The call for the release of Indigenous People of Biafra (IPOB) leader Nnamdi Kanu has grown strident, with Southeast leaders meeting with the Attorney-General of the Federation to present a formal request. What does the law say about entering a nolle prosequi (withdrawal of a criminal charge)? Deputy News Editor JOSEPH JIBUEZE examines the option before the Federal Government.
The demand for a political settlement of the terrorism charge against Indigenous People of Biafra (IPOB) leader Mazi Nnamdi Kanu went up a notch last week.
Last Tuesday, Southeast governors resolved to meet with President Bola Ahmed Tinubu to demand Kanu’s release.
After their meeting in Enugu, the governors said: “We reviewed the report from the Southeast Security and Economic Summit held in Owerri on September 28, 2023.
“The Forum agreed to implement key recommendations related to security and economic integration, reaffirming our commitment to actionable plans on these critical issues.
“The Forum resolved to visit Mr. President to discuss pressing concerns affecting the Southeast region.
“Additionally, we resolved to engage with the Federal Government to secure the release of Mazi Nnamdi Kanu.”
The communique was signed by governors Hope Uzodimma (Imo), Alex Otti (Abia), Chukwuma Soludo (Anambra), Francis Nwifuru (Ebonyi) and Peter Mbah (Enugu).
A day later, some Senators from the region met with the Attorney-General of the Federation (AGF) Lateef Fagbemi (SAN).
They urged him to enter a nolle prosequi in Kanu’s case as a way of ending the tension and tackling insecurity in the Southeast.
The lawmakers were led by Senator Enyinnaya Abaribe.
He said the Senators handed a letter to the AGF for delivery to President Tinubu conveying their request.
Abaribe said virtually all political and religious leaders, including other stakeholders in the Southeast, have unanimously agreed that Kanu be released for peace to return to the geo-political zone.
The Senator said: “On behalf of the caucus, I met with Kanu on Monday and he is very supportive of this our plea to the President.
“The 15 Southeast Senators signed the letter.
“The Senators, governors, clergy, business and traditional rulers are willing to stand surety for him.
“He has also assured me that he is ready to fulfil any condition that will lead to his early release.
“The AGF received us very warmly and promised to digest our request and take it to the President, who will make the ultimate decision.”
Abaribe said they believe if Kanu is released, those who commit crimes in the guise of protesting his detention will have no further excuse.
Also, last Wednesday, the Southeast caucus of the House of Representatives appealed to President Tinubu to consider releasing Kanu.
The 43 lawmakers said they were in support of the out-of-court settlement being discussed between the lawyers of the detained IPOB leader and the prosecution.
Their demand is contained in a statement signed by Deputy Speaker Benjamin Kalu; Deputy Minority Whip George Ozodinobi; leader of the caucus Enwo Igariwey; Deputy Leader Nnolim Nnaji and Secretary Miriam Onuoha.
The statement was also endorsed by all the lawmakers from the zone, irrespective of their political affiliation.
The statement reads in part: “We, as Representatives of the five Southeast states in the House of Representatives, urge Mr President, to consider the release of Mazi Nnamdi Kanu and his other similarly detained followers.
“We are convinced that a political settlement of this matter by way of an out-of-court settlement, as canvassed before Justice Binta Nyako, is the quickest, most effective, and honourable way of closing this difficult and painful chapter of our national history.”
Kanu’s kinsmen also joined the call for his release.
Youths of the Ibeku ancient kingdom in Umuahia, Abia State and kinsmen of Kanu urged President Tinubu to free him.
In a July 1 letter to the President, the youths wrote: “We are very much aware of the controversies surrounding his re-arrest, but, we wish to use this medium to plead with you, His Excellency, the President of the Federal Republic of Nigeria, the Father of all Nigerians, to graciously effect the release of our brother Mazi Nnamdi Kanu.
“His continuous detention and incarceration has become a burden on our conscience and an unbearable burden indeed, knowing full well the instability, insecurity and economic hardship his detention has occasioned the people of the Eastern part of Nigeria.”
Previous calls for Kanu’s release
Former President Muhammadu Buhari did not heed pleas by Southeast leaders to order the termination of Kanu’s case before his tenure ended.
Weeks before the end of his tenure, Ohanaeze Ndigbo asked Buhari to release Kanu.
Its President-General, Emmanuel Iwuanyanwu, reiterated the demand in Oguta Local Government Area, Imo State, during the flag-off ceremony of Oguta/Orashi Rivers dredging project.
Addressing Yemi Osinbajo, who represented the former President, Iwuanyanwu said: “Our vice-president, tell our brother and our son, Buhari, that the Ohanaeze Ndigbo, (made up of) over 60 million Igbos, requests that he should release Nnamdi Kanu.”
He dismissed claims that the Southeast would secede from Nigeria if the IPOB leader was released.
“Igbos are not seceding (from Nigeria). I don’t see why anybody should say Igbos are seceding. Igbos are everywhere. We have investments. Are we going to leave our investments (by seceding)?” he said.
Iwuanyanwu said he was passing the message to Buhari because the president had been given honourary membership in the Ohanaeze and under his (Iwuanyanwu’s) authority despite being Nigeria’s president.
“I am now telling him (Buhari) that Nnamdi Kanu should be released before he (Buhari) departs office,” he added.
Iwuanyanwu’s predecessor, the late Prof George Obiozor, had also called on Buhari to free Kanu.
“We highly recommend that the federal as well as state governments engage the restive Igbo youths in some form of dialogue towards the peaceful resolution of the present crisis.
“In this context, we equally appeal to President Muhammadu Buhari to exercise his prerogative of mercy for Mazi Nnamdi Kanu and other Igbo youths in detention in various places,” Obiozor had pleaded.
Like other Igbo leaders, he believed Kanu’s release would help douse the tension in the Southeast.
He underscored the extent of the problem, saying: “The advent of insecurity in the Southeast is both bizarre and dramatic.
“The Southeast had been adjudged the most serene and peaceful zone in Nigeria until April 5, 2021, when gunmen attacked the correctional facility in Owerri, Imo State and freed a total of 1,844 prison inmates.
“Since the April 5 episode, insecurity in the Southeast has attained an unprecedented unbearable crescendo.”
In November 2021, some Igbo leaders under the aegis of Highly Respected Igbo Greats met with him.
The group was led by First Republic parliamentarian and former Minister of Aviation, the late Mbazulike Amaechi.
During the meeting, the ex-minister of Aviation described the situation in the Southeast as “painful and pathetic,” lamenting that businesses had collapsed while education was crumbling amid fears.
He promised that if Kanu was released to him as the only First Republic minister still alive, “he (Kanu) would no longer say the things he had been saying.”
Responding, Buhari said: “You have made an extremely difficult demand on me as the leader of this country. The implication of your request is very serious.
“In the last six years, since I became President, nobody would say I have confronted or interfered in the work of the Judiciary.
“God has spared you (referring to the ex-minister), and given you a clear head at this age, with a very sharp memory. A lot of people half your age are confused already. But the demand you made is heavy. I will consider it.”
Killings, violence, sit-at-home enforcement
IPOB aims to restore the defunct Republic of Biafra, which seceded from Nigeria in 1967 prior to the Nigerian Civil War and was subsequently dissolved following its defeat in 1970.
Since 2021, IPOB and other Biafran separatist groups have been fighting a low-level guerilla conflict in the Southeast against the Nigerian government.
The group was founded in 2012 by Kanu.
Kanu was first arrested in 2015 but was granted bail in April 2017.
He fled the country after an invasion of his home in Afara-Ukwu, near Umuahia, Abia State, by the military in September of that year.
He was re-arrested in Kenya and brought back to Nigeria in June 2021, about four years after he fled the country.
The Court of Appeal, Abuja, held that the IPOB leader was extra-ordinarily renditioned to Nigeria and that the action was a flagrant violation of the country’s extradition treaty and also a breach of his fundamental human rights.
The court, therefore, struck out the terrorism charges filed against Kanu and ordered his release from the custody of the SSS.
The Federal Government later appealed the court’s ruling and subsequently obtained an order staying the execution of the court’s judgment at the Supreme Court.
A five-member panel of the Supreme Court, led by Kudirat Kekere-Ekun, declared that Kanu’s forcible repatriation from Kenya to Nigeria was illegal.
However, the court, in the lead judgment prepared by Tijjani Abubakar, ruled that there was no Nigerian law that prohibits the use of “illegally obtained evidence for the trial of a defendant.”
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The highest court held: “Our law is that evidence illegally obtained is valid before the court.”
The Supreme Court held no legislation provides that a trial should stop where the prosecution does something illegal against the defendant while standing trial.
“There is a civil remedy,” Justice Abubakar stated.
In effect, Kanu’s trial on a seven-count amended charge of terrorism, treasonable felony and related offences would go on.
IPOB had declared sit-at-home in the Southeast every Monday to press home its demand for Kanu’s release.
It also called for a sit-out each day Kanu’s trial comes up for hearing.
The exercise is usually accompanied by killings and attacks on properties and assets. The insecurity forced residents to comply, harming the region’s booming Monday trade in major Southeast cities of Nnewi, Aba and Onitsha.
This newspaper’s delivery van was once burnt along with its consignment on a Monday in the Southeast. The driver fortunately escaped into the bush.
Kanu had asked those behind the recurring exercise to stop it, but his followers and criminals who hijacked it refused to heed his stay-of-action call.
The IPOB leader, speaking through his counsel, Mike Ozekhome (SAN), said he did not believe in the sit-at-home.
He insisted he could not be fighting for his people and, at the same time, shutting down their economy.
The SAN said: “As his lead counsel and lawyer, he has told me he does not believe in the sit-at-home; he cannot be fighting for his people and shutting down their economy. How do they feed? How will they train their children?
“Many a time, he cried to me that he wants to be released so that he can hold a world press conference and address the Igbo and Ala Igbo, and the entire world to say: ‘don’t stay at home on Mondays, go about your normal duties, go to work; because the Bible tells us it is upon the labour of your hands, I will bless the fruits of your labour’.
“So, I am now re-echoing again and again what Nnamdi Kanu has told me – he does not believe in the sit-at-home on Mondays which cripples the social, economic, cultural and political life of the people, putting them under psychological, psychical and mental stricture and torture.”
‘If I were outside, nobody can try this’
Speaking after a court hearing in March, an angry Kanu said the crisis in the region persisted because he had been away.
The IPOB leaders said: “Anybody committing a crime cannot go free. I swear it. Anybody committing a crime in the East cannot go free.
“They are doing it because I am in the DSS (custody). If I were to be outside, nobody could try this.
“I suspect that some people in government are complicit. They are making money with the insecurity.
“They know if Nnamdi Kanu is outside, in two minutes this nonsense will stop. Who is the bagger or idiot that will speak when I am talking?
“That, I will give an order in the East, who is the idiot that will counter it? Nobody can.
“I am Nnamdi Kanu. Rubbish! Anybody involved in any form of violence in the East in the name of IPOB is a goner and they know it.
“Let me come out of this mess, only two minutes, there will be peace in the East.”
Judge not opposed to settlement
On June 19, Justice Binta Nyako hinted that she had no problem if the parties decided to settle out of court.
She and prosecuting counsel Adegboyega Awomolo (SAN) urged Kanu’s counsel to reach out to the AGF.
Defence counsel Alloy Ejimakor said his client wanted the court to invoke Section 17 of the Federal High Court Rules, which he said, provides for “reconciliation” and facilitation of amicable settlement in criminal or civil cases.
He said: “Section 17 of Federal High Court Rules states that, in any proceedings, the court may consider reconciliation and settlement.”
Ejimakor claimed to have discussed the proposal with Awomolo. Awomolo admitted Ejimakor’s claim.
“I told him (Ejimakor) to go to the AGF, who has the power. If he is interested in negotiating, he should go there; his (the AGF’s) office is just here,” Awomolo said, pointing to a building close to the Federal High Court complex.
“If he is interested in negotiating, he knows the right place, the AGF’s office,” the SAN added.
Justice Nyako said her court had no problem with either the defence or both parties negotiating.
“If you want to discuss with the AGF, no problem at all,” the judge said.
The case was adjourned till September 25. Will the Federal Government enter a nolle prosequi by then?
Leader of the Biafra Independence Movement, Ralph Uwazuruike, urged Southeast leaders to also engage with the National Security Adviser (NSA) on Kanu’s release.
To him, it is rather the security chiefs who are holding Kanu rather than the AGF.
Uwuzuruike, in a statement by BIM Director of information, Mazi Chris Mocha, advised Southeast leaders to meet the NSA with a convincing security report on why Kanu should be freed.
How the trial has lingered
The Supreme Court had faulted the invasion of Kanu’s home by the military when he was granted bail by the trial court.
It said the decision to revoke Kanu’s bail because he jumped bail after his house was invaded.
The Supreme Court noted that, if as a result of the life-threatening invasion of his home Kanu ran away, he should not be blamed.
“That is where we found the revocation of his bail as totally wrong and unfair. Remember that Nigeria has barely recovered from the case of Umaru Dikko.
“Despite all that, we found that the Court of Appeal was wrong to hold that the trial court no longer has jurisdiction over the trial,” Justice Agim said.
Kanu is alleged to have made a broadcast that was heard across Nigeria, in which he allegedly issued a threat that anyone who defied a sit-at-home order, should write his or her will.
The prosecution added that due to the threat, banks, schools, markets, shopping malls, and petrol stations in the Southeast have continued to shut down their businesses, with citizens and vehicular movements grounded.
It alleged that Kanu’s broadcasts, made on different dates between 2018 and 2021, incited members of the public to attack Nigerian security personnel and their family members, thereby committing an offence punishable under section 1(2)(h) of the Terrorism Prevention Amendment Act, 2013.
The prosecution also accused Kanu of directing members of IPOB “to manufacture bombs”, and that between March and April 2015 he “imported into Nigeria and kept in Ubulisiuzor in Ihiala Local Government Area of Anambra State, a radio transmitter known as Tram 50L, concealed in a container of used household items which he was said to have declared as used household items.
The prosecution said the act constitutes an offence contrary to Section 47(2)(a) of Criminal Code Act Cap, C45 Laws of the Federation of Nigeria 2004.
Following the Supreme Court’s judgment, parties returned to the Federal High Court on February 26
While the prosecution indicated its readiness for the resumption of the trial, the defence told the court that it was not ready.
Ejimakor said his client filed two fresh motions, which he argued ought to be heard and determined before any further steps could be taken on the case.
Arguing the first motion, Ejimakor prayed to the court to allow his client on bail on health grounds.
The counsel said it would be difficult for his client to prepare for his defence unless he is admitted to bail to have unfettered access to his lawyers.
The defence lawyer claimed Kanu was suffering from acute hypertension and acute heart disease, among others.
Awomolo faulted both motions and objected to the defendant’s request for bail.
In a ruling on March 19, Justice Nyako dismissed the two motions by the defendant, on the grounds that they were unmeritorious.
Justice Nyako held that the court cannot grant Kanu bail on the fresh application having earlier rejected a similar one.
Ejimakor had claimed that DSS operatives were infringing on his client’s fundamental rights by interfering with his conversations with his lawyers and family members.
He said such a situation makes it difficult for the defendant to prepare for his defence
Justice Nyako also rejected another request by the defendant that he should be placed under house arrest in any part of Abuja.
When parties returned to court on April 17, the prosecution reminded the court that the business of the day was the resumption of trial.
It indicated its readiness, adding that witnesses were in court. But, the defence again argued that it was not prepared for trial.
Ejimakor told the court that his client had two fresh applications and requested that they should be heard.
He said his client was not ready for trial because his current condition was not suitable for him to prepare for his defence.
Ejimakor went to argue the two motions. In the first one, he prayed the court to restore the bail granted to the defendant in 2017, which the court later revoked when he fled the country following the invasion of his home by some soldiers.
The defence lawyer argued that, as against the claim by the prosecution, the court was misled to revoke the bail because Kanu did not jump bail or breach any of the conditions.
He added that his client had to leave the country when the military invaded his house to avoid being killed.
Ejimakor also prayed the court to vacate the arrest warrant issued against him by the court while he was out of the country.
In the second motion, he urged the court to order the defendant’s relocation from the custody of the DSS to either a house arrest or a remand in prison custody.
Awomolo opposed both motions and urged the court to reject them
Justice Nyako fixed the ruling for May 20 but insisted that progress must be made in the case.
“It is either we open this trial today by the prosecution calling witnesses or I adjourn this matter indefinitely till the time you are ready for trial.”
Will AGF exercise his nolle powers?
Former Second Vice President of the Nigerian Bar Association (NBA), Dr. Monday Ubani, is one of those who believe Kanu should be freed.
“If I am to advise the government of President Tinubu, I will plead with him to take into consideration, the economic condition of the South Eastern Region which had been imperilled since the prosecution of Mazi Nnamdi Kalu began afresh.
“Sometimes in the region, a whole week can be declared as ‘sit at home’ whenever it fancies the interest of those who are making the declarations.
“Several instances abound where lives and properties are wasted and insecurity created in the region as a result of the ongoing criminal trial of Mazi Nnamdi Kanu.
“The government can take strategic consideration of these unfortunate happenings including a compassionate look into the health of Nnamdi Kanu and advise that a nolle prosequi be entered terminating his ongoing trial,” he said.
A legal scholar, David O. Adenegan, explained the effects of a nolle-prosequi.
He stated: “Nolle prosequi is a formal entry on the record by the prosecuting officer to cause a cessation of the proceeding and with the effect that the case shall not be prosecuted further.
“It is a discretionary power vested in the Attorney-General to make any criminal proceeding instituted by the Attorney-General or any other person or authority cease to proceed.
“The practice of entering a nolle is old and rooted in antiquity. The power of the Attorney-General in the administration of criminal justice cannot be overemphasised.
“The application of this power operates to discharge the accused person or acquits depending on the time the power was entered.
“If the nolle prosequi is entered before the accused person enters his defence, it will be a discharge and acquittal.
“However, if it is entered when the accused person has entered his defence, it will operate to discharge the accused person thus with the effect that the accused person can be charged again with the same offence.
“In the exercise of this power, the Attorney-General need not put forward any reason.
“It is informative to note that this power and its exercise is indisputable and incontrovertible.
“When the Attorney-General enters a nolle prosequi, it cannot constitute a subject to judicial review.
“Even in the United Kingdom where the doctrine has its origin, this power is not subject to any constraints.
“Thus, the Attorney-General enjoys an unrestrained liberty in this regard.”
A legal expert, Benjamin .O. Igwenyi, said the power to exercise nolle must be exercised judiciously.
In an article entitled: Jurisprudential Appraisal Of Nolle Prosequi In Nigeria, he writes: “The Latin phrase nolle prosequi which means’ I do not want to prosecute’ or’ I do not want to continue to prosecute’ is used in the temporary or total termination of criminal or civil cases before judgment in most of the countries that are within Common law jurisdictions.
“This concept or practice which has its prominence now in the trial of criminal matters is the basis of the power of the Attorney-General to terminate criminal cases before judgment in Nigeria.
“This position of the law received its strongest endorsement in the much-quoted case of Ilori v. State.
“In this case, the Supreme Court amongst other ratios held that the Attorney-General can enter nolle as many times as he wishes over a matter and that this decision cannot be questioned by the court or any other person.
“We take exception to this view that the Attorney-General cannot be required to place before the court the reason for his action in the light of the clear provisions of sections of the constitution.”
A jurist, Usman Bwala, highlighted the considerations for a nolle.
He stated: “An Attorney-General is domino litis (master of the suit) as regards prosecution of all criminal matters before any court other than a Court Martial.
“An AG can delegate his powers to prosecute criminal matters to law officers in his ministry or to any private legal practitioner of his choice.
“An AG can also take over any criminal case before any court other than Court Martial and continue or discontinue the prosecution.
“An A.G. can enter nolle prosequi and offer no reason. The power the power to initiate a case should carry a power to terminate it London County Council vs A.G. 1902 A.C. 165.”
According to him, the power to enter nolle prosequi by an Attorney-General exists in the Common Law and the constitution.
Bwala said the power to enter nolle prosequi is backed by Section 211 of the 1999 Constitution.
It provides: “(1) The Attorney-General of a state shall have power – a. to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly;
“b. to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and c. to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”
All eyes are on AGF Prince Lateef Lagbemi (SAN). Will he exercise these powers in respect of Kanu, subject to President Tinubu’s and security chiefs’ approval?
And will the pleas be heeded this time?
