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:

1. Manslaughter, administering drugs or using instruments with intent to procure the miscarriage of women.
2. Rape.
3. Unlawful carnal knowledge, or any attempt to have unlawful carnal knowledge, of a girl under 16 year of age.
4. Indecent assault if such crime or offence be indictable in the place where the accused or convicted person is apprehended.

Kidnapping or false imprisonment.

1. Child stealing, including abandoning, exposing or unlawfully detaining.
2. 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.

1. Bigamy.
2. Maliciously wounding or inflicting grievous bodily harm.
3. Threats, by letter or otherwise, with intent to extort money or other things of value.
4. Perjury, or subornation of perjury.

Arson.

1. 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.

1. 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.
2. -(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.

18. Forgery or uttering what is forged.
19. Crimes or offences against bankruptcy law.
20. Bribery, defined to be the offering, giving or receiving of bribes.
21. Any malicious act done with intent to endanger the safety of any persons travelling or being upon a railway.
22. 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.

18. -(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.

25. 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.