Abba Kyari’s case with the National Drug Law Enforcement Agency (NDLEA) may hinder his extradition to the United State if the agency decides to prosecute him for his alleged involvement in the Brazil-Ethopia-Nigeria drugs ring and deal to compromise 25 kilogram of Cocaine in the custody of the NDLEA. Recall that Kyari was declared wanted in the US in August, 2021 for being a conspirator with Hushpuppi in a $1.1 million deal to defraud a Qatari businessman.
Section 3(6) of the Extradition Act of 1966 clearly provides that: A fugitive criminal-
(a) who has been charged with an offence under the law of Nigeria or any part thereof, not being the offence for which his surrender is sought; or
(b) who is serving a sentence imposed in respect of any such offence by a court in Nigeria, shall NOT be surrendered until such time as he has been discharged whether by acquittal: or on the expiration of his sentence or otherwise.
The simple interpretation of the above provision of the law in respect to this case is that any extradition application made against Abba Kyari shall be rejected if the NDLEA decides to charge him with an offence, under Nigerian law, other than the offence for which his surrender is sought in the US i.e. the crime he allegedly committed in connection with Hushpuppi.
While it is desirable that the NDLEA gets to the root of this drug cartel matter involving Abba Kyari by ensuring that those found wanting after thorough investigation are charged before a competent court of record, such an action will only succeed in hindering and frustrating his (Kyari’s) extradition. The law remains that no individual can be successfully extradited from Nigeria to any other country if a criminal proceeding, different from the fugitive’s extradition’s crime, is pending in a Nigerian court.
In any case, the Honourable Attorney-General can play a huge role in ensuring that substantial justice is done in both matters. Even where the NDLEA goes ahead to prosecute Kyari for his drug related crimes, the Attorney-General has enormous powers under Section 174(1)(c) of the 1999 Constitution of the Federal Republic of Nigeria to discontinue the criminal proceeding, at any stage before judgement, to give way for his extradition proceedings.
Festus Ogun is a Lagos-based lawyer and human rights activist. festusogunlaw@gmail.com
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