“3. In the period since our last update (in our letter of24 September 2021 ), the action which the FCDO has taken includes the following: a. On4 October 2021 , the British High Commissioner raised Mr Kanu’s case during a meeting with the Attorney General of Nigeria. The British High Commission subsequently followed-up in writing, in order to provide additional information requested by the Attorney General. b. On21 October 2021 the British High Commissioner met with Nigerian Foreign Minister Onyeama and raised Mr Kanu’s case with him. A representative from the High Commission also attended the court hearing on this date. c. On25 October 2021 , the Minister for Africa, Latin America and the Caribbean, Vicky Ford MP, met Mr Kingsley Kanu, Mr Kanu’s brother. d. On1 November 2021 the Minister for Africa, Vicky Ford MP, raised Mr Kanu’s case with Nigerian Foreign Minister Onyeama. e. During October and November 2021, FCDO officials raised Mr Kanu’s case with Nigerian Ministry of Justice and Ministry of Foreign Affairs officials and the Department of State Services. f. On10 November 2021 , a representative from the British High Commission attended the court hearing in Abuja. g. On3 December 2021 , the British High Commissioner met with the Chief of Staff to President Buhari and raised Mr Kanu’s case. h. On9 December 2021 , the British High Commission in Abuja delivered a letter to the Department of State Services raising specific welfare requests following our consular visit with Mr Kanu. This letter made clear the UK Government’s support for Mr Kanu’s transfer out of solitary confinement. i. On14 December 2021 , a Note Verbalewas sent to the Nigerian Ministry of Foreign Affairs formally requesting an explanation of how Mr Kanu was transferred to Nigeria. It also contained a request that Mr Kanu be transferred out of solitary confinement. 4. As we have explained in our previous correspondence, the FCDO agrees there are a range of diplomatic tools which could be deployed in any case where a British National is detained in another jurisdiction. As we explained in our letters of 8 and24 September 2021 , Ministers have been given specific consideration to a range of alternative options, including the possibility to which you raised at paragraph 12 of your letter of24 August 2021 . The FCDO has kept its options under review in light of developments. 5. You now raise a number of further options at paragraph 20 of your latest letter. As explained above, many of the options you suggest either have or are being pursued by the FCDO. Our client considers that the course of action which it is pursuing is the most appropriate means of assisting Mr Kanu. However (for the reasons previously explained) our client does not consider that it is neither necessary or appropriate (even if this were possible) to provide “detailed reasons” as to why any individual action will or will not be pursued. This is because what Ministers (with the advice of their officials) must do is to determine what approach is appropriate in the particular circumstances of an individual case at a particular time.”
“11. Despite the FCDO recognising the serious breaches of international law, there has been virtually no progress in providing consular assistance to Mr Kanu and/or securing his release or transfer out of detention. Being granted access to Mr Kanu once in over 9 months does not count as progress in circumstances where no further access has since been granted and there has been no material change in Mr Kanu’s situation. 12. As you are well aware, we have written to you on numerous occasions, setting out various options that the FCDO could consider pursuing to assist Mr Kanu. On each occasion, you have responded to state that the FCDO will take the action it deems appropriate and will not provide any reasons for not taking any other actions. 13. However, this response is simply not good enough in circumstances where all the available evidence demonstrates that Mr Kanu, a British National, has been rendered and where he has been continued to be detained in conditions amounting to torture. Accordingly, we now request that the FCDO will commit to reconsidering its strategy to assist Mr Kanu and to setting out what alternative actions it is prepared to pursue, including steps to escalate pressure on Nigeria.”
“1.4 The basis of this challenge is that you have failed, in your capacity as Secretary of State, to lawfully determine what further steps you should be taking to assist Mr Kanu, because you have failed to reach a view on whether Mr Kanu has been subject to extraordinary rendition, in breach of international law. Reaching a view on that central question is a legally necessary prerequisite to deciding what steps to take in such a case.”
“6.1 The Secretary of State is required to reach a view, based on the evidence available to her, including that summarised above, on whether or not Mr Kanu has been subject to extraordinary rendition to Nigeria, in breach of international law, and communicate her view to the Claimant by way of the pre-action response to this letter. 6.2 As far as we are aware, the FCDO is still awaiting a response to a Note Verbale sent on14 December 2021 , raising allegations in respect of Mr Kanu’s unlawful transfer and a further Note Verbale sent on28 February 2022 , requesting a response to the previous Note Verbale. For the avoidance of doubt, we do not consider that any ongoing lack of response from the Nigerian Government provides a basis for Secretary of State not to now form a view on Mr Kanu’s rendition, given that it has been nearly five months since the first Note Verbale was sent.”
“11. We judge that we need to maintain pressure on the Nigerian government to gain consular access, but Ministers may wish to escalate quickly in public and private to make clear our concerns about the nature of Kanu’s arrest and the human rights risks. The proximity of the trial dates means time is limited. We do not expect a maximalist approach to deliver more quickly on our consular request. … b. Medium intervention (recommended): Ministers and officials raise the case in all appropriate meetings with Nigerian counterparts, including if the Prime Minister and Foreign Secretary meet their counterparts at the Global Education Summit, until we have consular access and clear information on Kanu’s arrest. We do not at this time raise directly with the Department of State Services, given the risk that Ministry of Foreign Affairs officials feel side-lined and become obstructive as well as the risk of [words redacted in original]. This option would permit consular staff to provide assistance [words redacted in original]. It is likely to cause some political impact to bilateral relations, but it will allow us to continue pursuing wider UK interests in parallel. Officials will raise with third country host governments if there is credible reporting of their involvement.”
“16. Kanu has a medical condition and his medical care and welfare are paramount, though responsibility for his welfare sits with the detaining state. There are also serious allegations of human rights violations, including torture, mistreatment, and alleged unlawful transfer that we would like to seek Kanu’s agreement to raise.”
“8. FM Onyeama’s letter of 27 July demonstrated the sense of feeling amongst some of the Nigerian government and security establishment about both the UK’s perceived leniency towards Kanu and IPOB, and our approach to securing consular access. We have no recent indication from Onyeama or other senior government figures that Nigeria is likely to alter its current approach. However, we assess that continued high-level engagement is our best means of maintaining pressure, raising specific concerns and demonstrating HMG’s interest, which may itself mitigate the risk of harm to Kanu. 9. Our Chargé d’Affaires met with FM Onyeama on 19 August to seek a reply to your letter of 6 August. Although he appeared to empathise with our argument, Onyeama indicated he did not have the authority to make a decision on this independently, referring to it as a “whole of government issue”
“4. Mr Kanu is a dual UK-Nigerian national and the leader of the separatist group Indigenous People of Biafra (IPOB) … The Federal Government designated IPOB as terrorist organisation in 2017. Mr Kanu was initially arrested in Nigeria in 2015 on grounds of conspiracy and criminal intimidation. He was released on bail in 2017 and disappeared that year, and reappeared in Israel. 5. Mr Kanu was reportedly then detained on27 June 2021 in Kenya and alleges that he was detained by Kenyan security officials, tortured and subject to rendition to Nigeria. He is currently being held in the Department of State Services detention (DSS, the Nigerian security services), and being tried for treason and terrorism, which can result in a death penalty. Nigeria initially refused consular access on the basis that he is a dual national. However, after extensive lobbying outline in the chronology (Annex A), we have been granted access twice:19 November 2021 and29 April 2022 . We continue to lobby DSS for regular access. … 9. Long-standing consular policy is not to call for the release of British nationals detained abroad, as doing so might constitute interference in the judicial processes of another state. However, Ministers retain the discretion to depart from policy and call for release in exceptional circumstances, provided there is a rational basis for doing so. The principal exceptional circumstance where Minsters have previously called for release in consular cases is where the FCDO has credible evidence to suggest that the detainee is arbitrarily detained although to date that has only been done in very limited circumstances.”
“11. Option 1 (recommended): Lobby Nigeria to address human rights concerns, including the allegations of arbitrary detention, without calling for release. Officials have lobbied extensively on human rights concerns in the case and will continue to do so, with the addition of lobbying Nigeria to address the arbitrary detention allegations. Calling for release is an exceptional measure of last resort, where human rights violations cannot be remedied by other means and where we judge that call for release is a credible and effective step. We assess that there are still further steps that FCDO can take before consideration of this exceptional measure is appropriate. This includes further lobbying and escalation with Nigeria and Kenya on the allegations of torture, unlawful transfer and arbitrary detention, fair trial and privacy concerns as well as monitoring on-going legal proceedings in Kenya and Nigeria where the allegations are being considered. 12. Nigeria’s response to the UNWGAD [the UN Working Group] and the political nature of the case suggests that the court system is the most likely route through which a remedy can be sought. We will therefore monitor proceedings and consider whether engagement from the FCDO may be appropriate, e.g. on any specific fair trial concerns. This approach would also give Nigeria and Kenya the opportunity to respond to the UNWGAD’s findings, however given Nigeria has not yet substantively engaged in the process and Kenya not at all, we are not optimistic about a satisfactory response in the six months period. We will lobby Kenya’s new government to respond to UNWGAD’s findings once August’s election – and any court petitions – have concluded. We will keep this under review as proceedings progress. 13. Option 2 (not recommended): Call for Mr Kanu’s release, publicly or privately. This would be in line with the UNWGAD recommendations and [words redacted in original]. However, we do not assess that lobbying has been exhausted, nor that all legal remedies available to Mr Kanu have been exhausted. Nor is it clear that a call for release would be credible or effective. Mr Kanu has brought civil proceedings in Kenya and Nigeria against the respective governments related to the allegations of torture and rendition, and his criminal case in Nigeria remains ongoing. There will therefore be opportunities for the courts in Kenya and Nigeria to consider the allegations and potentially provide remedy to alleged rights violations. BHC Abuja and Nairobi can also escalate lobbying on the allegations to try and obtain a response from both Governments. To call for release at this stage, before it is a measure of last resort, could set an unmanageable precedent and expose FCDO to legal risk in other consular cases. 14. Post also assess that calling for release would not be effective given: the Nigerian Government’s stance on Biafran separatism and the likelihood of any decision being politicised in the run up to the 2023 elections; the strength of their and the Nigerian public’s security concerns about the activities of IBOP and Mr Kanu; their frustration that the UK did not take action to address these concerns while Mr Kanu was conducting these activities from the UK; the extreme steps they appear to have taken to detain him; and the seriousness of the charges. Furthermore, the Nigerians are likely to view any such calls as interference with an ongoing legal process in an independent country, and that the UK does not believe the courts in Nigeria are independent. This option could have a negative impact on our own ability to provide consular assistance as we assess that the Nigerian authorities would be likely to curtail our already limited access.”
“39. When considering what further steps are necessary, the FCDO will often (as it has done in this case) reach a preliminary view as to the credibility of the allegations based on material available. In conducting this assessment, the weight that is accorded to various pieces of evidence varies depending on the circumstances of the individual case. In particular, while the government is supportive of expert opinions and reports, such as that of the UN Special Rapporteurs, and takes such reports into account, the Secretary of State does not consider that these either could or should be treated as a binding determination of the matters under consideration. 40. The FCDO may in such cases consider making public statements to exert pressure. The circumstances of each case are carefully reviewed to determine whether this action would be appropriate and whether it would further our objectives. In any event, it is extremely rare that a statement would take a definitive view on the legality of the acts of a foreign state. The factors taken into account include the credibility of the available evidence, the nature of the bilateral relationship and the likely impact that a statement would have upon it, the impact on multilateral relations, and the wider strategic implications, including the impact on other specific cases. 41. In Mr Kanu’s case, as discussed above, the Secretary of State has considered and rejected the option of making his view public, taking into account an assessment of the political climate in Nigeria and a range of other factors and determining that such a statement would be counterproductive to Mr Kanu’s interests. 42. In Mr Kanu’s case there has been a constant inflow of new information. To form a concluded view in the case of evolving evidence would not be appropriate or aid Mr Kanu. Ultimately, the Secretary of State has concluded that reaching or publishing a concluded view as to the legality of Mr Kanu’s treatment would not change our objectives or how we have approached his case.”
“(iv) It is highly likely that any decision of the Foreign and Commonwealth Office, as to whether to make representations on a diplomatic level, will be intimately connected with decisions relating to this country's foreign policy, but an obligation to consider the position of a particular British citizen and consider the extent to which some action might be taken on his behalf, would seem unlikely itself to impinge on any forbidden area. (v) The extent to which it may be possible to require more than that the Foreign Secretary give due consideration to a request for assistance will depend on the facts of the particular case.”
“The effectiveness, benefits and risks of different options should be considered regularly in the case conference calls and decisions recorded. It is important that we can explain to individuals and families what we are doing, or not doing, and why.”