By Damian Ugwu
“If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear — never to see them again — you send them to Egypt.”-
Robert Baer, former CIA agent explains the concept of extraordinary rendition
On Thursday 13 October 2022, the Nigerian Court of Appeal discharged Mazi Nnamdi Kanu, leader of the Indigenous People of Biafra on the ground that his rendition from Kenya in June 2021 was illegal. Kanu has been in detention since his rendition from Kenya over one year ago.
“Treaties and Protocols are meant to be obeyed. No government in the world is permitted to abduct anybody without following the due process of extradition. Nigeria is not an exception or excuse. Nigeria must obey her national and international laws, to avoid anarchy”, the court held.
Kanu was allegedly seized by armed men in Nairobi Kenya on 19 June 2021 and flown to Nigeria days later where he has since been detained by the DSS and prosecuted for treason among other charges.
Few Nigerians including human rights defenders paid attention to the concept of “extraordinary rendition” till recently when Aloy Ejimakor, a defense lawyer to the Biafran separatist leader, used the term to describe the abduction of his client from Kenya. “Extradition is the only valid means of bringing Mazi Nnamdi Kanu to Nigeria. He was NOT extradited but renditioned. No valid prosecutorial or judicial action can proceed from such criminal conduct by a State. This issue must be resolved before he’s subjected to any trial ” he tweeted. Ejimakor also in his widely circulated article said he intended to “give excerpts of few pertinent cases” from other jurisdictions including the United Kingdom, New Zealand, and South Africa that set universal precedents on extraordinary rendition to highlight its impact on the validity of prosecution of the person renditioned. However, the article did not explain to the ordinary Nigerian what the term extraordinary rendition meant.
This article attempts to provide some education on the subject. According to the American Civil Liberties Union(ACLU), extraordinary rendition refers to the practice of kidnapping or capturing people and sending them to countries where they face a high risk of torture or abuse. Victims may be detained indefinitely without recourse to the courts, to lawyers, or to any of the mechanisms set up to protect the human rights of an individual.
‘Extraordinary rendition’ may lead to ‘enforced disappearances’ whereby an individual is not heard of again. It is a practice designed to circumvent the human rights principles and practices that have developed over time to protect the rights of those under investigation or in detention. This practice was first used as a state-sanctioned policy by the United States during the Bush administration in the 1990s when, the CIA systematically abducted and renditioned hundreds of suspected terrorists to several countries including Egypt, Syria, Uzbekistan, and Yemen under a secret program in facilities run by foreign intelligence agencies or in CIA-run “black sites.”
According to several US-based human rights groups, the Central Intelligence Agency, together with other U.S. government agencies, utilized an intelligence-gathering program involving the transfer of foreign nationals suspected of involvement in terrorism to detention and interrogation in countries where — in the CIA’s view — federal and international legal safeguards do not apply. Suspects are detained and interrogated either by U.S. personnel at U.S.-run detention facilities outside U.S. sovereign territory or, alternatively, are handed over to the custody of foreign agents for interrogation. In both instances, interrogation methods that do not conform to internationally recognized standards are employed. This program is commonly known as “extraordinary rendition”
Incidentally, Nnamdi Kanu’s rendition is not the first time in Nigeria’s history. In July 1984, a team of Nigerians and Israelis attempted to abduct and renditioned the exiled former Nigerian minister Umaru Dikko who had fled Nigeria after a military coup. Alhaji Dikko who was labelled “Nigeria’s most wanted man” was accused of corruption. The plot which was to kidnap Mr. Dikko, drug him, stick him into a specially made crate, and put him on a plane back to Nigeria – alive was foiled by a young British customs officer and led to a diplomatic spat between Nigeria and Britain. Major General Mohammed Buhari, the current president was the Nigerian military ruler at the time.
Both incidents received different reactions depending on which side of the political divide one belongs to. Human rights groups are however unanimous in their position, that extraordinary rendition is illegal because they bypass all judicial or administrative processes such as extradition. They argue that it contravenes international law because it is illegal to transfer people from one country to another without any kind of judicial or administrative process.
Moreover, most victims of “rendition” were arrested and detained illegally in the first place: some were abducted; others were refused access to any legal process. According to Amnesty International, many victims of “rendition” have been held in prolonged arbitrary detention and subjected to enforced disappearance. Nearly all the victims are subjected to torture and other ill-treatment.
In practice “rendition usually involves multiple human rights violations, including abduction, arbitrary arrest and detention and unlawful transfer without due process of law. It also violates several other human rights safeguards: for example, victims of “rendition” have no possibility of challenging their detention, or the arbitrary decision to transfer them to another country. “Rendition” is a key element in the global system of secret transfers and arbitrary detention. This system is designed to detain people, often for obtaining intelligence from them, free from any legal restriction or judicial oversight.
Statistics about cases of rendition are usually hard to find because of the secrecy associated with the practice. In 2005, the New York Bar Association estimated that about 150 people had been subjected to “rendition” to other countries since 2001 while Human Rights Watch said the CIA “secretly and extrajudicially transferred at least 119 foreign Muslims from one foreign country to another for incommunicado detention and harsh interrogation at various CIA black sites”. The above figures appear very conservative, as many people including a former CIA agent believe that “hundreds” of detainees may have been sent by the US to prisons in Middle Eastern countries-
The illegality of the rendition is not in doubt. Most victims are subjected to enforced disappearance, a term used when people are held in secret detention and the authorities refuse to disclose their fate or whereabouts. This is expressly prohibited under international law which requires that any person deprived of their liberty be held in an officially recognized place of detention. Extraordinary rendition is clearly prohibited by the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment as well as its optional protocol ratified by Nigeria.
Nnamdi Kanu was abducted near the Jomo Kenyatta airport in Nairobi, Kenya on 19 June 2021 by people suspected to be nonstate actors apparently working in partnership with a Nigerian intelligence agency, according to a report. He resurfaced in Abuja on 29 June 2021, a clear 12 days of detention outside the protection of the law. He was subjected to enforced disappearance, a practice that contravenes international law. Nigeria indeed has ratified the relevant UN Convention dealing with enforced disappearance. Needless to state here that the practice of ‘extraordinary rendition’ is a violation of the UN Convention Against Torture and All Forms of Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) and the International Covenant on Civil and Political Rights (ICCPR), both of which Nigeria has ratified.
The International Convention on the Protection of All Persons from Enforced Disappearance, which affirms respect for the right of all persons not to be subjected to enforced disappearance was adopted by resolution A/RES/61/177 on 20 December 2006 during the sixty-first session of the General Assembly of the United Nations (UN), opened for signature in Paris, France on 6 February 2007 and entered into force on 23 December 2010. Nigerian acceded to the treaty on 27 July 2009. By ratifying the Convention, Nigeria undertook the obligation of implementing the same through its national legislation and to take measures to prevent and punish enforced disappearances.
It is in this light that I commend the recent ruling of the Appeal court. According to the learned Justices of the appellate court, “ by engaging in utter unlawful and illegal acts and breach of its laws in the instant matter, the Federal Government did not come to equity in clean hands and must be called to order” I cannot agree more.
Damian Ugwu is a human rights researcher