The Foreign Affairs Committee (“FAC”) has published a damning report, concluding that the UK government is failing to prevent “Abductor states” from “weaponising [the] citizenship of British nationals for geopolitical ends”.
The report relied on evidence provided by the family of Mazi Nnamdi Kanu, leader of the Indigenous People of Biafra. Kanu is being detained in the custody of the Department of State Services over alleged running a running a proscribed group, treason and jumping bail in 2017. However, Nigeria’s Court of Appeal discharged Kanu, ruling that the process of his arrest and repatriation to Nigeria from Kenya amounted to extra-ordinary rendition. But the Nigerian government refused to abide by the ruling.
Meanwhile, Kanu’s family are about to appeal against the UK High Court judgment that the FCDO can lawfully evade reaching any conclusion on whether Mr Kanu has been subject to extraordinary rendition.
The report makes various recommendations to combat the UK government’s failure to effectively assist British nationals like Mr Kanu, who find themselves subject to gross violations of their human rights abroad. The following recommendations are directly relevant to Mr Kanu’s case, though his family are fearful that the proposed policy reforms may come too late to help him.
The report recommends, “Where – as in Mr Kanu’s case – there is a UN Working Group on Arbitrary Detention Opinion that a detention of a UK citizen is illegal, the FCDO should assume that the case will not be judged in line with international standards and should respond accordingly. The Government should as a matter of practice promote public acceptance of the Opinion (‘Conclusions and recommendations’, paragraph 4). The report notes that in Mr Kanu’s case the UK government has not issued any comment on the UNWGAD’s unequivocal finding that Mr Kanu has been subject to arbitrary detention (footnote 31).
“Within the next 12 months the Government should formalise and publish guidance outlining criteria for determining whether the detention of a UK national by a foreign state is considered arbitrary. A review should then be carried out of all UK nationals detained overseas according to the established criteria. The conclusions on the nature of the detention should be used to classify the case internally, in discussions with the family and, where appropriate, publicly (‘Conclusions and recommendations’, paragraph 2). The Kanu family support this recommendation as it has emerged from Mr Kanu’s judicial review challenge that the UK government does not have any specific policy to deal with British nationals subject to extraordinary rendition abroad.
“The FCDO should have a ‘central repository’ for information on cases of arbitrary detention, detailing processes followed and learning gained, and should adopt a ‘systematic approach to all cases, not simply a sample’ (‘Conclusions and recommendations’, paragraph 9). The majority of families who provided evidence towards the FAC on behalf of loved ones detained abroad described a ‘consistent feeling of a lack of transparency’ from the FCDO and ‘inadequate’ communication regarding the FCDO’s efforts to assist their loved ones (paragraph 70). The report notes Mr Kanu’s family’s concerns that although they have had regular communication with the FCDO, ‘this might not have been forthcoming had their legal representation not requested it’ (paragraph 75).
“Within the next 12 months, the UK government should undertake appropriate consultation to establish the position of Director for Arbitrary and Complex Detentions, with a mandate including ‘coordinating the response to certain cases, providing a point of contact for families, convening a cross-government response, and coordinating the UK’s response to the multilateral efforts to address state hostage taking and arbitrary detention with a relentless focus on them. The postholder should have a direct line to the Prime Minister.’
“The presumption that ‘quiet diplomacy’ is always appropriate throughout cases of state detention ‘is a false one’ and the UK Government should use ‘the strongest possible language to call out’ situations of state detention (‘Conclusions and recommendations’, paragraph 19). This is particularly notable in Mr Kanu’s case where the FCDO has repeatedly asserted, without any explanation, that the diplomatic approach it is adopting is appropriate, despite there being no tangible improvement in his case after nearly two years.
“The UK Government must use every means at its disposal to secure the basic level of consular access it commits to provide for its nationals and that it is entitled to under international law—regardless of the perceived legitimacy of the charges or rigour of the legal system. The report notes that ‘This could include imposing a political cost (such as delaying negotiation on other bilateral issues), walking out of speeches given by offending countries, or exploring legal options through the various international treaty mechanisms’ (‘Conclusions and recommendations’, paragraph 24). This is essential in Mr Kanu’s case, where he has received limited and infrequent consular access.”
Reflecting on the report, Kingsley Kanu, the brother of Nnamdi Kanu, said: “For nearly two years now, our family have been pressing the UK government to take more robust action to assist my brother. However, the UK government has responded by wringing its hands, procrastinating and offering platitudes rather than action that makes a difference. The government has not been willing to even reach a conclusion, privately or publicly, on whether Nnamdi has been subject to extraordinary rendition and has constantly told us that the approach it is taking is the most appropriate one.
“It is satisfying to us that the FAC has called into question the FCDO’s blanket approach of ‘quiet diplomacy’ and has been critical of the level of protection the FCDO currently offers to British nationals detained abroad. We hope that the FCDO will take the recommendations into consideration and will reconsider its approach to my brother’s case in light of them.”
Mr Kanu’s family is represented by John Halford and Shirin Marker of Bindmans LLP, together with Charlotte Kilroy QC of Blackstone Chambers and Tatyana Eatwell of Doughty Street Chambers.
Ms Marker said today, “The FAC’s report is a damning indictment of the government’s efforts to assist British nationals subject to serious violations abroad and unfortunately reflects the experience of Mr Kanu’s family in trying to engage the FCDO in his case. We welcome the FAC’s insightful recommendations and hope that the UK government will take immediate steps to implement them.
“In criticizing the blanket ‘quiet diplomacy’ approach adopted by the FCDO the report demonstrates further that the FCDO’s current position is untenable. We hope the FCDO will rethink it in the light of the report but are ready to put our concerns to the Court of Appeal if it will not do so.”