- In my opinion as a legal practitioner, Mr Kyari has not committed any offence to warrant his suspension, arrest or extradition by any authority based on the allegation of Federal Bureau of investigations (FBI) this is so, due to the presumption of innocence in our constitutional system. Any attempt by FBI to arrest Mr Kyari is an invasion of Nigerian sovereignty.
- FBI in the U.S like D.S.S in Nigeria, can make arrest of a person(s) in the United States territories in violation of U.S. laws, they do not have authority to make arrest in foreign Country except in certain cases with the consent of the host Country, which may or may not permits extraterritorial jurisdictional arrest.
- FBI derives its powers from sections 28 U.S.C & 533(1), 3052 (FN3) of 1921 Department of Justice Appropriations Act, ch. 161, 41 Stat. 1367, 1411. Which provides that “(t)he Attorney General may appoints officials to detect and prosecute Crimes against the United States”. This provision was carried forward in successive Appropriation Acts and received permanent codification in 1966. Pub. L. No. 89-554 & 4 (c), 86 stat. 378, 616.
- On the whole from sections 18. U.S.C & 3052, (FN3) FBI may carry firearms, serve warrant for offence against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.
- In the celebrated case of Schooner Exchange V. Mc Faddon. II U.S. (7 Cranch) 116, 136 (1812) Marshall, (J), concludes “that the authority of the United States outside its territory is limited by the Sovereignty of other nations”.
- To butters the above authority Article 2 (4) of the United Nations Chapter provides that:
- Similarly, Section 14 (1) of the 1999 constitution also reaffirm Sovereignty of Nigerian belonging to the people of Nigeria.
- In fact, in the case of Kear V. Hilton. 699 F. 2d 181, 182 (4th cir, 1983) it was held, that because professional bail bondsmen lack power to arrest bail jumper outside the territory of the United States, in the likewise FBI agents lacks extraterritorial arrest authority.
- It is contrary to the customary international law and some Nigerians believes that FBI can effect a valid arrest of Nigerian Citizen on Nigerian soil. FBI may have the power to do so, if Nigeria have domesticated Broad statutory Authority Treaty which enable them to arrest in Contravention of International norms in Countries that have domesticated the treaty. But Nigeria is not signatory to the Treaty and it has not been domesticated.
- In Addiction, section 12(1) of the 1999 Constitution provides that:
- It is also impossible by law to extradite Mr Kyari because Section 2 of the Extradition Act cap E25 LFN 2004 makes application of the Act to the common wealth countries and United Sates is not a member of the common wealth countries as, such she is not qualified in the first place to also request for Extradition of Mr Kyari.
- Be that as it may, it is not as easy as some Nigerians are speculating in the social media, Kyari will be Extradited! FBI has arrived! And all of that stuffs. See Extradition Act (modification order 2014 & Federal High Court (Extradition proceedings Rules 2015).
- The presumption is more compelling that Mr. Kyari may be cleared of this allegations, moreover, FBI enforcement operations depends on the vague and fluctuating standards of international custom which contains explicit geographical restrictions. See United States vs. Marzami, 71 F. 2d 133 (D.C. cir.), affd 335 U.S. 895.
- For us a soul that carries empathy is a soul that has survived enormous pain. Mr Kyari has sacrificed his life, serving Nigeria, he has done for us what FBI and SWAT are doing in United States, Hushpuppi allegation cannot take place of our standing ovation for Mr. Kyari, in whatever circumstance.
- EXPLANATORILY, Mr. Kyari is not a citizen of U.S, the offence of $1.1m fraud by Hushpuppi was not committed on U.S soil, and the nationals that owns the alleged money are citizens of Qatar. And the crux of the allegation itself was that Mr. Kyari was bribed to arrest another fellow Nigerian Citizen according to Hushpuppi, but FBI alleged that Mr. Kyari benefited from the proceeds of the fraud without convincing evidence.
- The questions now are, how much was Mr. Kyari bribed with? Where is the account number with which Mr. Kyari received the bribe? When and how was the bribe received by Mr. Kyari?
- Both the FBI and Hushpuppi are given contradictory facts in my opinion. Hence the maxim Allegans contraria non est audiendus (meaning contradictory allegation is not to be heard).
- Illustratively except if FBI is walking on a shadow line to transfer Hushpuppi’s crime to Mr. Kyari and again under our laws criminal liability is not transferable, it is personal. It cannot be transferred because the mens rea or actus reus is on the accused. See PML (Nig) Ltd v. FRN (2017) LPELR – 43480 S. C.
- I have read to some great extent, parts of the FBI charges and I couldn’t find anything indicting Mr Kyari or how he participated in the fraudulent activities of Hushpuppi. FBI has not also disclose a reasonable cause of action, it is said that causa vaga et incerta non est causa rationabilis- (a vague and uncertain cause of action is not a reasonable cause). There’s also an adage in my language that says you can’t dry a laundry today with yesterday’s sun it will remain wet. In the absence of any compelling evidence, FBI allegations will remain moribund.
- IN CONCLUSION:
From the allegations of FBI and some documents on the social Media, the evidence has no probative value, the elements of the offence has not disclose a Prima Facie case against the Supercop (Mr. Kyari). I will also advice Mr. Akyari to stand firm, he is one of the most celebrated Cop in Africa. Nigerians needs him now more than ever in combating crime.
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