Three Senior Advocates of Nigeria (SANs), Lateef Fagbemi, Alex Izinyon and
Akin Olujimi, Tuesday described as illegal any attempt to extradite
Senator Buruji Kashamu.
Fagebmi, Izinyon and Olujimi, in a joint statement, said the United States
and the National Drug Law Enforcement Agency (NDLEA) would be overstepping
their bounds by attempting to extradite the senator.
The SANs said: “The US did not appeal against any of the two UK judgments
in favour of our client. The judgments therefore, remain binding against
the US and Nigeria for ever. Rather than appeal against those judgments,
what the US did next was to latch on to the conducive atmosphere in
Nigeria brewed by the political enemies of our client, who even though
aware that the US had lost out twice in UK courts against our client,
mounted unholy pressure on the former Attorney General to commence
extradition proceedings against our client. He was therefore forced to
approach the courts in Nigeria for redress. Just as the English courts had
ruled in his favour, four different courts in four different suits in
Lagos and Abuja found in favour of the Senator.
“Notwithstanding the various subsisting decisions referred to above given
by English and Nigerian courts all outlawing the extradition of our
client, the NDLEA is, in clear disobedience of the various judgments,
still plotting clandestinely with other security agencies at the behest of
US agents to forcibly abduct our client and smuggle him to the US.
“Our client’s US lawyers had filed the suit under a law of the United
States which the District court in the US held did not create a private
right of action. Our client’s US solicitors appealed against the
decision of the District Court in 2016. It was that appeal that the US
Court of Appeals pronounced upon on 23rd January, 2017 by affirming the
decision of the District Court which held that the statute ‘did not create
a private right of action’. In other words, it is not open to any
individual to predicate a suit on the statute. Clearly, that was not a
decision on the merit of the issues submitted to the court.
We are in agreement with the court that mere presence of a US employee
during an arrest by local officials in a foreign land and even assisting
the local officials in an arrest will not amount to attempted abduction.
What was not put before the US court of appeals for determination and
which the court did not decide is a situation where the local courts in
the foreign land had given express orders prohibiting arrest, abduction
and/or detention, as done by the Federal High Court in its judgments
prohibiting the NDLEA and other security operatives from arresting or
removing and exporting our client to the US. Any arrest or removal in
breach of the orders of the Federal High court will unarguably amount to
abduction as defined in Article 2 of the United Nations International
Convention for the Protection of All Persons from Enforced Disappearance
adopted by the General Assembly on 20th December, 2006 to which the
attention of the US Court of Appeals was not drawn. Indeed Article 5 of
the Convention renders perpetrators of enforced disappearance and the
State which organize, acquiesce in or tolerate such disappearances liable
under civil law, without prejudice to the international responsibility of
the State concerned in accordance with the principles of international
law.
“The U.S. court of appeal did not purport to and cannot overrule the
decision of any Nigerian court which must be obeyed, except set aside by a
higher court in Nigeria…We have no doubt the NDLEA will backtrack from
its enthusiasm after reading our analysis of the judgment. It is also
worthy of mention that the Central Authority in matters of extradition
from Nigeria is the Honourable Attorney General of the Federation. The
role of the NDLEA is no more than to provide information that the Attorney
General may require in regard to any request for extradition. So, the only
authority who can speak as to what Government is doing on any request for
extradition is the Attorney General of the Federation. We are not aware
that the Hon. Attorney General has assigned or delegated his statutory
authority to the NDLEA.”