The trial of Nnamdi Kanu, the founder and leader of the Indigenous People of Biafra (IPOB), is pending. The main facts of the case are well-known; Kanu, a British-Nigerian national, founded the IPOB in the early 2010s. In October 2015, he was arrested in Lagos, on charges of terrorism and incitement and in 2017, while on bail, he fled the country. In May this year, he entered Kenya from Rwanda, apparently to receive medical treatment, and there, whilst accounts differ, Kanu was apprehended and brought by private jet to Nigeria, to face charges of terrorism and incitement. He arrived 27th June.
Kanu’s criminal proceedings, which began with his arrest in 2015, have recommenced, and his trial has been adjourned to the 21 October; the future timeline of the proceedings is uncertain. In the meantime, Kanu filed a civil suit against the Nigerian Federal Government on 7th September seeking damages of five billion Naira (N5,000,000), an apology for the infringement of his fundamental human rights, and a declaration that his arrest in Kenya was without due process and unlawful. He has also raised an action in Kenya against the Kenyan government for allegedly aiding and abetting his abduction and transfer to Nigeria.
The outcomes of Kanu’s criminal trial and these civil proceedings are impossible to predict. More apparent, however, are certain of the consequences of his extraordinary rendition to Nigeria.
Was Kanu’s Rendition Legal?
Kanu’s rendition requires consideration as it is clear that he did not return to Nigeria voluntarily, and from his assertions, several matters of law arise. These can be analysed under three bodies of law: international, Kenyan, and Nigerian.
Under international law are fundamental rules protecting the sovereignty and territorial integrity of all states. The Charter of the United Nations 1945 and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Amongst States 1970 contain universally accepted rules banning intervention in the internal affairs of other states.
More specifically, the London Scheme for Extradition within the Commonwealth sets out extradition rules applying between Commonwealth countries. Of significance is Article 12, containing the political offence exception. It precludes an extradition where the person is sought for an offence of a political character. Article 12 (1)(a) and (c) states,
(a) The extradition of a person sought will be precluded by law if the competent authority is satisfied that the offence is of a political character; (c) If the competent executive authority is empowered by law to certify that the offence of which a person sought is accused is an offence of a political character, and so certifies in a particular case, the certificate will be conclusive in the matter and binding upon the competent judicial authority for the purposes mentioned in this clause.
There are two types of such offence, ‘pure political offences’ such as treason, sedition and espionage and ‘relative political offences, which are ordinary offences committed in connection with political uprisings. Kanu’s extraordinary rendition prevented Kenyan courts from considering the political offence exception in his case. This consideration could have focused upon overtly political criminal charges – including non-violent activities in support of Biafran independence.
Kenyan law also appears to have been contravened. The regular procedures within Kenyan law governing extradition were not followed. The Extradition (Commonwealth Countries) Act 1968 of course was not invoked – a formal extradition request for Kanu was not made. Accordingly, he was not able to contest his transfer under it. As regards Kenya’s possible role, its High Commissioner has denied the country’s involvement, stating on Twitter that the suggestion by Kanu’s lawyers and supporters was fictional, imaginary, and deliberately concocted to fuel antagonistic feelings.
In Nigeria, the law that may have been violated includes the Nigerian Constitution and the writ of habeas corpus. The former protects fundamental human rights, including the right to liberty and security of the person. The latter gives effect to the Constitution by protecting the liberty of persons wrongfully detained in breach of the Constitution. It appears that the international illegality of Kanu’s rendition and its conflict with the Constitution provides a basis for the writ of habeas corpus.
In sum, the extraordinary rendition of Kanu is likely unlawful under international, Kenyan, and Nigerian law. The formal legal processes within and under all those legal systems appear to have been ignored. Thus, it seems that Kanu was forcibly transferred between Kenya and Nigeria in a manner which appears to disregard these prohibitions, and the only way, Kanu could have been returned to Abuja was through the subterfuge of the Department of Secret Services (DSS).
What Does It Mean if the DSS is Involved?
A specific aspect of Kanu’s case follows the alleged DSS actions within Kenya. If DSS agents did indeed enter Kenya and abduct Kanu and bring him to Abuja, then international law was clearly broken. The agents of one country simply cannot exercise their functions within another without that state’s consent. That consent appears to have been absent – at least Kenya is publicly denying it.
If Kenyan officials were involved, then they appear to have violated international law – by transferring Kanu to Nigeria where there was a risk of his ill-treatment. The United Nations Torture Convention 1984 applies in those circumstances. It bars the transfer of individuals where there is a real risk of torture or inhuman or degrading treatment or punishment in the destination state.
The Mixed Consequences of the Illegality of Kanu’s Transfer
The illegality of Kanu’s transfer from Nairobi to Abuja appears clear. Its consequences are likely mixed.
Related to Kanu’s criminal trial is a mixed international jurisprudence. Authorities differ on the effect of an extraordinary rendition on the jurisdiction of the abducting state. The US Supreme Court has held that extraordinary renditions do not affect the legality of a subsequent trial. In the case of US v Alvarez-Machin, the abduction of the suspected murderer of a Drug Enforcement Agency agent from Mexico did not negate the US criminal court of jurisdiction. On the other hand, the UK House of Lords in R. v Horseferry Road Magistrates’ Court, ex parte Bennett, held that an irregularity in the extradition process was an abuse of process in English law that had the effect of barring his trial in the country.
The critical question arising is which position will be adopted by Nigeria’s courts. If the American approach is taken the manner of his transfer will have no effect, if the UK tack was followed then Kanu’s trial could be stopped.
Affecting the decision on the effect of the transfer are Kanu’s human rights protected under the Nigerian Constitution. Sections 35 and 36 guarantee the rights to liberty of the person and to a fair trial. Arguments by Kanu challenging his trial with reference to the manner he was brought back to Nigeria will likely be made on these grounds. While predicting the effect of these arguments is well-nigh impossible, it is more likely than not that Kanu’s trial will not be affected by his extraordinary rendition. It will most likely eventually proceed to a verdict. The serious nature of the allegations against him and the strong desire to see him face justice may trump opposing arguments.
There are wider consequences of Nigeria’s actions, however. Kanu has also initiated a case before the African Commission on Human and Peoples’ Rights. The defendants in his application are the Nigerian and Kenyan governments. Kanu is seeking a declaration that he be returned to Kenya in light of the illegality of his abduction and the contravention of his human rights.
His extraordinary rendition may be considered in that forum. The Commission can receive communications from individuals where the rights set out in the African Charter are argued to have been violated, Articles 6 and 7, in particular, relate to Kanu’s transfer. They guarantee persons freedom from arbitrary arrest and detention and a right to a fair trial.
It is in the long-term that the consequences of Kanu’s extraordinary rendition and trial may have the greatest impact. Those effects could manifest themselves in two ways. Firstly, the case is likely to re-invigorate secessionist activities in South-East Nigeria by creating a martyr in Kanu, who was subjected to extraordinary rendition and tried in disregard of the law.
Secondly, Nigeria’s international reputation and standing will likely be affected by its actions. It may be recalled that over twenty-five years ago, Nigeria’s attempt to kidnap Umaru Dikko from London led to a two-year breakdown in UK-Nigerian diplomatic relations. The good faith between Kenya, the UK and Nigeria in the area of criminal co-operation, and perhaps more generally, will be sorely tested.
It is undoubtedly wise for governments to learn the lessons of history. One clear message is that efforts against secessionist movements are only truly successful in the long term where the rule of law is followed and upheld. Long term peace is only very rarely born through illegality and force. What is required is political engagement and economic development, not extraordinary rendition, ill-treatment, and violations of law. The UK’s experience in Northern Ireland over the last 50 years provides ample evidence of these facts.
While the capture, trial, and conviction of Kanu for terrorism and incitement may provide a degree of satisfaction in certain quarters, it offers little in the way of a permanent resolution. Upholding the law and maintaining the moral high ground is at times very difficult indeed, but ultimately it is the only basis for reaching a long-term solution for Nigeria, the South-East and the Igbo people.
Dr Paul Arnell and Dr Uche Iloka of Robert Gordon University, Aberdeen, UK.
The opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of BusinessDay Legal Business.