Submission on behalf of the family of Nnamdi Kanu to

the Foreign Affairs Select Committee Inquiry into

the handling of state level hostage situations (SLH0045)

Introduction and Summary

1.                                                                                                                         This submission is made to the Foreign Affairs Select Committee Inquiry into the handling of state level hostage situations (the “Inquiry”). The mandate of the Inquiry is to “discuss the processes and approaches taken by the British government in securing the release of” detainees in Iran and in other similar situations. In doing so it will aim “to assess the likely impact the FCDO’s approach may have on deterring other states from using this tactic and will consider options for multilateral action to further deter such behaviour."

2.                                                                                                                         This submission is made by Bindmans LLP (“Bindmans”) on behalf of the family of Nnamdi Kanu (“Mr Kanu”), the leader of the pro-Biafran secessionist movement, Indigenous People of Biafra (“IPOB”), a group that calls for self-determination for Biafra Land. Mr Kanu is in a materially similar situation to that of detainees held in Iran and elsewhere.

3.                                                                                                                         Mr Kanu is a British national ordinarily resident in the UK with his wife and two children. He also holds, but has sought to renounce, Nigerian nationality. He does not consider himself to be Nigerian (because he is British with Biafran origins) and for many years has travelled exclusively using a British passport.

4.                                                                                                                         In June 2021, whilst in Kenya, Mr Kanu was abducted and tortured by the Nigerian authorities. He was then subject to extraordinary rendition[1] from Kenya to Nigeria, where he faces criminal prosecution in relation to his activities with IPOB. For the past 19 months, Mr Kanu has been detained in conditions which amount to torture, whilst criminal and civil proceedings have been ongoing in Nigeria, Kenya and the UK[2]. He remains in detention despite the United Nations (“UN”) and the Nigerian Court of Appeal having concluded that he was subject to extraordinary rendition and calling for his release on the basis that his detention is arbitrary. Neither the British Government nor the FCDO have accepted he was extraordinarily rendered, nor have either called for his release. This extraordinary stance is explained further below.

5.                                                                                                                         Whilst there is no obvious indication that Mr Kanu is being used in state-to-state leverage, it is understood that the Inquiry welcomes submissions which address the FCDO’s handling of situations in which British nationals are detained by foreign states and are seeking consular assistance. The Inquiry’s terms of reference state that it “builds on the Committee’s 2020 report, No prosperity without justice: the UK’s relationship with Iran, which concluded that the range of tools on offer to the FCDO to resolve such consular disputes was “entirely ineffectual and requires revision”. This report recommended that the Government should work with allies to develop an effective strategy to safeguard British citizens.”

6.                                                                                                                         With that in mind, the purpose of this submission is to examine the FCDO’s approach to handling Mr Kanu’s case to date and highlight the limited effectiveness this approach has had in the face of the serious breaches of international law that have been, and continue to be, committed against Mr Kanu.

7. This submission is structured as follows:

1. The first section will provide a brief background to Mr Kanu’s matter and will detail the mistreatment he has suffered, including:

i.         his enforced disappearance and torture in Kenya in June 2021;

ii.       his subsequent extraordinary rendition from Kenya to Nigeria; and

iii.     his ongoing detention conditions.

2. The second section will examine the approach the British Government has taken to Mr Kanu’s case and the limited impact this approach has had on deterring Nigeria from engaging in violations of international law against Mr Kanu. In particular, the section will highlight:

i.         the British Government’s failure to secure regular consular access;

ii.       the lack of transparency in its case-handling process; and

i.         the impact of the British Government’s failure to condemn Nigeria’s actions and resulting violations of Mr Kanu’s rights and of international law.

1. Mistreatment suffered by Mr Kanu

8. It is essential that any examination of the FCDO’s approach to handling Mr Kanu’s case be understood in the context of what he has suffered. Accordingly, this section outlines the background to Mr Kanu’s matter and the grave mistreatment that he has suffered over the past 19 months, which amounts to fundamental violations, by the Nigerian authorities, of his rights under international law.

Background

9. On 14 October 2015, Mr Kanu was arrested in Nigeria and detained on criminal charges related to his leadership of IPOB.[3] On 28 April 2017, he was released on bail to his family residence in Nigeria. His Nigerian legal team believe that his release was due to mounting pressure from domestic and international civil society organisations, and interest in his case expressed by the British High Commission in Nigeria.

10. Between 12 and 14 September 2017, IPOB followers gathered at Mr Kanu’s family residence to take part in a peaceful vigil. On 14 September 2017, Nigerian security forces stormed his residence, killing 28 members of IPOB in the process[4]. Following this attack, Mr Kanu fled Nigeria in fear of his life and did not return voluntarily.

11. In early 2021, Mr Kanu travelled to Kenya for business from his family home in London, using his British passport which is the only travel document that he holds.

Enforced disappearance and torture in Kenya

12. On 19 June 2021, Mr Kanu was abducted in Nairobi, Kenya. He left the place where he was staying in Nairobi, without his British passport (his only travel document) and travelled to Jomo Kenyatta Airport to collect a friend. Whilst in the airport carpark, Mr Kanu was abducted by Nigerian security forces and disappeared for a period of 10 days, leading the UN Working Group on Arbitrary Detention (“UNWGAD”) to conclude that he was “subjected to enforced disappearance”[5] and “placed outside the protection of the law”[6] in violation of international legal standards.

13. During this period, Mr Kanu was detained in a private security facility where he suffered torture and ill treatment. Mr Kanu was chained to the floor, forced to urinate and defecate where he was chained, and beaten. When he fainted, cold water was poured over him to revive him. He was taunted by his captors who called him a “separatist Igbo Jew” and threatened that he would be “expelled to Nigeria to face death”. That is precisely what then happened.

Extraordinary rendition to Nigeria

14. On or around 27 June 2021 Mr Kanu was driven, blindfolded and handcuffed, to an airport and put onto a private plane. The flight took approximately 4 hours during which time Mr Kanu continued to be blindfolded, although he was able to see out of the corner of his blindfold. Mr Kanu could make out that the aircraft was small, with approximately five rows of leather seats. He could also make out that the flight took place during daylight hours. Mr Kanu was able to hear the conversations of other persons on the flight, of which there were approximately five, who spoke in English with Kenyan and Nigerian accents. Upon arrival Mr Kanu was carried off the aircraft, his blindfold was removed, and he was hooded. Mr Kanu was then made to walk in chains to a van that was waiting on the tarmac and was driven to the Directorate of the State Security Services (“DSS”) in Abuja, Nigeria, where he has been detained ever since. The DSS is the Nigerian Intelligence headquarters and is headed by the Director General, who reports to the President of Nigeria.

15. On 29 June 2021, the Attorney-General and Minister of Justice, Abubaker Malami, stated publicly that Mr Kanu had been “intercepted through the collaborative efforts of the Nigerian intelligence and security services” on 27 June 2021 and had been “brought back to Nigeria in order to continue facing trial”[7] in respect of the criminal charges brought against him in 2017. Certain of these charges carry the death penalty in Nigeria.

16. Significantly, in reviewing Mr Kanu’s case, the UNWGAD found that he was subject to extraordinary rendition[8] and “remained forcibly disappeared throughout his extraordinary rendition to Nigeria, in violation of Mr Kanu’s rights under article 9(1) of the Covenant”, in breach of international law and constituting “a particularly aggravated form of arbitrary detention.”[9]

17. The conclusion that Mr Kanu has been subject to extraordinary rendition has also been reached by the Nigerian Court of Appeal. On 13 October 2022, the Court of Appeal consisting of three Justices unanimously declared Mr Kanu’s rendition from Kenya to Nigeria unlawful and quashed the seven charges against Mr Kanu on the basis that the Nigerian Government had breached all domestic and international laws in his extraordinary rendition, rendering the charges against him unlawful. A copy of the judgment has been sent to the Inquiry separately by email.

18. The Court of Appeal noted in particular that:

1. The Nigerian Government had made no specific denial of the fact that Mr Kanu was abducted from Kenya and there were no specific extradition proceedings prior to his “forcible abduction” (page 20 of the judgment). This was deemed an admission of the facts. The Nigerian Government was further “ominously silent” on the allegations of extraordinary rendition (page 21 of the judgment). Having failed to respond to the allegations of abduction or rendition, the Nigerian Government was held to have conceded them (page 22 of the judgment).

2. In removing Mr Kanu from “another country, without complying with the processes for his removal”, the Nigerian Government was “in flagrant violation” of international law “and the fundamental human rights of” Mr Kanu

(page 28 of the judgment).

3. The charges against Mr Kanu were struck out and he was “in consequence, discharged” (page 53 of the judgment).

19. It should be noted that the Court of Appeal’s decision is being appealed by the Nigerian Government to the Supreme Court. That appeal could easily take years, during which time Mr Kanu faces the prospect of remaining detained in the horrendous conditions described at paragraphs 23 to 29 below.

20. Mr Kanu’s family also instructed an expert in the CIA’s rendition programme and specialist in military and intelligence corporate contracting to investigate Mr Kanu’s forcible transfer to Nigeria. The report’s preliminary findings corroborate the finding that Mr Kanu was transferred to Nigeria from Kenya on 27 June 2021, using means of transport that circumvented immigration controls in Kenya and any formal judicial procedure. A copy of the report has been sent to the Inquiry separately by email.

21. In light of the above, there can be no doubt that Mr Kanu was subject to extraordinary rendition, a serious and egregious breach of his rights under international law.

Conditions in detention

22. Although Mr Kanu faces criminal charges, he has not been remanded in custody in a conventional prison on that basis. Instead, he has been detained in solitary confinement at the DSS’ headquarters for 19 months in dire conditions that fail to meet international minimum standards. The use of such DSS facilities to detain those perceived to be opponents of the Nigerian state has been the subject of repeated criticism by international human rights bodies.[10]

23. For example, he has been kept alone in a small cell, approximately six feet by six feet. The cell has a toilet but no wash basin or furniture. There is no window or natural light source. The general condition of the cell is very dirty. He does not have readily available access to fresh drinking water. He receives bread, tap water and soup once a day. He has informed his Nigerian legal team that the food provided is of low quality, with little nutritional value. His brother, Emmanuel, who has visited him in detention reported in October 2021 that his breath was laboured, that he looked very frail and that his fingernails were cracking. 

24. Mr Kanu is only able to clean himself once a week and he has not been allowed any change of clothes since he was abducted in Kenya on 19 June 2021. He does not have regular access to sanitation facilities such as a shower, and cannot wash himself in his cell. He has been denied access to independent medical attention and has therefore not received adequate treatment for his serious pre-existing heart condition. He has also been denied access to his religious materials. All of these factors have had a profound and damaging impact on his mental and physical health.

25. The damage to his health is exacerbated by the onerous length of time he is required to remain in his cell. For the initial 6 months, he was not permitted to leave his cell every day and would largely spends 24 hours a day there, which amounted to solitary confinement. In more recent months, he has been allowed out every day for a limited period of time to eat and watch TV. However, he has no opportunity to exercise meaningfully and no access to the outdoors and fresh air. He also has no interaction with other inmates.

26. Prolonged solitary confinement of more than 15 consecutive days is internationally accepted as a form of torture[11]. Mr Kanu has been in solitary confinement for over 570 days, with no indication of release date, or of a date when he might be transferred to an ordinary prison, or material improvement in his detention conditions.

27. It is undeniable therefore that Mr Kanu has been – and continues to be - subject to torture as a result of his detention conditions. This conclusion is corroborated by the UNWGAD, which has referred his case to the UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment.[12] Importantly, the British authorities have also accepted that Mr Kanu is detained in conditions which amount to torture, in breach of international law principles, and have written to the Nigerian authorities to express concern (set out in more detail at paragraph ** below).

28. In addition to the catalogue of violations of Mr Kanu’s physical and mental health, throughout his detention, he has been restricted from seeing his Nigerian legal team. For example, following his rendition to Nigeria, his legal team were not permitted to meet with him for two weeks. Their subsequent attempts to visit Mr Kanu in detention were refused by the Nigerian authorities and they were forced to apply to the court for visitation rights. Whilst this was granted, the Nigerian authorities continued to refuse visitations in disobedience of the court order on at least 10 occasions, citing logistical issues such as a lack of staff or incorrect paperwork. This constitutes an interference with his fundamental right to legal representation and has impacted on his right to a fair trial. The UNWGAD has stated in this respect, “Especially noting its finding that Mr. Kanu was subjected to extraordinary rendition as well as his treatment prior to that, the Working Group considers it unlikely that Mr. Kanu would have been able to effectively assist with and participate in his own defence during the proceedings against him, and that such treatment tainted proceedings against him, rendering them inherently unfair and unjust… For all the reasons above, the Working Group finds that the fair trial rights and procedural guarantees of Mr. Kanu under the Universal Declaration of Human Rights, the Covenant and other relevant human rights standards, were not observed and that such violations are of such gravity as to render Mr. Kanu’s detention arbitrary.”[13]

2. Case-handling by the British Government

29. Given that the purpose of the Inquiry is to examine the challenges the FCDO faces when handling countries that detain British nationals and to discuss the impact of its approach in assisting British nationals detained abroad, this section provides an overview of the British authorities’ handling of Mr Kanu’s case and identifies the following failures which have hindered its impact in assisting Mr Kanu:

1. its failure to secure regular or consistent consular access;

2. the lack of transparency in its case handling process; and

3. its failure to reach a firm view on, or publicly condemn, Nigeria’s actions.

30. This section also identifies recommendations for better practice in relation to each of the failings.

Failure to secure regular consular access

31. During the period of his enforced disappearance, between 19 and 29 June 2021, Mr Kanu’s family did not know what had happened to him. However, upon the release of the press statement by Attorney General Malami confirming Mr Kanu was in Nigeria, his family immediately instructed Bindmans to highlight his plight to the British authorities and request urgent consular assistance. That request was made on 1 July 2021. Since that date, Mr Kanu’s family has worked tirelessly to alert the British Government to the various harms suffered by Mr Kanu and to engage the British authorities in securing consular access and other assistance.

32. However, the British authorities have had limited success in providing consular access to Mr Kanu. This is demonstrated by the fact that, in the period of 19 months during which Mr Kanu has been detained, the British authorities have been granted consular access to him only five times, with the first visit taking place over five months after the initial request was made to the Nigerian authorities.

33. The importance of gaining prompt and regular consular access cannot be overstated. Mr Kanu was transferred to Nigeria in circumstances that give rise to a serious risk of torture. Gaining access to Mr Kanu at an early stage in his detention would have enabled the British authorities to receive timely information about the violations to which he was subject and to lobby the Nigerian authorities on specific matters of concern. Meanwhile, regular and frequent consular access would have allowed the British Government to closely monitor his detention conditions and serve as a reminder to the Nigerian Government that its actions were being scrutinized by the international community, increasing pressure on the Nigerian authorities to improve his detention conditions.

34. It is understood that Nigeria refused to provide consular access (at least initially) on the basis that it recognised Mr Kanu as a dual national and presumably therefore, any rights afforded to him as a British citizen were not guaranteed. However, it is unacceptable that Mr Kanu’s Nigerian citizenship should diminish his rights as a British citizen or act as a bar to consular access. The British Government is well aware of the issues dual nationals face in countries such as Nigeria, where their rights as British citizens are treated as secondary. It is therefore imperative that the British Government implements a more robust policy to obtain consular access, particularly in circumstances where serious and egregious violations of international law have been committed by the state in question against the British national in their custody.

Lack of transparency in case-handling process

35. Mr Kanu’s family consider there is a marked lack of transparency in the British Government’s handling of his case.

36. As far as the family is aware, the British Government’s approach has predominantly involved sending communications including Note Verbales to the Nigerian authorities and raising Mr Kanu’s case at meetings with a range of Nigerian high level officials.

37. Whilst it is accepted that the British Government has provided relatively frequent updates to Mr Kanu’s family regarding its communications with the Nigerian authorities, the family feel that these updates have generally only been provided when they or Bindmans have specifically requested them. The family feel that if they did not have the benefit of legal representatives, they would be left with the burden of chasing the British Government for updates, and without support in the navigation of a deeply traumatic situation. At the same time, the British Government has, at times, prevented legal representatives from joining the family in important meetings with them. This was illustrated in the meeting that the FCDO offered to Mr Kanu’s brother, Kingsley Kanu, which took place with the Minister for Africa. Kingsley’s request that Bindmans accompany him to that meeting was refused, despite Bindmans offering to attend in an observational capacity only. Kingsley felt he had no choice but to attend that meeting without his legal representatives present.[14] Whilst it is accepted that there is no specific right for legal representatives to join such meetings, they play an important and supportive role to family members who are thrown into a situation that is entirely alien and potentially intimidating to them. Refusal of a family’s request to bring legal representatives for support, is a failure to acknowledge the needs of the family members thrown into deeply traumatic circumstances.

38. Even when updates have been provided about the British Government’s interaction with the Nigerian authorities, minimal detail has been provided about the content of those communications. On behalf of the family, Bindmans has made repeated requests for disclosure of details of the communications between the UK and Nigerian authorities. However, these have for the most part been refused. This lack of transparency has made it impossible for Mr Kanu’s family to evaluate whether adequate pressure is being placed on the Nigerian authorities to obtain consular access or otherwise assist Mr Kanu.

39. When considering the limited information that has been disclosed to the family about the British Government’s communication with the Nigerian authorities, the family has felt that these communications have been repetitive and have not escalated past simply raising concern over Mr Kanu’s treatment. The British Government has repeatedly asserted that the course of action it has adopted is the most appropriate and has ignored the family’s requests for stronger action. However, over 19 months have passed without any material change in Mr Kanu’s circumstances. He remains in essentially the same conditions in detention, with no prospect of improvement or release. It is beyond doubt therefore that the approach the British government is taking is not working. It has led Mr Kanu’s wife to “lose faith” in this approach and feel deep frustration over the Government’s refusal to take alternative action, which “sets a precedent that any foreign state that mistreats a British citizen abroad can do so with impunity.”[15]

40. Looking forward, it is imperative that the FCDO provide timely and unprompted updates to the family members about the steps it is taking on their behalf. Moreover, in situations where the British Government seeks to maintain a course of action that appears to have minimal effect, it must be open and transparent with its justification for that approach. The experience of Mr Kanu’s family has been that even with the benefit of legal representatives advocating on their behalf, the case handling process has remained opaque.

Impact of failure to condemn Nigeria’s actions

41. The British Government has not made any formal statement condemning Mr Kanu’s treatment and continues to treat what has happened since June 2021 merely as a series of “allegations”. This position is extraordinary, given the wealth of evidence demonstrating that Mr Kanu has been subject to this violation (most notably the Opinion and the judgment of the Nigerian Court of Appeal), coupled with the apparent lack of denial by the Nigerian authorities that Mr Kanu was abducted and forcibly transferred to Nigeria in this manner.

42. Whilst the FCDO has indicated acceptance, privately, that Mr Kanu has been subject to torture[16], his family have been deeply troubled by the refusal to take a firm stance on Mr Kanu’s extraordinary rendition. Kingsley Kanu has said in this respect, “I am surprised and extremely frustrated that the British Government still feel that it is not clear that my brother had been rendered. To me, there is no other sensible and coherent explanation for his presence in Nigeria. It is also distressing to me that the British government do not appear to be taking any active steps to find out what had happened to him so that it can reach a firm conclusion.”[17]

43. It should be noted that there are a number of precedents for the British Government’s public condemnation of the violation of British national’s rights.[18] There are also a number of precedents for the British Government calling for an individual’s release on the basis of the serious violations committed against them.[19] It remains unclear to the family why the British Government has refused to do either of these things in respect of Mr Kanu, and this failure compounds the lack of transparency in the British government’s case-handling approach.

44. The refusal of the British government to confirm whether or not it considers Mr Kanu has been subject to extraordinary rendition necessarily impacts the level of support that the Government is willing to provide to him. Certain tools in its power, such as the imposition of sanctions, are more likely to be imposed once the British Government has accepted that allegations of serious human rights violations have been substantiated. The imposition of sanctions against the individuals involved in Mr Kanu’s ill treatment becomes all the more powerful a tool in the British Government’s arsenal to assist Mr Kanu in light of the good trading relations between Britain and Nigeria.[20] It is therefore deeply upsetting to Mr Kanu’s family that, 19 months into Mr Kanu’s detention and with both the UN and the Nigerian courts expressing robust criticism, the British Government still continues to refuse to publicly condemn Nigeria’s actions or even take the arguably less onerous approach of accepting in private that he has been subject to extraordinary rendition.

45. Moreover, in the course of legal proceedings instituted by Bindmans against the Secretary of State for Foreign, Commonwealth and Development Affairs (“SSFCDA”),[21] it has emerged that the British Government does not have any specific policy to deal with assisting British nationals who have been subject to extraordinary rendition.

46. This is a fundamental lacuna, particularly given the egregious nature of this breach of international law, and the consequent expectation that its seriousness would necessitate consideration of alternative action to that set out in policies regarding other lesser violations of international law. It is also considered the families of British nationals subject to this breach would greatly benefit from knowing the British Government had a carefully considered and robust policy in place to make clear its approach in these circumstances. The current lack of policy leaves room for doubt that such careful consideration has been made in Mr Kanu’s case.

Conclusion and Recommendations

47. For the reasons set out above, the FCDO’s approach to Mr Kanu’s case to date is a catalogue of disappointing failings which has left the Nigerian Government’s position largely unaltered, and Mr Kanu’s wife and children, all British citizens, unsupported by their government. As Mr Kanu remains in detention, these failings are all the more consequential. It is his family’s hope that the following recommendations will be taken into serious consideration by the Inquiry and in turn by the British government, leading to a positive shift in the FCDO’s current approach to its British nationals detained abroad:

1. The FCDO should reassess its policy in respect of providing consular access to dual British nationals abroad, particularly in circumstances where there is a serious risk of torture, and where there are grounds to suspect that serious and egregious violations of international law have been committed by the state in question against the British national in their custody.

2. The FCDO should ensure that it provides timely and unprompted updates to family members about the steps it is taking on their behalf.

3. The FCDO should be open and transparent with family members about its justification for adopting a certain approach and disregarding others.

4. The FCDO should adopt and implement a specific policy in respect of appropriate action to be taken on behalf of British nationals who have been subject to extraordinary rendition.

5. The default position under that policy ought to be that, where British citizens have been extraordinarily rendered and/or tortured and then arbitrarily detained overseas, the British Government will take all available diplomatic and legal steps to ensure their release and return to the UK.

48. Mr Kanu’s family are grateful to the Inquiry for considering this submission and their supporting evidence.

Bindmans LLP

7 March 2023