The same crime he was hailed for bursting, Kyari was neck deep into it, full time. He was seen negotiating for himself, confiscating hard drugs seized from suspects for his own personal sale, and making promises to an NDLEA agent in his determination to pervert the course of justice. Kyari operated with so much impunity for so long that he did not even care that he could be under surveillance by the Government or even foreign elements after his indictment. His greed obviously did him in, as he brashly tried to set up a compromise meeting with an agent who turned the meet into a sting operation where he, Kyari, was finally caught on tape abusing the privileges of his high office.
Then commenced the unending drama of the Nigerian compromised system and its vagaries. The United States of America had formally requested for the extradition of Kyari, to face criminal charges along with his fellow suspect, Hushpuppi. This is allowed under the Extradition Act of 1967, which is still a law in force in Nigeria. Not a few people thought that the NDLEA story was only unraveled to give Kyari a soft landing, giving the dwindling fortunes of the judiciary in Nigeria, as a forum for the effective prosecution of offenders, especially in high profile cases.
The conspiracy theories were orchestrated by the following provisions of section 3(6) of the Extradition Act. “(A) A fugitive criminal who has been charged with an offence under the law of Nigeria or any part thereof, not being the offence for which his surrender is sought; or (B) Who is serving a sentence imposed in respect of any such offence by a court in Nigeria, shall not be surrendered until such a time as he has been discharged whether by acquittal or on the expiration of his sentence or otherwise.”
The summary interpretation of the above provisions is simply that so long as a suspect is being charged or tried for any offence in the local jurisdiction, an application for his extradition to be tried for any offence outside jurisdiction will not be granted until he has completed the said trial and he is acquitted or he has served the sentence. This is the plot. The American judicial system is known for its precision and speed such that the trial of Kyari in America may last less than one year. Contrariwise, the Nigerian legal system is weak, frail, tired and overwhelmed, such that Kyari’s trial may last another ten years without any meaningful movement let alone serious trial.
Lawyers will team up with investigators to bungle the case, which keeps moving around in circles until we all forget it. It would then pay Kyari to be ‘tried’ in Nigeria! But then, we woke up suddenly to read of a strange application by the Honourable Attorney-General of the Federation filed before the Federal High Court in Abuja seeking an order for extradition of Kyari to the United States for his trial. Nigerians waited with bated breath for the details of the case to unfold but before we could properly digest the case filed by the AGF, the NDLEA filed its own criminal charges against Kyari and his gang, bordering on drug trafficking offences. The fears of Nigerians had become confirmed with the NDLEA charges, since section 6 of the Extradition Act forbids that any suspect should be surrendered when he is still facing criminal trial in the local jurisdiction. For as long as the criminal charges filed by the NDLEA remain in court, Kyari cannot be extradited to the United States.
But who is deceiving who exactly? The Constitution is clear as to the power of the AGF over all criminal prosecutions in Nigeria. Under and by virtue of section 174 of the Constitution, the AGF is conferred with the following powers over criminal prosecutions. “174. (1) The Attorney-General of the Federation shall have power – (a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly; (b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and (c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”
The powers of the AGF over criminal prosecution as highlighted above extend to and cover criminal proceedings instituted by ‘other persons and authorities’, including the NDLEA, in this case the case filed by NDLEA against Kyari at the same Federal High Court, Abuja. It should never be heard of that the AGF is being frustrated or hindered in the exercise of his constitutional powers over criminal prosecution, by the NDLEA, if there be no collusion or conspiracy. As things have now turned out, such conspiracy cannot be overruled entirely. Not long after these events, the AGF has now recanted to absolve Kyari of any criminal indictment. In the latest legal opinion emerging from the office of the AGF, it is said that Kyari has not been linked with the offence of money laundering, as the evidence contained in the case diary is not sufficient to indicate or show that the monies were laundered directly or indirectly by Kyari to disguise their origin. In summary, there is no basis for seeking to extradite Kyari to the USA, according to the AGF.
You cannot be more shocked than I am, with the latest opinion of the AGF. First, the crime was not committed in Nigeria, second, the trial is not to take place in Nigeria, third is that the co-accused (Hushpuppi) has already confessed to the crime and opted for a plea bargain. Where then does the AGF derive the power to absolve a suspect in respect of offences allegedly committed outside Nigeria? The rulers of the land may take counsel together to bury this case; Nigerians no doubt know the truth, the whole truth and nothing but the truth, even in this endless game of Abracadabra.
Concluded
Adegboruwa is Senior Advocate of Nigeria (SAN).
