The High Court has made an unconventional ruling in a significant human rights case centred on Nnamdi Kanu, the British national leader of the Indigenous People of Biafra (IPOB), a group that calls for self-determination for Biafra Land.
Whilst Mr Justice Swift noted the findings of the UN Working Group on Arbitrary Detention and the Nigerian Court of Appeal that Mr Kanu had been extraordinarily rendered to Nigeria following his interception in Kenya by Nigerian security forces and observed himself that Mr Kanu had been subject to ‘rendition’, (judgment, para 8) he went on to hold that the Foreign Secretary was legally entitled to make no decision on whether this had happened. The legal team acting for Mr Kanu’s family described the ruling as ’extremely difficult to reconcile with long-standing legal precedent and the principle underpinning it’ – that British citizens can expect protection from their national government. Permission to appeal has been sought.
The ruling concerns the events of June 2021, when Mr Kanu was abducted from the airport in Nairobi, Kenya, by the Nigerian security services, and 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. 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 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. He claims only a ’provisional view is possible, despite the mass of evidence and the views of the UN and the Nigerian Court of Appeal. The family’s legal team brought the challenge on the basis that reaching a firm, concluded 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.
Mr Kanu’s case was heard over four months ago on 15 November 2022. In today’s concise judgment, Mr Justice Swift noted the evidence of serious wrongs having been committed against Mr Kanu, including that in 2017, the Nigerian state had attempted to kill Mr Kanu, that the Nigerian authorities captured him in 2021 whilst he was in Kenya and subjected him to inhuman and degrading treatment, and crucially, that he was subject to ‘rendition’.
The court also highlighted extracts from the Opinion of the UN Working Group on Arbitrary Detention and the Nigerian courts, which unanimously found that Mr Kanu was subject to extraordinary rendition and called for his release on the basis that his ongoing detention is arbitrary.
However, despite clearly recognising the gravity of the wrongs committed against Mr Kanu, the court disappointingly held that Mr Kanu has no legitimate expectation that the British government should reach a firm view for itself on what had occurred or its seriousness.
The court also held that it was rational for the Foreign Secretary to maintain a ‘provisional view’ on whether Mr Kanu has been subject to extraordinary rendition, despite the overwhelming evidence. This is particularly surprising given that the court itself reached the view that Mr Kanu had been rendered on the basis of the evidence before it.
The court’s judgment is unsatisfactory not just for Mr Kanu but for any British national who finds themselves subject to a serious violation of their rights whilst abroad. It effectively enables the Foreign Secretary to prevaricate indefinitely in the face of such a violation and consequently limits the steps the British authorities should take to assist a British national, even in circumstances where there is unequivocal evidence of that violation.
The Kanu family have applied for permission to appeal against the judgment.
Reflecting on the judgment, Kingsley Kanu, who brought the challenge said:
The UK High Court has now joined the Nigerian courts and the United Nations in recognising, correctly, that my brother was subject to extraordinary rendition. That is something of importance. But I find it very disappointing that in spite of this, the High Court has held that the British authorities are not required to reach a decisive view on his rendition and can refuse to confront the mass of evidence of what has occurred. Until the British authorities reach such a view, it is impossible for them to properly consider what steps should be taken to assist my brother.
He has been languishing in detention for nearly two years, in terrible conditions which have been recognized by the British authorities as amounting to torture. The approach the Foreign Secretary has taken towards his case is clearly not working and we are desperate for the British authorities to consider alternative action. However, today’s ruling is about more than just my brother. The ruling sets a dangerous limitation on the obligations the British authorities have to any British national who has been detained by a rogue state abroad.
I hope that we will be granted permission to appeal so that this important issue can be tested before the Court of Appeal.
Shirin Marker, solicitor at Bindmans representing Mr Kanu’s family, said today:
Despite taking four months to decide this case, the High Court has produced a judgment that is extremely difficult to reconcile with long-standing legal precedent and the principle underpinning it, which is that British citizens abused abroad are entitled to expect decisiveness and protection from the British government, rather than years of hand-wringing procrastination.
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.