Kashamu, a chieftain of the Peoples Demo¬cratic Party (PDP) says he is not prepared to forfeit his freedom. He likens the suggestion to fly to the United States on his own volition to asking someone who had been miraculously healed of cancer to bring it upon himself just to prove the miracle working powers of God.
The legal battle involving the PDP stalwart has been long winding and tortuous. A jury had in 1998 indicted Kashamu and 13 others of allegedly conspiring to import heroine into the United States. Several months after the indict¬ment, Kashamu who was then living in Benin Republic travelled to England and was arrested at the request of the US government.
In the bid to get Kashamu to face trial in Chi¬cago, United States prosecutor filed two extra¬dition cases against him in London, which last¬ed four years. He was detained throughout the trial and in the end, the presiding judge refused to order him extradited to the US on the ground that Kashamu’s step brother and not the PDP chieftain, was one of the co-conspirators in the US drug trafficking indictment. After the trial Kashamu returned to Nigeria.
Feeling that his rights had been violated, Kashamu instructed lawyers in the United States to sue for damages, demanding $500 million compensation. He did not succeed in this quest as court upheld the defense argu¬ment that compensation could not be awarded as the indictment hanging on Kashamu neck had not been discharged.
Twice Kashamu had made attempts to quash the indictment unsuccessfully and it was in the latest bid Judge Posner of the Seventh Circuit Court of Appeals ruled on September 15, 2014, that if the PDP stalwart wanted to fight the criminal charges against him “he has duly to fly from Lagos to Chicago; there are loads of reasonably priced flights. See Price¬line.com “cheap flights from Lagos, Nigeria, to Chicago, IL.”
Giving a fresh insight into the legal logjam and the latest judicial ruling in an interaction with Sunday Sun at the weekend, Kashamu said, “I wish to clarify a few misconceptions on my efforts to obtain justice within the US judicial system in regard to the false indictment made against me by a panel, not a court, in the US, which the British courts have cleared me from unequivocally.
“ I am doing this so as not to allow the unin¬formed to be misled, and they in turn mislead others.
“As many may recall, I had to take the battle to the US authorities in their own country be¬cause, despite the British judgment and the defeats they have suffered in their attempts to place a false accusation on me, they have nei¬ther attempted to extradite me again nor with¬drawn the charges.”
First attempt against indictment
“I had in 2009 attacked the unjustifiable in¬dictment made against me on the basis that the English Judiciary, which the US authori¬ties had themselves instigated against me, had exonerated me. In that application to dismiss the indictment, I requested that the findings and conclusions of District Judge Tim Workman of the Bow Street Magistrates Court in London, be given collateral estoppel status by the U.S. court and his findings and conclusions be made conclusive on the issue of whether or not I was a party to the alleged crime.
“District Judge Norgle before whom the in¬dictment was pending in Chicago refused the application after ruling that I was not a fugi¬tive from justice in the U.S.
“I appealed against Norgle’s decision refus¬ing to dismiss the indictment to the U.S 7th Circuit Court of Appeals. The panel led by Judge Posner, a well-respected judge in the US judicial system, agreed with the District Judge.
“In his judgment then, Judge Posner had made some wide-ranging generalized state¬ments, which were not borne out by the re¬cords. However, as the Supreme Court of the US rarely takes an appeal that complains merely about findings of fact, the Supreme Court did not hear my appeal from that judg¬ment.
“In that judgment Judge Posner held that the decision of the English courts were not equivalent to that of the US courts and so could not be regarded as binding on the US courts. However, as the lawyers noted, US courts expect their judgments to be treated better by foreign courts.
Second attack on indictment
“This latest effort is my second attempt to dismiss the indictment. This second attempt was based on my contention that the indict¬ment pending before Judge Norgle has now expired by the passing of time by reason of the speedy trial requirement of US constitu¬tional and criminal law and was consequently statute barred. Many cases in the US in which prosecution had not started after five years of the charge have been dismissed for this reason. Judge Norgle had characteristically rejected the application.
“I therefore applied to the US 7th Circuit Court of Appeals for an order of mandamus directing the District Judge to dismiss the in¬dictment.
“Judgment was delivered on the September 15, 2014 by the Court of Appeals in respect of that application for mandamus. Judge Posner delivered the lead judgment, against which I have several reservations. And my lawyers are exploring opportunities available for ap¬peal.
“Before my political adversaries begin the usual perversion of truth, I wish to underline that Judge Posner ignored the facts on record and the findings of the English courts in com¬ing to his conclusions that: I have no rights un¬der the American Constitution because I have never been in the United States and, ‘It would be very odd that someone with so attenuated a connection to the United States would have rights under the US Constitution.’
“The Judge also ruled that, ‘But no mat¬ter; even if the government is incorrect and Kashamu does have constitutional rights, he still loses, because they haven’t been violated.’
“I want to note that in working his way to these conclusions, he had already made, Judge Posner wrongly finds that only two op¬tions are available to me: The first is to ‘re¬turn’ to the US which I had never visited and ‘stand trial and at the trial renew his motion for dismissal on the basis of the speedy trial clause’ and second ‘is to obtain from us, as he is trying to do, a writ of mandamus ordering the District Court to dismiss the indictment.’
“Judge Posner came to these wrong con¬clusions to create a scenario of a stalemate between me and the US authorities whereby he states that I will not come to the U.S. to fall into the clutches of the US judiciary and that the US authorities in turn have little hope of ever extraditing me to the US in view of my prominence in Nigeria and the findings of the British courts, thus he then concludes: ‘as he won’t risk the first path to relief, which would require him to come to the United States and fall into the clutches of the federal judiciary, he must rely entirely on mandamus’
“He then proceeds to reject the application for mandamus for the reason that I have not come to the US to ‘face the judicial music.’
“Judge Posner in building the stalemate scenario then expresses his disbelief in the US Government’s statement, in response to my application, that it has now found the at¬mosphere in Nigeria more favourable for my extradition to the US and responds to their vaunted optimism thus: ‘But the government may be whistling in the dark in saying that it’s optimistic about being able to extradite him from Nigeria (no doubt it was opti-mistic about being able to extradite him from the United Kingdom). The proof of the pudding is in the eating: the government has not tried to extradite Kashamu from Nigeria and for all we know may be feigning “optimism” in order to un¬dermine Kashamu’s claim that the threat of extradition is a sword of Damocles disrupting his life with¬out our government’s having to un¬dergo the expense and uncertainty of seeking extradition of a foreign big shot exonerated (though only partly) by the judiciary of our Brit¬ish ally. Given Kashamu’s promi¬nence in Nigerian business and government circles, and the Eng¬lish Magistrate’s findings and con¬clusion, the probability of extradi¬tion may actually be low.’
“Judge Posner in conclusion, for the above reason, finds in favour of the US government, that it has no duty to attempt any extradition of any suspect charged for an offence in the US since all it needs do is to inform that suspect that a charge has been made against him in the US and that suspect thereupon be¬comes duty bound to take the next plane to the US at his own expense to challenge the charge and prove his innocence.
“Mr. Posner feigned ignorance of the statistics that show a seri¬ous racial prejudice against blacks and foreigners (especially from de¬veloping countries) by the mainly white dominated federal judiciary of the United States. However, his own prejudice is quite patent in the casual manner he has treated this important matter and attempts to call a dog a bad name in order to hang it.
“The use of the phrase “though only partly” to qualify his own con¬cession that the British judiciary had ‘exonerated’ me again shows that Judge Posner either lacks a thorough grasp of his own record or is being mischievous. The state¬ment of the British court which he refers to as only part exoneration is as follows: ‘As a result of the evi¬dence that the Defence has placed before me and the evidence which the government has tendered in rebuttal, I find the following facts: that the defendant has a brother who bears a striking resemblance to him; I am satisfied that the de¬fendant’s brother was one of the co-conspirators in the drugs impor¬tation which involved Catherine and Ellen Wolters… I am however satisfied that the overwhelming evi-dence here is such that the identi¬fication evidence, already tenuous, has now been so undermined as to make it incredible and valueless. In those circumstances, there is then no prima facie case against the de¬fendant and I propose to discharge him.’
“If this clear judgment of ‘the ju¬diciary of their British ally’ is only part exoneration I wonder what more the US judges want or what is really behind this persecution.
“Mr. Posner apparently intent on changing a fundamental principle of criminal and International Hu¬man rights law, then places upon a suspect who has never been in the US before (merely upon being informed of allegations against him before a US court) the responsibil¬ity to buy a cheap ticket from www. priceline.com, come to the US to surrender himself into the arms of the US judiciary (to prove his inno¬cence of the charges against him?) and, as recommended by him, in my case, to face a possible life sen¬tence before a judge whose mind is already made up even without evidence.
“Although the US court in its extant ruling has doubted the like¬lihood of the US authorities press¬ing any extradition charges against me, describing any such attempt as “whistling in the dark”, I would not give up. In fact, some of my friends and associates have advised that since I had been exonerated by the British courts on the basis of the same allegations with the full rep¬resentation of the US authorities, as represented by its prosecutor, one Mr. A Coleman, I should stop further litigations, especially since an ‘indictment’ is not a judgment, I insist that I will fight the purported indictment to its logical conclusion because I am innocent of the allega¬tions.
“Many of those who do not un¬derstand the history of the case have either wondered why the Ni¬gerian government has not handed me over to the US authorities or why have I not voluntarily turned in myself. My response to the first set of people is that it is not about the US authorities or the Nigerian government requesting for me or handing me over, it is about the law and due process that has to be fol¬lowed. It seems to me that but for some vested interests, the US that is the bastion of democracy, equity and justice would not embark on this kind of a wild goose chase.
“We live in a world governed by laws and conventions. We are not in a banana republic where some¬one can be abducted to face fresh round of trial after two competent courts had exonerated one.
“It is quite simplistic for anyone to think that a sovereign govern¬ment would just hand over its citi¬zens to another sovereign state on the mere suspicion of involvement in an alleged crime that had been tested and found to be unfounded. Other countries of the world would never sheepishly surrender their own, especially where the citizen had been arrested, tried and acquit¬ted of the spurious allegations.
“And to the second school of thought, my response is that I was tried by one of the world’s best judiciary, with a U.S-appointed prosecutor prosecuting me and the British courts found that I was not the one involved in the alleged crime. Do they want to say that I was never arrested, tried and ex¬onerated of the same allegations? If they can forfeit their freedom, I cannot. Pressing me to turn in myself without any justification is like asking someone who has been miraculously healed of cancer to bring it upon himself, just to prove the miracle-working powers of the almighty God.
“With the findings and conclu¬sions of the British courts which Mr. Posner himself referred to, I do not have any case to answer. If they were sure that I was the same person, why did they not appeal the two British court judgments that exonerated me?
“Anyone who has suffered the in¬dignity of being denied his freedom, especially unjustly as in my case, would appreciate what it means to regain it, more so in a foreign land where you have the remotest pos¬sibility of victory with a trial that lasted four years and over 46 court appearances. I appreciate my ex¬oneration and the freedom, which the British courts had given me and I am not about to forfeit it in order to satisfy anyone. I went through a full trial by a court of competent jurisdiction and was exonerated. And for over a decade now, the US authorities have not appealed the two British court judgment that exonerated me. I was released in the presence of the American pros¬ecutors. I went to my residence in London, stayed there for sometime before I returned to Benin Republic and then Nigeria.
“If only most people knew the kind of battle I waged against the US authorities, they would know that the victory and freedom that I enjoy today were hard fought and won. It might interest you to note that my case was cited in the British Law books (Nicholls, Montgomery, And Knowles on The Law of Extradition and Mu-tual Assistance. Third Edition 2013. See R v Governor of Brixton Prison, ex p Kashamu, 6 Oct 2000, CO/2141/2000, Pp 6.50, 7.59) as the first person to test and benefit from Article 5 (4) of the European Con-vention on Human Rights in 2000.
“In the citations mentioned, the British court as per Pill LJ quashed the committal order against me because of ‘serious non-disclosure by the Government of the United States of America.’ The ‘serious non-disclosure’ referred to is the suppression of the identity evidence showing that I was not guilty of wrongdoing.
“The court also agreed with my submission that my arrest and de¬tention were done in bad faith, an abuse of power, and in violation of Article 5 (4) of the European Con¬vention on Human Rights.
“I do not believe that justice has been done. And it is not over yet. The facts of the matter, which should be restated are that:
■ The heart of a criminal matter or extradition is identification. The criminals said I was not the one who conspired with them and also disowned what was supposed to be my voice recording during several telephone conversations
■ The telephone number and ad¬dress that were used was not mine. They were found to be my step brother’s.
■ There were proofs that even two years after I had been arrested and detained, members of the syn¬dicate still continued their illicit transactions with my half brother, transferring over $2 million to the Bank of Africa in the Republic of Benin. The Interpol discovered the account in the course of their in¬vestigations at the instance of the US Authorities and made it part of the evidence tendered in the British courts.
■ I have never stepped my feet into the US, neither do I have any business there.
■ I was wrongly accused, arrest¬ed, tried and freed over the same indictment that the US authorities have refused to drop even when they were fully represented in all the proceedings in the United King¬dom. Indeed, my arrest, detention and trial were at its behest and the US authorities fully participated in the whole proceedings. If after a full trial on the basis of the same allega¬tion, the British courts exonerated me, which other indictment are they talking about? What happens to the general principle of International Law on double-jeopardy? It is com¬monsensical that even without any judicial pronouncement the indict¬ment is technically dead. It cannot possibly be awaken again.”
Kashamu advised his politi¬cal detractors to desist from their misguided comments on his legal travails, adding that, “They should borrow a leaf from a time–tested Yo¬ruba proverb which says those who dance naked with glee in the night would have themselves exposed to shame when the morning comes.”
He vowed to fight this case to its logical conclusion “because I am confident that I shall be vindicated.
“I am at liberty to relate with peo¬ple, both in the private and public sectors and vice-versa. I do not have anything to hide. That is why I can freely associate with people in the course of my business and political activities. None with such a sordid past, as my detractors would want to ascribe to me, can be bold enough to come to the open to fight the kind of popular causes that I have cham¬pioned, not with the kind of oppo¬sition stacked against me. Since, as they say, a clear conscience fears no accusation, I have trudged on with uncommon courage and candour, knowing that sooner than later, I shall triumph.”
Source: Sun
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