Ten years after he was first arraigned on terrorism charges, the trial of the Indigenous People of Biafra (IPOB), Nnamdi Kanu, will start de novo before a new judge. Deputy News Editor JOSEPH JIBUEZE reviews the case.
Fireworks will resume again on March 21 before Justice James Omotosho of the Federal High Court in Abuja in the trial of Mazi Nnamdi Kanu, leader of the Indigenous People of Biafra (IPOB).
The case was re-assigned to Justice Omotosho after Kanu insisted that Justice Binta Nyako stood recused.
Justice Nyako had recused herself, but Chief Judge John Tsoho directed her to continue with the case, which Kanu rejected.
It was learnt that hearing notices have been issued and dispatched to parties.
It was also gathered that the case file and other documents have since been transferred to Justice Omotosho’s court, paving the way for the issuance of the hearing notices.
Kanu is expected to be re-arraigned on the remaining seven counts in the treason charge preferred against him by the Federal Government.
The Supreme Court, in a judgment on December 15, 2023, ordered Kanu to submit himself for trial on the remaining seven counts.
In the judgment, the apex court reversed the decision of the Court of Appeal discharging and acquitting Kanu.
The apex court held that although he was illegally brought back to Nigeria from Kenya when he jumped bail, the development could not have divested the trial court of the jurisdiction to continue his trial.
The allegations
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 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, among others.
The alleged offence is punishable under section 1(2)(h) of the Terrorism Prevention Amendment Act, 2013.
Kanu pleaded not guilty.
A case laced with drama
There was drama on February 10 when Justice Nyako adjourned indefinitely.
She ruled after Kanu questioned her jurisdiction to further preside over his trial.
Proceedings began when prosecuting counsel, Adegboyega Awomolo (SAN), said the prosecution was ready to proceed with the trial.
Defence lawyer, Aloy Ejimakor, said the issue before the court was not about proceeding with the trial.
Justice Nyako intervened and said although she had earlier recused herself from the case, Justice Tsoho turned down her decision.
According to her, the CJ also directed that the defendant should file a formal motion asking for the reassignment of the case to another judge.
While Awomolo and Ejimakor were arguing on whether or not a formal motion was necessary as directed by the CJ, Kanu, who had sat quietly in the dock, interjected and demanded to be allowed to speak.
Asked by Justice Nyako whether it was his intention to take over the conduct of his case from his lawyer, Kanu said: “Yes, I want to take over.”
Kanu said he only agreed to attend court because of the respect he has for the court.
He argued that Justice Nyako no longer had the jurisdiction having recused herself.
“I don’t recognise the authority of this court to preside over my case. Everything you (the judge) said here is meaningless to me. Why is it that when it comes to my case, everything is turned upside-down?”
Kanu argued that the memo by the CJ returning the case file to Justice Nyako could not override the enrolled order of September 24 (with which Justice Nyako recused herself from the case.)
When told by Justice Nyako that he was at liberty to appeal the directive of the CJ, Kanu said: “If the Chief Judge disagrees, he should appeal the decision.
“You cannot preside over this case, not now, not today, not ever. You stand recused, and you must leave my case. I don’t need you in my case.
“You are biased. Tell the Chief Judge that Nnamdi Kanu said so.
“This is not a court of law. This is a shrine to injustice, and I will not subject myself to it.”
Ruling, Justice Nyako said: “The only decision I can make right now is that in the light of what is happening now in court, I am going to adjourn this case sine die (indefinitely).”
Reacting to the judge’s pronouncement, Kanu again said: “You have no jurisdiction to adjourn anything. None whatsoever.
“You cannot make an order without jurisdiction. The memo from the Chief Judge cannot confer jurisdiction upon you.”
Day Justice Nyako recused self
Justice Nyako earlier withdrew from the trial midway on September 24.
Ejimakor had urged the court to adjourn, claiming that his client was denied the opportunity to adequately prepare for his defence.
But, before he could conclude his submission, Kanu rose and asked his lawyer to sit.
The defendant said: “Sit down! I say you should sit down.”
Turning to the judge, he said: “My lord, I have no confidence in this court anymore and I ask you to recuse yourself because you did not abide by the decision of the Supreme Court.
“I can understand it if the DSS (Department of State Services) refuse to obey a court order, but for this court to refuse to obey an order of the Supreme Court is regrettable. I am asking you to recuse yourself from this case.”
Kanu read a portion of the Supreme Court judgment where it found that actions of the trial court “rendered the impartiality of the judge suspect.”
He said: “But my lord, you know that I love you. It is just that this court is allowing the prosecution to railroad me into a trial that is at variance with every provision of the Constitution.”
Justice Nyako then said: “I hereby recuse myself and remit the case file back to the Chief Judge.”
A history of recusals
Kanu was first taken before Justice Ahmed Mohammed (now a Justice of the Court of Appeal) on December 23, 2015.
Before any steps could be taken in the case, Kanu objected to being tried before the judge, claiming he was not sure he could get justice.
The judge withdrew from the case, following which it was reassigned.
On September 26, 2016, Kanu and his then co-defendants were taken before Justice Tsoho (who was then the second most senior judge).
Justice Tsoho later withdrew from the case following a petition by Kanu’s lawyers to the National Judicial Council (NJC).
In the petition, Kanu’s lawyers accused the judge of making conflicting decisions in an application by the prosecution to be allowed to shield its witnesses from public view, which they claimed would not guarantee fairness and justice for the defendants.
Ruling on September 26, 2016, Justice Tsoho (now the Chief Judge) returned the case file to the then Chief Judge, Justice Ibrahim Auta.
The case was subsequently reassigned to Justice Nyako in 2016.
Demand for Kanu’s release
There have been demands for a political settlement of the terrorism charge against Kanu.
Southeast governors had resolved to meet with President Bola Ahmed Tinubu to demand Kanu’s release.
“We resolved to engage with the Federal Government to secure the release of Mazi Nnamdi Kanu,” they said after a meeting in Enugu last year, but whether they met the President and the outcome remains unknown.
Senators from the region also 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.
“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,” Abaribe said.
The Southeast caucus of the House of Representatives had also appealed to President Tinubu to consider releasing Kanu.
Their demand was 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.
Whether President Bola Ahmed Tinubu will heed the calls remains to be seen.
Former President Muhammadu did not heed pleas by Southeast leaders to order the termination of Kanu’s case before his tenure ended.
The former President-General, Emmanuel Iwuanyanwu, before he died, pleaded for Kanu’s release.
Iwuanyanwu’s predecessor, the late Prof George Obiozor, had also called on Buhari to free Kanu.
“We appeal to President Buhari to exercise his prerogative of mercy for Mazi Nnamdi Kanu and other Igbo youths in detention in various places,” Obiozor pleaded.
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 Mr Kanu and ordered his release from the custody of the SSS.
The Federal Government appealed and obtained an order staying the execution of the court 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 by Tijjani Abubakar, ruled that no law prohibits the use of “illegally obtained evidence for the trial of a defendant.”
The highest court held: “Our law is that evidence illegality 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.
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, although the exercise is now on the wane.
The exercise was usually accompanied by killings and attacks on properties and assets, forcing residents to comply and 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.
‘If I were outside, nobody can try this’
The IPOB leader once denounced the sit-at-home and violence, saying: “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.
“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.”
How the trial has lingered
Kanu’s interlocutory appeal had gone up to the Supreme Court, which faulted the invasion of his home by the military when he was granted bail by the trial court.
The Supreme Court noted that if Kanu ran away as a result of the life-threatening invasion of his home, 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.
The case has also been delayed due to motions by Kanu asking for bail on health grounds, or that he should be placed under house arrest in any part of Abuja as the DSS was tormenting him.
On another day, Ejimakor said his client was not ready for trial because his current condition was not suitable for him to prepare for his defence.
Justice Nyako cried out: “It is either we open this trial or I adjourn this matter indefinitely till you are ready.”
Will AGF exercise his nolle powers?
Will progress be made when Kanu is re-arraigned before Justice Omotosho? Will the Federal Government enter a nolle prosequi – the formal entry on the record by the prosecution to cause a cessation of a criminal proceeding and with the effect that the case shall not be prosecuted further?
How Kanu’s case eventually ends is one no one can predict.
