Background
Mazi Nnamdi Kanu (Kanu ) was arrested on 15th October, 2015. He was first arraigned before the Federal High Court Abuja, in Charge No: FHC/ABJ/CR/383/2015 on 23rd December, 2015. He was remanded in Kuje Correctional Centre. Kanu was subsequently granted bail by the Federal High Court, coram, Hon. Justice B.F.M Nyako on 14th April, 2017. The charge was consequently adjourned for hearing to 17th October, 2017.
Kanu’s Narrow Escape from Death
While Nnamdi Kanu was in his ancestral home in Abia State, enjoying his bail, a joint team of Nigerian security agents, led by soldiers (code-named “Operation Python”), brutally invaded his said ancestral home, viet armis on 14th September, 2017. During the murderous invasion, over 28 innocent and unarmed civilians were viciously murdered in cold blood. However, Kanu, who was apparently the principal target of the bloody invasion, managed to escape death by the whiskers, only mostly by an act of providence.
How Kanu Was Arrested and Detained in Kenya Without Warrant
In the course of Kanu’s involuntary exile overseas, on 5th May, 2021, he voluntarily entered the Republic of Kenya; and was legally admitted into the country as a British citizen. Kanu took up a temporary residence in a location in Nairobi, Kenya. On 19th June, 2021, Kanu was violently accosted at the Jomo Kenyatta International Airport, Nairobi, Kenya, by about twenty armed agents of the Federal Government of Nigeria, who forcibly abducted, handcuffed, blindfolded, and bundled him into a waiting vehicle and sped away.
Kanu’s abductors took him to a nondescript private house (not a Police station or other official holding facility) somewhere in Nairobi, and chained him to the floor. He was subjected to all forms of torture and inhuman and degrading treatment. Kanu was held in the aforesaid torturous conditions, for eight days. All his entreaties to his abductors to avail him the services of a Lawyer and medication for his hypertension and serious heart condition, were inhumanely refused by the said Federal Government agents.
Kanu’s Extra-Ordinary Rendition to Nigeria from Kenya
On the 8th day of his abduction, Kanu’s abductors brought him out of the private facility, put him blind-folded, in a waiting vehicle; and drove him straight to the tarmac of Jomo Kenyatta International Airport. In doing this, they clandestinely evaded and circumvented Kenyan immigration authorities; and forcibly bundled him into a waiting private jet. They consequently smuggled him into Nigeria (recall Umaru Dikko’s savage crating and brutal abduction case of 9th July, 1984).
Throughout Kanu’s illegal and horrific detention in Kenya, he was never subjected to any extradition hearing or proceedings, before he was extraordinarily renditioned to Nigeria.
Kanu’s Arraignment and Custody at SSS’s Facility
On 29th June, 2021, Kanu was brought before the same trial Federal High Court, without any notice to his counsel, or being afforded any legal representation whatsoever. The court ordered that he be remanded in SSS custody. He has remained in the said custody to date; but, under inhuman and degrading conditions – he is not allowed freedom to practice his Jewish religion; not allowed a private doctor’s second opinion regarding his failing health; kept in solitary confinement; not properly fed or treated for his heart condition and high potassium level; not allowed private audience with his Lawyers with any writing materials, files or documents; and only allowed strictly supervised two visitations per week. All court orders to the SSS regarding these poor conditions, have been brazenly ignored and disobeyed with impunity and reckless abandon.
On the same 29th June, 2021, when he was brought before the FHC, the Hon. Attorney-General of the Federation, Abubakar Malami, SAN, addressed a press conference, wherein he stated: “Self-acclaimed leader of the proscribed secessionist Indigenous People of Biafra (IPOB), Nnamdi Kanu, has been (rearrested) through the collaborative efforts of Nigerian Intelligence and Security Services. He has been brought back to Nigeria, in order to continue facing trial after disappearing while on bail regarding the 11 count charge against him”. He not address if the FG followed any lawful extradition proceedings.
Kenyan Authorities’ Corroboration of Kanu’s Illegal Extraordinary Rendition
The Kenyan Government in an affidavit deposed to, in a suit commenced against the Government on behalf of Kanu, flatly denied any involvement in Kanu’s abduction, unlawful detention, torture and illegal extra-ordinary expulsion from Kenya to Nigeria. The said affidavit also categorically averred that Kanu had been legally admitted into Kenyan territory; but that, no record showed that he legally exited therefrom.
Domestic and International Conventions & Laws Abhor Kanu’s Ill-Treatment
All relevant International legal instruments and Covenants, including the African Charter on Human and Peoples Rights; Extradition Act 2004, African Charter’s Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa; and International Covenant on Civil and Political Rights are uniform in their provisions, which, in their entirety, prohibit the extraordinary rendition of Kanu in the manner in which it was brazenly carried out by the Federal Government. The UNO’s Human Rights Working Group also delivered a ruling on 20th July, 2022, condemning Kanu’s serial human rights violations; and ordered the Nigerian Government to release him forthwith, unconditionally; and pay him damages. The FG has not obeyed this ruling, forcing me to write a 38 paged letter to President Muhammadu Buhari, pleading that he obeyed the UNO’s directives.
Federal Government’s Curious Seven Amendments
Following the extraordinary rendition of Kanu, the Prosecution made in all, seven successive amendments to the earlier five count charge pending against Kanu. It eventually amended it to a 15-count charge on 17th January, 2022.
Preliminary Objection
Upon being served the 15-count amended charge, myself and team of Lawyers, including Messrs Benson Igbanoi and ifeanyi Ejiofor, filed a Notice of Preliminary Objection, challenging the jurisdiction of the Honourable Court to try Kanu on the alleged offences. The said objection was predicated on 34 grounds, and was supported by a 39 paragraph affidavit with attached exhibits. The ugly facts concerning Kanu’s extraordinary and tortuous rendition, were copiously and succinctly deposed to.
Pertinent to note is that, the Prosection (i.e, the FG), in its counter-affidavit and throughout the proceedings before the trial court, and Court of Appeal, never denied or controverted the facts of Kanu’s forcible abduction and consequent extraordinary rendition from Kenya to Nigeria. Nor did it proffer any scintilla of evidence or explanations in that regard.
Upon the hearing the Notice of Preliminary Objection, the trial court delivered its ruling on 8th April, 2022; and consequently, struck out 8 of the 15 counts, namely, counts 6, 7, 9, 10, 11, 12, 13 and 14. But, it retained 7 counts, namely, counts 1, 2, 3, 4, 5, 8 and 15. In the said ruling, the court did not make any findings or pronouncements on the serious issue bordering on whether the trial court had the requisite jurisdiction to try Kanu, having regard to his extraordinary rendition from Kenya to Nigeria. Being dissatisfied with the decision of the Federal High Court (coram, Honourable Justice Binta Nyako), delivered on 8th April, 2022) retaining the aforesaid counts, we appealed to the Court of Appeal, Abuja Division.
Notice of Appeal
In the Notice of Appeal filed on 29th April, 2022, we formulated five grounds of appeal. The first ground of appeal bordered on the failure of the trial court to consider, make finding of facts and accordingly pronounce on the critical issue raised for the trial court’s determination. The other grounds of appeal bordered on the jurisdiction of the trial court to try Kanu for alleged offences, where the alleged situs of commission were not stated; the jurisdiction of the trial court to try Kanu for alleged offences bordering on the proscription of IPOB, when the said proscription is still the subject-matter of a pending appeal; the jurisdiction of the court to try Kanu for an offence allegedly committed in Ubuluisiuzor, Ihiala L.G.A of Anambra State, outside the territorial jurisdiction of the FHC, Abuja; and the jurisdiction of the court to try Kanu when the proof of evidence did not disclose any prima facie case against him.
In our Appellant’s Brief of Argument, we argued extensively and succinctly on the issue of the extraordinary rendition of Kanu, the failure of the Prosecution to controvert the facts of his forcible abduction and extraordinary rendition, as contained in the affidavit in support of the preliminary objection; and the failure of the trial court to make findings of facts and pronouncements on that germane issue raised before it. We cited several local and foreign authorities, statutes, conventions, etc. Amongst these were Articles 2, 3, 6, 7, 8, 9, 10, 11 and 19 of the Universal Declaration of Human Rights; Articles 2, 9, 13, 14, 16, 19 and 26 of the International Covenant on Civil and Political Rights; Article 26 of the Vienna Convention on the Law of Treaties; Article 12(4), 45(1) of African Charter on Human and Peoples Rights (Ratification and Enforcement) Act 2004; Extradition (Commonwealth Countries) Act, Laws of Kenya, CAP 77; Section 3(7) of the Nigerian Extradition Act; Section 12(1) of the 1999 Constitution; ABACHA v FAWEHNMI (2000) LPELR-14(SC); ALIU BELLO & ORS v ATTORNEY- GENERAL OF OYO STATE (1986) LPELR-764(SC); ASHBY v WHITE (1703); UNITED STATES v TOSCANINO, 500 F. 2d 267, 275 (2nd Cir. 1974); REG. v HARTLEY (1978) 2 N.Z.L.R. 199, 216-217; R. v HORSEFERRY ROAD MAGISTRATES COURT, EX PARTE BENNETT [1994] AC 42 [1993] UKHL 10 [1994] 1 AC 42 [1993] 3 WLR 90; S. v EBRAHIM, 1991 (2) S.A. 553 (Ebrahim v Minister of Justice 2000 (2) SACR 173, WLD); EMMANUEL MEKAOWULU v UKWA WEST LOCAL GOVERNMENT COUNCIL (2018) LPELR-43807(CA); etc.
The Prosecution, in its Respondent’s brief of argument, again, carefully avoided the critical issue of the illegal and extraordinary rendition of Kanu, and did not address it in any way; or contradict the well laid-out facts.
Court of Appeal’s Historic Judgement
While delivering their judgement on 13th October, 2022, the Justices of the intermediate court unanimously agreed with our submission. They found and held, in the lead judgement anchored by Hon. Justice Oludotun Adefope-Okojie, and adopted by the Presiding Justice, Hon. Justice Jummai Hannatu Sankey, and Hon Justice Ebiowei Tobi (JJCA), that the extraordinary rendition of Kanu, which was never in any way denied by the Federal Government, constitutes a flagrant and egregious violation of all known international laws and treaties on extradition to which Nigeria is party, and thus, bound by.
The learned Justices further condemned, in very strong words, the executive recklessness and lawlessness exhibited by the Federal Government of Nigeria, in Kanu’s unlawful abduction and extraordinary rendition from Kenya to Nigeria.
They further strongly deprecated the Prosecution’s cavalier attitude of treating the serious issues of Kanu’s abduction and extraordinary rendition which were promptly raised both before the trial court and the appellate court, with levity and utmost whimsicality. They unanimously resolved this issue in Kanu’s favour; and consequently held that, in view of the illegal and extraordinary rendition of Kanu, which facts were never denied or controverted by the Prosecution; and against all known municipal and international laws, conventions and decided authorities, the trial court has no jurisdiction to try him on the retained seven counts 1, 2, 3, 4, 5, 8 and 15. They therefore, utilised the provisions of Section 16 of the Court of Appeal Act and dismissed the remaining 7 counts. The court discharged Kanu and ordered his IMMEDIATE RELEASE by the Federal Government.
The court further held and ordered that pursuant to Section 15 of the Extradition Act, LFN, 2004, since Kanu was not subjected to any lawful extradition proceedings, he cannot even be tried for the alleged offences he was facing before he was forced to flee for his life in September, 2017. This is based on the ‘Doctrine of Specialty’. Indeed, the court unanimously held that Kanu’s extraordinary rendition constitutes an absolute bar to any subsequent criminal prosecution against him before any court in Nigeria, having not been lawfully rendered to Nigeria from Kenya.
The court also resolved the fourth issue in Kanu’s favour; and consequently held that the Federal High Court, Abuja judicial division, does not have the jurisdiction to try Kanu, for offences allegedly committed in Ubuluisiuzor, Ihiala L.G.A. of Anambra State.
Even though issues 2, 3 and 5 bordering on situs of alleged commission of the crime, and the pendency of IPOB’s proscription before the Court of Appeal, were resolved in favour of the Prosecution, however, in view of the fact that issue one bordering on the illegality and unlawfulness of Kanu’s extraordinary rendition was resolved in his favour, the court held that the appeal succeeded and allowed it. The ruling of the Federal High Court, Abuja (per Hon. Justice B.F.M. Nyako), delivered on 8th April, 2022, retaining seven counts, 1, 2, 3, 4, 5, 8 and 15 of the amended 15-count charge, was set aside; and the said remaining seven counts were dismissed.
Charge No: FHC/ABJ/CR/383/2015, which had been pending against Kanu since 2015, was consequently terminated and struck out; and Kanu was discharged and set free. For the avoidance of doubt, the Supreme Court has held severally, that such discharge amounts to acquittal.
See the case of ADEYEMI v STATE (1991) LPELR-172(SC), wherein the Apex Court held thus:
“…the discharge of the Appellant, in the present case, from the complaint of murder, was a dismissal on the merits and that marked the end of the trial against him for the offence charged. If the Appellant were to be tried, on a later occasion, of manslaughter on the same facts, a plea of autrefois acquit would undoubtedly have availed him by virtue of the provisions of Section 181 of the Criminal Procedure Act and Section 33 (9) of the 1979 Constitution of the Federal Republic of Nigeria; which states “(9) No person who shows that he has been tried by any Court of competent jurisdiction for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.” Per PHILIP NNAEMEKA-AGU, JSC (Pp 34 – 34 Paras A – D).
What Government Must Now Do
Following the order of the Court of Appeal which discharged Kanu, and also barred his further prosecution or indictment, Kanu should be released immediately without further ado. His continued detention, which was roundly condemned in a most scathing rendition by the Court of Appeal, on the curious ground of appealing against it as stated by the Attorney-General of the Federation, Abubakar Malami, SAN, constitutes a grave contempt of a valid and extant court order.
Let me remind the Attorney-General of the strong words of admonition of grave consequences of such brazen contempt, by the Apex Court in the causa celebre of the MILITARY GOVERNMENT OF LAGOS STATE & ORS v ODEMEGWU OJUKWU & ANOR (1986) 1 All NLR 233; and the intermediate court’s similar warning in OJUKWU v MILITARY GOVERNOR OF LAGOS STATE (1983) LCN/0015 (CA). Let him read these authorities, and advise Mr President to immediately release Kanu who has since become a reasonating metaphor for the Igbo’s struggle against marginalisation. Kanu’s release will heal gaping wounds, bind oozing sores, and give the Igbos the much needed sense of belonging. Peace
and tranquility will immediately descend on the South East. I so plead with Mr President
Sir.
