Kashamu: Lateef Fagbemi (SAN), Akin Olujinmi (SAN) & Dr. Alex Izinyon (SAN) ‘Warn U.S, NDLEA


On the instructions of our client, Senator Buruji Kashamu, we publish this notice as his reaction to the calumnious distortion, misrepresentation, misinterpretation and perversion in some print and electronic media and electronic media, of the judgment of the United States Court of Appeals for the Seventh Circuit on the suit filed by the Senator in the United States.   Initially, our client felt it was not worth it giving any attention to the distortion and misrepresentation of the judgment by the newspapers and electronic media.   But on a further reflection, our client, felt persuaded to issue a rejoinder to expose the misrepresentations and distortions characterizing the media reports and remove the negative impression the misrepresentations and distortions may have on his many admirers, political associates, friends and family members.

Before doing so, however, a peep into the background facts that led to the suit filed in the US by the Senator will be of considerable assistance in exposing the distortion of the said judgment by the news media.

It is now a matter of common knowledge that for over a period of about six years, our client has been involved in a running battle with the NDLEA and the former Attorney General of the Federation under the last administration who at the instigation of the political enemies of the Senator had in 2010 initiated plans to commence proceedings to extradite our client to the US on the allegation that he was involved in the importation of narcotic drugs into the United States in the 1980s.   Before 2010 when the former Attorney General launched out on his campaign against our client, the US Government had instituted two separate proceedings in UK for the extradition of our client to the US in 2000 and 2003 but the US lost the two cases. Indeed, in the proceedings initiated in the year 2000, the London court found it disturbing that the US concealed photo-identification evidence in its possession which showed that the Senator was not the one wanted in connection with the alleged offence of importation of narcotic drugs into the US. Similarly, in the 2003 proceedings, the English Court in London again while dismissing the second extradition proceedings initiated by the US, held, among other things, as follows:

“certain of the assertions made by the government are untrue ……I am satisfied that the overwhelming evidence here is such that the identification evidence, already tenuous, has now been so undermined as to make it incredible and valueless. In those circumstances there is no prima facie case against the defendant and I propose to discharge him.”

It is important to add that four principal officers of the NDLEA testified in favour of our client in the London court on subpoena issued by the English court.

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. In one of the judgments, the court held as follows:

“in the light of subsisting judgments of this court in Suit No. FHC/LC/49/2010 delivered on the 6th January, 2014 and in the light of subsisting judgment in Suit No. FHC/LC/508/2015 delivered on 27th May, 2015 ……….. the respondents have no authority, vires or justification to interfere with the Applicant’s         fundamental right to own property in Nigeria ……. wherever they may be located within Nigeria or anywhere else in the world         on the basis of the false allegation by the United States government or any other person or authority of his complicity in the unlawful importation of narcotic substances into the United States of America in respect of which the Applicant has been exonerated by two courts in the United Kingdom ….”

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.

The suit which the US Court of Appeals pronounced upon in the judgment was filed by our client in the US in the District Court for the Northern District of Illinois, Eastern Division. It was an additional effort by him to put a stop to the unceasing and unfair harassment the US agents and the NDLEA have embarked upon in pursuit of their desire to extradite our client to the US even when the US had lost twice in the UK courts and the NDLEA along with other security agents have lost in four different suits in the Federal High Court in Nigeria.

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.

The court further explained that the statute of the US on which the suit was based, is only a directive forbidding federal agencies and their employees not to arrest a person in a foreign country on narcotic charges. A violation of the directive will only attract official disciplinary action. The Court reasoned further that the statute does not prohibit an employee of the United States, if he has the approval of United States chief of mission, ‘from being present when foreign officers are effecting an arrest or from assisting foreign officers who are effecting an arrest’ and will not amount to attempted abduction.’

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 US 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.   The law of the US cannot be pleaded in justification of a deliberate breach by a US agent of the orders of the courts of Nigeria. Otherwise, Nigeria’s sovereignty and equality with the US and other nations of the world community, which is a basic principle of the law of nations will be severely compromised and reduce Nigeria to a vassal status with the US. We must all work towards the sustenance of the sovereignty of our fatherland.

While it is conceded that Diplomatic and consular staff of foreign nations in Nigeria are under international law entitled to immunities from local jurisdiction, it needs be said emphatically that there is a duty imposed on them by Article 41 paragraph 1 of the UN Vienna Convention on Diplomatic Relations which stipulates that ‘it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.’ It should be clear from this provision of the convention that US agents in Nigeria are under strict obligation to respect the decisions of courts of Nigeria.

It is pertinent to add that it is a requirement of international law that where a citizen of one country is accused of a criminal offence by another country, the only legal procedure to secure the attendance of the accused in the court of the country accusing him of an offence, is to apply to the country where the accused can be found for his extradition. Except the country requesting extradition is able to show satisfactory evidence to the court of the country where the accused is found, that the accused may have committed the alleged offence, the court will not order his extradition. It was the inability of the US to place satisfactory evidence before the UK courts in the two separate extradition proceedings initiated by the US in 2000 and 2003 that led the UK courts to dismiss the requests by the US for the extradition of our client.

Furthermore, in matters of extradition, some duties are imposed on State Parties to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was adopted by the General Assembly of the UN on 10 December, 1984. Nigeria is a party to the convention which it acceded to on 28 June, 2001.   Article 3 of the Convention provides that,

“No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

The word ‘torture’ in the context was given an expanded meaning in Article 1 of the convention and it includes any act by which physical or mental pain is intentionally inflicted on a person by or at the instigation of a public official or other person acting in an official capacity, for such purposes as obtaining from him information or a confession, for an act he has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind. As stated above, the US had in the year 2000 extradition proceedings in the UK court concealed evidence favourable to our client Not only that, agents of the US government had put considerable pressure on our client to consent to extradition in the UK proceedings with a promise that he would be given suspended or light punishment if he did. Of course, our client rejected the offer and maintained that he would never accept to have committed an offence he did not commit.   Against the background of the concealment by the US of evidence favourable to our client in the UK proceedings and the pressure to extract a confession from him, it is clear that there are substantial grounds to believe that our client would be in danger of being subjected to torture within the expanded meaning of that term in the Convention. In such a situation, Nigeria is under a clear duty imposed by Article 3 of the Convention which is one of the mandatory grounds for refusal of an extradition request, not to extradite our client to the US. This is apart from the decisions of the Federal High Court in four different suits in which it was held that on the evidence put before the courts extradition of our client to the US could not be ordered.

The Punch newspapers of Monday January 30, 2017 carried a report of the interview the paper had with the NDLEA in respect of the US court of appeals judgment referred to above. It is obvious from the report that the NDLEA is enthused by the judgment which the agency believes has ‘emboldened and strengthened’ it to pursue the extradition of our client. We say emphatically that the judgment gives no such comfort as a careful reading of our above comments on the judgment should reveal. 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.

We like to use this medium to remind our friends in the media of the legal and ethical duties imposed on them not to indulge in any abuse of the privilege the law grants them to publish and disseminate information without compromising truth and objectivity. Sensational journalism embarked upon for profit, can only, when exposed, create an embarrassing backlash for the news medium concerned. The distortion and misrepresentation of the judgment of the US Court of Appeals by the newspapers and electronic media have created a cause of action in favour of our client against the newspapers and electronic media but our client has decided not to pursue the remedies the law allows him for redress. Our client believes that this rejoinder will promote a better understanding by the public at large including the print and electronic media, of the issues concerned with the unceasing illegal and ill-motivated efforts of the NDLEA and other security agencies to abduct our client and transport him to the US.