Court of appeal expresses “deep concern” at treatment of British citizen, Nnamdi Kanu, detained in Nigeria

On Friday 7 July 2023 the Court of Appeal handed down its judgment in R (Kingsley Kanu) v Secretary of State for Foreign, Commonwealth and Development Affairs [2023]EWCA Civ 796,  a case brought by the brother of Nnamdi Kanu, leader of the self-determination group, the Indigenous People of Biafra (“IPOB”) who is currently detained in solitary confinement by the Department of State Security in Nigeria.

In its judgment the Court of Appeal expressed its “deep concern” about Nnamdi Kanu’s treatment, noting the strong criticisms of the Nigerian authorities regarding the circumstances of Mr Kanu’s transfer to Nigeria and his treatment in detention from the United Nations Working Group on Arbitrary Detention, that has called for Mr Kanu’s immediate release; the Federal High Court of Nigeria; and the Nigerian Federal Court of Appeal. The Nigerian Federal Court of Appeal held in its judgment handed down on 13 October 2022 that, in its “clear and emphatic” judgment Nnamdi Kanu was a victim of “unlawful extraordinary rendition in clear and egregious violation of international law”, and as a consequence should be discharged of all remaining charges against him and immediately released.

Despite its concerns and the overwhelming evidence that Mr Kanu has been subject to extraordinary rendition, the Court of Appeal dismissed the appeal. The Court of Appeal focused its reasoning on the earlier decision of R (Abbasi & Anor) v Secretary for Foreign and Commonwealth Affairs and Anor [2002] EWCA Civ 1598, according to which a British citizen detained abroad has a legitimate expectation that the Foreign Secretary will consider their position and the extent to which some diplomatic action may be taken on their behalf, finding that Court of Appeal’s approach in Abbasi does not require the Foreign Secretary to reach a firm view on whether Mr Kanu has been subject to extraordinary rendition, in violation of international law, in order to properly consider his request for assistance.

Important to the Court of Appeal’s consideration was the fact that the Nigerian Government has appealed the decision of the Nigerian Federal Court of Appeal and those appeal proceedings are pending. During the course of the hearing the Secretary of State had made clear to the Court of Appeal that, were the Nigerian Supreme Court to affirm the Nigerian Federal Court of Appeal’s judgment and the order for Nnamdi Kanu’s discharge and were that judgment to be defied by the Nigerian authorities, the Secretary of State’s approach may be different because it would “become a lawlessness debate”. The Court of Appeal commented that “if such a lamentable sequence of events were to occur, and the Secretary of State were not to respond to it, that would have to be the subject of a fresh claim.”

Background

Mr Kanu disappeared in Kenya on 19 June 2021 and re-appeared in Nigeria on 29 June 2021, when he was produced in the custody of the Department of State Services, Abuja, Nigeria. In documents filed in Nigerian court proceedings, the Nigerian government admitted its agents ‘intercepted’ and detained Mr Kanu, and brought him back to Nigeria to face trial. His transfer to Nigerian was not the subject of extradition or any legal proceedings in Kenya.

Nnamdi Kanu’s family has asked the Foreign Secretary to take certain steps to assist Mr Kanu and to secure his release, on the grounds that he has been subject to extraordinary rendition and is arbitrarily detained in Nigeria. The Secretary of State has taken a number of steps to raise Nnamdi Kanu’s case with the Nigerian authorities, including representations supporting his transfer out of solitary confinement, but has not gone beyond raising concerns and asking for an explanation of the circumstances of his transfer to Nigeria. Mr Kanu’s brother, Kingsley Kanu, challenged by way of judicial review the Foreign Secretary’s failure to reach a firm, concluded view as to whether Nnamdi Kanu was the victim of extraordinary rendition, in violation of international law, and therefore whether he is arbitrarily detained, despite the overwhelming evidence to support such a conclusion. He argued that, pursuant to Abbasi, lawful decision-making on whether to take certain steps to assist a British national detained abroad was dependent upon the Secretary of State reaching a firm conclusion on whether the person was being detained arbitrarily and in violation of international law.

Further information about the case can be found here.

Mr Kanu’s family is represented by Charlotte Kilroy KC of Blackstone Chambers, Tatyana Eatwell of Doughty Street Chambers and Isabel Buchanan of Blackstone Chambers, instructed by John Halford and Shirin Marker of Bindmans LLP.