The Federal High Court in Abuja, on Friday, fixed 20 November for judgment in the terrorism trial of Nnamdi Kanu, leader of the proscribed Indigenous People of Biafra (IPOB).
Judge James Omotosho fixed the date after Mr Kanu’s defence was foreclosed following his insistence that he would not enter his defence under a repealed law.
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“This court has given opportunity to the defendant under Section 36 as required by the constitution, and I will not allow this to continue,”
“It is based on this, without hesitation, that I say that the defendant has waived his right,” Mr Omotosho said.
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The court had earlier on Friday given Mr Kanu about one hour to file a motion he said he needed to file.
Refusal to enter a defence
PREMIUM TIMES reported that the judge had, on Wednesday, given Mr Kanu the last chance to open his defence, which he had repeatedly failed to do for about one month.
The Nigerian government has been prosecuting Mr Kanu on seven charges, mostly terrorism-related, since 2015.
The charges stemmed from his alleged violent secessionist campaigns for the independence of the Igbo-dominated South-eastern part of Nigeria as Biafra.
But the dual Nigerian and British citizen has repeatedly denied wrongdoing.
After the prosecution closed its case in June with five witnesses, Mr Kanu filed a no-case submission that Mr Omotosho dismissed in September. The judge ruled that he had a case to answer and should enter his defence.
Since then, several proceedings have been scheduled for him to start his defence after he suddenly disengaged his lawyers and told the court that he would defend himself.
The case was also adjourned several times in the past month to keep the window of defence open, while Mr Kanu continued to maintain that there is no valid charge against him to defend. He argued that the charges against him “were brought under a repealed terrorism law.”
Following Mr Kanu’s insistence that the charges were invalid, the judge, Mr Omotosho, on Wednesday, reminded him of the need to keep his “gun powder dry” for his defence.
But, Mr Kanu said he would need to consult with his four legal consultants, whom he named as Nnaemeka Ejiofor, Aloy Ejimakor, Maxwell Okpara and Mandela Umegborogu, after which the case was adjourned to Friday (today).
Motion to “expunge” initial not-guilty plea
At the start of proceedings on Friday, the prosecution lawyer, Adegboyega Awomolo, informed the court that the matter was slated for Mr Kanu to open his defence.
Mr Kanu, who represented himself, told the court that he had a motion to file and had not been allowed to do so in the past three days.
When the judge asked why, the prosecutor replied that the SSS said there were protocols put in place to guide his movement and that his legal consultants were expected to write formally before he could be released from custody to file any process.
The judge then stood down the proceedings for one hour and directed that the court registrar be brought into the courtroom to assist Mr Kanu in filing the motion.
At the resumed sitting after the one hour, Mr Kanu moved the motion brought under sections 6, 36, and 12 of the Nigerian Constitution, sections 165, 220, 274, and 311 of the Administration of Criminal Justice Act (ACJA), sections 122 and 165 of the Evidence Act 2011, and the Supreme Court’s judgment delivered on 15 December 2023.
The motion prays the court to “expunge” Mr Kanu’s initial not-guilty plea from the record, claiming it was deceptively obtained in violation of section 36 of the Nigerian Constitution.
It also urged the court to set aside all court orders and proceedings so far. Mr Kanu further asked for his immediate release, arguing that he was being tried under “a non-existent law.”
The judge then asked the prosecutor to respond to the motion. Mr Awomolo told the court that he would not respond to the new motion but would rely on the exhibits attached to it, which formed part of the entire court record.
The judge acknowledged the motion but said he stood by his earlier order that all motions and preliminary objections, including those filed on 29 and 30 October and the one dated 6 November and filed 7 November, would be taken together at judgment.
He clarified that he would not touch any of the motions or the substance of the case until delivering judgment, adding that all issues would be addressed at that stage.
He then asked Mr Kanu to enter his defence, but Mr Kanu declined, saying he wanted the court to “state on record the law guiding the charges against him.”
Judge Omotosho said it was not his duty to explain the law to the defendant and directed the prosecution to respond.
Mr Awomolo told the court that each of the seven counts against Mr Kanu had a statutory law backing it.
But Mr Kanu argued that the Supreme Court had already struck out count seven and insisted that he could not proceed without clarification.
Judge Omotosho then declared that since Mr Kanu had refused to enter his defence, the court would “deem that he had waived his right to do so.”
He fixed 20 November for judgment and added that neither party would be required to file final written addresses on that day.
The case
The case has been on since 2015. It was interrupted for about three years due to Mr Kanu’s disappearance from the country following soldiers’ attack on his home in Abia State in September 2017.
The trial was halted after the Court of Appeal, in October 2022, struck out the charges, declaring Mr Kanu’s “extraordinary rendition” from Kenya unlawful.
However, the Supreme Court, in December 2023, acknowledged that his arrest was illegal, but ruled that no Nigerian law bars trials based on “illegally obtained evidence.” It held that the forced return of Mr Kanu did not strip the Federal High Court of jurisdiction.
The case has since moved through several judges, including Binta Nyako, before being reassigned to Mr Omotosho in March this year.
The prosecution closed its case in June this year, after which Mr Kanu filed a no-case submission that was dismissed, arguing that the prosecution failed to lead credible evidence against him to warrant putting forward any defence.
Following the ruling, he filed a motion he personally signed on 21 October, listing serving and retired public officers, alongside unnamed individuals, as proposed defence witnesses.
He said he planned 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 asked for 90 days to conclude his defence.
At the hearing on 23 October, scheduled for him to open his defence, Mr Kanu announced the disengagement of his legal team led by former Attorney-General of the Federation, Kanu Agabi. He told the court that he would defend himself, prompting the judge to adjourn until the following day.
When the matter resumed on 24 October, he stated that he could not proceed with his defence because he had yet to retrieve his case file from his former lawyers. The judge reluctantly adjourned till Monday, 27 October.
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At the rescheduled hearing, however, Mr Kanu said he had reviewed the prosecution’s case and found it “not worth defending.” He told the court that there was “no extant law in this country upon which the prosecution can predicate the charges,” adding that he would not enter a defence in a charge “that does not exist under any Nigerian law.”
The judge then directed him to file a written address to that effect and have it served on the prosecution. The judge also advised him to consult criminal law experts on the implications of his decision.
However, on 30 October, Mr Kanu filed a fresh application for the striking out of the terrorism charges, urging the trial judge to order his release from custody.
The application, titled “Motion on Notice and Written Address in Support,” re-echoed the points Mr Kanu had always made, including those raised in the motion he filed today, that he should be released, as “he is being tried under a repealed law.”
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