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Opinions of Thursday, 19 August 2021

Columnist: Victor Opatola Esq.

Kanu’s trial and principle of extra-ordinary rendition

IPOB leader, Nnamdi Kanu IPOB leader, Nnamdi Kanu

The leader of the Indigenous People of Biafra, Nnamdi Kanu, was kidnapped and brought back into the country in July by Nigeria’s security agencies.

There have been arguments as to the effect of such illegal mode through which Kanu was brought back into the country by the security agents and the legal effect it will have on the jurisdiction of the court to continue his trial; stemming from the fact that he was not properly and legally extradited into the country.

Recently, Kanu’s lawyer, Aloy Ejimakor, raised the Doctrine of Extra-Ordinary Rendition as a barrier to the jurisdiction of the court to continue the trial of the IPOB leader.

This article interrogates the meaning of the Doctrine of Extra-Ordinary Rendition and to what extent, if any, such a doctrine will divest the Federal High Court of its jurisdiction to continue the trial of Kanu, in line with international practices.

Rendition, in legal terms, implies the transfer of a person (fugitive) from one jurisdiction to another.

See, Black’s Law Dictionary 1410 (9th ed. 2004) In the case of what is usually called “rendition,” the procedure involves the legal handing over (or back) a person to another jurisdiction with better rights or jurisdiction to try him.

“Rendition is in itself legal and within the confines of the law. Extraordinary Rendition occurs outside of the confines of the law. Rendition operates within the rule of law; extraordinary rendition falls outside. Rendition brings suspects to federal or state court; extraordinary rendition does not.”

According to Black’s Law Dictionary (9th ed.), “Extra-Ordinary Rendition is the transfer, without formal charges, trial, or court approval, of a person…to a foreign nation for imprisonment and interrogation on behalf of the transferring nation.”

According to the European Court of Human Rights, Extra-Ordinary Rendition is an “An extrajudicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment".

It is the act of taking prisoners to another country in order to do things to them that would not be allowed in your own country, for example, torturing (= hurting) them in order to make them give you information. 

Extra-Ordinary Rendition is simply the government-sponsored abduction and extrajudicial transfer of a person from one country to another with the purpose of circumventing the former country’s laws.

As we understand the definition and use the term “extraordinary rendition”, the instant case of Kanu is in itself a form of Extra-Ordinary Rendition different from the ones in the cases of Al Nashiri v. Poland (no. 28761/11) and Husayn (Abu Zubaydah) v. Poland (no. 7511/13), both before the European Court of Human Rights.

In the case of the United States v. Alvarez-Machain, on whether or not the abduction of Alvarez-Machain from Mexico divested the district court of jurisdiction over the respondent, the US Supreme Court held per Chief Justice Rehnquist, writing for the majority, analysed the continuing viability of the Ker-Frisbie Doctrine.

In Ker v. Illinois, Ker was forcibly abducted from Peru and brought to the US to stand trial for larceny.

Ker challenged the court’s jurisdiction over him and argued that he had a right under the extradition treaty between the United States and Peru to be returned to the US only in accord with the terms of the treaty.

The Supreme Court rejected Ker’s argument and held that “such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence and presents no valid objection to his trial in such court.”

The above doctrine holds that the fact that a fugitive was brought into a court’s jurisdiction by means of an illegal arrest or a forcible abduction in violation of the defendant’s rights does not automatically divest the court of jurisdiction.

Applying the above doctrine to the case of Kanu, the fact that he was illegally arrested, kidnapped, tortured (which is wicked and illegal) and brought into the country does not in any way rob the Federal High Court of the jurisdiction to continue his trial.

This is a legal doctrine, which emphasises that the fact that a person may have been wrongly or unfairly arrested will not prejudice rightful detention or court trial under due process.

This means that the procedure or means through which you are brought to the court itself will prejudice a lawful court process.

It is agreed from the popular narration of events that led to me. Kanu being brought back into the country, that he was illegally arrested, illegally detained, tortured and kidnapped back into the country, the remedy to this arrant and wicked breach of his constitutional rights and breach to African Charter of Human Rights is to approach the court to enforce his right and the remedy will in declaratory action and remedy for this dastard breach.

In conclusion, no argument will justify the unconstitutional breach of Kanu’s right in the way he was kidnapped, tortured and abducted back into the country, but these in themselves will not automatically divest or rob the court of its jurisdiction to continue his trial as suggested by his lawyer.