Since his arrest by the Nigerian government in 2016, the issue of Nnamdi Kanu, leader of the neo-Biafran movement, Indigenous People of Biafra (IPOB), has generated a considerable amount of interest among American watchers of the Nigerian story. I have, in the recent past, written a few essays on issues arising from the matter of Nigeria and Biafra; and just recently, a new and crucial issue caught my attention. That is: the novel legal dilemma posed by the Nigerian Army to Mr Kanu's adjourned criminal trial. This directly arose from the hostile operations the Nigerian Army had conducted against Kanu, back in September 2017.

From my straw research of the nuances of Nigerian jurisprudence, there's no known case that has squarely dealt with the situation the army forced on the Nigeria judiciary in this instance. Though there are legions of rulings by the Nigerian Supreme Court on the tenor of the ‘due process’ and ‘fair trial’ cannons of the Nigerian Constitution, I found no case that best addressed the issue as it now relates to Mr Kanu. Conversely, a quick overview of American presidential jurisprudence will show that there are many cases that reflect virtually the same predicament the Nigerian court has found itself since the army's baffling operations against Mr Kanu and the ex post facto declaration by the Nigerian government that Mr Kanu and members of IPOB (numbering in the millions, according to the US State Department) are now terrorists.

What I discovered is that Mr Kanu's criminal trial can no longer, in strict constitutional theory and practice, proceed as expected. The trial is now liable to a motion to dismiss, but given that there may not be sufficient pertinent case development in Nigeria, the Nigerian court can be guided by the rash of US precedents on point, some of which I will now proceed to state and argue below. Keep in mind that the Nigerian presidential Constitution is based - in letters and spirit - on the finest traditions of the US presidential Constitution.

Mr Kanu who was charged with treasonable felony was later released on bail. The Nigerian Army, as part of its campaign to terrorise Biafrans in Operation Python Dance II, attempted to assassinate Mr Kanu by attacking his home, spraying bullets throughout the premises, killing scores of members of the Indigenous People of Biafra, and wounding others. In a classic ‘self-defense’ against the Nigerian Army, Mr Kanu presumably went underground.

And then, like the blitzkrieg launched by its forces against Kanu and his people, the Nigerian government quickly proceeded to outlaw IPOB as a terrorist organisation through a constitutionally questionable ex-parte proceeding, in violation of various provisions of laws of Nigeria (and laws of nations) on fair hearing.

Part of the purpose or effect of the Nigerian government's State terrorism against IPOB and Nnamdi Kanu was to intimidate all witnesses who might testify in favour of Mr Kanu at trial. You might also add that this situation has the effect of complicating the ability of the court to ensure a fair trial for Mr Kanu as guaranteed under Section 36 (4) of the Constitution of the Federal Republic of Nigeria (as amended). The government's factually-deficient prohibition of IPOB as a terrorist organisation was also calculated to inflame popular opinion against Mr Kanu.

The fair trial guarantee enacted by the Nigerian Constitution is a direct recast of the Fifth Amendment to the United States Constitution, which protects defendants from deprivation of life, liberty and property “without due process of law.” In the US, if the court finds that the government has engaged in conduct that “shocks the conscience”, the court may utilise the “outrageous government conduct” rule and dismiss criminal charges to avoid a Fifth Amendment due process violation. See Rochin v California, 342 US 165, 172, 173 (1952); United States v Boone, 437 F.3d 829, 841 (8th Cir. 2006); United States v Russell, 411 US 423, 431-32 (1973) (stating that a court may dismiss an indictment on due process grounds when “the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction”).

See also United States v Searcy, 233 F.3d 1096, 1101 n.3 (8th Cir 2000) (“The claim of outrageous government conduct rests on the Due Process Clause of the Fifth Amendment.”). Dismissal under the outrageous government conduct doctrine is appropriate “if the conduct falls within the narrow band of the most intolerable government conduct:” Boone, 437 F 3d at 841. “Government conduct, which is so outrageous and shocking that it exceeds the bounds of fundamental fairness, may violate the Due Process clause and bar a subsequent prosecution.” United States v Hunt, 171 F.3d 1192, 1195 (8th Cir 1999); see also United States v Russo & Ellsberg, Crim No 9373 (WNB) (C D Cal dismissed because of government misconduct, including illegal wiretaps on the defence team and burglary of the office of Defendant Ellsberg’s psychiatrist).

In Kanu’s case, the misconduct of the government of Nigeria is far more egregious than in the cited cases dismissed under the due process clause of the United States Constitution. The hallmarks are self-evident – the attempted assassination of Kanu, which forced him underground and unable to participate in his own defence; killing, injuring, or intimidating exculpatory witnesses and simultaneously prohibiting IPOB as a terrorist organization, despite its unstained record of peaceful protests and international profile as a lawful body.

Accordingly, the court must find cause to dismiss all charges against Mr Kanu because the government's misconduct shocks the conscience of the court, the Constitution and the society; and is so outrageous that fair trial principles should absolutely bar the government from invoking judicial processes to obtain a conviction.

Additionally, the totality of Nigerian government's misconducts against Mr Kanu has created what is known in the US as a State ‘mob domination’ of trial. Mob domination of a trial that intimidates or frightens witnesses or fact-finders by a constructive threat of retribution for assisting the defendant violates fundamental fairness and due process of law. Franks v Magnum, 237 US 309, 335 (1915); Moore v Dempsey, 261 US 86, 90-91 (1923) – “if a trial is dominated by a mob so that there is an actual interference with the course of justice, there is a departure from due process of law".

As noted above, the Nigerian Army’s extra-judicial attacks on Mr Kanu’s home, intending to assassinate him, murdering a score of IPOB members, injuring others, and the fact-challenged condemnation of IPOB as a terrorist organisation have created an atmosphere of mob domination that precludes any hope of a fair trial. This atmosphere has predetermined Kanu’s conviction. Any witness who sides with Kanu may risk immediate lethal retaliation by the Nigerian government or its agents. Accordingly, the court should see fit to dismiss all charges against Mr Kanu, because the government of Nigeria has acted to ensure any trial would be mob-dominated in favour of conviction.

And there’s more: A venerable principle of law since time is that no person should profit from his own wrongdoing. In Mr Kanu’s case, the government of Nigeria is responsible for his underground status by dispatching the Nigerian Army to attack him and IPOB members in his home. Mr Kanu’s underground status is legally justified by the natural right of self-preservation. Therefore, the only fair way is for the court to prevent the Nigerian government from profiting from a situation it deliberately created.

•Russel Andrew Crowe can be reached on russelpluscrowe@gmail.com

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