Nnamdi Kanu case: A better picture of what happened and what to expect — By Emeka Ugwuonye10 min read
Since Thursday, 13th of October, 2022, when the Court of Appeal delivered its judgment on the case of the leader of the Indigenous People of Biafra (IPOB), there has been much confusion and speculating, as people tried to understand what is really going on. As someone trusted by many to give a dispassionate explanation and analysis of the case, I took it upon myself to ascertain what happened. As my friends and followers came to me for an explanation of the state of things, I felt I owed them a duty of proving to them the most informed analysis of events. Hence, I have reached out to the court, to the lawyers involved, to people in the Ministry of the Justice and even the Presidency in order to ascertain the truth. This post is the outcome of my investigation.
WHAT DID THE COURT OF APPEAL SAY?
The panel of three judges dismissed all the charges filed against Nnamdi Kanu and discharged him. The justices based their decision on two things: (1) The manner in which the Nigerian Government, particularly the Attorney General, kidnapped Nnamdi Kanu in Kenya and brought him into Nigeria, and (2) The behavior of the Ministry of Justice in the manner it had prosecuted the case since then.
THE MANNER OF BRINGING KANU TO NIGERIA:
It was the Nigerian Ministry of Justice that led the effort to capture Nnamdi Kanu and bring him to Nigeria. There is a well-established procedure for moving a suspect from one country to another country where you want to try him. That process is called extradition procedure. It is a practice in international law. It is meant to ensure the cooperation between two countries (the country in which the suspect is found and the country in which he is to stand trial) on how to move the suspect from the country he is in to the country where he is to stand trial.
Before seeing extradition as something meant to protect the suspect, let us first see it as a process meant to ensure smooth cooperation between the two countries. After all, Nigerian police would not be allowed to arrest a suspect in Kenya. It would require the use of Kenyan police authority, Kenyan courts to order his arrest and movement, kenyan immigrstion and airport officials to allow his movement through their borders. Nigeria must engage the Kenyan authorities in order to lawfully move Nnamdi Kanu from Kenya to Nigeria. To do that, Nigeria must follow extradition procedure. Nigeria did it the wrong way. They bypassed Kenyan authorities. They hired terrorists and criminal gangs to kidnap and hold Nnamdi Kanu and then smuggled him out of Kenya and into Nigeria. That was a big deal that turned out to be too big for Nigeria, as seen by the Justices of the Court of Appeal.
Bear in mind that the two countries may not cooperate. There will be chaos and confusion if the two countries fight over the removal of a suspect from one country to the other.
Then extradition is meant to ensure that the rights of the suspect are respected as to the means and method of moving him from one country to another. For Nigeria to remove Nnamdi from Kenya to Nigeria, Nigeria should have applied to Kenya requesting that Nnamdi be extradited to Nigeria. Because Nigeria did not follow the proper channel, it meant that Nnamdi Kanu was not handled in a manner approved by law. He must have been kidnapped and tortured. That unlawful method is known as extraordinary rendition. It has been used by some countries. But it is generally condemned by international law.
The question that consumed 80% of the analysis of the Court of Appeal was how to deal with the consequences of the violation of international law by the Nigerian Government. Before I say more about extraordinary rendition, let me point out that it was actually Barrister Aloy Ejimakor and Mr. Bruce Fein that hammered most on the issue of extraordinary rendition initially. In fact, when Aloy Ejimakor first raised that point, some of the lawyers in the defense team kicked against it. They accused Ejimakor of relying too much on American system. There has been a tussle among the defense team over how to proceed. But as it would turn out, Ejimakor kept hammering on that. It turned out that he was right. That turned out to be the saving grace.
The Court of Appeal held that Nigerian Government should not be allowed to benefit from its wrongful conduct. There was definitely need to comply with extradition procedure in Kenya, and failure to do so was fatal.
What the Court did not dwell upon, and which the prosecution never argued on appeal was the fact that extradition procedure would not have succeeded in Kenya because Nnamdi would have qualified for political asylum in Kenya, had Nigeria tried to go through extradition. Without explaining that there were extraordinary circumstances that could have necessitated a departure from the normal standard of conduct, the Court of Appeal assumed in its judgment that the Nigerian Government were either too reckless or too lazy and deliberately refused to follow the rules. But assuming the Government had argued that the establishment of ESN by Nnamdi was an act akin to warfare and that lives were being lost and they believed that bringing Nnamdi Kanu into Nigeria would immediately end that war; assuming the Government had made that argument, perhaps the Court of Appeal might have additional factors to consider. But the Nigerian Government’s response to the issue of rendition was to treat it as if it was just a matter of choice. They lost on that.
THE WAY THE PROSECUTION WAS CONDUCTED:
The Court of Appeal also relied on the apparent abusive manner in which the prosecution had handled the case. The Court was troubled by the fact that the prosecution seemed so lackadaisical and nonchalant in their work. They kept amending the charges each time, and thereby manipulatively delaying the trial while Nnamdi was in detention. No one familiar with this appeal was surprised by this emphasis. During the oral argument, the justices of the court asked questions on this. The government lawyers were unprofessional and manipulative. They delayed trial. They did not make available proof of evidence to support the charges. Taken as a whole, it was like a joke.
In the end, the court concluded that because of the unlawful manner of bringing Nnamdi Kanu into Nigeria, the Nigerian courts lacked jurisdiction to try him. The court was of the view that the court’s jurisdiction (power) to try a person derives from law. It is the law that conferred that authority to the court. Therefore, anybody seeking to bring a person to court for trial must comply with the laws pertaining to the process of bringing the person to court. And because the court had no power to try Nnamdi based on the method of bringing him into Nigeria, no court could try him on those charges that followed his arrest.
DISCHARGED BUT NOT ACQUITTED:
When the court discharges an accused person, it merely stops the prosecution from continuing on the particular charges as framed. Discharge decision relates to an objection to the framing of the charges. It usually applies where the court determines that there is no bases to proceed with the charges – either because the court lacks jurisdiction or that the charges were groundless. On the other hand, when a court acquits an accused person, it goes further than the issue of the framing of charges. Discharging decision is usually made without getting into the merits of the facts and evidence in the case, either because it is unnecessary having seen that the charge is groundless or because the essential elements as to the authority to prosecute is lacking.
Because the discharging decision normally does not reach to the merits of the case, a person that has been discharged can be charged again and tried on the same allegation, usually after the prosecutor has cured the defect in its initial attempt to present the charges. However, if the court had gone into the merits of the case and the evidence of the prosecution and determined that the evidence was not sufficient, then the court must acquit. Once acquitted, the accused person cannot be tried again on the same charges. This is based on the rule against double jeopardy – nobody shall twice be tried for the same offence.
To discharge an accused, the court is making a superficial decision as to the charging process. Whereas in acquittal decision, the court is making a decision not as to the charging process but as to the merits of the evidence. Since the evidence was considered and found insufficient, the acquitted person cannot be retried because that will involve reexamining the facts and evidence already considered and decided by an earlier court.
The distinction between discharge and acquittal is so important to trial lawyers in criminal cases. This is why many defense lawyers who see that their client has been improperly charged would not bother to raise objections immediately, but will rather allow the trial to continue until the prosecution has tendered all its evidence. The defense lawyer confronted with an incompetent charge has the option of raising a preliminary objection, which will lead to the quashing of the charges before trial begins. When that happens, the accused can only be discharged because the court has not entered into examination of evidence. However, the setback with discharge is that your client can be retried by the prosecutor. However, if you allow the prosecutor to blunder ahead with the incompetent charge, at the end of the prosecution’s evidence, you will file for a no-case submission and raise all those defects in the charging process. If at that point the trial is stopped, the judgment will be that of discharge and acquittal and your client cannot be tried. This is why you may see a defence lawyer allow a worthless charge to go on, and not try to kill the charge before trial starts. In the United States, for example, once the prosecutor is caught with filing an incompetent charge and the accused is discharged, the prosecutor hardly ever tries to refile the same charge. But here is a vicious and malicious country. They will keep refiling the same charges until they achieve their vindictive goals. That is why in Nigeria, if you see a defective charge, you lie low and allow the prosecutor to fool himself to the end. (This was a method we used in the abusive case EFCC brought against me using Festus Keyamo as their prosecutor. We allowed them to fool themselves till the end and they lost. But that meant I was tried for 9 years before they lost).
In the case of Nnamdi Kanu, because the issue of jurisdiction was raised early in the case before the prosecution presented its evidence, all Nnamdi Kanu could get is a discharge, not acquittal. However, one may wonder what would have happened if the defense had allowed the government to go ahead and present their evidence, and at the close of the prosecution’s case the defense would file a no-case submission, there might have been an acquittal rather than a mere discharge. But a vindictive prosecutor would have dragged the case for years. And this seemed to have been noticed by the Court of Appeal.
So, Nnamdi Kanu can be retried since all that he got was a discharge without acquittal.
THE OVERALL IMPORTANCE OF THE JUDGMENT OF COURT OF APPEAL:
Even though the judgment of the Court of Appeal did not acquit Nnamdi Kanu and may not have ensured his release and end of his trial, the judgment still gave Kanu significant mileage. First, it definitely declare the rendition illegal. And since that came from the Court of Appeal, the lower trial courts will get the marriage. If you recall, Barrister Aloy Ejimakor had filed an application at Federal High Court seeking to enforce Nnamdi Kanu’s fundamental rights against the rendition. That court is now waiting to give its judgment. With this judgment from the Court of Appeal, it is almost a certainty that Federal High Court will award damages against the Government of Nigeria in favor of Nnamdi Kanu for the extraordinary rendition. Damages here could be up to One Billion Naira, if not more. You will recall that an Abia State High Court had earlier awarded damages of One Billion against Nigeria in favor of Kanu for the military invasion of his home in 2017. These are important events – Billions of Naira in damages to be paid by the Nigerian Government to Nnamdi Kanu.
Secondly, apart from the damages in lower courts, the decision of the Court of Appeal has given strong impetus for the political pressure for his release. Several Governors of the South East have held meetings since this judgment and have been dialoguing with the Ministery of Justice regarding a political solution for Kanu. At the same time, some Igbo leaders will be meeting the President soon to seek political solution.
To understand the impact of the Court of Appeal decision, President Buhari has convened the meeting of the National Security Council within 24 hours of the judgment. It meant that the judgment shook them. The Council took the position that issues involving Nnamdi Kanu were so grave that he could not be released. The question is whether the Council can sit on appeal over the decision of the Nigerian Court of Appeal or whether the Council is merely advising the government to pursue alternative charges and re-arraignment. The essence of the Council meeting on the matter is simply that Buhari did not want to be seen to have taken a personal decision on the matter. He genuinely understands the gravity of these issues and would want it to be seen that he consulted the relevant stakeholders before taking this step.
As I have written many times in the past, Nnamdi Kanu cannot expect to regain his friend based on the judicial outcome in his case. Nigerian government is not the type of government that will accept defeat in a court of law within Nigeria. Nigeria has not attained that level of development. The government will do everything to frustrate any judicial outcome it does not like. It was on this basis that I declared three months ago in my post here that Nnamdi Kanu’s freedom depends on some political solution, rather than judicial outcome. This prediction has been misunderstood by some. I am being realistic in my assessment of the actors in this case. People can wish whatever they like, but in the end, reality is reality. So, Nnamdi Kanu will not be released yet.