t is almost two years since the self-acclaimed leader of the proscribed separatist group, the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu, was returned to custody upon his rearrest in Kenya on June 27, 2021 and subsequent production before a Federal High Court in Abuja two days later.

On June 29, 2021, while Justice Binta Nyako of the Federal High Court, Abuja, before whom the Federal Government took Kanu, was issuing an order for his remand in the custody of the Department of State Security(SSS), the then Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami, was busy, in his office, telling reporters how the IPOB man was arrested and brought back to the country.

Malami said: “The self-acclaimed leader of the proscribed secessionist Indigenous People of Biafra (IPOB), Nnamdi Kanu, has been arrested through the collaborative efforts of Nigerian intelligence and security services.

“He has been brought back to Nigeria 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 on 17th October 2013 at FESTAC, Lagos.

“It is recalled that Kanu was arrested on 14th October 2015 and later arraigned on an 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 grounds 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 the Nigerian state and institutions.

“Kanu was also accused of instigating violence, especially in Southeastern Nigeria, that resulted in the loss of lives and property of civilians, military, paramilitary, police forces and destruction of civil institutions and symbols of authorities’’

Road to custody

Kanu had largely operated outside the country until his initial arrest in a hotel in Lagos on October 14, 2015.

An operative of the DSS, Temisan John, who led a team that arrested Kanu, gave details of how the operation went.

John said: “On arrival at the hotel, the staff denied having Kanu in the hotel or having any knowledge of him even when shown his photograph.

“The hotel’s guest manifest, for about five days, was also printed and the name was not found on any.

“However, relying on accurate intelligence, the team decided to conduct a physical search on all the hotel rooms, leading to the arrest of Kanu in Room 303, where he was caught hibernating with a young girl named Maryam Ibezimakor, with all his broadcasting and communication gadgets set for use.

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“It was then discovered that Kanu checked in under the name, Nwanekaenyi Ezebuiro. He was subsequently arrested and taken to the command headquarters.”

Court appearance

The Federal Government, on December 18, 2015, filed a six-count charge against him and two of his his associates – Benjamin Madubugwu and David Nwawuisi. They were arraigned on December 23, 2015.

The charge, marked: FHC/ABJ/CR/383/2015 was subsequently amended, with the counts raised to 11, and the number of defendants increased to five, with the inclusion of Chidiebere Onwudiwe and Bright Chimezie.

The offences, with which they were charged, included terrorism, treasonable felony, managing an unlawful society, publication of defamatory matter, illegal possession of firearms and improper importation of goods.

The offences were said to be about their activities on Radio Biafra, agitation for secession from Nigeria and the creation of the Republic of Biafra.

On April 25, 2017, Justice Nyako granted conditional bail to Kanu on health grounds. The judge rejected the bail request made by the other defendants.

Disappearance

Kanu, however, went underground after the September 14, 2017 clash between men of the Nigerian Army and IPOB members in his hometown of Afarakwu in Abia State.

His lawyer, in a subsequent suit, claimed that Kanu went missing after the September 14, 2017 incident when men of the Nigerian Army allegedly invaded his parents’ home.

The Nigerian Army had launched what it called Operation Python Dance at the time, which it claimed was directed at curbing criminal activities in the Southeast geo-political zone.

While it became obvious that Kanu had gone underground, the prosecution later applied to have the case separated to enable proceedings to continue in the case as it relates to the other four, a request Justice Nyako granted in a ruling on February 20, 2018.

Chimezie, Onwudike, Maduagwu and Nwaurusi were later re-arraigned on a fresh three-count charge bordering on treasonable felony. They were later granted bail on June 25, 2018 on health grounds, with similar conditions attached to the one earlier granted Kanu.

Upon an application from the prosecution, the court, on March 28, 2019, revoked Kanu’s bail and issued a bench warrant for his arrest.

Return to custody

When he was produced before the court on June 29, 2021, Kanu was not represented by a lawyer. And the judge, after listening to the prosecuting counsel, who applied that Kanu be returned to custody, asked him (Kanu) why he stopped attending court after he was granted bail.

Kanu said his life was threatened when the military allegedly invaded his parents’ home and he chose to go underground to escape being killed, an explanation the judge was not satisfied with.

Justice Nyako then proceeded to grant the prosecution’s request that he should be returned to custody, but kept with the DSS, where he has been since then.

A clogged trial

Having recaptured him, the prosecution had expected a smooth trial. It filed an amended 15-count charge on which Kanu was re-arraigned.

But, before the trial could commence, Kanu’s legal team challenged the competence of the amended charge. And, in a ruling on April 8, 2022, Justice Nyako struck out eight out of the 15 counts, leaving seven.

The judge said: “In this instant preliminary objection application, I have read the counts and come to the conclusion that counts 6, 7, 8, 9, 10, 11, 12 and 14 have not disclosed any offence against the defendant.

“Counts 1, 2, 3, 4, 5, 8 and 15 show some allegations, which the defendant has to answer.

“The court shall proceed to try the defendant on those counts.”

In the surviving seven counts, Kanu is alleged to have made a broadcast that was heard across Nigeria, in which he allegedly issued a threat that anyone, who flouted a sit-at-home order in the Southeast, should write his or her will.

The prosecution added that as a result of the threat, banks, schools, markets, shopping malls, and petrol stations in the Southeast have continued to shut down their businesses, with citizens and vehicular movements grounded.

It equally alleged that Kanu’s broadcasts, made on different dates between 2018 and 2021, incited members of the public to attack Nigerian security personnel and their family members, thereby committing an offence punishable under Section 1(2)(h) of the Terrorism Prevention Amendment Act, 2013.

The prosecution also accused Kanu of directing members of IPOB “to manufacture bombs”, and that between March and April 2015 he “imported into Nigeria and kept in Ubulisiuzor in Ihiala Local Government Area of Anambra State, a radio transmitter known as Tram 50L, concealed in a container of used household items which he was said to have declared as used household items.

An act considered to be an offence contrary to section 47(2)(a) of Criminal Code Act Cap, C45 Laws of the Federation of Nigeria 2004.

But, before the prosecution could take any step to begin trial, Kanu’s legal team appealed the April 8, 2022 ruling, including questioning how he was brought back to the country.

In a judgment on October 13, 2022, the Court of Appeal in Abuja allowed Kanu’s appeal, marked: CA/ABJ/CR/625/2022.

A three-member panel of the appellate court was unanimous in faulting the processes adopted by the Federal Government in bringing Kanu back to the country, a development it held robbed the trial court of the jurisdiction to prosecute the pending charge.

The court said it was satisfied that the government violated the laws when it forcibly renditioned Kanu from Kenya to the country for the continuation of his trial.

It held that such extraordinary rendition, without adherence to due process of the law, was a gross violation of all international conventions, treaties, protocols and guidelines that Nigeria is signatory to, as well as a breach of the appellant’s fundamental human rights.

“On the whole, this appeal succeeds and it is allowed. The ruling of trial Justice Binta Nyako of the Federal High Court, delivered on April 8 is hereby set aside.

“The 15-count charge against the appellant at the lower court is hereby struck out.

“The appellant is hereby discharged and acquitted,” Justice Oludotun Adetope-Okojie said in the lead judgment.

Dissatisfied with the decision, the Federal Goverment lodged an appeal before the Supreme Court and approached the Court of Appeal with an application for a stay of execution of its October 13, 2022 judgment pending when the apex court determines the appeal.

In a ruling on October 28, 2022 three-member panel of the court granted the Fed Government’s application and ordered that the execution of the judgment be put on hold pending the determination of the appeal filed against the its decision by the government.

Justice Haruna Tsamani, who read the lead ruling, ordered the Fed Government to expedite action on the appeal it filed by ensuring prompt transmission of records, among others.

He held that the counter-affidavit filed by Kanu’s legal team against Federal Government’s application was misleading.

At the mercy of the Supreme Court

Both the prosecution and the defence are looking up to the Supreme Court for mercy. This is because of the impact the apex court’s decision will have on the fate of either of the parties.

While the Fed Government ‘s sole appeal before the Supreme Court, marked: SC/CR/1361/2022 is seeking the reversal of the Court of Appeal’s October 13, 2022 judgment freeing Kanu, the IPOB man has two appeals pending before the apex court.

The first is a cross-appeal against some portions of the October 13 judgment, while the other is an appeal, marked: SC/CR/1394/2022 against the October 28, 2022 ruling of the Court of Appeal staying the execution of the October 13 judgment pending the determination of the prosecution’s appeal before the Supreme Court.

The cross-appeal, it was learnt, is hinged on three grounds.

In the first ground, it is argued that the Court of Appeal “erred in law when it held that the main purpose of a charge is to give the accused person a notice of the case against him and that is why the law is that an omission in a charge will only be fatal if it does not put an accused person on proper and sufficient notice of the case against him to enable him to prepare adequately for his defence without due deference to the mandatory requirements of the laws, which limit the criminal jurisdiction of the Federal High Court only to criminal offences committed within the jurisdiction of the court, in line with the clear provisions of Section 45 of the Federal High Court Act; and also the compulsory requirement that the particulars of the place/situs and time the alleged offence was committed, must be stated with clarity and precision in the charge.”

In ground two, Kanu is faulting the Court of Appeal for holding that “as long as the appeal against the proscription of IPOB has not been determined, the order of proscription is still valid and subsisting”.

He is, in the third ground, contending that the Court of Appeal “erred in law when it held that it is only when evidence has been adduced by the prosecution in proof of its case and the proof of evidence is thus admitted in evidence, that the competency or otherwise of the proof of evidence/charge can be attacked; and that as such, it was premature to make a pronouncement on the relative strength of proof of evidence before the commencement of trial, and thereby occasioned a miscarriage of justice.”

He is praying the Supreme Court to allow his cross-appeal and set aside the judgment of the appellate court made on October 13, 2022, as it relates to issues 2, 3 and 5 which he addressed in the cross-appeal.

In view of the fact that both parties are before the Supreme Court, Justice Nyako, on November 14, 2022, adjourned further proceedings in the terrorism case indefinitely to await the outcome of the appeals before the apex court.

On May 11, a five-member panel of the apex court, led by Justice John Okoro fixed definite hearing in the appeals for September 14 and ordered parties to file all necessary processes before then.

The Nation learnt that parties have since filed all that they are required to do.

For the appeal filed by the Federal Government and the cross-appeal filed in it by Kanu, the parties have put in all their written arguments in addition to two additional motions by the IPOB man.

In the first motion, he is praying to be admitted to bail, while in the second, Kanu wants to be relocated from the custody of the DSS to Kuje correctional facility.

on Kanu’s appeal, parties have filed their briefs, along with the preliminary objection filed by the Federal Government, appellant’s response to the objection and two additional motions by Kanu – one for bail and the other for relocation to Kuje.

Other cases involving Kanu

On July 20, Justice Nyako delivered judgment in one of the suits filed by Kanu against the SSS.

The suit, marked: FHC/ABJ/CS/2341/2022 filed on December 21, 2022, was an application for judicial review for an order of mandamus to compel the DSS to allow Kanu access to medical doctors of his choice and to be availed with his medical records.

Justice Nyako, in the judgment, granted the reliefs sought.

Earlier, on July 13, Justice James Omotosho of the Federal High Court in Abuja dismissed a fundamental rights enforcement suit filed by Kanu.

The judgment was on the suit marked: FHC/ABJ/CS/482/2022 with the Director-General of SSS, SSS and the Attorney-General of the Federation (AGF) listed as respondents.

Kanu had claimed, among others, that he was subjected to various inhuman treatments, including being denied his right to wear clothes of his choice like the Igbo traditional attire called “Isi-Agu,” while in their facility or any time he appeared in court for his trial.

He further claimed that while the DSS allows other detainees the freedom to choose and wear any clothes of their choice, he was restricted to wearing only a single pair of clothing.

Justice Omotosho, in the judgment, noted that the right to human dignity is enshrined in Section 34 of the Constitution, adding that it was clear that a right to human dignity is related to the right against torture, inhuman treatment, among others.

The judge was of the view that Kanu’s case did not relate to torture or forced labour because there was no evidence before the court that he was ever tortured while in custody.

Justice Omotosho held that the right to dignity did not include the right to change clothes as an inmate in a prison.

He added: “The applicant cannot come to court to seek rights which are not in the constitution.”

The judge noted that the applicant failed to provide the photographs and names of inmates, who were allowed to wear different attires while in custody.

Justice Omotosho held that the onus was on Kanu to prove his case, noting that he merely relied on bare facts without any evidence, describing the applicant’s claims as “a hypothesis without concrete evidence”.

Pending cases

Besides the appeals before the Supreme Court, two other cases filed by Kanu are still pending before the Federal High Court in Abuja.

The first, marked: FHC/ABJ/CS/462/2022, with the Federal Republic of Nigeria (FRN) and the AGF as the defendants, has been adjourned, by Justice Inyang Ekwo, till October 25 for adoption.

According to Kanu’s legal team, the suit filed on April 7, 2022, is inviting the court to interpret the relevant provisions of the law in relation to his extraordinary rendition.

Although the questions raised in the suit have been substantially answered in the October 13, 2022 judgment of the Court of Appeal, what is left is for the court to either grant or reject the reliefs sought by the plaintiff, which include N50billion damages.

The second pending suit filed by Kanu is before Justice Nyako. It is marked: FHC/ABJ/CS/1945/2022, with the FRN and three others listed as respondents.

It is a fundamental rights enforcement suit, filed on October 21, 2022, in response to the failure of the Federal Government to immediately release him after the Court of Appeal’s judgment of October 13, 2022, which discharged him and prohibited his further detention and trial.

The suit, like the original charge, has been adjourned indefinitely pending the outcome of the appeal marked: SC/CR/1361/2022 before the Supreme Court. (The Nation)

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