It was anticipated that Indigenous People of Biafra (IPOB) leader Nnamdi Kanu would be freed after the Court of Appeal held that the Federal Government brought him back to Nigeria illegally. However, the Supreme Court disagreed on the basis that an illegal arrest cannot prevent a suspect’s trial. It was expected that the proceedings would move faster after that verdict. Instead, the case may suffer more delay given the demands of the defence that certain conditions must be met before the trial could proceed, with the trial judge threatening to adjourn sine dine. Igbo leaders and stakeholders have called for a political settlement as a way to douse tension in the Southeast. Assistant Editor ERIC IKHILAE reviews the case.
Last December 15, the Supreme Court reversed the October 13, 2022 decision of the Court of Appeal barring the Federal Government from further prosecuting Nnamdi Kanu, the leader of the proscribed separatist group – Indigenous People of Biafra (IPOB).
A five-member panel of the apex court, led by Justice Kudirat Kekere-Ekun, ordered that Kanu be tried on the surviving seven counts in the original 15-count amended charge on which he was re-arraigned before a Federal High Court in Abuja.
Kanu, shortly after he was brought back from Kenya by the Federal Government on June 27, 2021, challenged the competence of the amended 15-count charge filed against him by the prosecution.
In a ruling on April 8, 2022, Justice Binta Nyako of the Federal High Court, Abuja struck out eight of the 15 counts, leaving seven.
The judge said: “In this instant preliminary objection application, I have read the counts and come to the conclusion that counts 6, 7, 8, 9, 10, 11, 12 and 14 have not disclosed any offence against the defendant.
“Counts 1, 2, 3, 4, 5, 8 and 15 show some allegations, which the defendant has to answer. The court shall proceed to try the defendant on those counts.”
Rather than submitting to trial based on the surviving seven counts, Kanu challenged the April 8, 2022 ruling at the Court of Appeal in Abuja. He also queried the propriety of how he was brought back to the country from Kenya by the Nigerian Government.
The Court of Appeal, in its judgment on October 13, 2022, faulted the manner the Federal Government brought him back into the country.
The Appeal Court quashed the remaining seven counts left in the 15-count charge proceeded to discharge and acquit him and ordered his release from custody.
The Appeal Court was of the view that the Federal Government violated the rules of engagement in the way and manner Kanu was arrested in Kenya and brought to Nigeria.
The Court of Appeal added that the Federal Government breached international laws and resorted to self-help in its failure to file a formal extradition application against Kanu in Kenya, but chose to resort to unlawful abduction and rendition.
Before the judgment could be executed, the Federal government applied to the Court of Appeal for a stay of execution pending the determination of its appeal against the judgment, an application the Court of Appeal granted.
It subsequently appealed the judgment at the Supreme Court, with Kanu filing a cross-appeal.
The Supreme Court’s decision
In its judgment on December 15, 2023, the Supreme Court allowed the appeal and dismissed the cross-appeal by Kanu.
It reversed the October 13, 2022 decision of the Court of Appeal discharging and acquitting Kanu and held that the Court of Appea) was wrong to have discharged and acquitted Kanu on the ground that the prosecution acted illegally in the manner the IPOB leader was brought back from Kenya.
In the lead judgment, written by Justice Mohammed Lawal Garba, but read in court by Justice Emmanuel Agim, the Supreme Court held that despite that Kanu was illegally brought back from Kenya, that unlawful act of the prosecution did not divest the trial court of the jurisdiction to continue his trial.
The Supreme Court held that under Nigerian law, evidence obtained as a result of the violation of the right of a defendant to privacy and the evidence obtained as a result of an illegal search are legal evidence before the court.
Justice Agim said: “The position of our law is that, despite what happened, that evidence is proper evidence before the court.
“If the police should illegally detain a person, accused of committing a crime and illegally arrest him, torture him and subject him to all kinds of dehumanisation, should that divest the court of the jurisdiction to try the case brought against him in that process?
“The courts have continued to insist that as long as there is a reasonable basis of suspicion of the commission of an offence, an accused should be tried on that basis.”
Justice Agim said Kanu was free to file a civil action if he felt his rights were violated.
He added: “That has been the position of the Nigerian law for a very long time. The Nigerian law has not developed to the point whereby it could be said that, on account of the clear violation of the right of an accused person standing trial before a court, the proceeding before that court has become incompetent and the court is divested of jurisdiction to continue to hear the case. That is not our law for now.
“All said and done, there is no Nigerian law that supports the position that the trial court no longer has jurisdiction where the prosecution did anything illegal against an accused person while he is standing trial.
“If the prosecution, in its usual overzealousness and malice, destroys a person’s house in a bid to search for and collect evidence, that would not stop the person’s trial. It will only lead to a cause of action for civil remedy. Certainly, not to stop the trial.
“So, for that reason, we decided not to go with the Court of Appeal on this issue because that should not divest the trial court of its jurisdiction.
“In as much as we strongly condemn what the prosecution did against the accused, Nigerian law does not support the position taken by the Court of Appeal,” Justice Agim said.
He described as totally irresponsible the invasion of Kanu’s home by the military when he was granted bail by the trial court.
The judge also faulted the decision of the trial court to revoke Kanu’s bail because he jumped bail after his house was invaded.
He 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.
The surviving counts
In the surviving seven counts, Kanu is alleged to have made a broadcast that was heard across Nigeria, in which he allegedly issued a threat that anyone, who flouted a sit-at-home order in the Southeast, should write his or her will.
The prosecution added that as a result of 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.
Return to the Federal High Court/Change of lawyers
Following the Supreme Court’s judgment, parties returned to the Federal High Court on February 26.
Both sides also rejigged their legal teams. The prosecution got Adegboyega Awomolo (SAN) to lead its team while the defence got P. A. M. Ejiofor, who replaced Mike Ozekhome (SAN) as the leader of its legal team.
While the prosecution indicated its readiness for the resumption of the trial, the defence told the court that it was not ready.
Kanu’s lawyer, Alloy Ejimakor, said his client has filed two fresh motions, which he argued ought to be heard and determined before any further steps could be taken on the case.
Justice Nyako agreed with him and proceeded to take both motions.
Arguing the first motion, Ejimakor prayed to the court to allow his client on bail on health grounds.
Ejimakor 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.
Ejimakor also argued the second motion in which he asked the court not to allow the resumption of his client’s trial until certain conditions were met by the prosecution.
Some of the conditions, he said, include that operatives of the Department of State Services (DSS), in whose custody Kanu is being detained, be barred from interfering with his lawyers during their visit to him.
He also requested that the court compel the prosecution to allow Kanu to wear the clothes of his choice.
Awomolo faulted both motions and objected to the defendant’s request for bail.
The prosecuting lawyer noted that Kanu was once granted bail, but he jumped the bail and fled the country.
He added that Kanu breached all the bail conditions earlier set by the court.
In faulting the second motion, Awomolo argued that the defendant has no right under any law to dictate how his trial should be conducted.
He urged the court to decline the request, arguing that it amounted to a gross abuse of the process of the court that should not be tolerated.
Rejection of fresh 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.
The judge was of the view that the only option opened to Kanu was for him to appeal the earlier decision of the court refusing him bail.
She rejected Kanu’s request to be allowed unfettered access to anybody who wishes to visit him in custody.
Justice Nyako said if Kanu was uncomfortable with the conditions attached to visitation by his lawyers, he could apply for a variation rather than filing a fresh application.
The judge also rejected an oral application by Ejimakor that the defendant be moved out of the custody of the DSS to Kuje prison.
Justice Nyako said the court had ruled on a similar request before now and rejected it. She advised the defendant to explore the option of appeal.
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.
His lawyer had, while making the application, claimed that Kanu was tired of being in DSS’ custody for reasons, which included that his health challenges were not being properly managed.
In refusing the request, Justice Nyako said Kanu would be well secured in the custody of DSS, but that if he feels strongly about being restricted to a property in Abuja, he should file a formal application to that effect.
She adjourned till April 17 for trial.
Another fresh request for bail and relocation from DSS’ custody
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 thought otherwise, arguing 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 proceeded to argue the two motions. In the first one, he prayed the court to restore the bail granted 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 of the bail.
He added that his client had to leave the country when the military allegedly 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.
He also prayed the court to issue an order according the defendant’s lawyers unhindered access to him to enable him to prepare for his defence.
Ejimakor stated that until the reliefs in both motions were granted, as provided for under Section 36 of the Constitution, the defendant would not submit himself for trial.
Responding, Awomolo opposed both motions and urged the court to reject them
The prosecuting lawyer argued that, by his motions, Kanu was seeking to dictate how his trial should proceed and how it should be conducted.
Judge threatens to adjourn case indefinitely
After listening to the arguments by both lawyers, Justice Nyako fixed the ruling for May 20 but insisted that progress must be made in the case by allowing the prosecution to open its case by calling witnesses.
Ejimakor objected, insisting that his motions must first be determined one way or the other before the prosecution should be talking about opening its case.
Peeved by the defence lawyer’s disposition, Justice Nyako insisted on proceeding with the trial.
The judge said: “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.
“You cannot continue to hold the court to ransom. I hope you know the consequences of adjourning the trial sine die. You have to make a choice and the choice has to be for you.
“I will rise for some minutes for you to think about this and make a choice and that choice has to be made today.”
When proceedings later resumed, the judge appeared to have had a rethink.
She no longer insisted on proceeding with the trial but chose to adjourn for the ruling.
Kanu seeks freedom
In what seems like an appeal for freedom, Kanu pledged to work to stop the current spate of violence in the Southeast once he is freed.
He spoke during his appearance in court on March 19.
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,” he said.
Exploring out-of-court option
Before now, efforts were made by some Igbo leaders to have former President Muhammadu Buhari intervene and release Kanu.
An instance was in November 2021 when 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, 93-year-old 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.”
Also, in May 2022 during a two-day visit to Ebonyi State, he also met with another set of leaders of the Southeast, comprising traditional, religious and political leaders, who urged him to help secure Kanu’s release.
In response, Buhari said: ‘‘I have listened carefully to the various appeals from the elders to the traditional leaders regarding a wide range of options, and as I have said previously this matter remains in the full purview of the courts where it will be properly adjudicated.”
Renewed calls for Kanu’s release
There have been renewed calls for Kanu’s release since President Bola Tinubu assumed office.
A major voice in this regard is the Deputy Speaker, House of Representatives, Benjamin Kalu.
He spoke about it when he featured in an edition of “The Ben Kalu’s Mandate”, a radio programme aired on FLO FM, Umuahia, Abia State, where he said that while the court processes were ongoing, political solutions were being worked out.
Kalu said: “The Peace in Southeast Project (PISE-P) has reconciliation in the mix of what we are trying to achieve. We recognise the importance of our brother, Nnamdi Kanu in the peace agenda we are pushing.
“That’s the truth. And I have been very vocal about it. I am not hiding it. I have always told people that I will never deny Nnamdi Kanu. He’s my brother.
“We come from the same place and I will never be happy having him incarcerated when we can have him out and increase our pursuit towards peace.
“But, we may not advance all the things we are doing backdoor but I can assure you that all the powers-that-be in this country know that people like us are not sitting on the fence.
“I don’t know about the next person but I am talking about Benjamin Okezie Kalu. I am not sitting on the fence about it. I am lobbying.
“We cannot go about this before the court. I am more interested in using a political solution towards resolving this. So, I am asking for one or two things from the federal government.”
Former Second Vice President of the Nigerian Bar Association (NBA), Dr. Monday Ubani also added his voice.
Ubani argued that Kanu should either be granted bail given the Supreme Court’s finding that he did not jump bail, or that President Tinubu should direct the discontinuation of his trial as a way of promoting peace in the South East.
He said: After the Supreme Court’s verdict on Mazi Nnamdi Kanu, I did modify my advocacy on him.
“Before the court judgment, I had requested that he should be released since the court of appeal exculpated him from every charge on his head.
“When the Supreme Court hinged their position that our jurisprudence does not favour such acquittal based on wrong arrest and that he should be tried no matter how frivolous the charges are, I did change my plea and they are two-fold.
“One of my strongest advocacy for him is that Nnamdi should be granted bail by the court.
“Remember that the Supreme Court has affirmed the position of some of us that Mazi Nnamdi never jumped bail on the first bail he got but was pursued outside the country by the military while he was still on bail.
“The Supreme Court echoed that position loud and clear on the judgement of the 15th of December, 2023.
“I was in court for a different matter when the judgement on that matter was read by Hon Justice Emmanuel Agim of the Supreme Court
“Therefore, he deserves to be released on bail on this new case that is pending before Hon Justice Binta Nyako, right? That is my position.
“My second advocacy is that if I am to advise the government of President Bola Tinubu GCFR, 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 the ongoing trial of Nnamdi Kanu and hand him over to the leaders of the Southeast with an advice that he should maintain peace to himself, the region and the country by reciprocating the kind gesture of the government.
“This kind of gesture had been extended to some persons in this country whom we know in the past and the then government was appreciated.
“It is a measure that is being suggested that the government could consider dispassionately and take a considered position.
“One thing I know as a grassroots person and one who is in touch with South Eastern Region that I frequent regularly, such a gesture will catapult the love of many Igbo Youths including the aged ones for Tinubu’s government to the high heavens.
“I am not speculating, I am only stating the truth and nothing but the truth. Only the truth can set many of us in Nigeria free.
“Mazi Nnamdi Kanu enjoys very popular support in the East extending to some Southsouth states, western states and even in the North.
“I say it with utmost responsibility that, if forgiven, Mazi Nnamdi Kanu should reciprocate by calling out himself and his supporters to maintain peace and tranquillity in the region and Nigeria.
“No matter the perceived injustice and marginalisation in the country, it can be addressed through peaceful measures, advocacy, and political and constitutional re-arrangements.
“The present government is taking measures to reduce items in the Exclusive list by transferring some of them to the concurrent list and more will hopefully take place under the ongoing constitutional re-arrangements.
“Proper restructuring of Nigeria will reposition Nigeria and the various regions to rapid growth and progress. Again, it is a matter of time,” Ubani said.
Also, a lawyer and House of Representatives member, Ikenga Ugochinyere, appealed to President Tinubu to end the trial.
He was of the view that discontinuation of Kanu’s trial through an out-of-court arrangement would contribute to promoting peace in the country.
