Legal Implications of Kashamu's Extradition - Femi Falana

Legal Implications of  Kashamu's Extradition - Femi Falana 

The Extradition Treaty between Nigeria and  the United States was signed on June 24, 1935 while it entered into force on June 24, 1935. The treaty was signed with the United States  by the British colonial regime which then exercised dominion over the territory  of Nigeria. When Nigeria obtained  political independence from the Britannic Majesty in 1960 the treaty was, like several others, adopted by the federal government. By virtue of Article 3 of the Treaty, extradition shall be reciprocally granted for crimes or offences such as  Murder, Manslaughter,  Administering drugs or using instruments with intent to procure the miscarriage of women,  Rape,  Threats, by letter or otherwise, with intent to extort money or other things of value, larceny or embezzlement,  Fraud or  fraudulent conversion, Obtaining money, valuable security, or goods, by false pretences; Crimes or offences or attempted crimes or offences in connection with the traffic in dangerous drugs.

Under the treaty, 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 is 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. Even though the treaty is silent on civil proceedings  challenging the legal validity of the extradition of any person the exercise may be stayed or suspended if there is a court order to that effect.

By virtue of  the Extradition Act Cap E25, Laws of the Federation of Nigeria, 2004 the Attorney-General or a court shall not surrender a  fugitive criminal if satisfied that the offence in respect of which his surrender is sought is an offence of a political character or that the request for  surrender, although purporting to be made in respect of an extradition Crime, was in fact made for the purpose of prosecuting or punishing him on account of his race; religion, nationality or political opinions or was otherwise not made in good faith or in the interests of justice; or that, if surrendered, he is likely to be prejudiced at his trial, or to be punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions.

With respect to Chief Buruji Kashamu, the order of the federal high court that he should not be extradited has been set aside by the Court of Appeal. Although the appeal filed against the decision is pending at the Supreme Court there is no order of execution or interlocutory injunction restraining the federal government from extraditing Chief Kashamu to the United States to stand trial for drug trafficking. Hence, the PDP chieftain and senator-elect has initiated a fresh suit at the federal high court to thwart any move to extradite him to the United States!  As the Attorney-General of the Federation, Mr. Mohammed Adoke SAN has not been legally prohibited on the matter he is reported to have concluded arrangements to commence extradition proceedings on the basis of a request made by the United States pursuant to  the Extradition Treaty.

Before Chief Kashamu parted ways with President Olusegun Obasanjo in the PDP and before the appointment of Mrs. Roli George as the Director-General of the National Drug Law Enforcement Agency, Chief Kashamu had been on the wanted list of the United States for drug related offences. Therefore the allegation that Chief Obasanjo and Chief Olabode George are behind the ongoing moves to extradite the senator-elect is illogical, spurious and diversionary. Instead of politicizing the planned extradition proceedings Chief Kashamu should be prepared for the legal battle ahead.  He is lucky that he is detained in his own house. But for his status as a member of the ruling class Chief Kashamu would have been bundled to the NDLEA detention facility in Lagos where he would have been denied access to his phone. 

It should also be pointed out that the  decent treatment being accorded Chief Kashamu is part of the intangible dividends of democracy.Only the rich are detained in their homes as the concept of "house arrest" is unknown to our criminal justice system.  Under the defunct military junta the embattled PDP leader would have been arrested, handcuffed and handed to American security officials.  He would have been further manacled and flown to the United States for trial. At the material time, extradition proceedings were not conducted in any court. Once a request was made by the United States or any other country under an extradition treaty the person claimed was arrested by any of the security agencies and thrown out of the country.

In the instant case, to ensure that the house arrest of Chief Kashamu does not extend beyond 48 hours the NDLEA surrounded his house in Lagos on Saturday morning. The NDLEA has confirmed that the extradition hearing of the senator-elect would commence on Monday morning. Thus, by the combined effect of section 35 of the Constitution and the Extradition Act, Chief Kashamu would appear in the federal high court on May 25 where the Attorney-General of the Federation will apply for his extradition  to the United States. Since there is equality before the law it is hoped that the security forces and the Attorney-General will always treaty  Nigerian citizens with decency and dignity whenever there is reasonable suspicion to arrest them for allegedly committing  criminal offences. 

 

 Having consistently excoriated Chief Obasanjo on behalf of President Jonathan and having invested in the aborted efforts to capture the South West geo-political zone for the PDP, Chief Kashamu has cause to be frustrated and tired of life. But he should be advised not to commit suicide or harm himself for his seeming betrayal by the outgoing Administration which decided, rather belatedly,  to collaborate with the American  government in humiliating him. Notwithstanding that he has been used and dumped Chief Kashamu should be prepared for his trial in the United States. After all, he has repeatedly maintained that this is case of a mistaken identity. With his enormous wealth he should hire a top lawyer in the United States who will assist him to prove that he is not the person wanted for drug related offences.

 

In the light of the foregoing, it is submitted that the fundamental right of Chief Kashamu to personal liberty cannot be said to have been violated since the procedure for extraditing him was made by the United States under an existing and valid treaty. The planned extradition to determine whether or not Chief Kashamu should be extradited to the United States accords with the rule of law as it is in line with the provisions of the Extradition Act . To ensure that the sword of Damocles does not continue to hang menacingly on his head, Chief Kashamu may wish to surrender himself for trial in the United States instead of embarking on  a prolonged legal battle in Nigeria. But if he insists on his innocence let the law take its course through the extradition proceedings.