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Opinion: Untying The Igboho Extradition Knot By Simbo Olorunfemi

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That there has been a lot of confusion about what is going on in Benin with respect to the purported attempt at the extradition of Igboho is without doubt. The media, obviously confused, has succeeded more in confusing than informing people. In the absence of official statements from Abuja and Porto Novo, the air of confusion has thickened, with misinformation enjoying a free rein.

Part of the confusion has been about the circumstances of arrest, how it was effected, if he is actually in custody, his condition in custody. Then came report of his release, subsequent travel to Germany and assertion by interests supposedly representing the man, lawyers inclusive, that the man can never be extradited to Nigeria. Obviously, there is a lack of understanding or misunderstanding of issues to do with extradition.

First, a bit of house cleaning with respect to the facts of the case. It does appear that the man was arrested at the Airport, as he made to travel out of the country. From what his lawyer said, he had with him a Nigerian passport and a Residence permit issued by Germany. He had no Beninoise passport with him. So, he was travelling as a Nigerian, stopped on account of having being found on the watch-list.

Now, what happens under such circumstances or what could happen? That is the question one would have expected the media and some of our lawyers who have been expressing opinions unknown to international law to focus on, so that people can be well-guided with the right information. Well, that has not quite being the case, as it has relied more on people with vested interest in the case for information and enlightenment, rather than digging deep on its own. That is why it is strange to find some make argument that in the absence of a treaty between these two countries, extradition cannot take place. The principle of reciprocity is a fundamental plank of international law that it is a sufficient ground for extradition and mutual legal assitance. But in the case at hand, there are existing multilateral treaties which the two countries subscribe to that lay to rest whatever doubt there might be on validity of engagement between two countries with respect to extradition.

As I submitted days back, just as important as the principle of territorial sovereignty is, on the other hand, international convention, law and practice equally affirms the maxim, aut punire aut dedere, that the offender must be punished by the state of refuge or surrendered to the state which can and will punish him, as there is an assumption of a desire by “all states to ensure that serious crimes do not go unpunished”. So fundamental is the desire to “close the net round such fugitive offenders” that even though the liberty of a sovereign to accord asylum can often overlap with that of refusing extradition and rendition, it will hardly be a consideration where the request by a state is for its own resident national, safe for persons granted asylum on account of political persecution.

For the avoidance of doubt, the point here is not that the process of extradition is always straightforward, as there are other considerations that come in, around the doctrines of speciality, double criminality, as well as that of possibility of violation of the human rights of the offender by the requesting state. The request will usually fail in most jurisdictions, where it is adjudged that it is with respect to ‘political offences’ or ‘military offences’ and there is a likelihood that ‘Inhuman or Degrading Treatment or Punishment ‘ might be applied by the requesting state.

Without a doubt, irespective of international protocols which govern extradition, final decision on the matter often rests on the sovereign in line with its municipal law or political disposition. It is in the bid to curb abuse of the process and establish clarity that many nations have establised laws and regulations governing the process, as the extent of conformity with universal human rights and values will reflect on each country’s human rights record.

With respect to the case at hand, it is difficult to find a window to puncture the validity of process or make a case for possible refusal of a request, if and when that is submitted. Between Abuja and Porto Novo, applicable are the 1984 Extradition Treaty among Benin, Ghana, Nigeria and Togo, which would apppear to have been further strengthened by the Economic Community of West African States Convention on Extradition of 1994. The ECOWAS protocol provides in Article 2(1) that “States undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons within the territory of the requested State who are wanted for prosecution for an offence or who are wanted by the legal authorities of the requesting State for the carrying out of a sentence.”

For Republique du Benin, to bolster its human rights regime, it has Act No. 86-12 of 26 February 1986 on the regulations governing foreign nationals in Benin and its Code of Criminal Procedure (DES PRINCIPES GENERAUX DE LA PROCEDURE PENALE), specifically TITRE XIII which deals with De l’Extradition in Articles 724-767.
A careful study of the laws and regulations are in conformity with what has been canvassed here governing extradition and the process usually taken. However, it is interesting that the code also provides in Article 725 that : “Whoever, on national territory, has been an accomplice in a crime or an offense committed abroad, can be prosecuted and tried in the Republic of Benin, at provided that the existence of the main fact has been established by a final decision of a competent foreign jurisdiction.”

For those who seek to take refuge under the umbrella of a lack of bilateral treaty between the two countries, Article 730 states: “In the absence of treaties, the conditions, procedure and effects of extradition are determined by the provisions of Title XIII of this code.They also apply to points which would not have been regulated by the treaties.”
On procedure for extradition, apart from other possible documents that can be submitted by the requesting state, the requets can be processed on the basis of “an arrest warrant or any other document in lieu thereof, drawn up by the authority competent foreigner. This warrant or document must specify the offense for which it was issued and the date of commission of the offense.”

For those reading into reports that the requesting state is yet to submit relevant documents to back the request. Even if that is true, it still has a bit of time, for when the arrest has been carried out at the request of the Government of a neighbouring country, there is a window of 20 days from the date of the temporary arrest of the individual concerned, to make the documents available.

At the end of the day, it is all about the reasoned opinion of the chambre d’accusation in the case. If it rejects the request, it is deemed final and cannot be granted. But if the chambre d’accusation grants the request, the Minister in charge of justice proposes, if necessary, for the signature of the President of the Republic, a decree authorizing extradition. If, within a month from the notification of this act, the extradited has not been received by the agents of the requesting Power, he is released, and not can no longer be claimed for the same cause.

I am yet to ascertain if the process provides a right of appeal for the one to be extradited in case the request is granted. If it does, as it’s the case in France with a similar judicial system, that will then open up a lengthy judicial process as seen in the Campaore case which has been inconclusive in France since 2017 even after judgement according to the Burkinabe request for extradition.

Whatever the case, in the end, it is usually what the sovereign decides on with extradition request, irrespective of the facts and the law – municipal or international.

Simbo Olorunfemi is a Nigerian poet, journalist, and business person with a background in TV production and brand management.

PS: The views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily that of the Publishers of The Precision NG.

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