LEGAL IDEAS FORUM

Extradition: One of the exceptions to the Territoriality of law, effect on the arresting of Nnamdi Kanu.

By J.L Akanbi

Introduction:
Hypothetically, if Mr Ralph who contravened the legislation in Jurisdiction A and run to Jurisdiction B for asylum, can such person be tried there? Or can a country where he committed the offence has right to go and arrest him there? Or even, can he be sent back to where he committed the offence? Even if he would be sent back to his country where he committed the offence, through what? All these salient questions will be answered in my write-up expressly or impliedly.

It is well established principle of law that, law has territorial limitation. And a law applicable in this jurisdiction might be quiet differed from the one applicable in another state.And No state can Impose its binding law in another country after its boundary.

The law is clear like Fourteenth day moon in a month,that every existing law has territorial limitation,the basis of territorial jurisdiction and its indispensable foundation for the application of series of legal rights that a state possesses.That a law made by a country can only applicable within the conferred jurisdiction of such country at the international level. And regarding any activities of a state within its territoriality is for such state to decide base on the principle of “Territorial sovereignty of the State”. State has right to control its destiny without any external intervention, as it has right to prosecute for offences committed within its territory.

Alas! All crimes alleged to have been committed within the territorial jurisdiction of a state may come within the domestic court of that state,and the law applicable in that state applicable in respect of that omission.

The law is sttled like sand contains in the bottle of water, that the Territorial jurisdiction is that the court of one country does not as a general rule have jurisdiction in respect of an events or offences committed within the purview of the other state.see the case of KAUNDA V PRESIDENT OF SOUTH AFRICA (CC 23/04/) (2004) ZACC 5 (4 AUGUST 2004) Wherein The court held that It is a general rule of international law that the laws of a state ordinarily apply only within its own territory.

There may be special circumstances where the laws of a state are applicable to nationals beyond the state’s borders, but only if the application of the law does not interfere with the sovereignty of other states.And also see LOTUS CASE 1927, Under the principle espoused by the Permanent Court of International Justice held that, States are in principle free to exercise prescriptive jurisdiction over a given situation as they please, unless a prohibitive rule to the contrary could be identified.
Also see the case of R V. COOKE (1998)

It is in my humble view, that the country’s legislation can only be within the territorial jurisdiction of that state which it can legislate,enforce, and apply the law to the only issues arises in that territory. In fact, there is a presumption that the legislation applies within the territory of one state concerned and not any other state.

Extradition is a principle of International law, wherein an action of one territory delivers a person, accused or convicted of committing a crime in another jurisdiction, over to the other’s law enforcement agencies of such other country, simply because of both states mutuality on treaty main for such purpose between them before the inception of the crime. R v. ARTON (No.1) [1896] 1 Q.B.108. Where the court held that The law of extradition is without doubt founded upon the broad principle that it is to the interest of civilised communities that crimes acknowledged as such should not go unpunished and it is part of the comity of nations that one State should afford to another every assistance towards bringing persons guilty of such crimes to justice.


Attorney-General of the FEDERATION V LAWAL OLANIYI BABAFEMI Olaniyi A.K.A“Abdullahi”,“Ayatollah Mustapher (Babafemi)”Suit No:FHC/ABJ/CR/132/2013e Respondent was wanted for conspiracy to provide support to a Foreign Terrorist Organisation in the United States.It was enough to show to the Federal High Court that there was a subsisting indictment against the Respondent as well as a warrant issued by a United States Magistrate Judge for the Respondent’s arrest. These qualified the Respondent as an extraditable person. It is a cooperative law enforcement procedure between the two jurisdictions and depends on the arrangements made between them.

The practice enable one state to handover state suspected or convicted criminals who have escaped to her territory. As was held in THE HOUSE OF LORDS decisions in GOVERNMENT OF DENMARK V NIELSEN (1984) 2 All ER 81; 74 ILR, p.458. In addition to legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction, also in the UNITED STATE GOVERNMENT V. MC CAFFERY (1984) 2 All ER 570.wherein court held that for extradition to be granted it should be double criminality I.e that the crime involved should be a crime in both states concerned, that is the requested state and the requesting state.

In an extradition process, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction (“the requested state”). If the fugitive is found within the territory of the requested state, then the requested state may arrest the fugitive and subject him or her to its extradition process. The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state.

It should be inculcated in our minds that, the requested state and the requesting state must reach covenant between themselves ab initio. extradition is normally regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition. It is an ancient mechanism, dating back to at least 13 century.

Ordinarily, No states is obliged to surrender any criminal or fugitive of other state in his territory, to another state. No any principle of international law obliged a jurisdiction to also arrest a fugitive in her state on behalf of the offence committed in another state. But it is base on mutual agreement between the two jurisdictions. because one principle of sovereignty is that every state has legal authority over the people within its borders. As was held by Lord Macmillan in the case of COMPANIA NOVIERA VASCONGADO V. CRISTIANA SS (1938) AC 485,_7; 9 AD. pp250,259. That the territorial basis for the exercise of jurisdiction reflects one aspect of the sovereignty exercisable by state in its territory I.e a state has absolute control over all people in its territory whether its nationals or nationals of other state. And Such absence of international obligation, and the desire for the right to demand such criminals from other countries, have caused a web of extradition treaties or agreements to evolve. When no applicable extradition agreement is in place, a sovereign may still request the expulsion or lawful return of an individual pursuant to the requested state’s domestic law.

This can be accomplished through the immigration laws of the requested state or other facets of the requested state’s domestic law. Similarly, the codes of penal procedure in many countries contain provisions allowing for extradition to take place in the absence of an extradition agreement. Sovereigns may, therefore, still request the expulsion or lawful return of a fugitive from the territory of a requested state in the absence of an extradition treaty.

Generally, the following should be the conditions for extradition treaty requires to extradite a criminal or fugitive:

  • The relevant crime is sufficiently serious.
  • There exists a prima facie case against the individual sought.
  • The event in question qualifies as a crime in both countries.
  • The extradited person can reasonably expect a fair trial in the recipient country.
  • The likely penalty will be proportionate to the crime.
    And all this should not violate fundamental Human rights of the fugitive. See SOERING CASE as was decided by European Court of Human Rights (1989) series A, NO. 161; 98 ILR, p. 270 also see the case of SAADI V. ITALY as was equally decided by European court of Human Rights, Judgment on 28 February 2008.

The Main Extrication’s statues in Nigeria:
The main legal instruments generally relevant to extradition are: The Constitution of the Federal Republic of Nigeria 1999, (1999 Constitution);Extradition Act,1966; Extradition Act (Modification) Order, 2014 and Federal High Court (Extradition Proceedings) Rules 2015. Other relevant laws are the Evidence Act, 2011;Administration of Criminal Justice Act, 2015; Federal High Court Act,1973; and criminal or penal laws including the Criminal Code, Penal Code and penal provisions of other laws relating to criminal justice.

At this juncture, it should be the abode of this piece to know who actually is Nnamdi Okwu Kanu, Kanu was born 25 September 1967),is a Nigerian pro-Biafra political activist, who is also a British citizen. He is the leader of the Indigenous People of Biafra (IPOB). Kanu founded IPOB in 2014.The main aim of IPOB is to restore the separatist state of Biafra which existed in Nigeria’s Eastern Region during the Nigerian Civil War of 1967–1970. He is from Abia state of Nigeria and attended University of Nigeria, Nnsukka. He is a forefront of the agitators of The REPUBLIC OF BIAFRA, He is of the view that Eastern part of Nigeria should be ceded from Federal Republic of Nigeria. And such it is ultra vires to the provisions of Section 2 (1) of 1999 CFRN as (amended) it provides that:

Nigeria is one indivisible and indissoluble sovereign state to be known by the name federal Republic of Nigeria. And also section 1 (2) of the same constitution provides:

The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provision of this constitution. Kanu was on this note of the breach of this two fundamental provisions of the constitution.

However, Justice Binta Nyako of the Federal High Court in Abuja had recently revoked the bail granted to Kanu and ordered for his arrest. She said Kanu has failed to show up at his trial since the bail was granted in April 2017.


Whereas, Kanu was of the viewed that;
“First, I am not a Nigerian citizen. Your bail revocation will never ever work. Anybody interested in revoking my bail would have asked the army what they were doing in my place,” he said. Kanu also insisted that his group, IPOB, will continue on its chosen mandate, which is to agitate for secession.
Kanu reiterated that: “They have not even defined the crime they said I have committed. There is no crime in Nigeria called secession; secession is not a crime in Nigeria or anywhere in the world.

Justice also added that until he is re-arraigned before the court, the trial, which was adjourned to June 18, would go ahead in his absence. Kanu had been charged with terrorism and treason, alongside four others: Bright Chimezie, Chidiebere Onwudiwe, Benjamin Mmadubugwu, and David Nwawusi. The charges were, however, later separated and the others were charged with simply three count of treasonable felony.

Treasonable felony is define, According to section 41 of Criminal Code Act 1990 provides:
Any person who forms an intention to effect any of the following purposes, that is to say‐ L.N. 112 of 1964. 1967 No. 27. (b) (c) (d)

(a) to remove during his term of office otherwise than by constitutional means the President as Head of State of the Federation and Commander‐in‐Chief of the Armed Forces thereof;

(b) or to likewise remove during his term of office the Governor of a State; or

(c) to levy war against Nigeria in order by force or constraint tocompel the President to change his measures or counsels,or in order to put any force or constraint upon, or in order to intimidate or overawe any House of the National Assembly or any other legislature or legislative authority; or

(d) to instigate any foreigner to make any armed invasion of Nigeria or any of the territories thereof, and manifests such intention by an overt act, is guilty of a felony and is liable to imprisonment for life.

A person charged with any of the felonies defined in this section is not entitled to be acquitted on the ground that any act proved to have been committed by him constitutes the offence of treason; but a person who has been tried, and convicted or acquitted, on a charge of any such offence, cannot be afterwards prosecuted for treason in respect of the same facts.

Kanu was first arrested in Nigeria on October 14, 2015, following years of his campaign for the sovereign state of Biafra he fled to United Kingdom, jump bail, where he has a citizenship by registration in UK and he was given a total asylum therein. Which deny of Nigeria to arrest him. Kanu was being track down

He was granted bail in April 2017 but fled the country after soldiers invaded his residence in Abia state during a military clampdown on IPOB members. For almost four years after he fled the country, the separatist leader piloted the affairs of IPOB from abroad.

KANU traveled from UK to Kenya where he was of being no hope of being tailed whatsoever, and he was therefore extracted from there to Nigeria. And subjected him to his previous ongoing proceeding before the Federal High Court Abuja.

It’s in my humble submission, that the initial hypothetical questions raised have been exhausted with answers. I therefore, put forwards that, Extradition is a principle of law that’s used to transfer a person accused or sentence from one jurisdiction to another in order to subject him to his fair trial or punishment in that jurisdiction.

About the Author

J.L Akanbi is a law student of Usmanu Danfodiyo University, Sokoto. He is a prolific legal researcher and author

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