By Opatola Victor Esq.
SIR: Since the leader of the Indigenous people of Biafra(IPOB), Nnamdi Kanu was brought back into the country, there have been arguments as to effect of such illegal mode through which he was brought back and the 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.
Recently, Kanu’s lawyer raised the doctrine of Extraordinary Rendition as a barrier to the jurisdiction of the court to continue his trial.
Rendition, in legal terms, implies the transfer of a person (fugitive) from one jurisdiction to another. 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 legal and within the confines of the law. Extraordinary rendition, on the other hand, occurs outside of the confines of the law.
According to Black’s Law Dictionary (9th ed.) “Extraordinary 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, extraordinary rendition is an: ‘’An extra-judicial 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’’.
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It is simply government-sponsored abduction and extrajudicial transfer of a person from one country to another with the purpose of circumventing the former country’s laws.
The question is – does extraordinary rendition rob the court of the jurisdiction to continue trial?
In the case of United States v. Alvarez-Machain, on whether or not the abduction of Alvarez-Machain from Mexico divested the district court of jurisdiction over respondent, the United States Supreme Court held per Chief Justice Rehnquist, writing for the majority, analyzed the continuing viability of the Ker-Frisbie doctrine. In Ker v. Illinois, Ker was forcibly abducted from Peru and brought to the United States 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 United States 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 Nnamdi Kanu, the fact that he was illegally arrested, abducted, or allegedly tortured and brought into the country does not in any way rob the Federal High Court of the jurisdiction to continue his trial.
There is a legal doctrine – Male captus bene detentus: (wrongly captured, properly detained) which emphasise the fact that a person may have been wrongly or unfairly arrested, will not prejudice a rightful detention or court trial under due process. This means that the procedure or means through which you are brought to court in itself will not prejudice a lawful court process.
No argument of course will justify the unconstitutional breach to Mr. Kanu’s right in the way he was brought 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.
- Opatola Victor Esq.
adeopatola@gmail.com
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