INTRODUCTION
A major achievement of the modern social organization is the emergence of Sovereign Nation States. An important feature of sovereignty is the freedom from interference in the affairs of one Sovereign State by another Sovereign State. One area of concern in the interaction between nations today is how to return fugitives fleeing from the law to sojourn in another autonomous Sovereign Nation State, back to their countries of origin/residence, where they committed offences, to face trial or/and punishment. The country of origin or residence of the fugitive where the crime was committed cannot exercise criminal jurisdiction over him while he is in the custody of the State where he has fled to as this will amount to a breach of sovereignty of the host State. To bring the fugitive to justice, the host country must surrender the fugitive to his country of origin/residence. It is the reality of this situation that has given rise to the principle of Extradition in international relations, law, and diplomacy.
Extradition is a means intended to bring an end to the era when criminals would have a sunny haven anywhere in the world. Presently, the laws relating to Extradition has acquired a great attention in the world due to the rapid escalation of International Crimes and Transnational Organized Crimes. The term “Extradition” is based on the Latin term “aut punire aut dedere” (either punish or surrender). Extradition law is acting an important role to which fugitive criminals who are trying to escape from the law are surrendered and convicted. The law of Extradition is mainly based on multi-lateral or bi- lateral treaties and municipal laws consolidated by countries.
- THE CONCEPT OF EXTRADICTION
Extradition is the process by which an accused or a person convicted of committing an offence are surrendered from one State to another. According to the Oxford Dictionary of Law, Extradition is “the surrender by one state to another of a person accused or convicted of committing an offence in the territorial jurisdiction of the latter ,which being competent to try and punish him demand his surrender.” The State where the accused was found is called “territorial state” and the State where the crime is committed is called the “requesting state.” It is worthy of note that Extradition is not solely derived from international law but is mainly based on bi-lateral treaties, multi-lateral treaties, and national legislations.
Extradition is the total surrender of a criminal by one sovereign authority to another.[1] This is the process of returning an accused of a crime by a different legal authority for a trial or punishment.[2] There is little acceptance of the notion of “sanctuary” in International Law. Hence, if an alleged offender is in a territory other than the State seeking to exercise jurisdiction, the lawful method of securing his return to stand trial is to request for his extradition.[3] Extradition is also the handing over of an alleged offender or convicted criminal who has escaped before completing his term by one State to another.[4] With the increasing rapidity and facility of international transportation and communication, extradition began to assume prominence in the 19th century, although actually, extradition arrangements date back to the 18th century.[5]
Initially, because of the neutral attitude of customary international law on the subject, extradition was first dealt with by bilateral treaties.[6] These treaties in turn need to comply with the laws and statutes of the States parties so as not to affect the rights of private citizens. The general principle became established that without some formal authority either by treaty or statute, fugitive criminals would not be surrendered. Hence, extradition was called by some writers a matter of “imperfect obligation”. In the absence of a treaty or statute, the grant of extradition depends purely on reciprocity or courtesy.[7]
On the 13th of December 1957 the European Convention on Extradition, a multilateral extradition was signed by Council of Europe while the Extradition Treaty of 2004 between USA and UK is an example of bilateral extradition treaty. The Extradition Law could be treated as a dual law as it is enriched from both national and international law separately. The decision to extradite a fugitive is determined by the national court of the territorial state at the same time it could be treated as a part of International Law because the decision made by the territorial state directly influences the relationship between two or more states.
- THE HISTORY OF EXTRADICTION
The practice of Extradition dates as far back as the 13th century when an Egyptian Pharaoh, Ramesses II, negotiated an extradition treaty with Hattusili III, a Hittite king.[8] The practice evolved over the years and has developed into well-articulated regulations that are part of the municipal laws of many countries today. Extradition has been defined “as the official surrender of an alleged criminal by one State or nation to another having jurisdiction over the crime charged or the return of a fugitive for justice, regardless of his/her consent, by the authorities where the fugitive is found”.[9]
In a situation where a fugitive is forcefully taken from the country where he has taken refuge without the observance of the due process of extraditions, an extraordinary rendition is said to have occurred. Extraordinary rendition refers to the capture, abduction, or kidnap of a fugitive by a country seeking his trial or punishment without a recourse to the extradition laws of the country where the fugitive is found, or the procedures recognized by international law. This process is of course outlawed in international law but still happens frequently.
For clarity, it is important to differentiate international extradition from interstate extradition. International extradition involves extradition from one country to the other while Interstate extradition is where a fugitive is sent from one State within a country where he is found to the requesting State in that same country. This is usually upon the demand of government of such a requesting State. The interstate practice is commonplace in federating nations such as the United States of America where the police authority of each state is autonomous. The procedure for this kind of extradition is clearly spelt out in the Constitution of the United States. In Nigeria, there is one central police force under the 1999 Constitution of the Federal Republic of Nigeria CFRN (as amended) vested with powers to arrest offenders in any part of the country for trial in the court of any State that has jurisdiction to try the alleged crime.[10] There is no extradition request or order required for such arrests or prosecution.
Extradition is also different from deportation. Deportation is the process where a competent authority requires a person to leave a territory and prohibits him from returning to it as punishment for an offence committed.[11] There are various extradition treaties in place between countries in the world which are most times, observed in the breach because of political and quasi ethical factors. The signatories to extradition agreements do not religiously grant requests for extradition where granting such requests will not be in their national interest. In other cases, countries that have no extradition treaties in place could willingly surrender fugitives for trial or to serve punishment when they have been convicted if they find it politically expedient to do so.
In strict legal parlance, the term extradition denotes the process, under treaty, or based on reciprocity, where one State surrenders to another state at its request, a person, accused or convicted of a criminal offence, committed against the law of the requesting state having jurisdiction over the extraditable person.[12] There is no existing right bestowed upon a State to extradite a fugitive. A Sovereign State is not subjected to any compulsion under international law to surrender a fugitive or criminal to another Sovereign State. The right to extradite must derive as an obligation, either from an existing bilateral or multilateral treaty or based on reciprocity and common understanding between two countries.
In the United Kingdom (UK), extradition is governed by the United Kingdom’s Extradition Act of 1989. The process of extradition in Nigeria is regulated by the Nigerian Extradition Act.[13]
THE RATIONALE FOR EXTRACTION
The law and practice of Extradition is conditioned by the following rational consideration:
- The desire of all States is to ensure that serious, heinous crimes do not go unpunished. A state in whose territory criminals have taken refuge cannot prosecute or punish them purely because of some technical rule of criminal law or for lack of jurisdiction. Therefore, to bring down the “hand” of justice on such fugitive offenders, international law applies the maxim “aut punire aut dedere” meaning that offenders must either be punished by the State of refuge or be surrendered to the State which can and will punish them.
- The State on whose territory[14] the crime has been committed is best able to try the offender because the evidence is more freely available and accessible there, and that State has the highest interest in the punishment of the offender, and the greatest facilities for ascertaining the truth. It is therefore only right and proper that such criminals who have taken refuge abroad, be surrendered to the territorial State.
- LAW AND PRACTICE OF EXTRADITION
The practice of extradition enables one State to hand over to another, suspects or convicted criminals who have fled abroad to avoid punishment. The practice of extradition is treaty-based i.e., bilateral and multilateral. This does not in any way place obligation upon States in customary international law[15]Extradition can only be successful where proper application is made via diplomatic channel. However, certain principles or conditions must be satisfied before an application for extradition is made:
- There must be an Extraditable Person
A country may protect its own nationals from extradition,[16] as may be persons who have committed offences of a political, religious[17]or of military character. There is a uniformity of States practice to the effect that the requesting state may obtain the surrender of its own nationals or nationals of a third State. But many States usually refuse extradition of its own nationals who have taken refuge in their territory,[18]although as between States who observe absolute reciprocity of treatment, in this regard, requests for surrender are sometimes acceded to. This does not necessarily mean that a fugitive from justice escapes prosecution by being in the country of his or her nationality[19].
2. There must be an Extraditable Crime
Extraditable crimes are usually listed in the extradition agreements entered between countries. Political crimes, military offences and religious offences are usually not extraditable. However, the Nigerian Extradition Act listed offences punishable under military law as extraditable offences. The definition of an “extraditable offence” has been the subject of much controversy. There are several arguments in specific cases as to the extent to which acts of terrorism can constitute political crimes that are not extraditable. For instance, instigating violence during political agitations have in some cases been classified as terrorism rather than offences of mere political character Another common ground is that of mutual criminality, i.e., the act constituting an extraditable offence must be classified as a crime in both the requesting and the surrendering state. Furthermore, it is a general principle of the law of extradition that an offender should not be tried by the requesting State for any offence other than the one for which he is extradited.
Noteworthy, is the fact that fugitive criminals cannot be extradited for offences of a political
character or on account of their race, religion, or political opinion. They may not also be extradited where there is no guarantee of a fair trial for them or where it will not be in the interest of justice (ex debitio justicie)to extradite them. The guiding principle in the operation of the Nigerian Extradition Act is reciprocity in line with the realist theory of international relations. The Act is expected to only apply with respect to requesting countries that have provisions in their municipal laws that are impari materia with what is contained in the Nigerian Extradition Act.
- PRINCIPLES OF EXTRADITION
The Law of Extradition is based on three major principles:
- Rule of Double Criminality
The alleged offence must be a crime punishable according to the law of both the state of asylum and of the requesting state. The alleged offence need not have same name or same element to constitute the crime though, it should be an offence in both states.[20]
This rule was tested in Factor v Laubensheimer[21] where British authorities instituted extradition proceedings against Jacob Factor on a charge of receiving in London money which he knew was fraudulently obtained. At the time, extradition was applied for, Factor was residing in the State of Illinois in USA and the offence charged was not an offence under Illinois Law. The United States Supreme Court held that this did not prevent extradition, since according to the Criminal Law generally i.e., Federal Law of the US, the offence was punishable. In a latter case R v Governor of Pentonville Prison, exparte Budlong[22] the US court held that ‘substantial similarity’ of the legal system of the State of refuge and requesting State is sufficient to bring into effect the double criminality rule to justify a grant of extradition.
2. Principle of Specialty
A further condition of extradition is that a person surrendered must be tried and punished only for the offence for which extradition had been sought and granted. This is called the principle of specialty. It is generally regarded as an abuse of the principle of extradition for a State to secure the surrender of a fugitive criminal for an extraditable crime and to punish such a person for an offence not included in the extradition treaty, without the consent of the State of refuge. It is noteworthy that the practice of extradition is founded on trust and reciprocity. Hence, the requesting State is under a duty not without the consent of the State of refuge to try or punish the offender for any other offence than that for which he was extradited.[23]
While this principle is frequently embodied in treaties of extradition and approved by the US Supreme Court, its application is uncertain in Britain, where domestic legislation (Extradition Act) was held[24] to prevail over a Treaty of Extradition with France embodying the specialty principle and it was consequently ruled that the accused therein could be tried for an offence other than that for which he was extradited but which was referable to the same facts as alleged in the extradition proceedings.[25]
3. Preservation of Human rights.
Human rights as enshrined in national legislations and in international instruments may constitute further restrictions on extradition. This was exemplified in the Soering Case[26] where the United Kingdom intended to extradite a person to the United States for a crime carrying a possible penalty of death. The European Court of Human Rights held that such circumstances, where a fugitive might spend years on “Death Row” awaiting the result of appeals, would constitute inhuman and degrading treatment and was thus inadmissible.
- EXTRADICTION POLITICS IN NIGERIA
Nigeria has signed extradition treaties with several countries of the world prominent amongst which are the United States of America, South Africa, Liberia, and The United Kingdom. Nigeria’s Extradition Treaty with the United States was signed by the colonial government on behalf of the Nigerian people on the 22nd of December 1931 and entered into force on 24th June 1935. Since the commencement of this treaty, Nigeria has extradited several fugitive criminals to the United States but there is no public record showing the extradition of any United States citizen or resident to face trial or punishment in Nigeria.
Most requests for extradition of fugitive criminals to Nigeria are usually turned down based on lack of assurance that the fugitive will be given a fair trial here in Nigeria or that the offences for which Nigeria is requesting the extradition of the fugitive criminals are of a political character. Unfortunately, this is not always the case. Some politicians who have looted the Nigerian treasury often use this cover of this misgivings by the advanced countries to escape extradition back to Nigeria to face the Economic and Financial Crimes Commission (EFCC).
Extradition between the UK and Nigeria is governed by a multi-lateral treaty known as the “The London Scheme of Extradition” within the commonwealth.[27] In the London Scheme of Extradition within the Commonwealth, a major requirement for the grant of an extradition request is that a prima facie case must be established against the fugitive criminal. This is in consonance with the intendment of sections 6-12 of the Nigerian Extradition Act. Further, conditions of detention or prison must not be detrimental to the protection of human rights. It also provides that extradited fugitive offenders must not be subjected to torture or any form of inhuman treatment. In December 2019, Nigeria requested the return of One Mr. Ogunnowo, a man charged with offences arising out of a series of purported sham marriages.11 This was the second time that Nigeria had made a request to the United Kingdom for extradition of a fugitive criminal and the first time such a request was brought before a United Kingdom court. The Westminster Magistrate Court rejected the request for not establishing a prima-facie case. According to the court, no extradition offence was disclosed. Further, the court took evidence and accepted the notice of torture and maltreatment in Nigerian prisons contained in the evidence advanced before it.
CONCLUSION
Extradition is a means of subjecting a fugitive criminal to justice. The process and procedures should not be complicated or cumbersome so that a requesting State would not resort to abduction of a fugitive to stand trial. States should be encouraged to embrace reciprocity agreements which will foster relationships between sovereign States and also build a bridge for smooth and seamless extradition arrangements where the need arises.
FOOTNOTES:
[1] “Extradition” Microsoft ® 2009 [DVD]. Redmond. W.A.: Microsoft Corporation. 2008.
[2] “Extradition” Microsoft ® 2009 [DVD]. Redmond. W.A.: Microsoft Corporation. 2008.
[3] “Extradition” Microsoft ® 2009 [DVD]. Redmond. W.A.: Microsoft Corporation. 2008.
[4] See Apriadi Gunawan, “The House of Representatives in Jakarta Indonesia pushes for Extradition Treaty with
Singapore” The Jarkarta Post Medan, Thursday October 24, 2013. According to the House Speaker, Marzuki Alli, an extradition treaty is very important for Indonesia because there were many corruption suspects who fled to Singapore and stashed their ill-gotten wealth there.
[5] Shearer I. (1994) Starkes International Law. 11th ed. Pp. 317-328
[6] On the one hand, customary international law imposed no duty upon states to surrender alleged or convicted offenders to another State, while on the other hand, it did not forbid the State of refuge to deliver over the alleged delinquent to the State requesting his surrender.
[7] Shearer I. (1994) Starkes International Law. 11th ed. p. 318.
[8] Amazon.com, 2020, Webster’s New World College Dictionary
[9] B A Garner (ed.), Black’s Law Dictionary (Minnesota: St Paul, 2007) p.623.
[10] Constitution of the Federal Republic of Nigeria 1999, section 214
[11] K Momodu, ‘Extradition of fugitives by Nigeria’, in International and Comparative Law, 1986
[12] T Hillier, Sourcebook on Public International Law, (USA: Google Books, (1998).
[13] Cap E25, Laws of the Federation of Nigeria, 2004.
[14] “Territory” can cover for this purpose ships and aircraft registered with the requesting state. See Article 16 of Tokyo Convention on offences committed on Board Aircraft 1963
[15] Shaw, M.A., (1997) International Law, 4th ed. PP 482-483
[16] See e.g., Article 3 (1) of the French Extradition Law 1927, and Article 16 of the Basic Law of the Federal Republic of Germany.
[17] See for example the European Convention on the Suppression of Terrorism 1997, Article 1 thereof listed those offences which may not be regarded as either political or inspired by political motives.
[18] After more than ten years of diplomatic wrangling, two Libyan suspected in the December 1988. Lockerbie bombing of Pan American Flight 103 were surrendered by Libyan government to the United Nations on April 15, 1999. The suspects surrender came under a complicated agreement that will see them tried in the Netherlands under Scottish Law. See Microsoft ® Encarta R (Supra). See also the PUNCH Newspaper August 17, 2009, P.77.
[19] Shearer, op. cit. P. 319. See also Babatunde I.O, (2010) “Extradition in International Law: The Ibori’s Conundrum” UNAD Law Journal, Vol. 4, Pp. 266-285.
[20] Collins V Loisel 259 US 309 (1922)
[21] (1933) 290 US 276
[22] (1980) 1 AH ER 701. The Budlong case has been overruled in part by House of Lord in Re-Nelson (1984) AC 606. US Govt. V MCcaferry (1984) 2 AHER 570
[23] See e.g., Oppenheim’s International Law P. 961
[24] RV Corrigan (1931) 1 KB 527
[25] RV Awbery – Fletcher exparte Ross-Munro (1968) 1 OB 620, see also RV Davidson (1976 64 Cr App.Rep.209 where the court did not pay regard to treaty in question as compelling the application of the specialty principle.
[26] (1989) EHRR 430
[27] London Scheme of Extradition within the Commonwealth is applicable as a multilateral treaty amongst countries that are members of the Commonwealth of Nations
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