It is quite common for some Nigerians to commit crimes in a foreign country and return to Nigeria to seek refuge, thus using Nigeria as a safe haven and simultaneously using the country as a shield and cocoon against foreign prosecution. It was on the basis of this excreble operating scheme that the Nigerian government enacted the Extradition Law of 2004, which originated from the Extradition Law of 1963.
The essence of this article is to elucidate the process by which a Nigerian citizen can be extradited from Nigeria.
Before going deeper into the process of extraditing a person from Nigeria, it is relevant to understand the concept of extradition.
The Extradition Act 2004 defines extradition as a treaty or other agreement entered into by Nigeria with any other country for the surrender, by each country to the other, of a wanted person for prosecution or punishment.
COUNTRY NIGERIA HAS AN EXTRADITION AGREEMENT WITH
In order for a Nigerian to be successfully extradited to a foreign country, that foreign country must have an extradition agreement with Nigeria. The extradition agreement is a sine qua non for the successful surrender of a fugitive to a prosecuting foreign country. For example, if a Nigerian citizen commits a crime in a country like Brazil or Indonesia and returns to Nigeria, neither the Brazilian government nor the Indonesian government can successfully extradite such a person from Nigeria, unless they do not. ‘have so far had an extradition treaty with Nigeria. .
Section 2 of the Extradition Act was lucid and explicit with regard to the countries with which Nigeria has concluded an extradition agreement. Said section thus states; that the extradition law will apply to every separate country of the Commonwealth. It is implied that Nigeria has an extradition agreement with every Commonwealth country. In addition, Nigeria has an extradition agreement with the United States of America, the Republic of Benin and others. The aforementioned countries are not exhaustive. Whenever Nigeria has entered into an extradition agreement with a country, the President may, by order, publish that agreement in the Federal Gazette.
REQUEST FOR DELIVERY OF A FUGITIVE CRIMINAL
Once it is established that Nigeria has an extradition agreement with a foreign country seeking to extradite a Nigerian citizen from Nigeria. A diplomatic representative or consular official of that foreign country must make a written request, accompanied by a warrant of arrest or a duly authenticated certificate of conviction issued in that country. This is provided for in section 6 (a) of the Extradition Act.
Whenever a request for postponement is made to the Attorney General, the Attorney General may, by order made available to him, notify the magistrate that such a request has been made and require the magistrate to deal with the case in accordance with the provision of this law.
POWERS OF THE JUDICIARY TO ISSUE AN ARREST WARRANT
Once a magistrate has received a request for surrender of a fugitive from the Attorney General, the magistrate may then issue a warrant for the arrest of the fugitive criminal, if there is evidence which, in the opinion of the magistrate, would justify the issuance of an arrest warrant. Once the magistrate issues an arrest warrant, that arrest warrant can be executed anywhere in Nigeria.
Therefore, a fugitive criminal arrested under a warrant issued under this article must be brought before a magistrate as soon as possible after his arrest. This power to issue an arrest warrant is conferred on the magistrate by article 7 of the Extradition Act of 2004.
HEARING OF THE EXTRACTION CASE
Once a magistrate has issued an arrest warrant and the fugitive criminal against whom the extradition order has been issued has been apprehended, the magistrate begins a hearing on the extradition order.
The magistrate then examines any evidence likely to be produced to demonstrate that the offense of which the fugitive is accused or presumed to have been convicted is not an offense of extraction or that the surrender of the fugitive is, for another reason, excluded by the extradition agreement (if any) in force between Nigeria and the country requesting the surrender of the fugitive.
The magistrate, after examining the evidence produced, and after making sure that:
1) The offense with which the fugitive is accused is an extradition offense in relation to this country.
(2) The warrant shall be issued in the country to which this law applies.
(3) The evidence produced would justify, under Nigerian law, the imprisonment of the prisoner for trial, if the offense with which he is accused was committed in Nigeria. The magistrate must then, subject to the provisions of the law on extradition, incarcerate the fugitive criminal in prison pending the order of the Attorney General for his surrender.
During the imprisonment of the fugitive criminal, the magistrate must:
(a) Inform the fugitive that he will not be surrendered until the expiration of fifteen days from the day on which he was thus imprisoned and that he has the right to request habeas corpus; and
(b) immediately send the Attorney General a certificate of incarceration and any report on the case that the magistrate deems appropriate.
However, when the circumstances are not such as to oblige the magistrate to incarcerate the prisoner, by virtue of the provisions of these laws, the magistrate will order the release of the prisoner. This can be found in section 9 of the Extradition Act 2004.
DELIVERY OF A FUGITIVE CRIMINAL
Once a magistrate has ordered the arrest and incarceration of a fugitive criminal, the next phase is to hand over the fugitive to the requesting authority. However, a fugitive criminal must not be surrendered before the expiration of a period of fifteen clear days, from the day on which he is thus imprisoned, or if a summons from HABEAS CORPUS (It is here that a person arrested files a summons, before the judge or the court in order to obtain the release of the persons) until the court has rendered its final decision on the return of the summons.Furthermore, when a summons from HABEAS CORPUS has been issued and that the fugitive criminal is not released by the court upon return of the writ. The Attorney General may issue an order ordering that the fugitive be surrendered to any person authorized by the country requesting surrender to receive the fugitive criminal, and the fugitive criminal will be surrendered accordingly. This is provided for by action 10 of the Extradition Act.
Samuel Okolie is a Lagos-based lawyer and human rights defender. [email protected], 08066756987