Extradition in International Law and Diplomacy: The Choice between Secessionists and Insurrectionists

Bola A. Akinterinwa

The multidimensional character of insecurity in Nigeria of today has not allowed the administration of President Muhammadu Buhari (PMB) to have a good policy of clairvoyance in the execution of his Next Level development agenda for Nigeria, which is currently faced with critical security challenges: armed banditry, Boko Haramic insurgency, and herdsmen-farmers imbroglio. The challenges are largely fuelled by PMB’s controversial Fulanisation agenda, and apparent manoeuvrings to ensure re-election of the ruling party, APC, by all means, including rigging of the 2023 general elections, through election reform.

The lack of clairvoyance is explained by allegations of double speak and double standard of government: hard attitude towards secessionists in southern Nigeria and soft approach to those aiding and abetting and actually engaging in armed banditry and Boko Haramism in the north. The hard attitude on southern secessionists has led to the abduction in Kenya of Mazi Nnamdi Kanu, the leader of the Indigenous Peoples of Biafra (IPOB), which wants a sovereign State of Biafra, and Chief Sunday Adeyemo, alias Sunday Igboho, in Cotonou, Benin Republic. He too is championing the establishment of an Oduduwa Republic for the Yoruba South West.

Their abduction, which many Northerners are happy about, cannot be said to be good enough, because it has not only raised other critical implications of extradition, but also the choice between self-determinationists, on the one hand, and insurrectionists, made up of armed bandits and Boko Haramic terrorists, on the other. In an attempt to address this situation of insecurity, the secessionist leaders, as noted above, were abducted on foreign territories, Nnamdi Kanu in Kenya, and Sunday Igboho in Benin Republic.

What is particularly noteworthy about their abduction is that a diplomatic stalemate has also been generated in both cases. As regards Nnamdi Kanu, Great Britain is challenging the arrest of Nnamdi Kanu, its citizen, in Kenya, while Benin Republic is making haste slowly in granting Nigeria’s request for the extradition of Chief Sunday Igboho, because of the conditionality provided in the 1984 Extradition Treaty done by Nigeria, Benin Republic, Togo and Ghana for granting an extradition request. An analysis of international diplomatic practice of extradition is necessary to show how PMB’s hard policies disunite more than they unite. Explicated differently, can the abduction and trial of the two proponents of ethnic secession enable indissolubility and indivisibility of Nigeria in the near or distant future? For how long can national unity be sustained by use of military force?

Diplomatic Practice: Extraditing Igboho and Kanu

We submit here that the arrest, or interception, or deportation and even abduction of Chief Igboho and Mazi Kanu cannot be helpful to any quest to maintain national unity and so is national unity cannot be sustained by use of manu militari or by outright use of military force. The quest for secession is an idea. It is a political belief that is indestructible. This is one major rationale explaining why extradition treaties generally exclude political offences for purposes of extradition.

Historically, the origins of the practice of extradition dates back to the 13th Century when an Egyptian pharaoh, Ramesses II, negotiated an extradition treaty with Hattusili III, a Hittite king. Since then, the practice has been evolving and regulated. By way of definition, extradition is considered as an action, as a process, and as a cooperative and justice mechanism to contain and deter acts of criminality. As an action and as a process, it is about the transfer of a fugitive from one State (the extraditing country where the fugitive is located at the time for a request for extradition) to the State requesting for extradition, where the fugitive has been indicted or convicted generally for serious criminal offences. In the eyes of Professor Momodu Kassim Momodu of the Crescent University, Abeokuta, extradition should be differentiated from deportation ‘which is the process whereby a competent authority requires a person to leave a territory and prohibits him from returning to it’ (for details, see his ‘’Extradition of Fugitives by Nigeria,’’ International and Comparative Law Quarterly, Cambridge University Press, Vol. 35, No. 3 July 1986, pp. 512-530).

What should be noted is that extradition agreements have been variously done, but the signatories have not always religiously granted requests for extradition. In the same vein, countries without extradition agreements have also been requesting for extradition and also granting it. The Council on Foreign Relations in the United States explains the problem thus: ‘the extradition process enables governments to bring fugitives abroad to justice, but it can be fraught with political tension, even when a treaty is in place.’ Put differently, ‘an extradition treaty does not guarantee that signatories will work harmoniously on cases’ (videcfr.org). This is to suggest that there may not be any fast rules in the specific case of Chief Igboho’s extradition controversy.

Two major types of extradition practice have been established. The first is the list extradition agreements, which are generally the most common and traditional and containing a list of crimes that make fugitives extraditable. An example is the 1933 list, between Albania and the United States, which contains an inventory of more than twenty crimes treaty

The second type is the dual criminality treaties. In general diplomatic practice, a country like Canada, which banned capital punishment in 1976 cannot extradite to a country like the United States where capital punishment is lawful. Most countries do not extradite if fugitives are accused of political crimes and are likely to face execution, or torture in the requesting State. Extradition is hardly granted if the crime committed is not punishable under the municipal laws of both the requesting and granting States.

In the specific context of the London Scheme for Extradition within the Commonwealth, the grant of an extradition request is conditioned by the establishment of a prima facie case; conditions of detention or prison must not be detrimental to the protection of human rights, that is, prison conditions must not be inclement to the extent that offenders would be subjected to inhuman or degrading treatment.

Grosso modo, extradition becomes a desideratum when an accused has been tried and convicted, but still escaped custody, or when an accused is tried and convicted in absentia. On the contrary, an offence cannot be a basis for extradition if the application is for habeas corpus, that is, a writ by which someone is brought before a court in such a manner that his detention or imprisonment is not illegal. In the same vein, if the application for extradition is because of a political offence, as noted earlier, extradition is forbidden. The situation of non-extradition is also true if the offence has a racial, religious or nationality character.

In empirical terms, extraditing Sunday Igboho and Nnamdi Kanu is challenge-ridden, essentially because of the political character of the offence for which they are being pursued. They are proponents of self-determination which is considered a human rights issue. In fact, self-determination agitators are internationally recognised. When the Federal Government security agents invaded the house of Igboho, it was on the basis of suspicion and purported intelligence report that Igboho might be planning to be violent during the Yoruba Nation rally being planned then. This means that the rationale for the invasion of his house is yet to be fact-driven, as all his previous public rallies had not been violent.

And true enough, The Department of State Services (DSS) claimed that there were arms and ammunitions in his house as at the time of invasion. The alleged weapons were publicly displayed, including his traditional security armour. However, Sunday Igboho has vehemently contested the government’s insinuation that he was violent or intended to be violent. He even made it clear that he does not fight with weapons but with charms. The DSS agents said they killed two people and arrested about 12 people during the invasion of his house, but Sunday Igboho still managed to escape into temporary safety.

On the basis of the Red Notice initiated by Nigeria’s Ambassador to Cotonou, General Buratai, Chief Sunday Igboho was arrested at the Cadjèhoun Airport, in a German-bound aircraft and has been under court prosecution since then. Will there be extradition or not? What are the likely future implications of Igboho’s extradition to Nigeria? What will the Anglo-Nigerian diplomatic row over the abduction of Nnamdi Kanu lead to?

Without any whiff of doubt, there is the likelihood that PMB might qualify for an international warrant of arrest from the International Criminal Court for allegations of crimes against humanity and crimes of genocide for various reasons. First, even before the arrest of Chief Igboho, the Yoruba leaders generally had strong support for him, in spite of some of them disagree with his mania of doing things. Igboho’s decision to confront the killing of his people by Fulani herdsmen on their land generated much sympathy and quiet support.

The sympathy and support is explained by the belief that he is not criminally but an advocate of Yoruba self-determination.The Yoruba people have said that the mania of invasion of his house on July 1, 2021 is a clear pointer to the fact that he would never be given fairness and justice if he is extradited to Nigeria. And true enough again, his community and house have also been reportedly attacked thereafter.

It is also argued that his fighting for self-determination does not offend international law, and therefore, he should not be treated as a common criminal. The popular support of the Yoruba immediately following his arrest at the Cadjèhoun airport in Cotonou speaks volume, especially in light of the warnings given by many Yoruba in the Diaspora to the Cotonou government. The implication of this point is that any attack on Sunday Igboho is necessarily also an attack on the Yoruba people, especially the proponents of Yoruba nation at home and abroad.

The support for Igboho is also particularly explained by the perception of PMB as a bias president. It is also argued that he condones the atrocities of Fulani herdsmen. In fact, many Nigerians have queried why the Boko Haramists that were arrested about a year ago, have been granted amnesty and released to the Borno State government, and the same treatment could not be given to both Mazi Nnamdi Kanu and Sunday Igboho, both of whom are political activists agitating for self-determination. And true, the armed bandits and the Boko Haram terrorists are actually fighting for the destruction of Nigeria and its replacement with Islamic Caliphates. This therefore raises questions about what PMB is up to and also what his preferential choice is: secession struggle or Islamic insurrection?

Secessionists or Insurrectionists?

PMB appears to be biting more than he can chew with the abductions of Nnamdi Kanu in Kenya and Sunday Igboho in Benin Republic. Regarding Kanu, his court trial has been fixed for July 26, 2021 but both the United Kingdom and Kanu’s lawyer have it that ‘before any court can subject Kanu to trial, it has to first conduct a trial within trial on the grievous incident that forced him to leave Nigeria and the equally grievous incident that forced him back to Nigeria. No court of law with conscience and equity will overlook those two incidents and proceed to trial.’

From the perspective of the British High Commission in Nigeria, ‘the UK has requested consular access to Mr. Kanu from the Nigerian Government, and we stand ready to provide consular assistance. As a British national, our current priority is Mr. Kanu’s health, welfare and fair treatment… The British High Commission in Nigeria stands ready to provide such assistance to Mr. Kanu and his family in the UK.’ This position of the British simply suggests that the matter cannot and does not fall within the exclusive competence of the Nigerian Government alone. In fact, with the involvement of the British concerns, the extent to which the trial can be manipulated cannot but be reduced.

Besides and more disturbingly, there are three levels of petition that have the potential to also seriously taint PMB’s record and therefore warrant international hostility. The first is the problematic of extradition. It is posited that the 1984 Extradition treaty done by Nigeria, Benin, Togo and Ghana did exclude political offences, thus making the extradition of Igboho not possible, as he is not on record to have committed any crime.

The lawyers of Igboho have also revealed that they had complained to the British Government, underscoring why Igboho must not be returned to Nigeria for possible trial. In the words of Leesi Ebenezer Olarewaju, a Texas-based lawyer, ‘we are on top of the situation right now. We have successfully notified the British government on the dangers of letting Sunday Adeyemo be returned to Nigeria where his life is at risk. We believe that before the end of today (Tuesday, July 20, 2021), Britain would have granted his request for asylum in good faith.’ The implication of this is that the problem is no more restricted to the level of Nigerian authority. It has been internationalised, implying that the resolution of the misunderstanding cannot be exclusively addressed by the Government of Nigeria.

Second, seeking an asylum in the United Kingdom for Igboho can be noteworthy. It was the United Kingdom that was affected in 1984, when the then military government of PMB abducted and crated Alhaji Umaru Dikko as a diplomatic baggage to be imported to Nigeria. The United Kingdom prosecuted and convicted four of the 17 suspects involved in the abduction. It is also the same United Kingdom that has been affected with the abduction of Mazi Nnamdi Kanu, a British citizen, in Kenya. The saga created is still the subject of focus in Nigeria’s diplomatic ties with the United Kingdom. The expected implication cannot but be a fresh diplomatic row: why is there always an abduction issue in the relationship? Why is the issue of abduction always raised under PMB?

Third, and perhaps most importantly, the Ilana Omo Oodua Worlwide, led by Professor Banji Akintoye, has filed a petition against PMB at the International Criminal Court (ICC) and has also noted that there were concrete and weighty evidences against PMB and many members of his administration. The Yoruba petitioners have alleged cases of genocide in Southern Kaduna that are more than what obtained in Rwanda, ethnic cleansing through daily kidnappings, and recidivist Fulani herdsmen’s killing of farmers on their farms with impunity. It was in light of the foregoing trauma to which the Yoruba people have been subjected that has led to their calls for self-determination.

And true enough, the Head of Information and Evidence Unit of the ICC Prosecutor, Mr. Mark P. Dilon, told Mr. Aderemilekun Omojola, a counsel to the Yoruba petitioners, that the Yoruba petition ‘has been duly entered in the Communications Register of the Office. We will give consideration to this communication, as appropriate, in accordance with the provisions of the Rome Statute of the International Criminal Court’ (Saturday Sun, July 17, 2021, p.3). This particular petition simply means that, if the purported weighty allegations against PMB are substantiated, there may be a strong case for PMB to answer, a situation that only has the potential to lead to jail imprisonment of PMB, but also serving as a catalyst in the Yoruba struggle for self-determination.

The continuation of Kanu’s trial tomorrow, 26th July, 2021 in Abuja cannot but be more interesting than ever before, because of the arrest and trial of Sunday Igboho in Cotonou; the strong belief of many lawyers that Kanu’s abduction is in conflict with the extradition law of Kenya, Britain and Nigeria; Britain’s commitment to the provision of consular assistance to Kanu; Yoruba petitions to the ICC and the British, and most significantly, the deepening Yoruba struggle for self-determination. These factors cannot make PMB have a settled blood pressure. PMB cannot but also be compelled to re-evaluate his priority: secession saga or insurrection imbroglio? Secession can be eventually averted if the objective calls for restructuring or making of a new constitution are listened to, if the fears of the Igbo are also promptly addressed, with a particular re-strategy of granting amnesty to both Kanu and Igboho. The critical resultant from the foregoing is that hunters and farmers have sent signals to PMB to prepare for more public protests and arrests. This is why the objectives of armed banditry and insurrection, as epitomised by the Boko Haram and armed bandits are, at best, very destructive and anti Nigeria, and cannot therefore be in the interest of a united Nigeria. Consequently, insurrection cannot be a good option.