THE alleged offences over which a Nigerian police officer Abba Kyari is wanted by the United States Federal Bureau of Investigation (FBI) are captured in an extradition treaty between Nigeria and the US.

Kyari, a Deputy Commissioner of Police, is wanted in the US for criminal prosecution after he was listed among six suspects indicted in a $1.1 million international fraud conspiracy.

Others listed in the alleged crime include Ramoni Abass, alias Hushpuppi; Abdulrahman Juma (Abdul); Vincent Kelly Chibuzo (Kelly); Rukayat Motunrayo Fashola (Morayo); and Bolatito Tawakalitu Agbabiaka (Bolamide).

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The FBI on July 28 released a 69-page court document showing that Kyari has been under investigation for his alleged link to Hushpuppi, who had already pleaded guilty to fraud charges.

In a case marked 2:21-cr-00203, USA VS Abba Alhaji Kyari dated April 29, 2021, the FBI asked a US District Court in California to order the arrest of Kyari within 10 days.

As a result of the development, Kyari is wanted for criminal prosecution in the US.

Nigeria has an extradition agreement with the US by virtue of an extradition treaty signed between the United Kingdom, Nigeria’s colonial masters, and the US on December 22, 1931.

The treaty came into force on June 24, 1935, and was applicable to all British colonies, including Nigeria.

The treaty provides for reciprocal repatriation of criminals among the countries involved in the agreement.

Obtaining money or any form of assets through fraudulent means and bribery, including receiving bribes, which are elements of the crime for which Kyari has been declared wanted in the US, are among offences for which an accused person can be extradited in line with the provisions of the treaty.

Article 1 of the treaty stated that the contracting parties had undertaken to deliver up to each other, persons in their territories who are accused or convicted for committing specific offences within the jurisdiction of a party to the agreement.

A number of offences over which accused persons or convicts can be extradited in accordance with the agreement were listed under Article 3.

The offences include murder, conspiracy or attempt to commit murder; manslaughter; administration of drugs or use of instruments with the intent to procure miscarriage on women; rape; unlawful carnal knowledge or attempt to have unlawful carnal knowledge of a girl under 16 years; indecent assault and kidnapping or false imprisonment.

Other offences mentioned under Article 3 of the extradition treaty are child stealing; abduction; trafficking of underage girls; bigamy; malicious injury or infliction of bodily harm; threat with intent to extort money; perjury or subornation of perjury; 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 conversation.

Offences for which an accused person or a convict can be extradited between the US and Nigeria, in line with the treaty, also include obtaining money, valuable security or goods by false pretences; receiving money, valuable security or other property knowing the same to have been stolen or unlawfully obtained; counterfeiting or altering money, or circulation of counterfeited or altered money; forgery or uttering what is forged; crimes or offences against bankruptcy law; and bribery, defined to be the offering, giving or receiving of bribes.

Piracy; dealing or trafficking in hard drugs; slave trading and malicious injury to property are some other offences for which accused persons or convicts can be extradited according to the provisions of the treaty.

The treaty stated that extradition shall be granted for any of the listed offences, provided that the criminal activity is punishable by the laws of both the country seeking the extradition and the country that is asked to extradite the accused person.

Article 4 of the treaty stated that extradition shall not take place if the subject has already been tried and discharged or punished for the offences over which he or she is wanted.

Also, extradition will not take place if the accused person is still undergoing trial for the concerned offence in the country that was asked to effect the extradition.

In the same vein, if the accused person has been imprisoned, or is under trial, for a different offence, the extradition would be deferred until the conclusion of the trial or completion of the prison term.

However, Article 5 stated that extradition shall not take place if, after the commission of the offence or filing of criminal charges or conviction, exemption from prosecution was acquired by lapse of time according to the laws of the two countries involved.

Article 6 stated that a fugitive criminal shall not be surrendered for extradition if the offence for which his extradition is sought is of a political nature, or if the subject could prove that the demand for the extradition was made in order to punish him for an offence of a political nature.

Article 9 of the treaty stated that extradition shall only take place if the evidence is found to be sufficient according to the laws of the contracting party applied to for the extradition.

According to Article 10, if an accused person or convict is wanted for extradition by several countries at the same time, his extradition will be granted to the first country to make the application.

A fugitive who is wanted for extradition would be set free if sufficient evidence for the extradition was not made available two months after his arrest, according to Article 11.

Article 13 stated that the country that is seeking the extradition of an accused person or convict would bear all the expenses of the extradition.

The United Kingdom entered into the treaty on behalf of herself and all her then colonies, including the Nigeria Protectorate, present-day Nigeria, as stated in Article 16.

Article 18 said the treaty may be terminated by any of the contracting parties by means of a notice not exceeding one year and not less than six months.

But Nigeria is still subject to the treaty, which had been ratified in subsequent legislation including the Extradition Act of 1966, (Extradition Modification) Order, 2014, Extradition Act (Proceedings) Rules, 2015 and other international protocols.

Human rights lawyer and Senior Advocate of Nigeria (SAN) Femi Falana has said the US can invoke the terms of the treaty by formally applying to Nigeria for Kyari’s extradition. 

Falana explained that upon the receipt of the request, the Attorney General of the Federation (AGF) would have to commence extradition proceedings against Kyari in the Federal High Court.

The AGF may also decide to file charges against Kyari in Nigeria since the offences were committed in the country.

In an interview with The ICIR on August 1, a lawyer Kayode Ajulo noted that although Nigeria has an extradition treaty with the US, extradition is not automatic.

Extradition follows a clear process, according to Ajulo. 

He said, “Now that a court has indicted Abba Kyari and asked for his extradition what should happen next is for that notice to be sent to the Nigerian minister of justice.”

Kyari can also go to court to challenge the extradition.

“He (Kyari) can go to court because before anybody is extradited in Nigeria the court must have a say about it. The extradition treaty Nigeria has with the US has its own process which has to be activated by the AGF and the AGF can conduct an enquiry because it is not every offence that a person is accused of that will require extradition and that is where the court comes in to determine, first, if an offence has been committed.

“Secondly if actually an offence has been committed, if it is the type of offence that requires the extradition of the accused person.

“Extradition is not automatic anywhere in the world. What matters most is that due process has to be followed,” Ajulo stressed. 

The lawyer further observed that the Police Service Commission (PSC) will have a say in Kyari’s possible extradition since he is a senior serving police officer.

Already, Inspector-General of Police (IGP) Usman Baba has recommended Kyari’s immediate suspension pending the outcome of an internal investigation into the accusations levelled against him by the FBI.