​COURT RULING: I HAVE NO CASE TO ANSWER, SAYS KASHAMU

PREAMBLE:
My attention has been drawn to some mischievous media reports being the latest in a series of efforts orchestrated by my political opponents to call a dog a bad name so as to hang it. Thus, I find the need to set the records straight and put to a stop to their devious attempts to make a mountain out of a molehill. The undisputable fact is that a judgment of an American court cannot supersede the judgments of the British and Nigerian courts. It should be noted that it is the British that colonized Nigeria and we adopted their legal system. Therefore, if the British courts gave two judgments which have not been appealed till date (14years after) and the same have been affirmed by several Nigerian courts, how then can anyone say that the recent US court ruling, which arose from a suit I filed against my abduction, is superior or has overriding effect over the previous and subsisting judgments of the British and Nigerian courts? 

THE BACKGROUND

On a business trip to the United Kingdom in 1998 in pursuit of my cotton trading business in Liverpool, I was arrested at City Airport in London and detained pursuant to an arrest warrant issued on the basis of an indictment in the United States (U.S.) in which the name “Alaji” had been introduced as a party to an alleged offence of importation of narcotics into the United States by the U.S authorities. I have never visited or resided in the U.S and certainly have never been involved in any business not to talk of a criminal activity whatsoever in the US. Although, I declared from the moment of arrest that I was not the person involved in the alleged narcotics business and that it was a case of mistaken identity, the British courts made an order for my committal pending my extradition to the U.S. Fortunately, my lawyers came across some exculpatory evidence, which the US government had concealed from the courts in the extradition proceedings. The evidence was the outcome of a photo identification parade for the purpose of Identifying the said “Alaji”, that was held in the US Attorney’s office. They had taken a mug shot of me and placed it with seven other photographs of black males who had facial hair that was similar to mine and were about my age too. After viewing the photo lineup, Fillmore, one of the accused, said that the 3rd photograph in the lineup looked like a bad photograph of the man they were looking for. He also declared that the 2nd, 4th, 6th, 7th and 8th photographs did not at all look like the said ÄLaji”; my mug shot was the 7th in the lineup; that was one of the photographs that Fillmore said did not at all look like the wanted kingpin.

So, my lawyers immediately commenced a Habeas Corpus( a recourse in law whereby a person can report an unlawful detention or imprisonment before a court) application in the High Court of Justice, Queens Bench division, for my release and the vacation of the committal order made by the Court. The English High Court in its judgment delivered on the 6th of October 2000, agreed that the order for my committal was null and void having been the product of unfair proceedings in which the U.S. Government had suppressed exculpatory evidence. In summarizing the facts, Lord Justice Pill found as follows:

“What has now emerged, with a letter from the United States’ Attorney for the Northern District of Illinois, is a report of an investigation into the case against the applicant conducted on 9 February 1999. The report stated insofar as material, that on 8 February 1999, Fillmore viewed a photo lineup for the purpose of identifying Kashamu. The meeting was held in the US Attorney’s office. An officer of the Attorney had received a copy of an arrest photograph of Kashamu from another officer. The report continues that the officer ‘…took the copy of the arrest photograph and placed in a DEA form 470, photo identification folder, with seven photographs of black males. These black males had similar facial hair and were the approximate age of Kashamu. This photo lineup was shown to Fillmore. Fillmore provided the following statements: ‘it is not jumping out at me, I know what the man looks like.’ Fillmore further stated that photograph #03 looked like a bad photograph of him. Photos #02, #04, #06, #07 and #08 did not look like him at all. Fillmore stated that #05 looked a lot like him but did not look like him. Fillmore ruled out photograph #01. Fillmore stated that #05 looked the closest like Alaji.’ That is the name by which Fillmore knew his co-conspirator.  ‘The arrest photograph of Kashamu was placed in position #07 of the photo lineup.’ I add by way of comment that that was one of the photographs which Fillmore said did not look like the co-conspirator at all. A photograph of the applicant, the arrest photograph, taken upon the applicant’s arrest about three years after the events relevant to the alleged conspiracy, had been shown Fillmore on 8 February, with that result. No reference was made to the 9 February report in the Statement prepared by the United States Government for the application for extradition. It was mentioned neither in the United States Attorney’s statement nor in the Statement signed by Fillmore. The arrest photograph was disclosed but no reference was made to its potentially exculpatory effect.”

The Court therefore held: “The committal order, must in the circumstances, be quashed by reason of the unfairness of the proceedings resulting from the non-disclosure of crucial evidence, as accepted by the government. The writ of habeas corpus will, accordingly issue”. 

It is pertinent to state that, US authorities did not appeal that decision but rather re-arrested me and commenced a second extradition proceeding against me at the Bow Street Magistrate Court in England before District Judge Tim Workman. During the proceedings, the Togolese and Beninoise governments through their top officers from their Interpol units who testified that I had a brother named Adewale who was being pursued by the two Governments for drug related crimes. They also established that I am a successful businessman who had contributed immensely to the tracking, foiling and arrest of cross-border criminals in the region. Beninoise Interpol produced evidence showing that the Benin telephone number, through which the convicted US offenders communicated with their West African collaborator, belonged to my brother Adewale Kashamu and not me, Buruji Kashamu. They also produced bank statements of an account maintained in Bank of Africa, Cotonou by Adewale, which had recorded movement of about 2 million US Dollars, even during the period that I was being incarcerated in Brixton prisons facing the extradition proceedings. 

Furthermore, in the course of the proceeding, the U.S. authorities produced several documents to refute the position that this was a case of mistaken identity and the person sought was my brother Adewale Kashamu. The first set of documents produced was from the Nigerian Drug Law Enforcement Agency (NDLEA) which sought to establish that my brother Adewale had died in the 1980s. The documents also sought to deny the fact that I had collaborated with the NDLEA against cross-border criminals in West Africa. However, the NDLEA officials who had made these false statements eventually admitted that they had been put under pressure by the U.S. authorities to make the false statements and revealed that indeed they had no record that my brother Adewale Kashamu died in the 1980s. 

Colonel Reuben Nwako (Rtd), who was Director of Assets and Investigation of NDLEA at the time I cooperated with NDLEA under the Chairmanship of AIG Onovo, was subpoenaed by the Bow Street Magistrate Court to give evidence in the trial. He therefore attended the trial, gave oral evidence and was cross- examined by the Counsel from the British Crown Prosecution Service, representing the U.S. Government. He referred the court to existing records that showed that the United States Drug Law Enforcement Agency (DEA) officers in the U.S. Embassy in Nigeria were actually aware that I was cooperating with the NDLEA to track down drug dealers on the West African region. All these are in the printed record of the Bow Street Chief Magistrate Court on the matter and are available to the public. Also, two top officers of the NDLEA, Mr. Dan Asabe Umaru who was Director of Operations, and Mr. Femi Oloruntoba who was Director of Prosecution in response to a subpoena from the court also testified and clarified the conflicting documents that had emanated from the NDLEA. They accepted that the previous documents they had produced in support of the US authorities were not based on their records. 

Just before judgment was delivered in the proceedings, the U.S. Government offered me a plea bargain (a proffer) by which they agreed to let me off with a suspended or short sentence if I would stop fighting the extradition proceedings. This offer was passed through Thomas Durkin, a U.S lawyer representing me.  I rejected the offer out rightly, making it clear that I would never plead guilty to a crime I did not commit.

The Bow Street Magistrate Court delivered its judgment on the 10th of January 2003 wherein District Judge Tim Workman came to the conclusion that the new identification evidence produced by the US Government was worthless and unreliable and that I was clearly not the person involved in the narcotics transaction for which the indictment was made in the US and should thus be discharged.   In this regard, the District Judge held: 

“As a result of the evidence that the Defence has placed before me and the evidence which the Government has tendered in rebuttal, I find the following facts: that the defendant has a brother, Alhaji Adewale Adeshina Kashamu who bears a striking resemblance to that of his brother; I am satisfied that the defendant’s brother was one of the co-conspirators in the drugs importation which involved Catherine and Ellen Wolters; I am satisfied that the defendant informed both interpol and the National Drug Law Enforcement Agency of the activities of this group.” 

The District Judge then concluded pungently that:

“certain of the assertions made by the government are untrue ……I am satisfied that the overwhelming evidence here is such that the identification evidence, already tenuous, has now been so undermined as to make it incredible and valueless. In those circumstances there is no prima facie case against the defendant and I propose to discharge him.”  

THE CONSPIRACY AGAINST ME

Upon my release from the United Kingdom following the judgment of the Bow Street Magistrate Court on the 10th of January 2003, I returned to Nigeria and rebuilt MY businesses. I also soon became actively involved in politics especially in Ogun State and by 2008 some politicians who see me as a threat to their ambitions commenced a campaign of calumny against me alleging that I was a convicted drug dealer who had been jailed in the United Kingdom for 5 years for drug related offences and wanted by the Federal Bureau of Investigation of the United States of America for similar offences.

The Interpol department of the Nigerian Police Force conducted investigations into the allegations and published a report dated 4th March, 2008, and signed by ACP Haruna H. Mshelia, in which it stated among other things:

“That all our letters written to Interpol London, Lyon, Washington and         Cotonou relating to enquiries on criminal/drug/conviction records of the suspect were returned negative to the effect that the suspect was never convicted of such offence in their territory.”

I commenced several lawsuits as a result of this attack on my person; most of the lawsuits for Libel against me were commenced in 2010. Faced with these circumstances, and in a desperate bid to find justification for their false allegations, these politicians began to pressurize the Attorney General of the Federation (AGF) to resuscitate the false US indictment against me in Nigeria and to instigate an extradition process against me on the same baseless accusations.

When I became aware of these moves I commenced an action at the Federal High  Court in Lagos against the AGF seeking an interpretation of the Nigerian Extradition Act and determination of some questions as to whether the AGF could exercise his powers under that Act against me in the context of the findings of the British Courts that I am not the person involved in the alleged narcotics transaction and in view of a decision of the US Court of the northern District of Illinois, delivered in 2009 (upon the application I filed to remove my name from the indictment) confirming that I was not a fugitive from justice in America.

The Federal High Court ina judgment delivered in Suit No. FHC/L/CS/938/2010found    that the AGF could not exercise any power against me under the Nigerian Extradition Act when I had been found not to be involved in any alleged crime in the US and because I am not a fugitive. 

In spite of this judgment, my detractors persisted in their treacherous activities and  sometime in 2015, the Nigerian police wrote a letter to the British High Commissioner in Nigeria requesting him t o confirm the authenticity of the aforesaid judgments of the British Courts in response to which the British High Commission in a letter dated 27th April 2015 confirmed the authenticity of the documents in respect of the extradition proceedings in the U.K and stated that:

“The magistrate was not satisfied that there was a case to answer and the extradition request was rejected.”

Prior to this, I had been elected a Senator of the Federal Republic of Nigeria to represent the Ogun East Senatorial District on the 28th of March 2015. My political foes who were coincidentally dealing with a major defeat at the presidential elections sought to sink with as many people as they could and so they schemed to prevent my swearing in as a senator by all means including the plan to have me abducted and transported to the U.S over an alleged extradition request from the United States in respect of the same indictment over which the British courts had exonerated me. I consequently filed an application for the enforcement of my fundamental rights in Suit No: FHC/L/CS/508/2015. The Federal High Court on the 17th of April 2015 made an interlocutory order in the following terms: 

“In line with the provisions of the Order (iv) rule 4 (c) (iv) of the Fundamental Rights’ (Enforcement Procedure) Rules 2009, the Respondents herein shall in the interim stay all actions arising from the Applicant’s claims capable of infringing on his fundamental rights to personal liberty, freedom of movement and association pending the hearing and determination of the Applicant’s substantive application dated 14/4/2015.” 

The court subsequently heard arguments in respect of the originating motion and reserved judgment to be delivered on the 27th of May 2015.

Notwithstanding the pendency of the Suit wherein judgment had been reserved and the interlocutory order of the court as aforesaid, over 50 armed and masked operatives of the NDLEA prodded by the then AGF, Mr Mohammed Adokie Bello, invaded my residence in Lagos on Saturday, the 23rd of May 2015, breaking down and destroying windows, doors and gates to gain entrance. They harassed and intimidated me and members of my household including my pregnant wife and infant children. When the attempt to abduct me failed due to media exposure, they detained me in my house. 

In a committal proceedings commenced against the AGF and NDLEA (as a result of the unlawful invasion of my house) in the Federal High court an order was made on the 26th of May 2015 as follows: 

“That the men of the National Drug Law Enforcement Agency stationed at the Residence of the Applicant are hereby ordered to vacate the premises in view of the subsisting court order of O.E. Abang J. that parties shall stay all actions pending the determination of the matter fixed for 27/5/2015.” 

The operatives of the NDLEA in disobedience of the order of the court refused to vacate my premises until the 28th of May 2015 and not because of the order of the court but because they obtained a written undertaking from my lawyer, Prince Ajibola Oluyede to produce me whenever I am required.

The court on the 27th of May 2015eventuallydelivered a judgment in Suit No: FHC/L/CS/508/2015 wherein it among other things made an order as follows: 

“That the 1st to 12th Respondents are hereby restrained from unlawfully arresting, detaining, attacking, abducting and/or kidnapping the Applicant to prevent him from being sworn in as Senator representing Ogun State Senatorial District in the Senate of the Federal Republic of Nigeria or in any way preventing him from entering the halls of National Assembly or participating in the inauguration of the new National Assembly based on allegations that have been the subject of investigations by Interpol the Applicant having been cleared and/or exonerated by two Courts of competent jurisdiction in the United Kingdom.” 

Subsequently, a bundle of documents titled “Application for the Extradition of Buruji Kashamu” to which was attached a so called “provisional warrant of arrest of Buruji Kashamu” purported to have been signed by an unnamed Judge of the Federal High Court was filed at the Abuja division of the Federal High Court. Conspicuously missing from the bundle of documents was the required request for my extradition, issued by the US Authorities as prescribed by the Nigerian Extradition Act. 

In response to the above, my Lawyers filed an application for committal against the then AGF and the Chairman of the NDLEA in Suit No: FHC/L/CS/508/2015 dated the 5th of June 2015 seeking the nullification of the documents respectively referred to by the AGF as a “provisional warrant of arrest” and “Application for extradition”. 

In a ruling delivered on the 8th of June 2015, the Court in nullifying those documents made the following order:

“The invasion of the Applicant’s premise with armed operatives of NDLEA on 23/5/2015 is hereby declared unlawful and unconstitutional and a clear abuse of official power, an affront to the authority of this Court and it is actionable against NDLEA. The provisional warrant dated 25/5/2015 that is claimed to have been signed by the Judge of this Honourable Court in exercise of the court’s disciplinary jurisdiction is hereby set aside and accordingly nullified”. 

In the meantime, the Abuja division of the Federal High Court heard arguments in respect of the AGF’s “application for extradition” in Suit No: FHC/ABJ/CS/479/2015 and in a ruling delivered on the 1st of July 2015 dismissed same in the following words: “This suit is hereby dismissed. There shall be no order as to costs. The Applicant, being an office created by the constitution (see section 150(1) of the Constitution 1999 As Amended) has a greater obligation, by its act and conduct, in the context of its very extensive constitutional powers as prescribed in Section 174(1)(a), (b) and (c), (2) and (3) of the CFRN, supra. to be seen to be law abiding and to give maximum and unqualified respect to every judgment of a court of competent  jurisdiction, regardless of its opinion as to whether the court was right or wrong until such decisions are set aside by the appellate courts. To do otherwise is to further deepen an incipient culture of disobedience of court’s orders and of unmitigated acts of unbridled impunity to judicial process even by the citizenry and the proverbial ‘common man’ whose last hope lies in the judiciary. This shall be the ruling of this court. The suit is for these reasons, dismissed”.

   THE U.S. CASE

Meanwhile, prior to the foiled attempt to abduct me in the guise of an extradition process, I had filed a suit in the US to pre-empt their evil plot when I got wind of it. It should be emphasised that their plot is in contravention of the subsisting orders and judgments of the courts which are in tandem with the United Nations Declaration on the Protection of All Persons From Enforced Disappearance, which among other things states that “No State shall practise, permit or tolerate enforced disappearances”.

It was the suit which was filed in April 2015 that culminated in the 23rd January, 2017 ruling which some sections of the media instigated by my political opponents decided to sensationalise. 

 Justices Richard Posner and Michael Kanne of the United States Court of Appeals for the Seventh Circuit unabashedly approbated and re-approbated when it departed from a precedent it set in Hijazi, 589 F. 3d 401 (7th Cir.2009) which the US District Judge as per Hon. Charles Norgle relied on and declared that I was not a fugitive since I had never set my foot in the US nor flee from detention in the United States or anywhere in the world.  There is no record that the legal precedent had been upturned or reversed, yet the same court departed from this settled principle of law and made far-reaching conclusions which are unsupportable by the history and facts of the case as well as the findings of the British courts. 

The US Court of Appeals talked about the Justice Department’s inability to convince the British judge that I was the person it was seeking to extradite. Let us assume without conceding that I was released from prison custody in London as a result of the inability of     the Justice Department to convince the British Court that I was the person being sought, should I then be haunted for life? Should I continue to pay for the “inability” of the Justice Department to convince the British courts?

 It is surprising that while the same US Court of Appeals agreed with my lawyers that the  Mansfield Amendment “forbids federal employees to arrest a person in a foreign country  on narcotics charges”; it deviated, saying, “The Supreme Court has repeatedly construed  statutes similar to the Mansfield Amendment as directives to federal agencies and their employees (i.e., behave yourselves or face disciplinary action) rather than as a conferral of  the right to sue the agencies and their employees.”

And as if justifying the 2015 abduction plot, the appellate court added that, “The Mansfield Amendment is explicit in not prohibiting an employee of the United States, provided he has the approval of the United States chief of mission, from being present when foreign officers are affecting an arrest or from assisting foreign officers who are effecting an arrest. The conduct of which Kashamu complains – that U.S. agents actively participated in an attempt by Nigerian agents to arrest him – was thus lawful.”

The above findings of the court could only be tenable in a situation where extradition proceedings had not taken place. In my case, I faced extradition proceedings in the United Kingdom at the behest of the United States government and after four rigorous years of   trial, the British courts found that it was a case of mistaken identity and released me. How many times will I face extradition proceedings over the same offence? If the United Kingdom did not find me guilty, should I be a sacrifice on the altar of political expediency in order to be seen as being more Catholic than the Pope?

In effect, what the US judgment is saying is that the several rulings of the British and Nigerian courts are worthless. This is without regards to the International Laws and treaties that are binding on them.

31. Given the US Court of Appeals varying positions, it could then be safely           assumed that the 2015 abduction plot was hatched after seeing the futility in       any attempt to legally extradite me. This much was said in the 18th of August,       2014 judgment given by the same U.S. Court of Appeals for the Seventh      Circuit.

32. The US appellate court said, “Several months after the indictment came             down, Kashamu showed up in England and was arrested at our             government’s request.  Justice Department lawyers, working with their             English counterparts, sought his  extradition to the United States to stand             trial. There were two extradition proceedings, both unsuccessful, ending             finally in January, 2003 when the Judge refused to order him extradited.                He had been detained throughout the extradition proceedings. As soon as the judge ruled, Kashamu left England for Nigeria, where he remains.”

 33. In effect, the US Courts acknowledged that I was arrested and tried twice in  London at the US Government’s request, and that the US Justice Department lawyers worked closely with their English counterparts. In effect, the British  Government cooperated with the US government on the both occasions as if it  was the Federal Government of Nigeria. Yet, at the end of the day, I was  exonerated because it was found that it was a case of mistaken identity.

 34. Even in the same ruling, the US appellate court held that I had been    “exonerated though only partly by the judiciary of our British ally”. And then went on to state that, “Given Kashamu’s prominence in Nigeria business and government circles and the English magistrate’s findings and conclusions,                 the probability of extradition may actually be low.” 

35. So, if the English court had made positive and definitive findings exonerating me and  declared that I am not the accused person being sought, is it not appropriate for me to ask that the indictment be quashed and take every lawful step to protect myself? 

36. What is more, the extradition which Nigeria relies on to accept or entertain request from the United States of America dates back to 1931 when Nigeria was still a colony of the United Kingdom. So, if Nigeria is automatically bound by the treaty because it was a colony of the United Kingdom; are Nigeria and the US not bound by the express provisions of the treaty on Mutual Legal Assistance between the US and the UK which states that one of the limitations to such assistance is if “the request relates to an offender who, if proceeded against in the Requested Party for the offence for which assistance is requested, would be entitled to be discharged on the grounds of a previous acquittal or conviction”? Deductively, Article 4 of the Bilateral Extradition Treaty between the UK and Nigeria also states that: “The extradition shall not take place if the person claimed has already been tried and discharged or punished…”

37. Although many have continued to express fears about the prospect of getting justice in a case against the United States in their own country, I and my lawyers believe that justice and the truth will always triumph over injustice and lies. Some have reasoned that the reason I would never get justice in the US courts is because of the judicial implications of such a feat which they fear could result in the payment of damages which is not my priority. 

  CONCLUSION

38. Put succinctly, in view of the facts that I was arrested and detained on the request of the American Government between 1998 and 2003, and two British courts found that I was not the person being sought and freed me, after two extradition proceedings, the Federal Government, its agencies or any of its officers ought not to entertain any purported extradition or abduction. Yet, they made another move in May 2015 which was dismissed by the Federal High Court, Abuja. It is trite that once a case has been dismissed, it cannot be filed in court again. There is no way American court can override British and Nigerian courts. Therefore, any attempt to condone or allow abduction in the guise of an extradition is an illegality and affront on our sovereignty, the rule of law, international and municipal laws. I am an employer of labour with hundreds of employees who also cater for their immediate and their extended families. I have had more than enough distractions since this needless harassment began. I could hardly focus on building my businesses and the consequences on my bottom line and cash flow have saddled me with an N11billion deficit that I am still battling to offset.  However, I rest with faith in the Almighty Allah Subhana Wa Tala, who is in control of the circumstances of my life. I remain committed and forthright in the service of mankind and my nation.    

Senator Buruji Kashamu

Ogun East Senatorial District

28.01.17