No fewer than eight Nigerian inmates repatriated from Thailand to complete their prison terms close to their families are being held at Kirikiri Maximum Prison, Lagos, for more than three years beyond their release dates due to the failure of consular officials at the Nigerian Embassy in Thailand to transmit their warrants of release.
The prisoners who should have been released in early 2017 are languishing in prison despite being granted royal pardon by the Thai King and their prison terms commuted, in clear violation of a controversial prisoner transfer treaty between Nigeria and the Kingdom of Thailand.
In 2002, Nigeria signed a treaty on the transfer of offenders and co-operation in the enforcement of penal sentences with Thailand. The treaty, which was signed on behalf of Nigeria by Ademola Aderele, the ambassador to Thailand at the time, and Surakiat Sathirathai, the Thai Minister of Foreign Affairs, was aimed at facilitating “the successful reintegration of offenders back into society”.
The treaty also sought to give “foreigners who are deprived of their liberty as a result of their commission of a criminal offence the opportunity to serve their sentences within their own society,” according to a copy of the treaty published on Thailand Law Forum, an online legal publication.
According to the treaty, though inmates are transferred to their home country to serve out their sentence, they are still under the “exclusive jurisdiction” of the transferring country.
Article 5 (1) of the treaty that deals with the retention of jurisdiction, “the transferring state shall retain exclusive jurisdiction regarding the judgements of its court, the sentences imposed by the them and any procedures for revision, modification and cancellation of hose judgements and sentences.”
“That is to say the transferring state, Thailand has power over the judgement, including making additional order of court or any revision, modification or even to cancel the sentence they have already made. If they have sentenced any of them to 20 years imprisonment, they can also review it by reducing it by 5 years or by saying they have pardoned you,” said Ezenwa Ibegbunam, counsel to some of the inmates, during a telephone chat with PREMIUM TIMES.
“The king of Thailand makes royal proclamations where he grants Amnesty or pardon to prisoners. These guys, in the eyes of the law, remain prisoners in the custody of Thailand even if they were transferred to Nigeria to complete their terms. Now the king of Thailand has reduced their sentences, some of them have been reduced and the warrant has to go through diplomatic channel, which is the embassy in Thailand of the consulate in Thailand.
“But the funniest part of it is that the Nigerian government, the consulate or the diplomatic channel through which these things are sent do not send it to the ministry of Foreign Affairs or the prison authorities. So, when you go to the prison to know the status of these guys, you will find little or nothing regarding their current status,” he said.
He added that it took his law firm years before they could even obtain a copy of the treaty because of the nonchalance of the Nigeria Embassy in Thailand and the Ministry of Foreign Affairs.
In Article 6 under “procedure for Enforcement of Sentence” the treaty states that the enforcement of the sentence after the transfer shall be governed by the laws and the procedure of the transferring state, including those governing conditions for service of imprisonment, confinement or other deprivation of liberty and those providing for the reduction of the terms of imprisonment, confinement or other deprivation of liberty by conditional release, remission or otherwise”.
The section also stipulates that the receiving state shall be bound by the legal nature and duration of the sentence as determined by the transferring state.
“[If] the transferring state revises, modifies or cancels the judgment or sentence pursuant to Article 5 of this Treaty or reduces, commutes or terminates the sentence, the receiving State, upon being notified of the decision give, in accordance with Article.”
Between 2007 and 2012, seven Nigerian inmates serving jail terms in Thailand requested to be repatriated back home to serve out their sentences close to their relatives in Nigeria.
The inmates include: Wasiu Amusan, Napoleon Mba, Obi Titus, Gloria Ogbonna, Henry Azukaeme, Okpala Chukwubike (also known as Oteng Samuel), Kennedy Tanya and Yakubu Yauza. Apart from Mr Amusan who was repatriated in 2007, others were repatriated in 2012.
According to the Correctional Department of Thailand translated from Thai to English by a Thai government certified translator, two of the inmates – Henry Azukaeme and Okpala Chukwubike – who were imprisoned for drug-related offences, were granted royal pardon and their sentences commuted by the Thai monarch to one-sixth of their original sentence.
“The defendant has been imprisoned for 0 days after deduction of the detention period,” read an English translation of the official warrant of pardon for Mr Chukwubike dated 23 January 2017.
“Therefore, under the provision of the Correction Act the punishment to the inmate Mr Oteng Samuel, the defendant, was commuted in accordance with the warrant. After having served full term of punishment, he shall immediately be released,” the warrant added.
The warrant commuting Mr Azukaeme’s sentence similarly stated.
Media report around the time confirmed that the Thai monarch pardoned and commuted the sentences of prisoners. According to a Reuters’ report of 13 December 2016, Vajiralongkorn Bodindradebayavarangkun commuted or pardoned 150,000 prisoners to mark his ascension to the throne.
“Prisoners convicted of 112 and prisoners convicted of drug offences will be included for consideration for release or commuting of sentence,” Kobkiat Kasivivat, director general of the Department of Corrections told Reuters, referring to the royal insult law by its article number in the criminal code.
A representative of the repatriated inmate, Edward Azukaeme (Henry’s brother), told PREMIUM TIMES that the other repatriated inmates have been similarly pardoned or have had their sentences commuted and should have been released by the Nigeria Correctional Service.
He also alleged that instead of making arrangement to repatriate the inmates, the Nigerian Embassy in Thailand compelled relatives of the inmates to pay $1,200.00 for each of them to cover the cost of airfare back to Nigeria.
Conflicting Release Dates
However, when reached for comment, the spokesperson of the Nigeria Correctional Service, Augustine Njoku, who confirmed that the inmates were indeed repatriated from Thailand, said it was impossible for the service to keep a prisoner beyond his or her release date.
“I was the officer that handled their return to Nigeria. I was in Lagos then as the PRO. I was conversant with this issue then. A custodial centre cannot keep a person for a minute after his expiration date is due. It is very strict for a person to finish his sentence and we would keep him. We are running a decongestion programme. Unless there is a caveat in the treaty the person has not met,” he said.
He gave this reporter several release dates he claimed were in the warrant sent by the Correctional Department of Thailand.
According to the NCS, the release dates of the repatriated inmates are: Okpala Chibuike 2 May 2021, Tanya Kennedy 29 August 2021, Henry Azukaeme, 3 February 2021, Wasiu Amusan, 1 April, 2025, Obi Titus, 5 September, 2043, Yakubu Mohammed 25 may, 2023, Napoleon Mba 26 June, 2042 and Gloria Ogbonna, 2022.
“This is the warrant we have. We don’t have any other warrant. If the Ministry of Foreign of Affairs brings another warrant that shows that they have reviewed the treaty, good and fine. We can’t keep them because it is an inconvenience for us. As more as they go, we are happy,” he said.
When reached for comment about the status of the repatriated inmates, an officer of the Thai Department of Corrections, Wimolrat Tangmanwitayasak, initially requested the names of the repatriated inmates to be sent to her via email and promised to share the documents with the records of the inmate with this newspaper.
However, when an email was sent to her, she replied saying the Thai Department of Corrections is prohibited from disclosing information about prisoners and added that such information can only be sent through diplomatic channels.
“According to the Official Information Act B.E. 2540, your inquiries are under prohibition of disclosure. The information of prisoners who are transferred will be sent through the diplomatic channels only. Please contact the Embassy of Nigeria in Bangkok, Thailand,” she said in an email.
When this reporter contacted the Nigerian Embassy in Thailand for details about the inmates, Ben, the Consular assistant, a Thai who spoke barely understandable English, said the Nigerian consulate was contacted by the Thai Department of Corrections after I contacted them and that the embassy was trying to get the warrant of the pardon of the inmates and the documents should be sent to Nigeria by the end of February.
When asked why it is taking the embassy three years to get the document from the Thai Department of Corrections and why they had to wait until this reporter started asking questions before they began the process of sending the documents over to Nigeria, Mr Ben requested all questions be sent via email to the consular.
The Embassy did not reply to the questions sent to the two email addresses Mr Ben provided.
The spokesperson of the Ministry of Foreign Affair, Ferdinand Nwoye, was also not forthcoming.
“I don’t think there is anything the Foreign Ministry can contribute to this. The job of the ministry and an embassy is to facilitate that movement so when they come back here to Nigerian the relevant agencies take control,” he said.
He suggested it was the responsibility of the NCS that he does not have the record of the Nigerian Embassy in Thailand. But after much explanation he promised to pass the enquiry to the consular department at the ministry but after he was contacted to introduce the case to the consular department as he promised, he reverted to his original position that case was the responsibility of the NCS.
Legality of Treaty
Mr Ibegbunam said his law firm is also challenging the legality of the prisoner transfer treaty Nigeria signed with Thailand. He argued that the treaty falls short of section 12 subsection (1) of the 1999 Constitution, which deals with the domestication of treaties.
Section 12 (1) of the Constitution read: “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.”
He said because the treaty is yet to be ratified by the National Assembly as dictated by the section of the Constitution, it lacked the force of law and no Nigerian can be denied his or her liberty on an instrument which lacked the force of law.
“This treaty on transfer of offenders between Nigeria and Thailand has not been domesticated into the national assembly and the legal effect is that it does not have the force of law in Nigeria,” he said.
“Yes, they committed offences in Thailand, and they were sentenced to various terms imprisonment, how can you now detain them in Nigeria based on a treaty that does not have the force of law. It is our argument that it is unconstitutional and therefore their continued detention here is illegal and they should be released.
“We cannot at this stage tell Nigerian government to send them back to Thailand, we are saying can you even hold a Nigerian person, can you suspend anybody’s fundamental rights , liberty or movement question to a law that does not have legal effect in Nigeria. We are saying we cannot do that,” he added.
The challenge of the law was dismissed at the High Court and Court of Appeal because at the time, they could not get an official English translation of the treaty.
“But now the matter is at the Supreme Court. We have got a copy of the treaty and we are now asking the court to admit it as evidence,” he said.