By Dayo Benson & Abdulwahab Abdulah
Ongoing attempt by the National Drugs Law Enforcement Agency, NDLEA,
to extradite Senator Kashamu Buruji to the United States of America
over drug related offences has engendered legal fireworks between both
parties. However, the treaty under which the NDLEA is seeking to
extradite Senator Kashamu dates back to 1931 when Nigeria was still a
colony of the United Kingdom.
The actual treaty was between the UK and the US. Automatically,
Nigeria was bound by the treaty because it was a colony of the UK as
at then. At Nigeria's independence in 1960, the treaty became a
statute of general application as was the case with all laws inherited
from the colonial masters. Since then, it has been part of the
nation's legal system.
After the military incursion into politics in 1966, there was an
Extradition Decree of 1967 which later became Extradition Act, and it
validated the existence of the treaty.
According to the treaty the "contracting Parties engage to deliver up
to each other, under certain circumstances and conditions stated in
the present Treaty, those persons who, being accused or convicted of
any of the crimes or offences enumerated in Article 3, committed
within the jurisdiction of the one Party, shall be found within the
territory of the other Party."
Specifically, Article 3 of the Treaty provides offences for which
extradition can be granted. The Article states:
Manslaughter, administering drugs or using instruments with intent
to procure the miscarriage of women.
Rape.
Unlawful carnal knowledge, or any attempt to have unlawful carnal
knowledge, of a girl under 16 year of age.
Indecent assault if such crime or offence be indictable in the
place where the accused or convicted person is apprehended.
Kidnapping or false imprisonment.
Child stealing, including abandoning, exposing or unlawfully detaining.
Abduction.
Procuration: that is to say the procuring or transporting of woman or
girl under age, even with her consent, for immoral purposes, or of a
woman or girl over age, by fraud, threats, or compulsion, for such
purposes with a view in either case to gratifying the passions of
another person provided that such crime or offence is punishable by
imprisonment for at least one year or by more severe punishment.
Bigamy.
Maliciously wounding or inflicting grievous bodily harm.
Threats, by letter or otherwise, with intent to extort money or
other things of value.
Perjury, or subornation of perjury.
Arson.
Burglary or housebreaking, robbery with violence, larceny or
embezzlement. Fraud by a bailee, banker, agent, factor, trustee,
director, member, or public officer of any company, or fraudulent
conversion.
Obtaining money, valuable security, or goods, by false pretences;
receiving any money, valuable security, or other property, knowing the
same to have been stolen or unlawfully obtained.
-(a) Counterfeiting or altering money, or bringing into
circulation counterfeited or altered money.
(b) Knowingly and without lawful authority making or having in
possession any instrument, tool, or engine adapted and intended for
the counterfeiting of coin.
Forgery or uttering what is forged.
Crimes or offences against bankruptcy law.
Bribery, defined to be the offering, giving or receiving of bribes.
Any malicious act done with intent to endanger the safety of any
persons travelling or being upon a railway.
Crime or offences or attempted crimes or offences in connection
with the traffic in dangerous drugs.
Malicious injury to property, if such crime or offence be indictable.
-(a) Piracy by the law of nations.
(b) Revolt, or conspiracy to revolt, by two or more persons on board a
ship on the high seas against the authority of the master; wrongfully
sinking or destroying a vessel at sea, or attempting to do so;
assaults on board a ship on the high sea, with intent to do grievous
bodily harm.
Dealing in slaves.
Extradition is also to be granted for participation in any of the
aforesaid crimes or offences, provided that such participation be
punishable by the laws of both High Contracting Parties. In Article 4,
"the extradition shall not take place if the person claimed has
already been tried and discharged or punished, or is still under trial
in the territories of the High Contracting Party applied to, for the
crime or offence for which his extradition demanded.
"If the person claimed should be under examination or under punishment
in the territories of the High Contracting Party applied to, for any
other crime or offence, his extradition shall be deferred until the
conclusion of the trial and the full execution of any punishment
awarded to him."
According to Article 5, "The extradition shall not take place if,
subsequently to the commission of the crime or offence or the
institution of the penal prosecution or the conviction thereon,
exemption from prosecution or punishment has been acquired by lapse of
time, according to the laws of the High Contracting Party applying or
applied to."
Also, Article 9 stipulates that : "the extradition shall take place
only if the evidence be found sufficient, according to the laws of the
High Contracting Party applied to, either to justify the committal of
the prisoner for trial, in case the crime or offence had been
committed in the territory of such High Contracting Party,
or to prove that the prisoner is the identical person convicted by the
courts of the High Contracting Party who makes the requisition, and
that the crime or offence of which he has been convicted is one in
respect of which extradition could, at the time of such conviction,
have been granted by the High Contracting Party applied to."
In an appeal filed before the Court of Appeal in Lagos by one George
Chidebe Udeozor against the Federal Republic of Nigeria, which lead
judgement was delivered on June 9, 2004 by Justice Dongban Mensem, the
issue of extradition treaty between Nigeria and United States of
America was one of the four grounds of appeal.
In the case, Udeozor said there was no treaty but the Court affirmed
its existent because it has become part of Nigerians laws. According
to the second ground of appeal in the case, the appellant said the
trial Judge erred in law "when he held that the word 'may' as used in
section 20 of the Extradition Act is permissive and not mandatory and
that the section applies only to commonwealth countries which America
is not part of."
Udeozor (appellant) request was made by the diplomatic representative
of the Embassy of the United States of America Abuja, for his
surrender. The appellant was charged with the offences of conspiracy
to commit involuntary servitude, harbor an illegal alien, and
encourage an illegal alien to come to, enter and reside in the United
States. Also, Udeozor was accused of involuntary servitude and
harbouring an illegal alien for financial gain at the United States
District of Maryland.
Dwelling on the issue of who has power to grant or make orders as
regards extradition request, the court held that: "Section 20
actually reposes the responsibility and powers to ascertain the
conditionality for acceding to an extradition request on the
Attorney-General not on the Court.
"By the provisions of the Act, the Hon. Attorney-General, who is the
Chief Legal Officer of the Federal Republic of Nigeria, has the
discretion to exercise the power. Once he has ascertained that there
exists an offence which falls within the Extradition Act, and he so
orders, the duty of the court is delineated, the court is
circumscribed to question the exercise of discretion by the Hon.
Attorney-General.
"Only upon cogent and compelling reasons challenging the proper
exercise of such powers may the court inquire into the manner of its
exercise. The powers of the Attorney-General in this issue is similar
in extent as when the Hon. Attorney-General initiates a criminal
proceedings or enters a nolle prosequi in a criminal matter. The court
does not question that exercise."
The court noted that the general rule is that extraditable crimes must
be those commonly recognised as malum in se (acts criminal by their
very nature) and not those which are malum prohibitum (acts made
crimes by statute).
Explaining the interpretation of section 6 (1) and (2) of the
Extradition Act, the court stated that it is the duty of the
Attorney-General to receive the request for the surrender of a
fugitive criminal in Nigeria, adding that Section 6 (2) of the Act
reposes the discretion in the Attorney-General to signify to the court
that such a request has been made and he does that only after he
satisfies himself on the basis of the information accompanying the
request, that the provisions of section 3 (1-7) are met.
"Nothing in the Act gives the court the powers to question the
discretion of the Hon. Attorney-General in those matters.
The trial court was therefore right in presuming regularity in the
performance of an official duty. In the absence of any serious
challenge to the proper exercise of discretion by the Hon.
Attorney-General for the Federation, the Court must uphold the
official integrity of the Hon. Attorney-General, and presume that he
carried out his duties as prescribed by section 6(1) and (2) of the
Act," the court maintained.
Meanwhile, in the case of Senator Kashamu Buruji, the Federal High
Court in Lagos has restrained the NDLEA and the Attorney General of
the Federation from taking any step that could jeopardize the outcome
of an appeal filed by the Federal Government on the matter.
vanguardngr.com
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