition’ which, in the final analysis, they contrasted with ‘extraordinary rendition’ with evident disapproval.

Former AGF Abubakar Malami, who had endorsed the project, wrote in the Foreword to the published compendium that: “The compendium consists of constitutional provisions, legislation, subsidiary legislation, judicial pronouncements, treaties and other international instruments on extradition as they relate to Nigeria”.

This is how the office of the Attorney-General of the Federation created an estoppel or legal barrier against the trial of Nnamdi Kanu, way before contradicting itself by endorsing Kanu’s infamous extraordinary rendition. This estoppel is vividly captured in the Introduction to the compendium, which is reproduced below, verbatim:

Attorney General of the Federation and Minister of Justice, Lateef Fagbemi, SAN
Attorney General of the Federation and Minister of Justice, Lateef Fagbemi, SAN

“It is easy to confuse extradition with rendition. Rendition is a general term for all procedures, including extradition, for returning wanted persons or aliens generally, from a State. Unlawful or irregular forms of returning persons wanted for trial or punishment include abduction and the so called “extraordinary rendition”.

“Extraordinary rendition is a government sponsored arrest, kidnap and abductions of persons wanted, accused or convicted of a criminal offence either to the state who sponsored the arrest, kidnap or abduction or to a willing third party state.

“Extraordinary rendition denies a person of the right to challenge his transfer to the requesting or receiving state. It involves the violation of the principles of international law especially where the persons transferred are subjected to torture or sham criminal charges or trials.

“The ‘Dikko Affair’ of 1984 is an example of an attempt at unlawful rendition. After a coup d’état in 1983, the Federal Military Government of Nigeria requested the British government to surrender Umaru Dikko, a former Minister alleged to have been involved in corrupt practices.

“Before the British government responded to the request, an intelligence officer from the Nigerian security forces with three Israeli nationals abducted Mr. Dikko and attempted to cargo him to Nigeria in a crate. This attempt was foiled by the British security apparatus, the abductors were jailed and the relationship between Nigeria and Britain became strained.

“Even though not successful, it was an attempt by Nigeria to go against the international norms in expressing its political will”.

In concluding his Foreword to the compendium, AGF Malami hailed the compendium as “a very good resource material on extradition and it is therefore my pleasure to recommend the Cases and Materials on Extradition in Nigeria to all and sundry, for use in identifying the position of extradition law in Nigeria”.

Malami did not stop there. He underscored his abiding commitment to the due process of extradition, as opposed to the unconstitutionality of extraordinary rendition by deploying some of the finest lawyers in the office of the Attorney-General to the project.

Not done, the office of the Attorney-General went on to profusely thank the United Nations “for its technical support to the Federal Ministry of Justice for the review of laws, development of policy instruments and capacity building for staff of the Ministry in extradition law related areas”.

In view of the foregoing, estoppel shall operate to bar the office of the AGF from defending the rendition of Nnamdi Kanu as a permissible means of conferring criminal jurisdiction. To be sure, estoppel is a vested universal legal principle (also recognized in Nigeria) that precludes a person or entity from asserting something contrary to what is implied by a previous action or statement of that person.

In the light of this circumstance, the ends of justice demand that prosecution of a renditioned suspect must be discontinued at the instance of the AGF, but where such prosecution persists, the courts must apply estoppel to bar any trial.

Aloy Ejimakor is a human rights and constitutional Lawyer.

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