Kyari: The Trial Of Nigeria Police By ONIKEPO BRAITHWAITE
There was a quote which trended on social media a couple of weeks ago – something to the effect that, in a court case between two parties, it is the Judge that is really the one on trial and not the parties, since both parties know the truth of exactly what transpired between them.
Litmus Test for Nigeria
There was a quote which trended on social media a couple of weeks ago – something to the effect that, in a court case between two parties, it is the Judge that is really the one on trial and not the parties, since both parties know the truth of exactly what transpired between them. It is for the Judge to pass the test, by doing a proper evaluation of the evidence before the court, and delivering judgement based on the evidence and in accordance with the relevant laws. Putting this quote in the context of the new FBI saga concerning DCP Abba Kyari aka ‘Super Cop’ (these days, aka ‘Cop-Puppi’!), this time it is not just Abba Kyari that is on trial, but also the executive arm of Government (including the Nigeria Police Force (NPF)) and the Nigerian legal system that will be facing the court of global opinion. This will be another litmus test for Nigeria. So far, the NPF has taken a step in the right direction by suspending DCP Kyari; but, certainly much more is required from the Nigerian Government.
Granted, it is certainly more than embarrassing that a high ranking Police Officer, an award winning ‘Super Cop’ and Intelligence Officer for that matter, could be associated with a criminal like Hushpuppi for whatever reason, even if it is for tailoring services as DCP Kyari claimed! I would even venture to say that having clothes made for someone, connotes a form of closeness and intimacy. A high standard is undoubtedly required from an officer of the law, such as DCP Kyari whose job it is to fight crime and criminals, and not to become ‘besties’ and ‘bro’ with them.
Be that as it may, it is trite law that DCP Kyari is presumed innocent until proven guilty (Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (the Constitution). This principle of the presumption of innocence is also firmly enshrined in the American criminal justice system, and even though it is not explicitly stated in their Constitution, the 5th and 14th Amendments thereto, ensure that a Defendant will not be convicted of a crime, unless the Prosecutor proves beyond reasonable doubt that such a person is guilty. See the 1895 Supreme Court of the United States case of Coffin, et al v United States 156 U.S. 432 where the court held that it is the duty of all Judges to explain the presumption of innocence to the juries in their charge (whether asked to or not), and stated the principle of proof beyond reasonable doubt for a pronouncement of guilt. Additionally, DCP Kyari must not be denied his right to fair hearing (Section 36 (1) of the Constitution and Article 6 of the US Constitution).
Allegations of Money Laundering
That said, it is no longer news that the FBI is looking for DCP Kyari on some allegations of money laundering, bribery and wire fraud, vis-a-vis receiving funds from one Ramon Abbas aka Hushpuppi, who pleaded guilty and was recently convicted in the US for offences bordering on Money laundering, Fraud and Business Email Compromise (BEC), for which he is facing up to 20 years imprisonment. Money laundering is also a crime in Nigeria, so also is receiving stolen property. Specifically, Section 15(2)(a-d) of the Money Laundering (Prohibition) Act 2011 (MLA) prohibits anybody directly or indirectly, inter alia, from collecting funds which are known to be proceeds of an unlawful act or that such a person ought to have known were unlawful proceeds. The punishment prescribed by Section 15(3) of the MLA, is seven to fourteen years imprisonment.
In short, what DCP Kyari stands accused of in USA, is not only a serious crime in Nigeria, but qualifies as an extradition crime (double criminality). See Article 3 of the Extradition Treaty between Nigeria and USA. See also Section 427 of the Criminal Code Act (CC) (applicable in Southern Nigeria) and Section 316 of the Penal Code Act (PC) (applicable in Northern Nigeria). Needless to say, ‘scamming’ which was Hushpuppi’s occupation, is also an offence in Nigeria, as even most Nigerian children are aware of what ‘419’ is (obtaining by false pretences with intention to deprive the owner etc), aside from the Cyber crimes involved in his actions.
It would definitely be awkward for the FBI to try any kind of chicanery in Nigeria, that is, extraordinary rendition – abducting DCP Kyari, and forcibly taking him to USA; though, if they did, it would not be the first time. In December, 2000, in connivance with the Nigerian Government (the operative word here being connivance), an abductee was forcibly taken to US by the American Government to answer to money laundering charges. The District Court in New York, however, freed the abductee, on the grounds that it lacked jurisdiction to entertain the matter because Nigeria and US had violated their Extradition Treaty. It is doubtful that any such connivance can happen in DCP Kyari’s case, because as a decorated Police Officer, if anything, he will probably enjoy sympathy in some quarters. Definitely, things will have to follow the proper procedure.
In Case No. 2:21-cr-00203, USA v Abba Kyari, the FBI prayed the US District Court in California to order the arrest of the Defendant, and a warrant of arrest has been so issued. In matters of extradition, a person is deemed to be wanted for trial when a warrant is issued by the court of the country applying for extradition (requesting country), that such a person be brought back to answer to criminal allegations levelled against them.
Presently, it has been reported that, so far, there has been no formal request to extradite DCP Kyari to the US to face trial. Again, like Nnamdi Kanu and Sunday Igboho, DCP Kyari does not fit into the definition of a Fugitive as stated in Section 21(1) of the Extradition Act 1966 (EA), because even though he is accused of committing a crime in the US, he didn’t go there physically to commit the crime, nor did he flee from there to Nigeria like Senator Kashamu, to escape prosecution. See the case of Udeozor v FRN 2007 15 N.W.L.R. Part 1058 Page 499 at 522. The EA requires amendments to be updated to present day, not just in its definition of a Fugitive, but to accommodate offences like BEC which can be committed from anywhere, without the actual physical presence of the perpetrator on the soil of the legal authority accusing them of the crime, and without fleeing from prosecution from the foreign land; the definition should also include Fugitives who have committed crimes in Nigeria, and have fled to other jurisdictions to escape prosecution or imprisonment.
Nigeria/USA Extradition Treaty
Be that as it may, Nigeria has an Extradition Treaty with USA (ET), though it was signed by the British on December 22, 1931 (and came into force on June 24, 1935) during the colonial days. However, Nigeria is bound by the ET, because it inherited the treaties and laws of its colonial masters on the attainment of independence on October 1, 1960. The ET is recognised by Section 1 of the EA, and will be applied in accordance thereto. See the case of Udeozor v FRN (Supra), where the Court of Appeal also affirmed the existence of the Extradition Treaty between Nigeria and USA.
Article 1 of the ET states that both countries undertake to give up to each other, persons accused of or convicted of specific crimes, which are enumerated in Article 3, and include receiving money or other property knowing same to have been stolen or unlawfully obtained or through fraudulent means and bribery (which I believe may be part of what DCP Kyari is wanted for). The ET also states that the crime must be a crime in both Contracting Party States; and I have cited some relevant provisions above to evince the fact of double criminality, in the charges against DCP Kyari.
The NPF has set up a Committee to investigate this matter. But, here comes the twist. Article 4 of the ET states that an individual shall not be extradited for several reasons, including if such a Defendant is already under trial in the country applied to for the extradition (requested country), for the same offence for which extradition has been demanded (Section 3(5) of the EA). What is the essence of the NPF’s investigation of DCP Kyari? To genuinely establish the facts, so that an informed decision can be made by the Attorney-General of the Federation (AGF) on whether he should institute extradition proceedings when he eventually receives the extradition request? Or to frustrate America’s extradition request, by using the investigation ‘findings’ to file a charge against DCP Kyari here, knowing it can take 10/15 years of litigation all the way to the Supreme Court, in order to prevent his extradition to USA or to have the resultant effect of adjourning it sine die, that is, with no date for resumption of extradition proceedings?! Simply delay the extradition process, especially as the wheels of justice may sometimes move rather slowly in Nigeria. In the 2014 case of USA v Kayode Lawrence Criminal No. 4:03-cr-436-1, even though the Defendant was arrested and detained by the Nigerian authorities in 2004, he was not extradited to the US to face drug charges until 2013.
In any event, how fair or unbiased can the Police investigation be, seeing as they are investigating one of their own? Nemo judex in causa sua – no one should be a judge in a matter which he has an interest – can this principle of natural justice be extended to the Police investigation of DCP Kyari?
To activate the extradition process, the US Government through its Embassy, will make a formal application to the AGF for DCP Kyari’s extradition (See Section 6 of the EA). Upon receipt of such request, the AGF has the discretion to refuse to grant the extradition request based upon conditions set out in the ET which may not have been met, or on the aforementioned conditions that preclude extradition, and in this case, the extradition process will end. On the other hand, if the AGF grants the request, he will commence extradition proceedings at the Federal High Court, by virtue of Section 251(1)(i) of the Constitution which vests the Federal High Court with extradition jurisdiction. See the case of AGF v Godwin C. Nzeocha Charge No. FHC/L/336c/2011. The Administration of Criminal Justice Act 2015, also guides the process to be adopted in extradition proceedings.
The evidence against DCP Kyari has to be sufficient in the eyes of Nigerian law for the extradition request to succeed (Article 9 of the ET), and this would be contained in the warrant for his arrest attached to the extradition request. Since DCP Kyari has the right to oppose the extradition request in court, his legal team will try to vehemently prove inter alia, that he received the funds from Hushpuppi for tailoring purposes, and didn’t know they were proceeds of an unlawful act! Of course, many social media enthusiasts who followed Hushpuppi may argue otherwise, and say that the ostentatious and lavish lifestyle which he constantly displayed on Instagram left no one in doubt of his dubiousness, and would be a cause for concern for most responsible, reasonable people, let alone an Intelligence Police Officer. A stronger reason which could be canvassed against his extradition, would be that he won’t get a fair trial in the US, possibly on the basis of racism and nationality, because of America’s aversion to Nigerians accused of BEC crimes and the like (Section 3(2)(b) of the EA).
This new saga, ‘Cop-Puppi Gate’ or ‘Kyari Gate’, even if he is found not guilty by the American court, has further damaged the already battered image of Nigerian law enforcement. At least one other Nigerian has come out to accuse the Super Cop of brutalising him in the name of collecting money for someone who claimed that he owed him, or something to that effect. It is trite that law enforcement agencies like the EFCC, the Police and Army, are not debt recovery agencies, and they should not be used as such. This allegation is similar to that of Kelly Chibuzor Vincent, who Hushpuppi asked DCP Kyari to deal with for double crossing him; again, this matter is not within the purview of the functions of NPF. See Ogbonna v Ogbonna 2014 LPELR-22308 (CA); Anogwie v Odom 2016 LPELR-2014 (CA); Skye Bank Plv v Emerson Njoku 2016 LPELR-40447 (CA).
That these are trying times for DCP Kyari, is an understatement. However, I wonder whether he actually realises it. Last week, there was a feeble attempt by some spurious websites, in an obvious attempt to defend him, to mislead the public by claiming that DCP Kyari’s name was only mentioned, and that the FBI had explained that he has no case to answer! Hogwash! Again, this does not augur well for Nigeria, as it simply shows our penchant for ‘white-washing’.
I urge the NPF, AGF and the Nigerian legal system, to do justice to this matter. Rome was not built in a day, but eventually, it was built. Nigeria needs to start to repair her global image – and this will be a start. Guilty or not, the decent thing to have done in the face of such serious allegations, would be for DCP Kyari to resign, but, I can bet my bottom dollar that he will not – doing the honourable thing in this kind of situation, is not a common occurrence in Nigeria. We prefer to do ‘bold face’ and ‘wrong and strong’! This is not to say that DCP Kyari should be extradited if the Americans cannot prove that he has a case to answer; but rather, that if it is established that DCP Kyari definitely has a case to answer in US, that Nigerian system should not resist his extradition. In any event, extradition is certainly not proof of guilt. Since the world is watching, America will also be constrained to do justice to the matter.