Nigeria under treaty to release Kanu without court order

In addition to the permanent prosecutorial barriers erected by the extraordinary extradition of Mazi Nnamdi Kanu due to the provisions of the Nigerian and Kenyan extradition laws, other laws, particularly the jurisdiction to punish Nnamdi Kanu from the Nigerian courts There are treaties that have irrevocably taken away rights. At present, there is a possibility of a trial or even detention.

In layman's terms, Nigeria has not allowed Nnamdi Kanu to be transferred from Kenya to Nigeria without first establishing that the act of transferring him from Kenya is in conformity with the basic tenets of the treaties to which Nigeria is subject by ratification or by law. cannot legally impose a sovereign right of criminal prosecution or detention. of the Diet.

This is merely a precedent for the basic conditions without which, as a matter of black book law, the trial and detention of Nnamdi Kanu would be unsustainable. The whispered idea that extraordinary interpretation is an archaic concept in international law and therefore does not apply to Nigeria is completely false and retrograde. In particular, there is a little-known (and often ignored) Nigerian law enacted by Parliament in 1983. This prohibits anomalous transfers and illegal cross-border removals.

This law is known as the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, codified in the Federal Act of Nigeria CAP A9 of 2004. Article 12, Section 4 of this law stipulates that “non-nationals legally admitted to the country”. Within the territory of a State party to the present Charter, expulsion from the Charter may only be effected by a decision taken in accordance with law. ”

Indeed, Nnamdi Kanu, a Kenyan non-citizen, legally entered Kenya on May 12, 2021, but was subsequently expelled on June 27, 2021 without “a decision taken in accordance with the law.” or deported from Kenya to Nigeria. .

Arguably, both Nigeria and Kenya are parties to the Pro-African Charter, a version of which Nigeria later incorporated into its Local Government Act in 1983 (cited above). In effect, Nigeria became bound to this Charter both by treaty (ratification) and by law. Domestication (Act of Parliament).

Furthermore, another lesser-known Nigerian law, the Mutual Assistance in Criminal Matters within the Federation (Enactment and Enforcement) Act, is clearly provided for in sections 4 to 6 and provides that such There are strict procedures prescribed that must be followed in any situation such as: Nigeria has requested assistance in criminal matters, including the removal and extradition of fugitives from Commonwealth countries, of which Kenya is one.

These procedures absolutely require the consent of the refugee state in which the fugitive is found. In particular, Article 6(5) states that “the provisions of Articles 4, 5 and 6 of this Act shall apply mutatis mutandis, as appropriate, where Nigeria is either the Requesting State or the Requesting State. It is clearly stated that “shall be done.'' In this case, Nigeria is the requesting country.

The same African Charter (continental version) provides in its “Principles and Guidelines on the Rights of Man and Peoples in Countering Terrorism in Africa” (Part 5 (A)): Transferring individuals to detention in another country unless provided for by law and in accordance with due process and other international human rights obligations. Deportation, banishment and deportation cannot be used to avoid criminal justice proceedings, including extradition proceedings. Anomalous or other transfers without due process are prohibited. ”

What immediately stands out from the law is the following language: “Anomalous transfers or other transfers without due process of law are prohibited.” Since Nigeria is bound by the treaty to this instrument, the Kanu case must closely follow the famous precedent set in General Sani Abacha v. Gani Fawehinmi, where the Supreme Court held: “When a treaty is enacted into law by a State,” as in the case of the African Charter, the National Assembly is binding, and our courts, like all other laws within the jurisdiction of the court, This Charter must be given effect. Therefore, the trial of Kanu is prohibited by the provisions of this Convention (African Charter), and the enforcement of special trials is expressly prohibited.

Furthermore, anticipating that any African country may become lawless and commit extraordinary acts (such as this one), it further states: “Principles and Guidelines on Human and People's Rights in Countering Terrorism in Africa''. The African Charter document (in Part 1), known as the African Charter (F), states: “States shall provide full and effective reparations to individuals whose human rights have been violated as a result of acts committed in the name of counter-terrorism.”

Full and effective reparation should include restitution, compensation, rehabilitation, satisfaction and guarantees of non-recurrence. When reading these provisions, keep in mind that the charges leveled against Guan Yu are all quasi-counterterrorism.

Regarding what “reparations” is, the UN's “Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Serious Violations of International Human Rights Law and Serious Violations of International Humanitarian Law” refers to Part IX (19). It is defined as follows: “Reparations must restore victims to the situation they were in before gross violations of international human rights law occurred.

Reparations include restoration of freedom and return to one's place of residence. In Kanu's case, that is Kenya. It is indisputable that Nigeria is bound by these provisions by virtue of being a member of the United Nations and having ratified its instruments.

In view of the above, it is a fundamental principle of law that extradited fugitive suspects cannot be detained or tried in the extraditing state. The only legal window is to compensate or restore such persons to their status quo, or to send them back to their country of origin.

It is pertinent to emphasize that an extraordinary sentence inherently destroys any prospect of a fair trial in the country in which it is imposed. This was precisely why Britain rejected Nigeria's formal extradition application after Umaru Dikko's extradition was halted.

Therefore, the next best course of action for the Nigerian authorities is to immediately release Nnamdi Kanu and comply with relevant laws and treaties. Any act to the contrary is egregious and stigmatizes Nigeria as a country that chooses punishment over the rule of law.

As history teaches us, such impunity creates palpable tensions that quickly turn into spiraling unrest that ultimately boomerangs against the nation and destabilizes its people.
Ejma Cole is a constitutional and human rights lawyer.

Source: guardian.ng