The hearing in the judicial review challenge against the Foreign Secretary, brought on behalf of Nnamdi Kanu, took place yesterday, 15 November 2022.
Mr Kanu is the British national leader of the Indigenous People of Biafra (IPOB), a group that calls for self-determination for Biafra Land. In June 2021, he 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 the past 18 months, he has been held in solitary confinement in a cell at the Nigerian intelligence agency headquarters in Abuja, Nigeria. Mr Kanu had travelled to Kenya on his British passport, the only travel document that he holds.
Since his detention in Nigeria, Mr Kanu’s family have been asking the British government to take steps to secure his release on the grounds 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 a firm view on whether Mr Kanu was subject to extraordinary rendition. The family’s legal team brought the challenge on the basis that reaching a firm view is necessary to lawfully determine what steps should be taken to assist Mr Kanu.
During the hearing yesterday, Charlotte Kilroy KC, acting for Mr Kanu’s brother, Kingsley Kanu, highlighted that Mr Kanu has been the victim of a brazen and violent extraordinary rendition.
She noted that this is not the first time that the Nigerian government has tried to harm Mr Kanu. In September 2017, when he was at his home in Nigeria, the Nigerian military launched a violent raid on his house, attempting to kill him and killing 28 members of the IPOB in the process. She cited a Nigerian court judgment in which the judge described the Nigerian government’s agents as ‘[setting] out as pythons to terminate the life’ of Mr Kanu.
She then outlined the overwhelming evidence that Mr Kanu has been subject to extraordinary rendition, noting that the Nigerian government itself has admitted in domestic proceedings that it transferred Mr Kanu to Nigeria without any lawful warrant for arrest nor any extradition process. Moreover, the Nigerian Court of Appeal ruled that Mr Kanu was subject to extraordinary rendition, a position that the Federal Court of Nigeria subsequently adopted.
She explained that, given the danger Mr Kanu faces from a regime that has already made clear its willingness to use brute force to kill or harm him, and since he is a British citizen abducted whilst travelling on a British passport in a third country, it is incumbent on the British government to assist him.
She referred the court to domestic policies that evidence a clear acceptance by the British government that it has a role in protecting its citizens abroad, where there is evidence of a miscarriage of justice, and various instances in which the British government has publicly condemned the actions of other States or called for the release of its citizens where they have been arbitrarily detained abroad.
She argued that the evidence of Mr Kanu’s rendition has been clear and overwhelming for some time. In spite of this, there has been a wholesale failure by the British government to reach a view on whether Mr Kanu is a victim of extraordinary rendition. She explained that reaching such a view is indisputably necessary in order to lawfully determine what steps should be taken to assist Mr Kanu. A proper decision-making process is especially vital given that Mr Kanu’s health is failing in detention, and 18 months have passed since his initial detention.
In response, Sir James Eadie KC, acting on behalf of the Foreign Secretary, stated that reaching a firm view on whether Mr Kanu was subject to extraordinary rendition was a matter of foreign policy in which the courts must not interfere, there was no legal basis for the court to require the Foreign Secretary to reach a view, and that Mr Kanu’s challenge was ‘pointless’.
Following the hearing, the parties are now waiting for the court to provide its ruling.
Reflecting on the hearing, Kingsley Kanu, who brought the challenge, said:
It is well known that the Nigerian courts are heavily influenced by the Nigerian government. However, they have been brave enough to take a firm stand and rule that my brother was subject to extraordinary rendition at the hands of the Nigerian government. If the Nigerian courts can do this, it is not clear to me what further evidence the British government needs to reach a firm view. I hope that the UK court will now require the Foreign Secretary to reach a firm view.
Shirin Marker, one of the Solicitors representing Mr Kanu said:
Mr Kanu is a British citizen, who has been subject to one of the most serious and egregious breaches of human rights. The government’s position in refusing to reach a view on whether he has been subject to extraordinary rendition amounts to a refusal to condemn this breach. If the courts allow the British government to take this position, this sets a deeply troubling and dangerous precedent for any British citizen, who might find themselves at risk abroad.
Mr Kanu’s family is represented by John Halford and Shirin Marker of Bindmans LLP, together with Charlotte Kilroy KC of Blackstone Chambers and Tatyana Eatwell of Doughty Street Chambers.