Why Buhari Must Let Nnamdi Kanu Go

 By Ikechukwu Amaechi

I am not a lawyer. But in writing this article, I spoke to learned friends who, in unanimity, held that President Muhammadu Buhari’s government has no legal beam to hang its jaundiced interpretation of the Appeal Court judgement that discharged the leader of the Indigenous People of Biafra, IPOB, Nnamdi Kanu, of terrorism charges.

*Kanu

In a historic and courageous judgement, a three-man panel of the Court of Appeal, Abuja Division, on Thursday, October 13, discharged Kanu of the seven-count charge pending against him before the Federal High Court. The judgement, unprecedented in its audacity, faulted the process through which the IPOB leader was brought before the court to answer to a 15-count terrorism charge.

In their Solomonic wisdom, the judges ruled that his abduction and rendition violated international convention on terrorism and, thus, robbed any court of law in Nigeria the necessary jurisdiction. The court noted that the Federal Government, in its desperation to bundle the IPOB leader back home from Kenya, flagrantly breached every extradition procedure, which include a formal application for extradition to the host country, permission from court, and statement of the alleged offences in connection with the extradition.

The issue before the three-man panel was jurisdiction. After Nnamdi Kanu’s rendition, the Federal Government hauled him before Justice Binta Nyako on a 15-count terrorism charge, which the judge reduced to seven. The IPOB leader faulted Nyako’s order to respond to the seven charges and went to Appeal Court where his lawyer, Chief Mike Ozekhome, recalled that on June 27, 2021, the Federal Government forcefully arrested and renditioned him in a “most cruel and inhuman manner”. Ozekhome who submitted that going by section 15 of the Extradition Act, “Kanu is not supposed to be charged without the approval of Kenyan government,” also asserted that when charging for an offence, “you must mention the particulars and location where the offence was committed.” 

Because none of these conditions was met, the senior lawyer contended that going by the dictates of section 45 (a) of the Federal High Court Act, with regard to criminal charge, the trial court didn’t have “global jurisdiction” and urged the panel to strike out the charges. The Appellate Court concord: “No court can try him going by the circumstances of the extraordinary rendition,” the three-man panel unanimously ruled. To the court, the Federal Government violated international convention on terrorism, which it was a signatory to, when it illegally arrested Nnamdi Kanu in Kenya and extraordinarily brought him to Nigeria for trial. Having resolved the jurisdiction issue in his favour, the judges said the order of Justice Nyako, had been set aside, terminated and dismissed. 

“Appellant is accordingly discharged,” the court bellowed in an erudite and straightforward judgement that gave no room for ambiguities, because as lawyers would say, res ipsa loquitor – the fact speaks for itself. Before this judgement, Mr. Aloy Ejimakor, special counsel to Nnamdi Kanu, in an opinion piece in TheNiche on February 8, 2022 emphatically said the Federal Government cannot prosecute his client until it convinces Nigerian courts and Britain that he was legally extradited to Nigeria.

“Under the domestic and international legal order, Nigeria cannot properly levy its sovereign rights of criminal prosecution against Kanu without first proving that the act of transferring Kanu from Kenya to Nigeria conformed to the basic tenets of the law – municipal and international, including, particularly, treaties to which Nigeria is subject,” Ejimakor wrote. “As a sovereign nation and member of comity of nations, and a country with a constitution and laws, Nigeria must first explain to her domestic courts and the international community (particularly Britain) how Kanu ended up in Nigeria in chains. This is but a basic condition precedent without which prosecution of Nnamdi Kanu cannot ensue.”

The Appeal Court vindicated his position. So, why were these basic principles of law lost on the country’s Attorney General and Minister of Justice, Mr. Abubakar Malami, who is insisting that Nnamdi Kanu was only discharged but not acquitted?  Malami who claimed that the Appeal Court judgement was only on the issue of rendition, said “other issues that predate rendition on the basis of which Kanu jumped bail remain valid issues for judicial determination”.

How can that be when the Appeal Court judgement is simply saying that the case against Nnamdi Kanu is incurably bad because no one places something on nothing? The charges were dismissed based on the fact that the extraordinary rendition rendered his trial a nullity. So, the issue of discharge or acquittal is a no-brainer. The import of the ruling is that no court in Nigeria can assume jurisdiction to try Nnamdi Kanu due to his illegal presence within the court’s jurisdiction. So, in the circumstance, Malami has only one option: appeal to the Supreme Court. But before then, Kanu must regain his freedom because as a lawyer friend explained, the judgement being about human rights is declaratory and cannot be stayed by any court of law.

But rather than do that, Buhari railroaded the National Security Council into agreeing with the cynical advisory by Malami. That is puerile antics because the Council is not an appellate court and has no powers to sit in judgement over the decision of a court of competent jurisdiction. It is also insulting that no South-Easterner is a member of the Security Council, the poster agency of Buhari’s politics of exclusion, which is at the core of the self-determination cause championed by Kanu.

It is alarming this is the quality of legal advisory that has been made available to Buhari in the last seven years. Little wonder Nigeria is in a ditch. But that is not surprising. Buhari and Malami are birds of the same dictatorial plumage. Whether in khaki uniform or agbada, Buhari, all pretentions to the contrary notwithstanding, is a dyed-in-the-wool autocrat not only addicted to the exercise of absolute power but contemptuous of time-honoured precepts that govern civilized societies. He has neither the reputation of playing by the rules nor abiding by the law.

What he did to Nnamdi Kanu in Kenya on Sunday, June 27, 2021 as a civilian president was the same thing he did to Dr. Umaru Dikko, Minister of Transport and Aviation in the Second Republic, on Thursday, July 5, 1984 in London as a military head of state. The only difference is that while the regime of Uhuru Kenyatta facilitated Kanu’s abduction and rendition to Nigeria, the attempt to kidnap and repatriate Dikko was foiled by a vigilant British Customs officer in London. Nigeria paid dearly diplomatically for that blunder. 

President Buhari has no room to wiggle out of the Nnamdi Kanu dilemma. A transcendent administration would have taken advantage of the face-saving window opened by the Appeal Court to extricate itself from the self-inflicted injury by letting the IPOB leader go. Not Buhari! Instead he is doubling down on his intransigence. Obduracy is the name of the game. But truth be told, Nnamdi Kanu is the victor. He vanquished the government in the law court. If Buhari refuses to let him go, the next administration will. But leaving it as one more mess to be cleaned up by his successor will be an act of cowardice, not strength.  

*Amaechi, the publisher of TheNiche, a commentator on public issues ( ikechukwuamaechi@yahoo.com)