By Lillian Okenwa
Notwithstanding the jubilation which greeted the Court of Appeal’s decision on Thursday to discharge the leader of the Indigenous People of Biafra (IPOB), Nnamdi Kanu of the treasonable felony and terrorism charges for which he has been standing trial, he still might have a long walk before attaining freedom.
Amidst the euphoria that met the judgment, the Attorney-General of the Federation and Minister of Justice, Abubakar Malami, has said the Court only discharged and did not acquit him. Malami in a statement signed by his spokesperson, Dr. Umar Jibril Gwandu, Mr. Malami disclosed that “appropriate legal options before the authorities will be exploited and communicated accordingly to the public…” and that “other issues that predate rendition on the basis of which Kanu jumped bail remain valid issues for judicial determination.”
An acquittal is a verdict by the judge that the accused is not guilty of the offence he is charged with, while discharge means releasing a person from custody or allegation due to insufficient grounds to proceed with the case.
Kanu was re-arraigned on an amended 15-count charge bordering on treasonable felony preferred against him by the federal government. On 8 April however, the court struck out eight of the 15 counts charge.
Consequently, Kanu, through his team of lawyers led by Chief Mike Ozekhome, SAN filed an appeal marked CA/ABJ/CR/625/2022, praying the court to quash the remaining seven counts for being devoid of merit. The Appeal Court was also asked to order the immediate release of Kanu should the charges be quashed.
Moving the application on September 13, Ozekhome insisted that his client was forcefully abducted from Kenya and illegally brought back to the country. He further argued that under the “doctrine of specialty” as provided for in section 15 of the Extradition Act, the federal government ought to have proceeded to try Kanu on the initial five-count charge on which he was re-arraigned before he fled the country.
Ozekhome contended that Kenya, being the country from where Kanu was arrested and extraordinarily renditioned to Nigeria, should have authorised his extradition and the new charges he is facing. Counsel to the federal government, David Kaswe, counsel to the federal government, however, asked the court to dismiss the appeal for want of merit.
In an undivided decision, the Court’s panel of three justices, held that Kanu’s unlawful and forceful renditioning from Kenya to Nigeria to stand trial was illegal and an infringement of his fundamental rights.
The court further held that the Nigerian government breached all local and international laws in the forceful rendition of Kanu to Nigeria thereby making the terrorism charges against him incompetent and unlawful.
Hon. Justice Adedotun Adefope-Okijie in the lead judgment voided and set aside the seven charges against Kanu adding that Nigeria’s failure to follow due process in Kanu’s Extradition was fatal to the charges against him.
Listing conditions of the Organisation of Africa Unity (OAU), which a state must meet before extradition takes place to include a formal application for extradition to the host country, permission from the court, and a statement of the alleged offences in connection with the extradition request amongst others, Justice Adefope-Okijie held that the requirements were intended to safeguard people from being extradited without full conviction of alleged committal of an offence and not for any other purpose.
Federal government’s action according to the appellate court, “tainted the entire proceedings” it initiated against Kanu and amounted to “an abuse of criminal prosecution in general… The court will never shy away from calling the executive to order when it tilts towards executive recklessness.”
Kanu’s trial began after he was abducted from Kenya by federal government agencies in July 2020.
The federal government filed 15 charges against him, including terrorism and treasonable felony. The charges were later amended and slashed down to 7 as the trial commenced.
But Kanu had faulted the order that he should respond to seven out of the 15 count terrorism charge against him and approached the Appeal Court. to set aside the order.
Arguing the appeal Ozekhome, SAN told the court that Kanu was first arraigned on December 23, 2015, and granted bail on April 25, 2017.
He explained further that, agents of the federal government launched a military operation, code-named “Operation Python Dance” at the appellant’s hometown in September 2017, which forced him to escape the country, to Israel and later London.
He recalled that on June 27, 2021, the federal government forcefully arrested Kanu in Kenya and renditioned him back to Nigeria in “a cruelest and inhuman manner. On 29 June 2021, the appellant was taken to court by the federal government, where he was re-arraigned.
“Following the appellant’s preliminary objection to the 15-count charge preferred against him by the federal government, the trial judge, Justice Nyako of the Federal High Court Abuja, on April 8, 2022, struck out eight counts.
“Our humble submission is that the remaining seven counts ought not to be retained by the trial court because, before the time Kanu was renditioned to Nigeria from Kenya, he was facing a five-count charge…”
Flashback
Until 2009 when he started Radio Biafra which was broadcast from London, Kanu was a relatively obscure figure.
In October 2015, soon after arriving in Nigeria for a visit, he was arrested in his Lagos hotel and was charged with “criminal conspiracy, intimidation, and membership of an illegal organisation” – charges that could amount to treason.
With the arrest, groups of IPOB supporters gathered in protest around Nigeria and the movement gained momentum.
Putting his separatist ambitions aside, human rights groups and some senior politicians have been calling for Kanu’s release, arguing that his many months of detention without trial was unlawful.
He was eventually granted bail. The IPOB leader was banned from public speaking, granting interviews, or being in a group of more than 10 people. As a condition of that bail, Kanu had to bring a prominent Igbo leader, a wealthy resident of Abuja, and a senior Nigerian Jewish leader to provide 100m naira each as surety to the court.
On 10 September 2017 gun wielding soldiers during Python Dance II invaded Kanu’s country home at Afaraukwu in Ibeku Umuahia, Abia state, and reportedly started shooting. About 15 persons allegedly died and 30 others were injured. The soldiers were said to have arrived in five Hilux vans. After the invasion, the IPOB leader’s parents’ whereabouts remained unknown until Kanu announced the passing of his mother, Sally, in a German hospital in August 2019.
When Kanu’s father, Eze Israel Kanu, died in December 2019, it was speculated that the shock and grief he suffered on account of the invasion of his residence by the military in Umuahia in September 2017 might have contributed to his death. On the morning of 12 October 2020, the Nigerian Army again invaded Kanu’s village.
Kanu was then accused of jumping bail but his counsel, Aloy Ejimakor, insists otherwise. Ejimakor who noted that Kanu, guided by the law of self-preservation, did the right thing by moving away from the environment where attacks were directed at him said:
“He never jumped bail. He was on bail and bond – subsisting, extant and valid as of 10th September to 14th September 2017 when the ill-fated military attacks were launched against him, and unjustifiably so. Anybody who really remembers the magnitude of that attack would believe it was directed primarily at the extra-judicial elimination of Mazi Nnamdi Kanu. So, on the issue of jumping bail, there is no law that requires you to sit like a log of wood while someone levels lethal attacks on you; and when the attacks came from the complainant itself, that is from the Federal Republic of Nigeria, it makes it worse.”
Sequel to his disappearance after the invasion, Kanu was declared wanted by the Federal Government. On 19 June 2021 Nnamdi Kanu was apprehended in Kenya and subsequently brought back to Nigeria.
After the extradition, IPOB announced that it will be enforcing a lockdown every Monday in the southeast until Kanu is released. The declaration which took effect on Monday, 9 August 2021 has grossly battered the economy of the southeast.
Worse still, the sit-at-home has been taken over by unknown gunmen who shoot anyone that dares to come out on a Monday. IPOB has since denied complicity asserting it would never support the destruction of business and lives in the southeast.
Many south Easterners have died from hunger and poverty occasioned by the sit-at-home and at the hands of unknown gunmen. Strangely governors of the South East have been unable to reign in the unknown gunmen.
Reactions
Reacting to the Justice Minister’s statement, Legal Practitioner and a former prosecutor in the District of Columbia and member of the Maryland bar, Chief Chukwuma Odelugo said: “The prosecutor represents the interest of the public at large, which is different from representing an individual.
“The interest of the public and the duty of the prosecutor is to keep the public safe. For the most part, the public isn’t made safe by locking up the one-time offender, whose sole crime is already done. The public is made safe by putting away career criminals, and repeat offenders.
“This is why when a court orders a release, we would release immediately, within 24 hours. Our theory is that we were confident that if you repeat, we could and would pick you up and charge you again. And the dismissed charges will be considered in your next bail application. When this happens, the government would release and look good to the public. The government doesn’t want to look petty, vindictive, or personal in any criminal prosecution. It undermines public confidence in the criminal justice system as a whole.
“An appeal is also risky for the FG. If they lose, it will cement this new jurisprudence. Courts will now be required to examine the circumstances of every arrest or detention in Nigeria.
“A good prosecutor’s office would move carefully and wait for a perfect case to use to challenge this apparent new jurisprudence.”
