UK Court of Appeal expresses ‘deep concern’ about the treatment of Nnamdi Kanu following the Nigerian Federal Court’s ‘clear and emphatic’ judgment that he was the victim of ‘unlawful extraordinary rendition in clear and egregious violation of international law.’ A risk of ‘lawlessness’ is identified if Nigeria’s Supreme Court upholds its Court of Appeal judgment and no action is taken.
The Court of Appeal has, today, made a mixed ruling in an important case that sought to test the scope of the British government’s obligations towards British citizens mistreated abroad. The Court held that, despite the overwhelming evidence that Mr Kanu was subject to extraordinary rendition, the Foreign Secretary is still not required to reach a firm view on whether this occurred. However, despite expressing its concerns, the Court declined to rule that the Secretary of State was irrational by refusing to reach a firm, concluded view on what had happened while an appeal in Nigeria was pending. Mr Kanu’s family vowed today to appeal to the UK’s Supreme Court, voicing concerns that the glacial pace of the Nigerian legal proceedings should not infect the UK authorities’ decision-making on assisting Mr Kanu.
Background
Nnamdi Kanu is the British national leader of the Indigenous People of Biafra, a group that calls for self-determination for Biafra Land. In June 2021, Mr Kanu was abducted from the airport in Nairobi, Kenya, by the Nigerian security services and was detained and tortured for around ten days in Kenya. He was then flown, blindfolded, on a private plane to Nigeria. For nearly two years, he has been held in solitary confinement in a cell at the Nigerian intelligence agency headquarters in Abuja, Nigeria.
Since his detention in Nigeria, Mr Kanu’s family have asked the British government to take steps to secure his release on the grounds that there was no lawful basis for bringing him to Nigeria, and he was therefore subject to extraordinary rendition. Mr Kanu’s family have also argued that his ongoing detention is arbitrary. However, the Foreign Secretary has, to date, failed to reach any firm view on whether Mr Kanu was subject to extraordinary rendition.
The family’s legal team brought a judicial review challenge on the basis that reaching a firm view is necessary to lawfully determine what steps should be taken to assist Mr Kanu. An earlier Court of Appeal case, Abassi, held that lawful decision-making on assisting British Citizens detained abroad depended on reaching such a conclusion. The judicial review hearing took place on 15 November 2022 and judgment was handed down over four months later, on 22 March 2023. In his judgment, Swift clearly recognised the magnitude of the wrongs committed against Mr Kanu but held that Mr Kanu has no legitimate expectation that the British government should reach a firm view on what had occurred or its seriousness.
Mr Kanu’s family appealed the judgment to the Court of Appeal and a hearing took place on 22 June 2023.
Today’s judgment
In giving judgment, Lord Justice Bean noted that Mr Kanu’s mistreatment by the Nigerian government ‘has been strongly criticised by the [Nigerian] Federal High Court, the Federal Court of Appeal and the United Nations Working Group on Arbitrary Detention’ and that the UN and the Nigerian Court of Appeal were ’emphatic’ in finding that Mr Kanu has been subject to extraordinary rendition (paragraph 36).
However, despite expressing his ‘deep concern’ about Mr Kanu’s treatment, Bean LJ was not willing to find that the Abbasi case authorised the court to require the Foreign Secretary to reach a firm view on whether Mr Kanu had been subject to rendition.
Bean LJ also ruled that it is not irrational for the Foreign Secretary to refuse to reach a firm view whilst an appeal of the Nigerian Court of Appeal judgment remains pending before the Nigerian Supreme Court.
Significantly, however, the Court of Appeal has not entirely absolved the Foreign Secretary of his obligations towards Mr Kanu. Bean LJ suggested that if the Nigerian Supreme Court affirms the lower court’s ruling and orders Mr Kanu’s discharge, and if that order is subsequently defied by the Nigerian authorities and the Foreign Secretary maintains his prevarication, that would give rise to a fresh claim (paragraph 39).
Importantly, the judgment coincides with reported criticism of the ‘complacent’ attitude of the British government to its nationals detained abroad. A recent investigation by the Foreign Affairs Committee into the government’s handling of state hostage situations led to a call by MPs to overhaul the way the British government tries to secure the release of its British nationals. However, in a stunning display of arrogance, the government has refused to directly address many of the Committee’s recommendations, preferring instead to maintain an approach which, in Mr Kanu’s case (and that of many other British nationals detained abroad) is clearly not working.
Reflecting on the judgment, Kingsley Kanu, who brought the challenge said:
I am disappointed that the UK Court of Appeal did not feel able to compel the British government to take a firm stance right now on my brother’s rendition. I continue to find it astonishing, given the huge amount of evidence and the clear acceptance by the United Nations and the Nigerian Courts, that the British government cannot – or will not – reach a view on what happened to him.
The Court of Appeal has said that the British government is entitled to wait for the decision of the Nigerian Supreme Court before it reaches its own view. However, this simply allows the British government to continue to act complacently whilst my brother remains detained in life-threatening conditions.
I hope that we will be granted permission to appeal so that this important issue can be tested before the Supreme Court.
Mr Kanu’s family is represented by Shirin Marker and John Halford of Bindmans LLP, together with Charlotte Kilroy QC and Isabel Buchannan of Blackstone Chambers and Tatyana Eatwell of Doughty Street Chambers.
Shirin Marker, solicitor, said today:
As the Foreign Affairs Committee’s damning report demonstrates, the British government’s approach to Mr Kanu’s case is symptomatic of a widespread indifference towards meaningfully assisting its citizens abroad. It’s Chair rightly remarked that ‘[i]t is a core function of the FCDO to promote the interests of British nationals overseas.’ Promotion involves action, not the two years of FCDO procrastination which Mr Kanu and his family have endured. We were hopeful the Court of Appeal would put an end to that. The Court was clearly concerned and hinted that a final decision in the Nigerian Supreme Court could change everything. That was also suggested by the UK Government’s barrister, Sir James Eadie KC. But Mr Kanu’s family are understandably unwilling to accept that the glacial pace of the Nigerian legal system should be allowed to foster further procrastination by the UK Government and will put this to the UK’s Supreme Court.