–L_R: Bar Aloy Ejimakor and #MNK
*From: Shirin Marke, Solicitor, Public Law & Human Rights, Bindmans LLP
*Distributed by: Aloy Ejimakor, Special Counsel to Nnamdi Kanu/IPOB
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According to the Office for National Statistics, UK residents make around 19.1 million visits abroad each year.
Most of these residents will be British citizens with passports declaring to authorities of other states that the Queen, and so now the new King, ‘requests and requires… all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford the bearer such assistance and protection as may be necessary.’ And most will assume that, if they are denied such assistance and protection abroad, and worse still are seriously harmed, then the UK government will step in to assist them. After all, the most basic function of any state is to protect its own citizens.
Nnamdi Kanu’s case, which is awaiting a hearing in the UK’s Court of Appeal on 22 June this year, is set to put each of these assumptions to the test. That is because, if the High Court was right to reject his family’s judicial review claim earlier this year, the UK government has what amounts to a right to remain indifferent and passive when British citizens’ rights are grossly abused abroad.
Indeed, that right would mean the government can avoid ever making a decision about what has happened or is happening, to its citizens when they are abroad and desperately seeking its help.
The facts of the case are stark. Mr Kanu is a beloved husband and father to family in the UK. He is also leader of the Indigenous People of Biafra (IPOB), a group that calls for self-determination of Biafra Land. And crucially, he is also a British citizen, who has been subject to the most serious human rights violations, including being detained for two years in Nigeria in an intelligence agency facility in conditions that amount to torture. As a British citizen, he travelled with the same expectations of protection by the British state as any other British citizen who may be mistreated abroad, however unlikely that may be. Unfortunately for Mr Kanu, such protection has been conspicuously lacking.
Perhaps surprisingly for many, the question for the court is not ‘what should the UK government do to help him?’. Instead, it is ‘should the UK government make its mind up about what has happened to him and then decide what to do?’ because for over two years the government has said it cannot, and will not, make those critical decisions.
In June 2021, whilst visiting Kenya, Mr Kanu was abducted by Nigerian security services. He was detained and tortured for around 10 days in Kenya at a ‘black site’ before being forcibly transferred from Kenya to Nigeria on a private plane, without any due process. For nearly two years, he has been held in solitary confinement in a Spartan cell at the Nigerian intelligence agency headquarters in Abuja, Nigeria. He has been denied adequate medical treatment, despite a long-standing medical condition.
Since his detention, 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.
To date, however, the Foreign Secretary has 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 overwhelming evidence and the robust assertions of the United Nations and the Nigerian Court of Appeal.
Mr Kanu’s family have brought a legal challenge against the FCDO 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 family’s challenge was heard before Mr Justice Swift at the High Court on 15 November 2022 and judgment was handed down on 23 March 2023.
In the judgment, Mr Justice Swift noted the serious wrongs committed against Mr Kanu, including that in 2017, the Nigerian state had attempted to kill him, 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 High Court’s judgment is troubling not just for Mr Kanu, but for any British citizen who finds him/her self subject to a serious violation of their rights whilst abroad. It effectively enables the Foreign Secretary to remain indefinitely ambivalent in the face of such a violation and limits the steps the British authorities should take to assist a British citizen, even in circumstances where there is clear evidence of that violation.
Unfortunately, Mr Kanu’s case is no aberration.
The British government’s inadequate approach to Mr Kanu’s case is symptomatic of a wider failure to protect its citizens abroad, one that has led the Foreign Affairs Committee (FAC) to conclude in a recent report that the UK government is failing to prevent ‘abductor states’ from ‘weaponizing [the] citizenship of British nationals for geopolitical ends’.
The FAC highlighted that the presumption that quiet diplomacy is always appropriate is false. The FAC also concluded that the FCDO’s policy of not commenting on, or interfering with, a foreign state’s legal system even in situations where the UN has condemned that state’s actions, ‘is counterproductive and risks undermining an important tool, as well as the government’s commitment to a Rules-Based International Order based solution for ending’ unlawful and arbitrary detention by a foreign state. The FAC recommended that ‘the government should as a matter of practice promote public acceptance of the opinion of the [UN] working group’. Such action has been entirely absent in Mr Kanu’s case.
The detailed recommendations in the FAC report reflect the lack of clear and principled policy around protecting British citizens mistreated abroad or working with their families in the UK to ensure meaningful protection for them. It will be interesting to see how the government responds to the report but in the meantime, the Court of Appeal will have the opportunity to give the FCDO’s policy on protecting its citizens abroad a proper and robust legal underpinning by upholding the principle arising from Abbasi.
The Court of Appeal will hear Mr Kanu’s family’s appeal on 22 June 2023. The case will set an important precedent on whether the British government has the right to avoid making a decision on whether a British citizen is subject to fundamental breaches of international law, in spite of overwhelming evidence of violations of their rights. Anyone traveling with a British Passport should look out for the ruling and hope that the court will firmly restate and apply the principles in Abassi so that they can be confident that their government will properly consider what protection they need abroad, should such a need ever arise./SHARE THIS
Signed:
Shirin Marker
Bindmans LLP
236 Gray’s Inn Road London WC1X 8HB United Kingdom
Tel: +44 20 7833 4433
Email: shirin.marker@bindmans.com
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