Written by ALOY EJIMAKOR October 2024 This submission is a dispassionate summary of the grueling case of “Federal Republic of Nigeria versus Mazi Nnamdi Kanu”. The submission is divided into nine parts, comprising of the inception of the case in late 2015 to date. PART 1: The case began in earnest on October 14, 2015 when Nnamdi Kanu was first arrested in Lagos, few days after his arrival from his base in London. He was subsequently charged with offenses relating to his broadcasts on Radio Biafra from its location in London. The broadcasts basically comprised of vigorous demands for a referendum on the creation of a separate State of Biafra, oftentimes interspersed with excursions into ancient and contemporary history and current affairs. At the time, the charges preferred against him were four and they were: treasonable felony, conspiracy to commit treasonable felony, illegal importation or concealment of radio broadcasting equipment and defamation of the then President of Nigeria, Mohamadou Buhari. During the course of his pre-trial detention, Nnamdi Kanu was granted bail twice by two different Courts but the Government of Nigeria disobeyed or otherwise unlawfully parried the court orders and continued to detain him, extrajudicially. Part of the strategy of the Federal government was to either entirely withdraw all extant charges and file new ones or amend some of the extant charges, thus necessitating new arraignments and triggering new motions, adjournments, warts and all. Such was the case on 16th December 2016 when the Federal government withdrew all charges filed against Kanu before Abuja Chief Magistrate Shauibu Usman, leading to the charges being dismissed and Kanu being thereby discharged. It will be recalled that these same dismissed charges, bordering mostly on membership of IPOB and treasonable felony, later showed up in the Federal High Court. Even though not litigated at the time, this evident constitutional anomaly most likely offended the doctrine of double jeopardy which may, as yet, crop up to torpedo Kanu’s trial, if push comes to shove. Beyond continuing to detain Kanu in disobedience of court orders to the contrary, the federal government also did the unthinkable by arresting Justice Adeniyi Ademola who had ordered unconditional release of Kanu. According to several newspapers reports of 15th October 2016, Justice Ademola had said that: “From the time of my arrival at the DSS office, at about 6:45am on 8/10/2016, I was not told what my crime was for over 24 hours till the evening of 9/10/2016. A DSS officially finally informed me that the search of my arrest were based on these three allegations; petition of Hon. Jenkins Duvie dated 4th of April 2016 to the National Judicial Council (NJC); granting bail to Col. Sambo Dasuki and the unconditional release of Nnamdi Kanu …”. This was perhaps one of the earliest telltale signs that Kanu was in for a very rough ride with the darkest side of the Nigerian justice system. In the course of time and after eighteen long months in horrid detention without trial, Kanu was released on the latest of the series of bails granted by the Federal High Court. At the time, there was this credible notion that Kanu was freed only because the Federal Government had succumbed to the latest order of bail due to significant pressure from prominent Igbos, other highly placed Nigerians and elements of the international community. Nonetheless, it was felt by many that the bail conditions were excessive. Consequently, Kanu proceeded to his ancestral home in Isiama Afaraukwu Ibeku, Umuahia North LGA, Abia State, where he stayed at his father’s royal palace and awaited his next court date scheduled for October 17, 2017. (1) For someone enjoying his bail and awaiting his next Court date, it therefore came as a deadly surprise that, starting from 10th September 2017, the Nigerian Army commenced an epic military invasion of Kanu’s residential building and premises at the said Isiama Afaraukwu Ibeku, Umuahia North LGA, Abia State. The sheer intensity and proportion of the military invasion created profound pandemonium, panic and terror that sent occupants of the house, including Mazi Kanu scampering for safety. In the end, it was confirmed that 28 mostly young people were killed and several others, including Mazi Kanu and his parents were wounded in varying degrees. His parents eventually succumbed to those injuries and are now late. It was a sheer miracle that Mazi Kanu was able to escape to a safe location from where he managed to flee overseas in search of political refuge and safe haven. It is noteworthy that, universally, being on bail meant that the Nigerian Government which was already prosecuting Mazi Kanu in court has a vested legal duty not to send its Armed Forces to kill him or even arrest him while he was free on bond, especially given that there was no court order revoking his bail or ordering his arrest. This is an important point often maliciously ignored by those who had initially accused Mazi Kanu of jumping bail by fleeing from Nigeria. The same people also missed the point that Kanu’s legal duty to appear in court does not include any concomitant obligation on his part not to flee and save himself from being extrajudicially killed by the same government that was already trying him in its court and had him within its territory and jurisdiction. On the contrary, Mazi Kanu (as an awaiting trial on bail) actually has an implied obligation to retreat or flee from any potential danger that might take his life and thus impair his availability to appear for his trial. PART 2: In the immediate aftermaths of the military invasion, the Nigerian government promptly commenced a constitutionally questionable administrative action to proscribe IPOB and declare it a terrorist group. This decision was preceded by the infamous public declaration made by Southeast Governors, proscribing IPOB on 17th September 2017. Accordingly, on 20th September 2017, the Government of Nigeria filed an ex parte application before the Federal High Court, seeking a formal judicial order to proscribe IPOB and declare it a terrorist group. The next day- on September 21, 2017 - late Justice Kafarati of the Federal High Court, Abuja, made an exparte order (without prior notice to IPOB or giving it an opportunity to make representations) declaring IPOB a terrorist organization and further ordering its proscription. The order was made under the color of the provisions of Nigeria's Terrorism Prevention Act 2011, as amended in 2013. Apparently, in taking the decision to proscribe IPOB and declare it a terrorist group, neither the Southeast Governors (who fired the first salvo), nor the Federal Government had recourse to Section 42 of the Nigerian Constitution which prohibits discrimination based on ethnicity, political opinion and so on. Said Section 42 of the Constitution provides as follows: (2) “(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:- (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.” Thus, by the plain provisions of said Section 42(1) (a) of the Constitution, members of IPOB and in particular, their leader have a fundamental right NOT to be subjected either expressly by, or in the practical application of, any law in force in Nigeria (for example: the said Terrorism Prevention Act) or any executive or administrative action of the government (for example: the proscription decision of Southeast governors and the Federal Government), to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject. To be clear, the practical application of, any law in force in Nigeria or any executive or administrative action of the government, which subjected IPOB members to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject lies in the application brought before the Federal High court on September 20, 2017 by the Attorney-General of the Federation on the basis of a Memo approved by the then President of Nigeria, as well as the public announcement of proscription made few days earlier by Southeast Governors Forum. It therefore follows that by failing to take action to proscribe other similarly-situated groups comprised of other ethnicities, a discrimination has occurred by the dint of the exclusive executive or administrative action of the Federal Government and Southeast Governors directed against IPOB alone; and the practical application of the Terrorism Prevention Amendment Act (2013) which directly and led to the proscription of IPOB and its listing as a terrorist group, said IPOB being comprised of citizens of Nigeria of the Igbo and other Eastern Nigerian ethnic groups. This is, without more, a clear infringement of IPOB members fundamental right not to be subjected to any disabilities or restrictions on the basis of his ethnicity. For avoidance of doubt, examples of such other similarly-situated groups of other ethnicities to which same disabilities or restrictions are not subjected include the following: the Arewa Youth Forum (mainly of Hausa/Fulani ethnic stock); the Odua Peoples Congress (mainly of Yoruba ethnic stock; the Miyeti Allah (mainly of Hausa/Fulani); the Niger Delta Avengers (mainly of Ijaw ethnic stock); and the notoriously murderous Fulani Herdsmen (mainly of Fulani ethnic stock). In particular, the Fulani Herdsmen which has never been proscribed, nor declared a terrorist organization in Nigeria was, nonetheless, internationally declared the 4th deadliest terrorist organization in the world at some point in time contemporaneous with when IPOB was proscribed in Nigeria.(3) In summary, the right guaranteed under the said Section 42 of the Constitution is unarguably and essentially a right to freedom from discrimination, which is also internationally recognized in the Universal Declaration of Human Rights and enumerated in international human rights law through its inclusion in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). PART 3: On the basis of the foregoing constitutional breaches, Mazi Nnamdi Kanu (through Counsel) proceeded to Enugu State High Court to seek redress. In a well-considered judgment that lasted for over three hours, the High Court granted Kanu the following Reliefs. I, Declared that the practical application of the Terrorism Prevention Act and the executive or administrative action of the Respondents (Southeast Governors Forum and the Federal Government) which directly led to the proscription of IPOB and its listing as a terrorist group, said IPOB being comprised of citizens of Nigeria of the Igbo and other Eastern Nigerian ethnic groups, professing the political opinion of self determination and the consequent arrest, detention and prosecution of the Applicant (MAZI NNAMDI KANU) as a member/leader of said IPOB is illegal, unlawful, unconstitutional and amounts to infringement of the Applicant's fundamental right not to be subjected to any disabilities or restrictions on the basis of his ethnicity as enshrined and guaranteed under Section 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and his fundamental rights as enshrined under Articles 2,3,19 &20 of the African Charter on Human and People’s Rights (Enforcement and Ratification) Act. II, Declared that self determination is not a crime and thus cannot be used as a basis to arrest, detain and prosecute the Applicant, MAZI NNAMDI KANU. III, Ordered the Respondents, jointly or severally, to issue official Letter(s) of Apology to the Applicant (MAZI NNAMDI KANU) for the infringement of his said fundamental rights; and publication of said Letter(s) of Apology in three (3) national dailies. IV, Ordered the Respondents to, jointly or severally, pay the sum of N8,000,000,000.00 (Eight Billion Naira) to the Applicant (MAZI NNAMDI KANU), being monetary damages claimed by the Applicant against the Respondents jointly and severally for the physical, mental, emotional, psychological, property and other damages suffered by the Applicant as a result of the infringements of his fundamental rights by the Respondents. In addition to the violations of Section 42 of the Constitution as enunciated in the previous paragraphs, neither the Federal Government (that applied for the order), nor the Federal High Court (that granted the order ex parte) took cognizance of the constitutional requirement for a fair hearing before any such final legal or judicial action (of proscription and terrorist tag) can be taken. Thus, as applied, the pertinent provisions of the Terrorism Prevention Act under which IPOB was proscribed and declared a terrorist group is, in addition to offending Section 42 of the Constitution, equally offended the provisions of Section 36 of the Constitution, which provides as follows: (4) “(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. (2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law - (a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and (b) contains no provision making the determination of the administering authority final and conclusive.” The plain meaning of the foregoing provisions is that a law or an act of National Assembly that affects the civil rights of any person is unconstitutional if (1) it does not provide an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and (2) if it contains provision making the determination of the administering authority final and conclusive. The Terrorism Prevention Act is one such law because it failed these two litmus tests set by the Constitution and it is not saved by the derogation provisions enacted at Section 45 of the Constitution. It therefore came as a double whammy that, in the next few days following the proscription of IPOB, the Attorney-General of Nigeria underscored the constitutionally- prohibited finality of the action by commencing the executory steps of formally gazetting IPOB as a terrorist organization, which was accomplished and published in few days. The legal implication is legion and damning, in that - by gazetting the ex parte terrorist and proscription order - millions of IPOB members and their Leader (Nnamdi Kanu) will be treated as terrorists and their properties (real or corporeal) will become subject to interdiction and confiscation by the Nigerian State without the opportunity of being heard. Other fell consequences of the proscription included the potential mass-prosecution of legions of IPOB members in Nigeria; the inability of IPOB members to fully participate in the civic and political affairs of Nigeria; the deadly stigmatization of millions of IPOB members worldwide; the wholesome defamation of IPOB members as terrorists worldwide; and the high likelihood of extrajudicial killings of IPOB members by Nigeria’s security forces which, in particular, tragically became evident in the course of time and continues unabated to this day. PART 4: Pivoting on the foregoing flagrant constitutional violations, Mazi Nnamdi Kanu (through Counsel) proceeded to file a human rights Complaint before a continental tribunal (with treaty jurisdiction over Nigeria) in December 2017. The Complaint was filed against Federal Republic of Nigeria, same being a State Party to the Charter that grandfathered the Tribunal. (5) In March 2018, said Tribunal (otherwise generally called a Commission) issued an interim Decision, stating (in part) that the Commission finds that the Complaint reveals prima facie violation of the African Charter. Accordingly, the Commission granted Kanu’s request for provisional measures calling on the Government of Nigeria not to take any further actions so as to avoid irreparable damage to Kanu, IPOB and its members, pending the decision of the Commission on the Complaint. Consequently, the Commission wrote a well- reasoned, detailed Letter to the President of Nigeria, directing him to personally intervene in the matter and ensure that the Government of the Federal Republic of Nigeria adopts the said Provisional Measures to cease and desist from taking any further law enforcement actions against Kanu, the IPOB and its members at large. In the said Letter, the Commission warned the President of Nigeria that the actions the Government of Nigeria was taking against Nnamdi Kanu and IPOB members constituted ‘gross violation of the provisions of the African Charter, in particular Articles 2, 3, 4, 5, 6,7, 9,10, 11, 12,14,19, 20 of the Charter, as well as other regional and international human rights laws and standards’. Yet, from the date of issuance of the said Decision to date, the Government of Nigeria has failed or otherwise refused to implement the said Provisional Measures but instead escalated the same fundamental human rights violations that the said Decision had sought to prevent, and which violations ultimately culminated in the staggering and grave extrajudicial actions that led to the loss of hundreds of lives, torture and horrendous detentions. This is despite the fact that Nigeria is a ranking member of the Africa Union and is thus - by treaty and pertinent provisions of the Nigerian Constitution - unarguably subject to its decisions. It is pertinent to mention at this juncture, perhaps as a necessary digression, that had the former President of Nigeria implemented the Provisional Measures directed by the continental Tribunal, Mazi Kanu would have felt safe enough to voluntarily end his exile and return to Nigeria and take his trial, hundreds of lives would not have been lost and the infamous extraordinary rendition that has convulsed Nigeria would not have occurred. Further to the said Decision of the African Commission on Human and Peoples Rights, the United Nations (through its Special Rapporteurs) transmitted a Decision (No: AL NGA 5/2020), dated 1st October 2020) to the President of Nigeria, conveying its official disapproval of the executive or administrative action of the Respondents on the proscription of IPOB. In particular, the said Communication/Decision expressly stated that the said executive or administrative action was motivated by ethnic bias and discrimination against the Igbo. (6) In the said Decision, the UN held as follows: I. “We understand that IPOB, established around 2012, is an organisation whose political objective is for the five majority Igbo States in South- East Nigeria to secede from the Federal Republic of Nigeria (Nigeria) through a regional referendum and to re- establish an independent sovereign state of “Biafra”. II. “We note that proscription is a serious legal step which prima facie impinges on a range of association, expression and political rights. Lawful proscription should only be carried out when absolutely necessary and subject to rigorous due process. Proscription should not be used as a means to quell legitimate political opinion and expression, nor to prevent individuals from exercising their rights of peaceful assembly and of association. III. “We are concerned that these growing restrictions on fundamental freedoms, that have seemingly accelerated with the official designation of IPOB as a terrorist group, may be indicative of a growing climate of intolerance towards the Igbo and Christian minorities in certain segments of Nigerian society. IV. “On 8 March 2018, the ACHPR sent a letter to the President of Nigeria. It noted in particular its Resolution on the Protection of Human Rights and the Rule of law in the Fight Against Terrorism, which called on States to "ensure that the measures taken to combat terrorism fully comply with their obligations under the African Charter.... and other international human rights treaties". The ACHR also stated that, if confirmed, the designation would "constitute a gross violation of articles 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 14, 19, 20" of the African Charter. In its decision on seizure it further noted that the complaint reveals "prima facie" violation of the African Charter. V. “Consequently, the ACHPR called on the Nigerian President to intervene and ensure that the Government of Nigeria adopts Provisional Measures and not take any further action. The Nigerian Government was also asked to report back on the implementation of the provisional measures within 15 days of the receipt of the decision on seizure. We have received no indications that the Government has responded to the Commission or complied with the requests. VI. “On the contrary, there have been increasing reports that IPOB's proscription has led to a rise in alleged violations of the rights of IPOB supporters and members of the Igbo minority. These have allegedly included arbitrary arrests and detention, torture and ill- treatment, enforced disappearances and threats to life, as well as extrajudicial killings. As all IPOB activities were declared illegal, and can lead to arrest and prosecution, several members of IPOB have been charged with treason, which is punishable by the death penalty. VII. “We are deeply concerned by what appear to be disproportionate violations of fundamental rights and freedoms against supporters of " Biafra" independence and some members of the Igbo minority. In particular, we express our most serious alarm about allegations of severe violations to the right to life by Nigerian security forces in the context of the numerous demonstrations and public events organized or attended by " pro- Biafra" organisations or supporters since 2015, as well as instances of arrests and detentions of several individuals who allegedly organized, attended, or reported on these public gatherings. We respectfully remind your Excellency's Government that article 6, 9, 18, 19, 21, 22, 26 and 27 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Nigeria in 2003, protect the rights to life, to not be subjected to arbitrary arrest or detention, to freedoms of thought, conscience, religion, opinion, expression, peaceful assembly and association, to equality without discrimination, and rights of minorities. (7) VIII. “In this regard, we are particularly concerned by the designation of IPOB as a terrorist Organization and allegations that its leaders, supporters, sympathizers, and even some individuals who had merely displayed its symbols have been arrested and appear to have been charged as a "terrorists" on occasion. While recognizing the rise of regional tensions, as well as a range of challenging political claims advanced by IPOB, we nonetheless warn against the categorization of uncomfortable or challenging political speech as terrorism. We respectfully advance our views that the human rights implications of this proscription are considerable and not in compliance with international human rights law binding on Nigeria, or with best practice in relation to counter-terrorism strategies. VIV. “Pursuing minority rights protection or the recognition of the existence of a minority for instance, or even calls for self- determination do not on their own amount to terrorist activities. In this regard we recall that IPOB's stated political objective is for the five Igbo-majority regions in South-eastern Nigeria to secede from the rest of the country through a referendum. X. “We also respectfully underline that the fact that a political organization may promulgate opinion that are difficult or contradictory to that of the views of the Government should not be the basis for the proscription of such an entity as a terrorist group. Pursuing minority rights protection or the recognition of the existence of a minority for instance or even calls for self- determination do not on their own amount to terrorist activities. In this regard we recall that IPOB's stated political objective is for the five Igbo- minority regions in South- eastern Nigeria to secede from the rest of the country through a referendum. We are of the views that any alleged act of illegality and violence committed by IPOB or its members could have been addressed in accordance with the provisions of conventional criminal laws, in line with international law, without invoking the application of counterterrorism legislation.” Further to the foregoing, there was a contemporaneous and widespread condemnation of the same IPOB proscription both on the domestic front by Nigerians (including its then President of the Senate - Dr Olusola Saraki); and by foreign nations, including particularly the United States of America. Some notable persons flatly characterized the proscription as unconstitutional and a Guardian newspaper headline stated thus: “Why FG was quick to proscribe IPOB, but slow in forbidding killer herdsmen”, stating further that: “Militant herdsmen, who have caused so much harm to Nigerians have not been termed terrorists. Earlier in the year, Nigerians petitioned United States President, Joe Biden, the United Nations Organisation, the Economic Community of West African States, the African Union and the European Union to treat herdsmen as terrorists. The petitioners alleged that the Nigerian government had been expressing undue sympathy for the killer herdsmen.” In the same Guardian publication (at Paragraph 32), an Abuja based lawyer, Abubakar Sani, stated that: “If militant herdsman satisfy the requirements to be banned, and the government fails to sanction them, it amounts to discrimination, which is wrong.” (8) It is a tragedy that while international tribunals took a firm stand against the proscription of IPOB and the terrorism designation, Nigeria’s Court of Appeal has, for seven years, strangely delayed hearing the appealed against that infamous ex parte order. Thus, for a proscription and terrorist designation that endangered the liberty of millions of people and even their lives, the fact that the appeal against it persists to this day is, without more, a grave miscarriage of justice that should shock the conscience of any sane society. One key illustration of it is that the Federal Government - acting upon a mere ex parte order went berserk and gleefully embarked on mass arrest, detention, prosecution and sometimes horrendous torture and extrajudicial killings of presumptive IPOB members. Digressing to the said military invasion of September 2017, Nnamdi Kanu instituted a fundamental rights Suit (in SUIT NO: HIN/FR/14/2021) at the High Court of Abia State; and on 19th January, 2022, the Court held that said military invasion amounted to violation of Kanu’s fundamental rights and was also an attempt on his life, whereupon the court awarded him One Billion Naira against the Federal Republic of Nigeria)l and others. The Court also ordered the President of Nigeria to publish a public apology in favor of Kanu, and held further as follows: “The issue of the military invasion of Applicant's residential abode and premises at Isiama Afaraukwu Ibeku, Abia State on 10th September, 2017 by agents of 1st Respondent is so notorious and common knowledge that this Honourable Court cannot turn a blind eye to it. This Honourable Court has taken judicial notice of and relied on Exhibits "1", "2", "3", "4", "5", "6" attached to the Applicant's supporting affidavit filed on 27/8/2021 to resolve the conflict in the various affidavits of parties in this as to whether the Applicant's residential building and premises was invaded violently by 1st Respondent and or it's agents. On 10th September, 2017 and whether Applicant's fundamental rights to dignity of human person, personal liberty and right to life were threatened. The Applicant has by credible evidence proved to this Honourable Court that his Fundamental rights to dignity of human person, personal liberty were wantonly or brazenly violated and his fundamental right to life threatened brazenly by 1st Respondent and or it's agents on 10/9/2017. From the averments of the Respondents in their various counter affidavits in this application, they merely made flimsy and ineffectual denials without dislodging or controverting the very pungent and hard core averments of the Applicant against them vis-a-vis the invasion of his aforesaid dwelling house and residence at Isiama, Afaraukwu Ibeku on 10/9/2017 by 1st Respondent and or it's agents. Assuming but without conceding that 1st Respondent and its agents were not responsible for the mayhem unleashed on the Applicant at his Isiama, Afaraukwu Ibeku residence on the said 10/9/2017, what step did the 1st Respondent and its agents take to investigate the matter, unravel the culprits and bring them to book? This is especially so because the first and primary duty of the state including 1st Respondent is to secure the lives and properties of its citizens including the Applicant. I am satisfied that Applicant has proved the violation of his fundamental rights to dignity of human person, personal liberty and attempted violation of his right to life by 1st Respondent and or its agents and none of the Respondents in this Suit has shown any real justification for such conduct. It is the view of this Honourable Court that the Agent of the First Respondent set out as pythons to terminate the life of the Applicant.” (9) Part 5: In the course of his exile and sojourns abroad, Mazi Kanu - on May 12, 2021 - entered the Republic of Kenya on his British passport and was admitted as such at Jomo Kenyatta International Airport, Nairobi. After his admission, he settled-in at a temporary location in Nairobi, Kenya. It came to pass that on 19th June 2021, he drove himself to Jomo Kenyatta International Airport on a personal errand. When he got to the airport parking lot and alighted from his vehicle, several armed men violently accosted and abducted him, handcuffed him, blindfolded him, bundled him into a vehicle and sped away. From the airport, his abductors took him to a nondescript private house (not a police station) somewhere in Nairobi and chained him to the floor. He was neither shown any Warrant, nor told why he was abducted. While chained to the floor, his abductors took turns beating and torturing him to the point that he fainted several times, only to be revived when they poured cold water on him In the course of the horrendous torture, his abductors taunted him, verbally degraded him and called him a “separatist Igbo Jew”. They also told him he will be “expelled to Nigeria to face death”. For eight long, grueling days, he remained chained to the floor, was not allowed to bathe and was fed only on bland bread once a day and given non-sanitary water to drink. His abductors spoke in English and he overheard them constantly talking on the phone with several persons and Nigerian high officials, including persons they called “Nigerian High Commissioner”, “DG of National Intelligence Agency”, “DG of DSS” and “Attorney-General”. The inhuman treatment, cruelty and degradation Mazi Kanu was subjected to, and the external and internal injuries he sustained therefrom coupled with his poor health traumatized him and made him believe that he was going to die in captivity. His entreaties to his abductors to get him some medications for his hypertension and heart condition were harshly refused. So was his request to be taken to a Kenyan law enforcement facility, before a court or even allowed a phone call. On the eight day, his abductors brought him out of the house, blindfolded him, put him in a car, drove him straight to the tarmac of Jomo Kenyatta International Airport, where they evaded Kenyan immigration and forcibly bundled him into a private jet that departed the airport at about 12 noon on June 27, 2021 and arrived Abuja, Nigeria in the evening of same day. Upon arrival in Nigeria, he was taken to and detained at the headquarters of the National Intelligence Agency in Abuja where he spent the first night, sleeping on the bare cement floor with very bright energy bulbs deliberately left on throughout the night, thus causing him extreme bodily heat, sleep deprivation and mental anguish. The following day, he was taken to the headquarters of the State Security Services where he was detained in solitary confinement. (10) From the inception of his detention at the said cell at the DSS headquarters in Abuja, Kanu observed that some of the DSS agents who work at the DSS headquarters in Abuja were amongst those that kidnapped, disappeared and tortured him in Kenya and extraordinarily rendered him to Nigeria. Some are amongst those who accompanied him on the private jet that brought him to Nigeria, throughout the duration of which they chained his two hands and feet and manacled him to a seat in the aircraft. It was, in every ramifications, a grueling flight for him. Meanwhile, on June 29, 2021, the then Attorney-General of Nigeria, Abubakar Malami, addressed a press conference, whereupon he gleefully stated the following: “Text of Press Conference on Tuesday 29th June, 2021 by the Honourable Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN on the Interception of Fugitive Nnamdi Kanu back to Nigeria to face trial. 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 11 count charge against him. Recent steps taken by the Federal Government saw to the interception of the fugitive Kanu on Sunday the 27th day of June, 2021. Nwannekaenyi Nnamdi Ngozichukwu Okwu- Kanu, born 25th day of September, 1967 at Afaraukwu, Abia State is a holder of Nigerian Passport No. A05136827 first issued 17th October 2013 at FESTAC, Lagos. It is recalled that Kanu was arrested on 14th October, 2015 on 11 count charge bordering on terrorism, treasonable felony, managing an unlawful society, publication of defamatory matter, illegal possession of firearms and improper importation of goods, among others. A judge at the Federal High Court, Abuja revoked Kanu’s bail that was granted him on health ground and issued a bench warrant for his arrest on the same date, over his failure to appear in court for hearing. He has, upon jumping bail, been accused of engaging in subversive activities that include inciting violence through television, radio and online broadcasts against Nigeria and Nigerian State and institutions. Kanu was also accused of instigating violence especially in the Southeastern Nigeria that resulted in the loss of lives and property of civilians, military, para military, police forces and destruction of civil institutions and symbols of authorities. Abubakar Malami, SAN Attorney General of the Federation and Minister of Justice 29th June, 2021.” Source: PremiumTimes. Recall that Mazi Kanu had overheard his abductors in telephone conversation with the Attorney-General whilst he was in unlawful captivity in Kenya. Subsequently, the Kenyan government severally - in the media and in judicial proceedings - denied any involvement or complicity in the kidnapping, torture and extraordinary rendition of Mazi Kanu from Kenya to Nigeria, thus leaving it to conjecture (or even the only plausible conclusion) that agents and high officials of Nigerian government had gone rogue and breached the sovereignty of Kenya in abducting and renditioning Mazi Kanu to Nigeria. A conduct the Supreme Court of Nigeria characterized as criminal in its 15th December 2023 judgment, whereby it had ruled that Kanu must stand trial despite the Court’s strong and copious condemnations of his extraordinary rendition and the lethal military attack that had driven him into exile. It is pertinent to state that for the Supreme Court to insist that Kanu must stand trial despite the rendition meant that it closed its eyes to the Constitution and some key Nigerian laws that demand otherwise. The ruling also ignored basic tenets of all known international laws on point. This was, to say the least, perverse. (11) It is also noteworthy that Kanu was secretly arraigned before the Federal High Court on 29th June 2021 without Notice to his Counsel of record - an egregious prosecutorial and potentially judicial misconduct that breached his fundamental (constitutional) right to Counsel and to fair hearing. At the time, the only reason adduced by the Court for remanding Kanu to DSS custody, instead of a prison, was because it was a “safer place of custody” for him. But was it? Let us find out: Section 299 of the Administration of Criminal Justice Act, 2015 that: “A suspect committed to prison under this Act shall be remanded in prison or other place of safe custody”. So, the bone of contention is not whether Kanu is entitled to be remanded in prison custody because, as a matter of law and best practices, that is where he (as an awaiting- trial) was entitled to be remanded on 29th June, 2021 when the remand order was made. So, having remanded Kanu to the custody of State Security Services, instead of prison custody, the inquiry turns on whether the State Security Services met the definition of “other place of safe custody”, as the statute strictly requires? The straight answer is that, in relation to the particular circumstances of Nnamdi Kanu, the State Security Services is not a place of safe custody To be sure, the State Security Services is undeniably complicit in the kidnapping, disappearance and torture of Kanu in Kenya, unlawfully rendering him to Nigeria and unconstitutionally arraigning him in Court on 29th June 2021 without informing his Counsel of record. For good measure, there is now a subsisting Federal High Court judgment to the effect that these conducts are unconstitutional. Recall that the Supreme Court had also condemned such act as unconstitutional and criminal to boot. It is therefore a contradiction to posit that those who criminally violated domestic and international laws and Nigeria’s grandmom by kidnapping, disappearing, torturing and renditioning Kanu can be trusted to suddenly abide by the law by turning around to make their facility a safe place of custody for the same person upon whom they had levied such grave violations that shocked the conscience of the international community, as we shall presently see. Part 6: It came to pass that this whole violations triggered the international legal order when, in a swift decision concerning the extraordinary rendition, the United Nations (through its Special Rapporteurs) on 26th August 2021, transmitted a Communication/Decision (No: UA NGA 5/2021) to the Government of Nigeria, conveying its official position that the manner of bringing Nnamdi Kanu from Kenya to Nigeria was illegal and a grave violation of international human rights laws. The United Nations stated further as follows: I. “In this connection, we would like to bring to the attention of your Excellency's Government information we have received concerning allegations of enforced disappearance, arbitrary detention, torture and ill-treatment of Mr. Nnamdi Kanu, by Kenyan Security officials, as well as his illegal rendition to Nigeria, to face trial for terrorism related charges, which are believed to be linked to his leadership of the "Indigenous People of Biafra (IPOB)" group. Since his rendition to Nigeria, Mr. Kanu has been allegedly detained by the Department of State Services (DSS), and denied family visits, confidential access to a lawyer, and necessary medical treatment for his underlying health condition. II. “While we do not wish to prejudge the accuracy of these allegations, we would like express our concern in relation to the enforced disappearance of Mr. Kanu from 19 June 2021, until his reappearance at Nigerian Federal High Court in Abuja on 29 June 2021, and his reported illegal rendition from Nairobi to Abuja without judicial process. We are further alarmed by the alleged torture and ill-treatment Mr. Kanu has been subjected during his detention by the DSS in Nigeria. If confirmed. (12) III. “The allegations in the case of Mr. Kanu raise serious violations of international human rights law and may cause irreparable damage to his life or personal integrity, which we believe warrants prompt attention. In this regard, we are considering to publicly express our concerns in this case in the near future, believing that the wider public should be informed about the implications of these allegations for the enjoyment and exercise of human rights in Kenya and Nigeria. Any public expression of concern in this regard, will indicate that we have been in contact with your Excellency's Government to clarify the issue/s in question.” Additionally, on 22nd July 2022, the Working Group of the United Nations Human Rights Council published an Opinion (in Opinion No: 25/2022 concerning Mr. Nwannekaenyi Nnamdi Kenny Okwu-Kanu, Nigeria and Kenya) [A/HRC/WGAD/2022/25] [aka Mazi Nnamdi Kanu], condemning the abduction, detention, disappearance, torture and expulsion and thus called for his unconditional release and payment of reparations. The said Opinion also expressly called Nnamdi’s expulsion or transfer from Kenya an act of ‘extraordinary rendition’. In particular, the UN Human Rights Council held the actions of Iberian Government to be a violation of the United Nations Convention On Civil and Political Rights and the UN Universal Declaration of Human Rights, which the Nigeria ratified several decades ago. Below are excerpts culled from the 114- Paragraph Opinion by the UN Human Rights Council (numbered as the same with the respective numbers of the paragraphs where they were set out: “25.. In this regard, …. the Federal Government of Nigeria arrested Mr. Kanu on terrorism-related offenses in 2015 and attempted to assassinate him on 10 September 2017, in an army-led attack that killed five individual and wounded 30 others. Further, on 21 September 2017 the Federal Government of Nigeria reportedly listed the Indigenous People of Biafra as a terrorist organization during ex parte proceedings lacking elements of due process, including notice and the opportunity to be heard, and based on the President’s assertions alone. …… United Nations experts have raised concerns as to the justification and legality of the organization’s listing on the terrorist list. “87. Similarly, in Resolution 12/16, the Human Right Council called on States to refrain from imposing restrictions which are not consistent with article 9 (3), including ….expression of opinion and dissent, Religion or belief. “97. The working group is seriously concerned about the treatment to which Mr. Kanu has been subjected. Especially noting its finding that Mr. Kanu was subjected to extraordinary redemption as well as his treatment prior to that, the Working Group considers it unlikely that Mr. Kanu would have been able to effectively assist with and participate in his own defence during the proceedings against him, and that such treatment tainted the proceedings against him, rendering them inherently unfair and unjust, in violation of article 14 of the Covenant. “99. The Working Group finds that Mr. Kanu has indeed been targeted by the Government as a human rights defender on account of his freedom of opinion and expression as well as his position regarding the sovereignty of Biafra. As Mr. Kanu has been targeted on account of his activism in galvanising momentum for a referendum on the sovereignty of Biafra, the Working Group considers that his detention violates articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant, and is arbitrary under category V.” (13) On the domestic judicial front regarding Kanu’s abduction in Kenya and his rendition to Nigeria, the Federal High Court - on 26th October 2022 - awarded him Five Hundred Million Naira (N500,000,000), with the Learned Justice stating inter alia, that “I declare that the manner of arrest and detention of the Applicant in Kenya, his continued detention in Abuja, his subjection to physical and mental trauma by the Respondents, the inhuman and degrading treatment meted out to the Applicant amounts to a brazing (sic) violation of the Applicant's fundamental right to dignity of his person and threat to life under Section 34 (1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)”. PART 7: In the interim and in the midst of all the above judicial and tribunal decisions in favor of Kanu, the criminal case against him in the Federal High Court was proceeding apace, all with a slew of new amendments brought by the prosecution. It is instructive that, in the course of said amendments, the Federal Government totally abandoned or otherwise withdrew all but one of the pre-rendition charges levied against Kanu from when he was first arrested and arraigned in 2015. The last amendment of the charges, having been made in 2022 (and now bordering on terrorism offenses), connotes that Kanu was innocent of the initial charges made against him seven years earlier, comprising primarily of treasonable offenses. In view of the forgoing, Kanu raised vigorous objections to his trial. Those objections basically revolved around the following points of law: I. The African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, CAP A9, LFN 2004. Article 12(4) provides that “A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law”. There’s a grandfather provision in the continental African Charter (ratified by Nigeria) that also prohibits unlawful expulsion. MNK was not lawfully expelled. It cannot be ignored by the Court because there are legal remedies contained in the subsidiary statutes promulgated under the Charter, as can be seen below. II. The ‘Mutual Assistance in Criminal Matters within the Commonwealth (Enactment and Enforcement) Act’ - another Nigerian Law - clearly specified at Sections 4 to 6 the procedure that must be followed in any situation, such as the case of MNK, where Nigeria is requesting assistance in a criminal matter or a fugitive from a Commonwealth country, of which Kenya is one. The procedure strictly requires the CONSENT of the State of refuge where such fugitive is found. In particular, Section 6(5) stated clearly that “The provisions of sections 4, 5 and 6 of this Act shall apply mutatis mutandis to any case in which Nigeria is either the requesting or requested country, as the case may require”. Kenya has, in the public and in judicial processes, denied that MNK underwent any extradition (or even deportation) proceedings in Kenya. III. The African Charter provides in its ‘Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa’ (at Part 5(A): Transfers of Individuals) that: “A State may not transfer (e.g., deport, expel, remove, extradite) an individual to the custody of another State unless it is prescribed by law and in accordance with due process and other international human rights obligations. Deportation, expulsion, and removal cannot be used to circumvent criminal justice processes, including extradition procedures. Extraordinary rendition, or any other transfer, without due process is prohibited”. This provision is so threadbare that it speaks for itself and it’s on all fours with the core legalities in MNK’s matter. (14) IV. With particular reference to the preceding paragraph and Article 12(4) of the Charter (above), what immediately jumps out is the phrase “extraordinary rendition or any other transfer without due process of law is prohibited”. Since Nigeria is - by treaty - bound by this, the Court should be guided by the celebrated case of General Sani Abacha v Gani Fawehinmi, where the Supreme Court held that: ‘Where a treaty is enacted into law by the National Assembly as was the case with the African Charter, it becomes binding and our courts must give effect to it like all other laws falling within the judicial powers of the courts’. V. Further, in anticipation that an African State could go rogue and commit extraordinary rendition, such as Nigeria has done to MNK, the African Charter’s ‘Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, (at Part 1(F) provides that: ‘States shall provide full and effective reparation to individuals who have suffered violations of their human rights as a result of acts committed in the name of countering terrorism. Full and effective reparation should include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition’. As the Charges leveled against Kanu indicate, Nigeria justified its so- called ‘interception’ of Kanu in the name of countering terrorism. VI. On what constitutes ‘restitution’, the United Nations ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ provides in Part IX (19) that ‘Restitution should restore the victim to the original situation before the gross violations of international human rights law occurred. Restitution includes restoration of liberty and return to one’s place of residence’. Given that Nigeria is a treaty-member of the United Nations, it is bound by these provisions. VII. The OAU CONVENTION ON THE PREVENTION AND COMBATING OF TERRORISM, which provides in pertinent parts as follows: Article 7: 1, “Upon receiving information that a person who has committed or who is alleged to have committed any terrorist act as defined in Article 1 may be present in its territory, the State Party concerned shall take such measures as may be necessary under its national law to investigate the facts contained in the information. 2. Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its national law so as to ensure that person’s presence for the purpose of prosecution. 3. Any person against whom the measures referred to in paragraph 2 are being taken shall be entitled to: (a) communicate without delay with the nearest appropriate representative of the State of which that person is a national or which is otherwise entitled, to protect that person’s rights or, if that person is a stateless person, the State in whose territory that person habitually resides; (b) be visited by a representative of that State; (c) be assisted by a lawyer of his or her choice; (d) be informed of his or her rights under sub-paragraphs (a), (b) and (c). 4. The rights referred to in paragraph 3 shall be exercised in conformity with the national law of the State in whose territory the offender or alleged offender is present; subject to the provision that the said laws must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 are intended” (15) Article 8: “1. Subject to the provision of paragraphs 2 and 3 of this article, the States Parties shall undertake to extradite any person charged with or convicted of any terrorist act carried out on the territory of another State Party and whose extradition is requested by one of the States Parties in conformity with the rules and conditions provided for in this Convention or under extradition agreements between the States Parties and within the limits of their national laws. 2. Any State Party may, at the time of the deposit of its instrument of ratification or accession, transmit to the Secretary General of the OAU the grounds on which extradition may not be granted and shall at the same time indicate the legal basis in its national legislation or international conventions to which it is a party which excludes such extradition. The Secretary General shall forward these grounds to the State Parties. 3. Extradition shall not be granted if final judgement has been passed by a component authority of the requested State upon the person in respect of the terrorist act or acts for which extradition is requested. Extradition may also be refused if the competent authority of the requested State has decided either not to institute or terminate proceedings in respect of the same act or acts. 4. A State Party in whose territory an alleged offender is present shall be obliged, whether or not the offence was committed in its territory, to submit the case without undue delay to its component authorities for the purpose of prosecution if it does not extradite that person.” Article 11: Extradition requests shall be in writing, and shall be accompanied in particular by the following: (a) an original or authenticated copy of the sentence, warrant of arrest or any order or other judicial decision made, in accordance with the procedures laid down in the laws of the requesting State; (a) a statement describing the offences for which extradition is being requested, indicating the date and place of its commission, the offence committed, any convictions made and a copy of the provisions of the applicable law; and (b) as comprehensive a description as possible of the wanted person together with any other information which may assist in establishing the person’s identity and nationality”. VIII. Extract from a United Nations study on Extradition (concerning Nigeria) which was endorsed by Attorney-General Abubakar Malami, SAN, who wrote the Foreword. It is quoted verbatim as follows: (16) “It is easy to confuse extradition with rendition. Rendition is a general term for all procedures, including extradition, for returning wanted persons or aliens generally, from a State. Unlawful or irregular forms of returning persons wanted for trial or punishment include abduction and the so called “extraordinary rendition”. Extraordinary rendition is a government sponsored arrest, kidnap and abductions of persons wanted, accused or convicted of a criminal offence either to the state who sponsored the arrest, kidnap or abduction or to a willing third party state. Extraordinary rendition denies a person of the right to challenge his transfer to the requesting or receiving state. It involves the violation of the principles of international law especially where the persons transferred are subjected to torture or sham criminal charges or trials. The ‘Dikko Affair’ of 1984 is an example of an attempt at unlawful rendition. After a coup d’état in 1983, the Federal Military Government of Nigeria requested the British government to surrender Umaru Dikko, a former Minister alleged to have been involved in corrupt practices. Before the British government responded to the request, an intelligence officer from the Nigerian security forces with three Israeli nationals abducted Mr. Dikko and attempted to cargo him to Nigeria in a crate. This attempt was foiled by the British security apparatus, the abductors were jailed and the relationship between Nigeria and Britain became strained. Even though not successful, it was an attempt by Nigeria to go against the international norms in expressing its political will”. IX. UNITED KINGDOM In R. v Horseferry Road Magistrates Court, ex parte Bennett [1994] AC 42 [1993] UKHL 10 [1994] 1 AC 42 [1993] 3 WLR 90, the House of Lords held: “That where a defendant in a criminal matter had been brought back to the United Kingdom in disregard of available extradition process and in breach of international law and the laws of the state where the defendant had been found, the courts in the United Kingdom should take cognisance of those circumstances and refuse to try the defendant; and that, accordingly, the High Court, in the exercise of its supervisory jurisdiction, had power to inquire into the circumstances by which a person had been brought within the jurisdiction and, if satisfied that there had been a disregard of extradition procedures, it might stay the prosecution as an abuse of process and order the release of the defendant”. (17) X. NEW ZEALAND In Reg. v. Hartley [1978] 2 N.Z.L.R. 199, 216- 217, the Court of Appeal of New Zealand, per Woodhouse held that: "There are explicit statutory directions that surround the extradition procedure. The procedure is widely known. It is frequently used by the police in the performance of their duty. For the protection of the public the statute rightly demands the sanction of recognised court processes before any person who is thought to be a fugitive offender can properly be surrendered from one country to another. and in our opinion there can be no possible question here of the court turning a blind eye to action of the New Zealand police which has deliberately ignored those imperative requirements of the statute. Some may say that in the present case a New Zealand citizen attempted to avoid a criminal responsibility by leaving the country: that his subsequent conviction has demonstrated the utility of the short cut adopted by the police to have him brought back. But this must never become an area where it will be sufficient to consider that the end has justified the means. The issues raised by this affair are basic to the whole concept of freedom in society. On the basis of reciprocity for similar favours earlier received are police officers here in New Zealand to feel free, or even obliged, at the request of their counterparts overseas to spirit New Zealand or other citizens out of the country on the basis of mere suspicion, conveyed perhaps by telephone, that some crime has been committed elsewhere? In the High Court of Australia Griffith C.J. referred to extradition as a 'great prerogative power, supposed to be an incident of sovereignty' and then rejected any suggestion that 'it could be put in motion by any constable who thought he knew the law of a foreign country, and thought it desirable that a person whom he suspected of having offended against that law should be surrendered to that country to be punished:' Brown v. Lizars (1905) 2 C.L.R. 837, 852. The reasons are obvious. We have said that if the issue in the present case is to be considered merely in terms of jurisdiction then Bennett, being in New Zealand, could certainly be brought to trial and dealt with by the courts of this country. But we are equally satisfied that the means which were adopted to make that trial possible are so much at variance with the statute, and so much in conflict with one of the most important principles of the rule of law, that if application had been made at the trial on this ground, after the facts had been established by the evidence on the voir dire, the judge would probably have been justified in exercising his discretion under section 347(3) or under the inherent jurisdiction to direct that the accused be discharged." XI. SOUTH AFRICA In S. v. Ebrahim, 1991 (2) S.A. 553 (Ebrahim v Minister of Justice 2000 (2) SACR 173, WLD), the South African Court of Appeal considered the case of an ‘appellant, a member of the military wing of the African National Congress who had fled South Africa while under a restriction order, had been abducted from his home in Mbabane, Swaziland, by persons acting as agents of the South African State, and taken back to South Africa, where he was handed over to the police and detained in terms of security legislation. He was subsequently charged with treason in a Circuit Local Division, which convicted and sentenced him to 20 years' imprisonment. The appellant had prior to pleading launched an application for an order to the effect that the court lacked jurisdiction to try the case inasmuch as his abduction was in breach of international law and thus unlawful. The application was dismissed and the trial continued. The court, on appeal against the dismissal of the above application, held that: (18) “After a thorough investigation of the relevant South African and common law, that the issue as to the effect of the abduction on the jurisdiction of the trial court was still governed by the Roman and Roman-Dutch common law which regarded the removal of a person from an area of jurisdiction in which he had been illegally arrested to another area as tantamount to abduction and thus constituted a serious injustice. A court before which such a person was brought also lacked jurisdiction to try him, even where such a person had been abducted by agents of the authority governing the area of jurisdiction of the said court. The court further held that the above rules embodied several fundamental legal principles, viz. those that maintained and promoted human rights, good relations between states and the sound administration of justice: the individual had to be protected against unlawful detention and against abduction, the limits of territorial jurisdiction and the sovereignty of states had to be respected, the fairness of the legal process guaranteed and the abuse thereof prevented so as to protect and promote the dignity and integrity of the judicial system. The state was bound by these rules and had to come to court with clean hands, as it were, when it was itself a party to proceedings and this requirement was clearly not satisfied when the state was involved in the abduction of persons across the country's borders. "It was accordingly held that the court a quo had lacked jurisdiction to try the appellant and his application should therefore have succeeded. As the appellant should never have been tried by the court a quo, the consequences of the trial had to be undone and the appeal disposed of as one against conviction and sentence. Both the conviction and sentence were accordingly set aside." XII. UNITED STATES In United States v. Toscanino (1974) 500 F.2d 267, 268, ‘the defendant, an Italian citizen, who had been convicted in the New York District Court of a drug conspiracy, alleged that the court had "acquired jurisdiction over him unlawfully through the conduct of American agents who had kidnapped him in Uruguay . . . tortured him and abducted him to the United States for the purpose of prosecuting him" there. The lower court having held that these allegations were immaterial to the exercise of its jurisdiction to try him, provided he was physically present at the time of trial, he appealed to the United States Court of Appeals Second Circuit, which that held that: "Federal district court's criminal process would be abused or degraded if it was executed against defendant Italian citizen, who alleged that he was brought into the United States from Uruguay after being kidnapped, and such abuse could not be tolerated without debasing the processes of justice, so that defendant was entitled to a hearing on his allegations. . . . Government should be denied the right to exploit its own illegal conduct, and when an accused is kidnapped and forcibly brought within the jurisdiction, court's acquisition of power over his person represents the fruits of the government's exploitation of its own misconduct”. XIII. In addition to the above, Kanu relied on what is known as Doctrine of Specialty, to raise objections to the fourteen post- rendition charges brought against him. The details of this line of objection are as follows: 1. As of 19th June, 2021 (the date Kanu was abducted in Kenya), the charges standing against him were treasonable felony; conspiracy to commit treasonable felony; illegal importation of radio equipment; and defamation of President Buhari. In the best practices of common law extradition practice, these Charges are known as pre- extradition Charges or pre-rendition Charges (such as in this particular case). (19) b. Subsequently, during the many staggered rounds of amendments of the Charges, the then Attorney-General of Nigeria (Abubakar Malami, SAN) withdrew all but one of the said 4-count Charges and replaced them with an entirely new set of 14-count Charges that all bordered on terrorism and membership of a proscribed organization. c. Under the universally-recognized doctrine, known as the ‘Doctrine of Specialty’ which pertains to extraditions, a fugitive transferred from another country is subject to prosecution only for those offenses for which he or she was transferred. But where his transfer failed the muster of the law or constituted a rendition, he is not to be subjected to any trial or detention but promptly returned to whence he was brought. This is common law and Nigeria recognized it and enacted it at Section 15 of Nigeria’s Extradition Act, which provides as follows: “Where, in accordance with the law of any county within the Commonwealth or in pursuance of an extradition agreement between Nigeria and another country (whether within the Commonwealth or not), any person accused of or unlawfully at large after conviction of an offence committed within the jurisdiction of Nigeria is surrendered to Nigeria by the county in question, then, so long as he has not had a reasonable opportunity of returning to that country, that person shall not be detained (whether under this Act or otherwise), tried or otherwise dealt with in Nigeria for or in respect of an offence committed by him before his surrender to Nigeria other than- (a) the offence for which he was surrendered or any lesser offence which may be proved by the facts on which his surrender was granted; or (b) any other offence (being one corresponding to an offence described in section 20 of this Act) of the same nature as the offence for which he was surrendered: Provided that a person falling within this section shall not be detained or tried for an offence by virtue of paragraph (b) of this section without the prior consent of the country surrendering him” d. To be sure, the foregoing provisions were, as regards Nnamdi Kanu, breached in all their material particulars. First, as of 19th June 2021 when Nnamdi Kanu was abducted in Kenya, he was facing a 4-count Charge, none of which included or bordered on terrorism or proscribed organization. Later, the Charges were expanded exponentially to 14 new counts, all of which virtually bordered on Terrorism. Unarguably, this is a clear violation of the Doctrine of Specialty, especially in view of the proviso ‘that a person falling within this Section (i.e Section 15 of Nigeria Extradition Act) shall not be detained or tried for any new offense without the prior consent of the country surrendering him’. This is also a double whammy because bringing up these new Charges assumes that Kanu is, consequent upon the rendition, triable for the pre- existing Charges, which is wrong. 5. In this particular case, the “surrendering country” is Kenya and there is no evidence that her consent was obtained before these new 14- count Charges were brought. To be sure, this Section 15 of Nigeria’s Extradition Act is iron-clad, as it went further to absolutely bar detention and trial of such person under any other law, like the Administration of Criminal Justice Act (ACJA) or the Terrorism Prevention Act, which the prosecution had sought to use in Nnamdi Kanu’s case. To be clear, this is evident from the opening provisions of Section 109 of ACJA, which made commencement of criminal proceedings “subject to the provisions of any other law”. In this case, that ‘other law’ is the said Section 15 of the Extradition Act, because Kanu was brought from another country. And by the rules of conflict of laws, the Kenyan Extradition Act also applies in the same tenor. l and equal-footing. (20) f. And as the Court of Appeal held, this barrier to detention and trial of Nnamdi Kanu shall, upon his release, persist against any re-arrest consequent upon any new Charges. In other words, Kanu must first be returned to Kenya as a starting point of any hope of ultimately prosecuting him in Nigeria for any pre-rendition or post-rendition offense. There is no other way. g. Conversely, Nigeria also strictly requires the self-same Doctrine of Specialty to be respected when it comes to fugitives extradited from Nigeria to other countries, contrasted to fugitives surrendered to Nigeria. Section 3(7) of Nigeria’s Extradition Act states that: “A fugitive criminal shall not be surrendered to any country unless the Attorney-General is satisfied that provision is made by the law of that country, or that special arrangements have been made, such that, so long as the fugitive has not had a reasonable opportunity of returning to Nigeria, he will not be detained or tried in that country for any offence committed before his surrender other than any extradition offence which may be proved by the facts on which his surrender is granted”. The plain meaning of these provisions is at once clear, and that is: No country can abduct, rendition or otherwise be granted extradition of any person from Nigeria without the consent of Attorney-General of Nigeria. If perchance such illegality were to occur, such a person must first be permitted to return to Nigeria; and before then, the person can neither be detained, nor tried in such foreign country. h. The case of Abba Kyari best illustrates the provisions of the foregoing provisions law and that is precisely why it appeared to many that Nigeria was blocking Abba Kyari’s extradition to America; or even the case of Sunday Igboho, whose extradition was spiritedly resisted by Benin Republic. So, you can easily guess what the outcome would have been had Nigeria legally applied to extradite Kanu from Kenya. It is such outcome Nigeria avoided by resorting to rendition which cut Kanu off from his constitutional right to fair hearing which applies in both Kenya and Nigeria. Later in time, the Supreme Court of Nigeria condemned this action and called it criminal. 9. Interestingly, Kenya, from which Nnamdi Kanu was renditioned, has similar provisions (or protection) before any person to be surrendered from Kenyan soil. Section 6(3) of the Kenyan Extradition Act provides that: “A fugitive shall not be surrendered, or committed to or kept in custody for the purposes of surrender, unless provision is made by the law of the requesting country, or by an arrangement made with that country, for securing that he will not, unless he has first been restored or had an opportunity of returning to Kenya, be dealt with in that country for or in respect of any offence committed before his surrender, other than (a) the offence in respect of which his surrender is requested; or (b) any lesser offence proved by the facts proved before the Court of committal; or (c) any other extradition offence in respect of which the Attorney-General may consent to his being so dealt with”. (21) j. As can be seen from above Section 6(3) of the Kenyan Extradition Act, all the new post- rendition Charges contravened the pertinent provisions of Kenya’s Extradition Act and even that of Nigeria. For this reason, no Nigerian court has jurisdiction to try Nnamdi Kanu for these new Charges. In the celebrated case of Gabriel Ezeze versus The State, the Court held that a valid objection to an indictment arises “if it charges any offence in respect of which necessary consents to the institution or confirmation of the prosecution have not been obtained”. To be clear, the ‘necessary consent’ strictly required before charging Nnamdi Kanu with any new Charges is that of Kenya, in line with Section 15 of Nigeria Extradition Act, which states that ‘a person falling within this Section shall not be detained or tried for any new offense without the prior consent of the country surrendering him’. Again, the ‘surrendering country’ is Kenya and there is no scintilla of evidence that her consent was obtained before the new Charges were levied against Nnamdi Kanu. PART 8: Despite the evident merit of the foregoing objections, the Federal High Court ultimately held that Kanu shall stand trial on seven out of the fifteen charges brought against him. In other words, the court struck out eight of the charges. Consequently, Kanu proceeded to the Court of Appeal. On 13th October 2022, the Court of Appeal of Nigeria (in Appeal No: CA/ABJ/CR/625/2022) held that Kanu’s expulsion or transfer from Kenya to Nigeria is an act of ‘extraordinary rendition’ whereby the Court discharged him of all criminal charges and further held that no Nigerian court can try him for any of those charges. This judgment drew worldwide approval, except from the Nigerian government which indicated without qualms that it was not going to obey it. So, having disobeyed the judgment by refusing to free Kanu but figuring that the illegality was unsustainable, the Nigerian government quickly proceeded to the same Court of Appeal with an irregular application to stay the execution of the judgment. In a swift ruling, the Court of Appeal granted the stay. It’s not acceptable, even by the lowest standards of fairness, that it took the Court of Appeal only two weeks to undo a sound judgment that discharged Nnamdi Kanu from his long and tortuous almost a decade- long ordeal with the criminal justice system in Nigeria. Recall that Kanu was first arrested and charged in 2015 and the judgment discharging him came in 2022. Keep in mind also that it is the same Court that discharged Kanu that quickly turned around to stay (or invalidate) its own judgment. In effect, the Court sat on appeal over its own judgment and took only two weeks to reverse itself. Does that sound proper in a judicial system that takes a year or more to decide who won an election and many more years to decide regular cases? Another grave injustice of the matter that cannot be overlooked is that the judgment was already admittedly and publicly disobeyed (a grave illegality) by the government before it filed the application that got the Court of Appeal to judicially stay the judgment. So, in effect, the stay of execution magically pedalled backwards to bestow judicial legality on executive illegality. In the interim, the Federal Government appealed against the order of discharge and Kanu cross-appealed the order of stay. On 15th December, 2023, the Supreme Court of Nigeria held that Kanu must face trial on the sustained seven charges despite the Court’s twin determination that he is a victim of extraordinary rendition. Consequently, the Supreme Court remitted the case to the Federal High Court, where the matter is now pending trial as of April 2024. (22) At the Federal High Court, Kanu brought two applications, namely an application for bail and a preliminary objection to jurisdiction. The details are as follows: I. The Application for Bail: In this application, Kanu’s case-in-chief centered on his complex health conditions which have defied the substandard capacity of the DSS detention facility to handle. The second ground, which may be considered a matter of law, hinged on the ruling of the Supreme Court that his bail should not have been revoked, with the Court saying that: a. “The respondent was on bail and therefore in custody of the law when his home was illegally invaded by heavily armed military officers of the appellant causing him to flee from his home and the country to secure his life. In the face of such an attack, it was responsible for him to flee to secure his life and physical well being. That is what any normal and reasonable human being would do in that circumstance to preserve his life and physical well-being. It is glaring that the consequences of that attack were intended or foreseeable. This is not arguable. The appellant’s officials knew that their invasion of the respondent’s home caused him to tun away to secure his life and physical well- being. Yet during proceedings in the pending criminal case against him, they applied that his bail be revoked, that a warrant for his arrest be issued and his sureties forfeit their respective bail bond and that his trial in his absence be ordered because he had jumped bail and is not in court to stand his trial. But they knew that their illegal actions made it impossible for the respondent to be in court for his trial. In a situation such as this one, where the prosecution has taken extrajudicial actions against the defendant in a pending criminal case brought by it and made it impossible for the defendant who is on bail to be in court for his or her trial, it is wrong to treat such a defendant as having jumped bail in the sense that he is running from prosecution or running to avoid prosecution in the pending criminal case in respect of which he was granted bail. The respondent did not intentionally and knowingly fail to appear in court. It was therefore wrong and malicious for the appellant that had cause the respondent to flee from his home and country to secure his life and that had therefore caused his unavoidable absence from court, to inform and thereby deceived the trial court that the respondent had jumped bail. On the basis of this deception, the appellant applied to the trial court for an order revoking the respondent’s bail, forfeiting the amount securing the bail bond of his sureties and an order issuing a bench warrant for his arrest. It is glaring from the record of the proceedings in the trial court that it granted the said orders prayed for by the appellant with knowledge of the fact that the respondent’s absence from court was caused by the invasion of his home by army officers of the appellant. Therefore, the trial court knew that the said extra judicial and illegal actions of the appellant made it impossible for the respondent to be in court for his trial, that the respondent’s absence is not intentional or deliberate absence and that the respondent is not running from prosecution or running to avoid prosecution. In the light of the foregoing, the trial court acted unfairly and without rational and legal justifiable basis by its decisions revoking the respondent’s bail, forfeiting the amount securing the bail bond of his sureties and its order issuing a bench warrant for his arrest. The orders were made on the basis of the false assumption that the respondent jumped bail. It was on the basis of the order of arrest of the respondent obtained under the false pretence that he jumped bail that his extradition or rendition from Kenya was carried out” (23) b. “It is glaring that appellant’s officials (Nigerian government’s) by their illegal invasion of the respondent’s (Nnamdi Kanu’s) home during the pendency of the criminal case against him, drove him out of the country and frustrated his ability to attend his trial proceedings. After pursuing him out of the country, the appellant's officials traced him to Nairobi in Kenya, kidnaped or abducted and without extradition proceedings or any form of legal proceedings, extra-ordinarily renditioned him to Nigeria and thereby secured his presence in court by very foul and criminal means. The trial court was completely indifferent to the said unlawful activities of the appellant against the respondent during the pendency of the criminal case against him and their effect on the fairness of his prosecution and even his trial. This indifference of the trial court to these unlawful attacks on the person of the respondent and the extreme violations of his fundamental rights while he was in custody of the law pending trial rendered the impartiality of the trial Judge suspect. Even when it was glaring that the said attacks on the home and person of the respondent by the officials of the appellant made his further attendance of his trial in the case impossible, the trial court rather found that he jumped bail, revoked his bail and forfeited the bail bonds of his sureties, thereby further victimizing the respondent. This is oppressive of the respondent and unfair to him. In purported execution of the unfairly obtained and illegal order of arrest of the respondent, the officials and agents of the appellant traced the respondent to Nairobi in Kenya, violated his fundamental rights, kidnapped, abducted and extra-ordinarily renditioned him to Nigeria without any form of extradition proceedings, without the consent of Kenya, in complete violation of the Kenya Extradition Act and the Nigerian Extradition Act and the African Charter on Human and Peoples' Rights(Ratification and Enforcement) Act Cap. A9, LFN 2004 and produced him in court on 29-6-2021.” Regrettably, despite the foregoing ruling of the Supreme Court, the application for bail was denied. Consequently, Kanu has now applied for restoration of his old bail, such being procedurally different from the recent application for a fresh bail. II. The Objection to Jurisdiction: This objection to jurisdiction is constitutional, as it is aimed at ensuring that Kanu is accorded his fair trial rights guaranteed under the Nigerian Constitution. The point must be made that no court of law should conduct a trial, especially a criminal trial, where there is credible evidence that the defendant is not free to consult with Counsel of his choice; and where the condition of detention of such defendant suffocates his capacity to prepare for his defense. These were the fulcrum of Kanu’s objection which was grounded on the following unassailable facts: 1. The grave constitutional misconduct that lies in the State Security Services’ forcible seizure and photocopying of confidential legal documents brought to Kanu at the SSS detention facility by his Lawyers, said documents pertaining to facilitating the preparation of Kanu’s defence. This misconduct amounts to denial of Kanu’s constitutional right to be given adequate facilities for the preparation of his defence and to be defended by legal practitioners of his own choice and is thus a grave violation of his constitutional rights to Fair Hearing as guaranteed under Section 36(6)(b) & (c) of the Constitution. (24) b. The grave constitutional misconduct that lies in the State Security Services’ act of preventing Kanu’s Counsel from taking notes of details of Counsel’s professional and confidential discussions/consultations with Kanu (at the SSS detention facility), said discussions/consultations relating to facilitating preparation of Kanu’s defence also amounts to denial of his constitutional right to be given adequate facilities for the preparation of his defence and by by legal practitioners of his own choice, which also go to Fair Hearing. c. The grave constitutional misconduct that lies in the State Security Services act of eavesdropping on Kanu’s confidential consultations/conversations with his Lawyers on matters relating to preparation of his defense during the Lawyers’ visitations with him. This also amounts to denial of Kanu’s right to be given adequate facilities for the preparation of his defence and to be defended by legal practitioners of his own choice. In its written response to this objection, the State Security Services while denying eavesdropping, nonetheless admitted to blocking Kanu’s Counsel from taking notes and to seizure of documents. It justified it on grounds of what it called its Standard Operating Procedures (SOP). Strangely, the High Court ignored Kanu’s well-reasoned brief and proceeded to not only deny the objection but saw fit to, at once, make an order for accelerated trial. In my view, both the denial of the objections to the trial and the order for accelerated trial offended the ground rules laid down by the Supreme Court in two celebrated cases in point. They are: a. In Ebele Okoye v COP, the Supreme Court interpreted the word ‘facilities’ under section 36(6)(b) as follows: “The facilities that must be afforded the accused person are the ‘resources’ or ‘anything’ which would aid the accused person in preparing his defense to the crimes for which he is charged.” Continuing, the apex court further held that: “Once he (accused person) … makes a request either orally or in writing for any facilities to prepare for his defence, the Court must accede to his request and the prosecution has to comply”. b. In Innocent Nweke v State, the Supreme Court held that: “This right - which encompasses the twin rights to “time and facilities for defence” is an important element of the guarantee of fair trial and an application of the principle of equality of arms: in itself, an inherent feature of a fair trial. It requires that each party be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent”. 3. For avoidance of doubt, these judicial authorities were brought to the attention of the High Court, yet the judge, in offering the scant reason for overruling Kanu’s objection, simply stated that ‘the defendant cannot dictate to the Court on how to conduct the trial’. Remarkably, no reasoned analysis was made beyond this bland statement. It is noteworthy, that this very statement by the Court is a paraphrase of the core argument adduced by the prosecuting Counsel when he addressed the Court on this point. Consequently, Kanu has no other choice than to take the issue to the Court of Appeal in the hope of containing this grave miscarriage of justice by the trial Court. Suffice it to say that what is facing Kanu is not an ordinary felony but capital offenses that carry the death penalty. (25) d. Still on this very issue of fundamental fairness or fair hearing, it becomes hard to discern any principled reason for conducting a trial that lacks fundamental fairness. It is obvious that, in a scenario of conducting such a trial, the judge - however well intentioned - could not know all the evidence which might be probative of defendant's innocence or guilt. The trial would be no more than a pathetic paper exercise almost inevitably leading to conviction. And the task of legal representation at trial of such a defendant is rendered much more difficult and any conviction is almost certainly rendered unconstitutional and even immoral. PART 9: CONCLUSION: While this case is pending the next trial date set for 17th April 2024, the fact remains that the trial is not the only legal pathway for this case to end and for Nnamdi Kanu to regain his freedom. To be sure, this case will be over if the Federal government decides to do the right thing by complying with one of the following: I. The 2018 (still subsisting) Decision of the African Union that condemned the proscription of IPOB and arrest of its members and Kanu and thus wrote to the President of Nigeria to cease and desist. Even as this Letter was addressed to the then President Buhari, it remains valid and binds the current President because since government is a continuum, the said Decision binds the current President (Ahmed Tinubu). It is noteworthy that, following this African Union decision, the United Nations (through its Soecial Rapporteur) had also called for de-proscription of IPOB and reversal of its declaration as a terrorist group. Suffice it to say that as a bona fide member of the African Union and the United Nations, Nigeria is bound by the pronouncements made by these two august bodies. II. As was detailed in previous paragraphs, in August 2021, the United Nations, through its Special Rapporteur condemned the extraordinary rendition of Nnamdi Kanu and accordingly called for his unconditional release. In the Decision, which was communicated to the Nigerian government, the UN categorically stated that it is wrong to prosecute Kanu for terrorism merely because he was fighting for self determination. What this means is that self determination, even though inimical to the territorial integrity of the parent State, is not a crime because it is protected under the ‘political offense doctrine’. Thus, such parent State is, under international law, prohibited from suppressing self determination by means of punishment of some sort. As a member of comity of nations and especially as one that emerged as a nation in 1960 through self determination, Nigeria is bound to respect this universal principle. III. In July 2022, the same United Nations, this time through its Human Rights Council, roundly condemned the rendition, detention and prosecution of Kanu. In the landmark Opinion, the UN made it clear that Kanu should be released unconditionally and reparations paid to him. This directive is extant and awaiting the faithful implementation of the Nigerian government. (26) IV. Recall that on 26th October 2022, the Federal High Court entered a historic Judgment against the continued detention of Nnamdi Kanu at the headquarters of State Security Services in Abuja and proceeded to declare that ‘the manner of arrest and detention of Nnamdi Kanu in Kenya, his continued detention in Abuja, his subjection to physical and mental trauma by the Federal government, the inhuman and degrading treatment meted out to him amount to a brazen violation of his fundamental right to dignity of his person and constituted threat to life’. Under the Constitution, the Nigerian government is bound to comply with this judgment by releasing Kanu. For avoidance of doubt, Section 287(3) of the Constitution of the Federal Republic of Nigeria provides that: “The decisions of the Federal High Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons ...”. In view of these l constitutional provisions, it is mandatory for the Nigerian government to enforce the Judgment (which is a decision of a Federal High Court) by releasing Kanu, particular in compliance with the clear ruling that his “continued detention in Abuja” is unconstitutional. V. The last but not the least is the Enugu State High Court judgment of October 2023 which declared as unconstitutional the administrative actions taken by the Federal Government (qua Federal Republic of Nigeria) to proscribe IPOB and declare it a terrorist group. The Court found said actions to be so egregious and shocking to the conscience that it awarded a whooping eight billion Naira in favor of Nnamdi Kanu. This judgment is very relevant to releasing Kanu and halting his prosecution because it is the proscription of IPOB and the declaration that it is a terrorist group that legally grounded the rendition, detention and prosecution of Nnamdi Kanu. And the Terrorism Prevention Act under which these actions were taken made copious provisions, empowering and requiring the Federal government, pursuant to reasonable grounds or cogent reasons, to review the proscription and terrorism declaration. To be sure, there is no better reasonable ground or cogent reason than a sound judgment of a High Court that held the Federal government to have violated the Constitution when it took these actions. All it will take is either a sound legal opinion by the Attorney-General or a gutsy political decision by the President of Nigeria. (27) It is pertinent to mention that, should the Federal government find the foregoing five options to be disagreeable, it can still bring this saga to an end by simply resorting to Section 174 of the Constitution, which empowers the Attorney-General to discontinue any criminal prosecution commenced by the Federal government. From the inception of Nigeria, this discontinuance of prosecutions has been done countless times, including the latest celebrated one involving Omoyole Sowore, who was also charged with capital offenses with a political hue. Thus, for the reason that Kanu is also facing capital offenses of political nature, I cannot fathom any justification for the uncanny reluctance of the Federal government to equally exercise the same administrative discretions in his matter. In the alternative to turning to this clear solution contained at the said Section 174 of the Constitution, the Federal High Court before this matter is pending can trigger Section 17 of the Federal High Court Act which empowers the Court to promote reconciliation or extrajudicial solution in all cases, civil or criminal. There is nothing stopping the Court from invoking this law. All it requires is sound exercise of judicial and judicious discretion. In concluding this submission, it needs to be made crystal clear that, should the Federal government and the Courts persist in subjecting Mazi Nnamdi Kanu to trial under his current detention conditions, Kanu will be well within his rights to legally resist the trial because it will be suicidal for him to succumb to a process that notoriously lacks the basic tenets of fair hearing, a trial that will make mockery of the Nigerian Constitution, a trial by ordeal. (28) END. © Aloy Ejimakor, October 2024.

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Federal Republic of Nigeria versus Mazi Nnamdi Kanu: A TRIAL BY ORDEAL?