Law

Dust over ‘bungled’ Kyari’s extradition

Dust over ‘bungled’ Kyari’s extradition

Lawyers: Kyari’s extradition suit filed by AGF in bad faith

AKEEM NAFIU writes that lawyers have berated the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN), for seeking a court’s order to extradite the suspended Deputy Commissioner of Police (DCP), Abba Kyari, currently facing trial in Nigeria to the United States for another criminal trial, in clear violation of Section 3 (f) of the Extradition Act which forbids same

 

“The AGF is in a position to know that Abba Kyari is standing trial on offences bordering on the provisions of the NDLEA Act, and more so, when he granted the fiat by which the prosecution was undertaken. He also knew or ought to know what to do if he truly desire to bring the extradition application.

“He’s supposed to be learned and knows the law unless he admits of the charge of gross incompetence beyond mere negligence as the learned judge lightly assumed in dismissing the application, and holding that the application is in breach of Section 3 (f) of the Extradition Act, and that it is incompetent”, one of them said.

Another one said: “The AGF should know better as a law officer of the country that the case of Kyari is a ‘fait accompli’, which means the suspended head of the Inspector General of Police Intelligence Response Team cannot be extradited to the United States since he is facing drug-related crime charges brought against him by the National Drug Law Enforcement Agency (NDLEA).

 

“This was pre-arranged and pre-determined long before this decision of the Federal High Court which reflected the sinister plot of the AGF to frustrate the actual extradition of the Borno-born police officer to the USA”.

The above quotes were part of submissions of some senior lawyers while reacting to the court’s dismissal of an application filed by the Attorney General of the Federation (AGF), Abubakar Malami (SAN), seeking to extradite the suspended Deputy Commissioner of Police (DCP), Abba Kyari, currently facing trial for drug-related offences, to the United States.

The lawyers opined that the AGF, as the Chief Law Officer of the country ought to know that Kyari’s case is a ‘fait accompli’ going by the provisions of Section 3 (f) of the Extradition Act and as such he cannot be extradited to anywhere while his trial over another alleged criminal offence is ongoing.

Malami had on March 1, 2022, filed an application marked FHC/ ABJ/CS/249/2022 before Justice Inyang Ekwo of a Federal High Court in Abuja seeking to extradite Kyari to the United States to face trial over his alleged complicity in the $1.1million wire fraud perpetrated by a notorious internet fraudster, Ramon Abbas, popularly known as Hushpuppi and 4 others.

The extradition application was filed by the AGF, few days after he okayed the filing of an 8-count charge bordering on drug-related offences against Kyari by the National Drug Law Enforcement Agency (NDLEA).

 

However, in his objection to the application, Kyari had argued that he could not be extradited because of his ongoing trial over drug-related offences. Countering the argument, the AGF said the extradition suit could proceed since the offences Kyari was facing in Nigeria are not the same as that for which he is wanted in the United States.

The AGF said he was satisfied that the offence in respect of which Kyari is to be surrendered is neither political nor trivial. He also expressed satisfaction that the request for the surrender of Kyari was not made to persecute or punish him on account of his race, religion, nationality or political opinions but in good faith and the interest of justice.

Malami said: “Kyari, if surrendered, will not be prejudiced at his trial and will not be punished, detained or restricted in his personal liberty, by reason of his race, nationality or political opinions.

“Having regard to all the circumstances in which the offence was committed, it will not be unjust or oppressive, or be too severe a punishment, to surrender him”. But delivering judgement on the AGF’s request, Justice Ekwo held that the application was “incompetent and bereft of merit”.

Justice Ekwo further held that the AGF, being the Chief Law Officer of the country, ought to be aware that the Extradition Act, forbids the surrendering of a defendant that is already facing trial before a competent court in the country. The judge also queried why the AGF approached the court with the extradition application when he was equally the one that issued fiat to the National Drug Law Enforcement (NDLEA) to prosecute DCP Kyari on drug-related charges.

“The AGF could not say that he was not aware of the pending proceedings against the defendant which was entered against him by the NDLEA. The position of the law was very clear that the suspended DCP, having been arraigned before a court of competent jurisdiction in the country, shall not be surrendered until such case has been discharged either by his conviction or acquittal. “I find that this application was brought in bad faith,” Justice Ekwo said.

US extradition request

In April 2021, a jury had filed an indictment against Kyari with the approval of the U.S. District Court and demanded Kyari stand trial for conspiracy to commit wire fraud, money laundering and identity theft. He was indicted in an international wire fraud worth over $1.1 billion traced to another Nigerian, Abass Ramon, also known as Hushpuppi.

Following his indictment, the Diplomatic Representative of the U.S. Embassy in Abuja wrote the Nigerian Government requesting for Kyari’s extradition to America.

 

The request reads: “On April 29, 2021, based on the indictment filed by the grand jury and with the approval of the United States District Court for the Central District of California, a deputy clerk of the court issued a warrant of arrest for Kyari. “The arrest warrant remains valid and executable to apprehend Kyari for the crimes with which he is charged in the indictment.

Kyari is wanted to stand trial in the United States for conspiracy to commit wire fraud, money laundering and identity theft. “Kyari is the subject of an indictment in case Number 2:21-cr-00203 (also referred to as 2:21-MJ-00760 and 2:21-CR- 00203-RGK), filed April 29, 2021, in the United States District Court for the Central District of California”. The charge against Kyari reads: “Count one: Conspiracy to commit wire fraud, in violation of Title 18, United States Code, Section 1349, carrying a maximum term of imprisonment of 20 years; “Count two: Conspiracy to commit money laundering, in violation of Title 18, United States Code Section 1956(h), carrying a maximum term of imprisonment of 20 years. “Count three: Aggravated identity theft, and aiding and abetting that offence, in violation of Title 18, United States Code, Sections 1028A(a)(1) and 2(a), carrying a maximum term of imprisonment of two years”.

Lawyers knock AGF

In the meantime, the court’s dismissal of an application filed by the Attorney General of the Federation (AGF), Abubakar Malami (SAN), to extradite Abba Kyari to the United States has drawn the ire of some senior lawyers.

The lawyers while speaking on the issue at the weekend said the action of the AGF in filing the application is highly regrettable because it violates the extant provisions of the Extradition Act. Speaking on the issue, a Senior Advocate of Nigeria (SAN), Mr. Ebun-Olu Adegboruwa, argued that the fresh charges by the NDLEA were part of a plot to shield the suspended DCP from extra-dition to the United States, saying for as long as Kyari is standing trial in Nigeria, he cannot be extradited to the US by the Nigerian government.

Adegboruwa said: “There is a belief that the charges filed are a purported conspiracy theory to shield Abba Kyari from extradition.

The Inspector General of Police was reluctant in investigating the cases of corruption Kyari was embellished in. “What we see from the AGF is just part of the widely believed theory. And of course, the fresh charges will prevent him from being extradited. You cannot be extradited when you are answering to fresh charges”.

Also condemning the AGF’s action, a legal expert, Chief Iheke Solomon, accused the AGF of being mischievous in filing the extradition application against Kyari. “In a letter dated February 4, 2022, issued through the Director of Public Prosecution (DPP), Federal Ministry of Justice, Mohammed Abubakar, and addressed to the IGP, the AGF said there was no sufficient proof that Abba Kyari was involved in money laundering. This is the cradle of the mischief.

“Then in February 28, the AGF allowed anti-drug agency to file an eight-count charge against Abba Kyari and six others, pursuant to a fiat granted by Malami. “Not long after the foregoing criminal proceedings were permitted by the AGF, in March 1, Malami proceeded to file the application for Abba Kyari’s extradition to the US, giving dubious and irrational explanations for the delay in commencing the process of extradition.

The truth is that there’s nothing cumbersome and multifaceted about the law, practice and procedure on extradition applications or proceedings. “As the Chief Law Officer of the Federation, Malami has the legal powers to institute and or undertake, or take over, continue and or discontinue any criminal proceedings at any time before judgement as provided for in Section 174(1)(a) (b)(c) of the 1999 constitution as amended. He also performs oversight functions over the police, EFCC, ICPC and NDLEA by virtue of extant constitutional provisions in that wise , and being aware of every criminal charge filed at any  given time and place.

“Accordingly, the AGF is in a position to know that Abba Kyari is standing trial on offences bordering on the provisions of the NDLEA Act, and more so, when he granted the fiat by which the prosecution was undertaken. He also knew or ought to know what to do if he truly desire to bring the extradition application.

“He’s supposed to be learned and knows the law unless he admits of the charge of gross incompetence beyond mere negligence as the learned judge lightly assumed in dismissing the application, and holding that the application is in breach of Section 3 (f) of the Extradition Act, and that it is incompetent.

“To all intents and purposes, the AGF is economical with the truth, and the Federal Ministry of Justice is complicit in his mischievous and deliberate act of removing the blind from the eyes of justice, and to bend it in utter deceit of Nigerian public and the international community at large”, Solomon said.

On his part, Mr. Emmanuel Onyejekwe, described the extradition suit by the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN), against the detained DCP Abba Kyari, as a grand hypocrisy.

He said: “The AGF should know better as a law officer of the country that the case of Kyari is a ‘fait accompli’ which means the suspended head of the Inspector General of Police Intelligence Response Team cannot be extradited to the United States since he is facing drug-related crime charges brought against him by the National Drug Law Enforcement Agency (NDLEA).

“This was pre-arranged and pre-determined long before this decision of the Federal High Court which reflected the sinister plot of the AGF to frustrate the actual extradition of the Borno-born police officer to the USA.

“The grand hypocrisy and shenanigan of the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN) in the DCP Abba Kyari’s case is now obvious.

“The action of the AGF is condemnable since he deliberately filed another matter against Kyari before seeking his extradition, when as a lawyer, he ought    to know that it is a ‘fait accompli’ since under the law, you can’t extradite someone already facing a separate charge in Nigeria.

“It is important to ask the justice minister why he didn’t file the extradition suit about a year after Kyari was declared wanted by the Federal Bureau of Investigation until the NDLEA imbroglio. The whole drama, Nigerians know, is a planned script.

“I am of the opinion that justice be served in the matter to deter corrupt policemen like Kyari still in the force. The suspended DCP must not be protected but duly prosecuted. It is shocking that this same Attorney General of President Buhari is often in a mad rush to extradite southerners wanted in the USA but had to contrive a safe landing route for their man, Abba Kyari.”

An anti-corruption crusader, Mr. Tosin Ojaomo, also believed that the AGF ought not to have filed any motion for Kyari’s extradition while he was already facing another trial.

Ojaomo said: “The offence of drug trafficking is a very serious offence and going by the fact that the suspects have been indicted for their involvement in such crime in Nigeria, there is no basis for acceding to any extradition request at this point in time.

“The issue of extradition has been overtaken by recent events, the question which has not been answered is whether the offence which the fugitive is to be extradited thereon is one that can be prosecuted in Nigeria. “If it is an offence that can be tried in Nigeria, there is no basis for any extradition, all the Attorney General of the Federation should have done is to request the evidence which the US District Court intend to use for the prosecution of the fugitive so that he can be prosecuted in Nigeria.

“Another thing which many has not cast their mind to is whether the fugitive can get a fair trial in the United States of America going by the wrong perception emanating against the Nigeria police which culminated in the EndSARS protest and others.

“I am of the opinion that the AGF should have allowed our sovereign status as a nation to speak at this time, the NDLEA has already prefer charges against the accused persons at the Federal High Court  and the case has been assigned to a judge to adjudicate thereon, we should allow the case to be prosecuted instead of the diversionary extradition proceedings.

“As a lawyer and a believer in the protection of rights of all persons in Nigeria, the suspects should be given the opportunity to exercise their fundamental human rights which the constitution oblige all security agencies in Nigeria to accord suspects in their custody. “I will conclude by saying that even if heaven will fall, we should all allow justice to be done.

Afterall, heaven will not fall if justice is done”. Another human rights activist, Inibehe Effiong, opined that if Malami is serious about extraditing Kyari, he ought to have ensure that no other criminal charge was filed against him. He added that the NDLEA has to suspend drug-related charges against Kyari for the reason that same could cost the extradition application to be refused by the court.

“If Abubakar Malami (SAN) is serious and honest about extraditing Kyari, he should ensure that the NDLEA does not file charges against Kyari at this time. Otherwise, it will vindicate those who have asserted that the drug allegations may just be a disguise attempt to shield Kyari.

“The extradition application filed by the Attorney General of the Federation for Abba Kyari to be extradited to the US is a welcome development. But the NDLEA has to stay action on the drug-related charges against Kyari. That’s the implication. “Investigation by the NDLEA can continue while the extradition application is litigated.

 

But, it will be counter-productive for the NDLEA to proceed to file charges against Kyari during the pendency of the extradition application. That will make nonsense of the entire process. “Section 3 of the Extradition Act makes it imperative for the prosecution of Kyari on the drug charges to be put on hold.

 

This is because, by the said provision, extradition applications will be refused by the court if the wanted fugitive is undergoing prosecution for another crime”, Effiong said.

 

*Additional report by Tunde Oyesina and Francis Iwuchukwu

 

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