EXTRADITION, ASYLUM AND IBORI LEGAL CONUNDRUM

PHOTO: CHIEF JAMES IBORI.

The legal travails of James O. Ibori, the former governor of Delta State, Nigeria, have dominated the news in Nigeria recently. The continued relevance of Mr. Ibori in the news is tied to corruption epidemic in Nigeria and the questionable efforts of the government to stamp out corruption in the polity. Indeed, it can be argued that the highlight of the Olusegun Obasanjo’s Presidency was the setting up of the Economic and Financial Crimes Commission (EFCC). The EFCC made very bold efforts under the leadership of Nuhu Ribadu to tackle corruption; especially among public officials. Mr. Ibori’s present difficulties started when the EFCC under Mr. Ribadu slapped several charges of corruption against Mr. Ibori, and apparently coordinated with the MET Police in London to go after those individuals that assisted Mr. Ibori to hide his alleged loot.

The EFCC under the leadership of Mrs. Farida Waziri struggled to prosecute Mr. Ibori, due to the alleged meddling of the executive branch of government as typified by the perplexing pronouncements of the former attorney general of Nigeria, Michael Aondoakaa. It was widely reported that during Aondoakaa’s tenure as attorney general, not only did he refuse to cooperate with the MET police in London to prosecute the corruption charges against Mr. Ibori and his co-accused persons, Mr. Aondoakaa also watched as a federal court that was hurriedly set up in Asaba, Delta State, acquitted and discharged Ibori without trial on a 175 count indictment. The tide turned against Mr. Ibori when Goodluck Jonathan became President. Once it was clear to Mr. Ibori that there was no more executive protection, he refused the invitation of the EFCC for questioning and evaded the efforts of the police to arrest him by escaping to Dubai, UAE. He was subsequently arrested in Dubai by Interpol pursuant to a request by London MET police.

Mr. Ibori is waiting for the resolution of the extradition request by the British government in compliance with the Extradition Treaty between the United Kingdom of Great Britain and Northern Ireland and the United Arab Emirates. It has been reported that Mr. Ibori will be charged with money laundering emanating from the proceeds of crime – reportedly the money looted from Delta State government. The charges will clearly constitute extraditable offences under Article 2(a) of the Treaty, because such offences will carry no less than one year of imprisonment upon conviction.

Presently, Mr. Ibori’s options are limited to the provisions of the Extradition Treaty. The UAE will refuse the extradition request on any of the grounds for mandatory refusal stated in Article 4(1) of the Treaty, or any of the two discretionary grounds for refusal under Article 4(2). It appears that only three of the grounds for refusal – two under mandatory refusal and one under discretionary refusal - may apply to his situation. First, the request for extradition can be refused if the UAE has substantial grounds for believing that that request for Ibori’s extradition has been made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, ethnic origin, political opinions, sex or status. Second, there may be refusal of the extradition request if Ibori can show that he has been tried and convicted or acquitted by a final judgment in either State or in a third state of the offence for which extradition is requested. Third, the request for extradition may be refused if Mr. Ibori has been granted political asylum by the UAE. Mr. Ibori cannot meet any of the grounds for the refusal of the extradition request for the following reasons:

• Mr. Ibori is not a refugee and cannot demonstrate that he has substantial grounds for believing that the request for extradition has been made by the UK for the purpose of prosecuting him on account of his race, religion, nationality, ethnic origin, political opinions, sex or status. Perhaps, this argument may apply only if the request for extradition is made by Nigeria, not the UK. According to the guidelines prescribed by the United Nations High Commissioner for Refugees (UNHCR), "An applicant’s well-founded fear of persecution must be in relation to the country of his nationality. As long as he has no fear in relation to the country of his nationality, he can be expected to avail himself of that country’s protection. He is not in need of international protection and therefore not a refugee." Mr. Ibori is not a national of the UK and so cannot claim fear of prosecution in the UK because of his race, political opinions, or status.

• Mr. Ibori can argue for the refusal of the extradition request, because he has been indicted, acquitted and discharged by a court of law in Nigeria. However, for him to succeed on this ground, he has to show that the offence for which he claims to have been acquitted and discharged is the same offence for which extradition is requested. There has been no public disclosure of the nature of the offences that form the basis for the extradition request. But it is quite unlikely that the extraditable offences are the same offences for which he was indicted, acquitted and discharged in Nigeria. Aside from this, there is the problematic issue on the Treaty’s requirement that the judgment be final. On this ground, the judgment secured by Mr. Ibori in Nigeria is still subject to reversal on the pending appeal to a higher court.

• It has been widely reported that Mr. Ibori is seeking asylum in Dubai, UAE. The hope is that the grant of asylum will defeat the extradition request. But a close reading of the Treaty provisions shows that this ground for refusal of extradition should fail, because Mr. Ibori had not be granted asylum before the request for his extradition was made by the UK. Article 4(2)(a) provides that extradition may be refused "if the person has been granted political asylum by the Requested Party." Assuming that Mr. Ibori is seeking asylum, he has to demonstrate that he is unwilling or unable to return to his home country because of past persecution or a "well-founded fear" of persecution on account of race, religion, nationality, membership in a particular social group, or political opinions. Again, he is likely to fail on this score because the UK, the country seeking his extradition, is not his home country. Furthermore, Mr. Ibori cannot meet the requirements for the grant of asylum even under a liberal interpretation of past persecution under international law. Mr. Ibori clearly belongs to the privileged class in Nigeria. Although, Mr. Ibori has argued that he is being persecuted by the Nigerian government because of his political opinions, he has not stated those political opinions that have subjected him to persecution. The UNHCR’s Handbook states that political opinions are "opinions not tolerated by the authorities, which are critical of their policies or methods." To succeed in this argument, Mr. Ibori must show that the Nigeria government is motivated not just by political reasons, but also because of his political opinions. Assuming he is able to prove political persecution in Nigeria, his major problem here is that the request for his extradition has been made by the UK for the offences committed against the laws of the UK, where Mr. Ibori’s political opinions are clearly meaningless, and where he cannot demonstrate any political motivations for his claimed persecution.

The recent convictions and sentencing of two people associated with Mr. Ibori’s alleged offences on money laundering has invariably strengthened the UK’s request for his extradition. With his wife and one of his attorneys awaiting trial on related offences, a strong case can be made for his extradition to the UK to face the charges against him.

MANNY NWABUZOR is a Los Angeles based Attorney.