Nnamdi Kanu’s Legal Battle in the Terrorism Trial
The legal battle surrounding Nnamdi Kanu, the detained leader of the Indigenous People of Biafra (IPOB), has taken a significant turn as he files a fresh application to strike out the terrorism charges against him. This move comes ahead of a critical hearing scheduled for 4 November, which could determine the course of his defense in the ongoing trial.
Kanu, who has been in custody since his arrest in Kenya and forced return to Nigeria in June 2021, filed a motion titled “Motion on Notice and Written Address in Support” on 30 October. The document reiterates his argument that the current charges are invalid due to their lack of legal foundation. He asserts that there is no charge or counts cognisable under the corpus juris of the Federal Republic of Nigeria, calling the charges “a nullity ab initio for want of any extant legal foundation.”
The motion also requests the trial judge, James Omotosho, to order Kanu’s release from custody if the charges are struck out. It is not yet clear whether the prosecution has received this new motion. However, the judge has already indicated that Kanu’s objection to the validity of the charges could serve as his defense.
Background of the Case
The case against Kanu has been ongoing since 2015, with interruptions due to his disappearance following an attack on his home in Abia State in September 2017. The prosecution closed its case in June this year, after presenting five witnesses, all State Security Services (SSS) officials. Following the closure of the prosecution’s case, Kanu filed a no-case submission, which was dismissed by the court.
In response, Kanu filed a motion on 21 October, listing several serving and retired public officers, alongside unnamed individuals, as proposed defense witnesses. He plans to call 23 witnesses, divided into “ordinary but material witnesses” and “vital and compellable” ones, to be summoned under Section 232 of the Evidence Act, 2011. He also requested 90 days to conclude his defense.
At a hearing on 23 October, Kanu announced the disengagement of his legal team led by former Attorney-General of the Federation, Kanu Agabi, a Senior Advocate of Nigeria (SAN). He decided to defend himself, prompting the judge to adjourn until the following day. However, when the matter resumed on 24 October, Kanu stated he could not proceed because he had not yet retrieved his case file from his sacked lawyers. The judge reluctantly adjourned until Monday, 27 October.
Grounds for Seeking Dismissal
In his new motion, Kanu argues that the federal government relied on repealed and non-existent laws, such as the Customs and Excise Management Act (CEMA) 2004 and the Terrorism Prevention (Amendment) Act 2013. He claims that prosecuting him under these statutes “vitiates the charge’s legal foundation and offends the principle of legality enshrined in Section 36(12) of the Constitution.”
Kanu also points out that six of the counts were allegedly committed in Kenya, which he says violates Section 76(1)(d)(iii) of the Terrorism Prevention (Amendment) Act 2022. This section mandates “validation by a Kenyan court confirming the acts’ criminality in Kenya,” a condition unfulfilled pre-plea, thereby nullifying extraterritorial jurisdiction.
He insists that the trial cannot continue since “no valid or cognisable charge subsists” against him under Nigerian law or any law recognized in Kenya, where the alleged acts in counts one to six were said to have occurred.
Charges Against Kanu
Kanu is facing seven charges stemming from his agitation for the secession of Nigeria’s South-east and parts of neighboring states as Biafra. Six of the charges, which accuse him of incitement, enforcement of a sit-at-home order, intimidation, threat against Nigerians and security personnel, and professing to be a member of IPOB, a proscribed organization, were brought under the Terrorism Prevention Amendment Act, 2013.
Only one of the charges, alleging illegal importation of a radio transmitter, was filed under the Criminal Code Act. In one of the counts, the prosecution accused him of committing “an act in furtherance of an act of terrorism” against Nigeria and its people in a broadcast by issuing a death threat against anyone who flouted his sit-at-home order.
Trial Proceedings
Kanu was first arrested in September 2015 over his agitation through radio broadcasts for the secession of the Igbo-dominated South-east from Nigeria as a sovereign Biafra nation. The case has been heard by three judges of the Federal High Court in Abuja, with the current one being the latest.
The Biafra agitator was released on bail from SSS custody in 2017 but fled the country after soldiers invaded his home in Afara-Ukwu, Abia State, in September that year. This halted his trial until he was rearrested and brought back to Nigeria in June 2021.
The Court of Appeal in Abuja freed him in October 2022, striking out the terrorism charges against him on the grounds of the illegality of the manner of bringing him back from Kenya to Nigeria in June 2021. However, the Supreme Court overturned the Court of Appeal’s decision in December 2023 and ordered the trial to continue at the Federal High Court.
