UK court grants Kanu permission to appeal judgement in favour of FCDO

Leader of the Indigenous People of Biafra, IPOB, Mazi Nnamdi Kanu, has been granted permission to appeal the High Court judgment that found that the Foreign, Commonwealth and Development Office, FCDO could lawfully evade reaching any conclusion on whether he had been tortured, subjected to extraordinary rendition and arbitrarily detained.

A UK Senior Court of Appeal Judge, Lord Justice Lewis, who granted the permission, said the appeal would be given expedited hearing.

Kanu’s family had sued FCDO for negligence of duty over Kanu’s ordeals who though a British citizen, “was abducted in Kenya and extradited to Nigeria, and has remained in detention illegally since 2021”.

The case, according to Kanu’s legal team, has major implications for all British Citizens mistreated abroad who may look to the UK for help.

Since his detention, Kanu’s family has been asking the British Government to take steps to secure his release on the grounds that there was no lawful basis for extraditing him.

 However, the Foreign Secretary has, till date, failed to reach any firm view on whether or not the IPOB Leader was subject to extraordinary rendition.

The Foreign Secretary 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.

But a British High Court had in  an unconventional ruling on 23 March 2023,  dismissed the Kanu family’s claim for judicial review of the failure of the British Government to reach a firm view on Kanu’s rendition.

The court presided over by  Mr Justice Swift, however, observed that Kanu was subject to rendition but  disappointingly held that he had no legitimate expectation that the British Government should reach a firm view for itself on what had occurred.

Meanwhile, Kanu’s legal team described the High Court 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”.

Dissatisfied with the High Court ruling, Kanu’s family applied to the Court of Appeal for permission to appeal the High Court ruling on the following grounds:

“The Court erred in finding that Mr Kanu’s family did not have a legitimate expectation that the FCDO would form a firm view as to whether Mr Kanu has been the victim of extraordinary rendition in violation of international law

The Court erred in finding FCDO decision not to reach a firm view was not irrational.

The Court erred in finding that the FCDO is not obliged to comply with procedural fairness standards when considering risks of British citizens at serious risks abroad.”

Meanwhile, in granting permission to Kanu’s family to appeal the judgement, Justice Lewis noted that “The grounds of appeal raise important issues concerning the scope of the obligations on the respondent in relation to requests for consular assistance in respect of British nationals detained abroad and the proper interpretation and application of the decision of the Court of Appeal in R(Abassi) v Secretary of State for the Foreign and Commonwealth Office [2003] UKHRR 76.”

The court further noted that:”For those reasons, there is a compelling reason for the appeal to be heard, within the meaning of CPR 52.6(1)(b). Permission is granted on all three grounds.”

Citing the urgency arising from the continued detention of Kanu in a solitary confinement  the Court  ordered that hearing in the appeal be expedited.

In a response, Kanu’s family expressed delight over the permission of the court to appeal the controversial High Court judgement.

Kingsley Kanu who spoke for the family said:”M family is delighted that the Court of Appeal has unhesitatingly recognised the importance and urgency of Nnamdi’s case and has hope in our hearts that will be reflected at the hearing and its judgment in due course.”

Meanwhile, hearing of the appeal has been slated for Thursday, 22 June 2023.

Kanu has remained in detention at the Abuja headquarters of the Department of State Services, DSS, since his extraordinary rendition from Kenya in June 2021.