UPDATED: Nnamdi Kanu waives defence in terrorism trial, judge cautions

Biafra agitator Nnamdi Kanu on Monday said he would not enter a defence in his terrorism trial at the Federal High Court in Abuja, insisting that there were no valid charges against him.

Mr Kanu announced this decision at the resumed hearing in the case on Monday, fixed for him to open his defence.

The leader of the proscribed Indigenous People of Biafra (IPOB) told the judge, James Omotosho, that he had reviewed the case of the prosecution and found it was not worth defending.

Mr Kanu, who is being tried for his violence-inciting campaigns for the independence of Nigeria’s South-east and parts of neighbouring states as Biafra, said there was no valid charge against him in the first place, rendering his defence unnecessary.

“There is no extant law in this country upon which the prosecution can predicate the charges against me. If there’s any, let my Lord read it out to me. So, I should not enter any defence in a charge that does not exist under any law in Nigeria,” Mr Kanu said.

Under Nigeria’s criminal procedure, a defendant can only enter a defence or waive his defence after the prosecution has closed its case and the defendant’s no case submission has been dismissed.

The dual citizen of Nigeria and the United Kingdom maintained he was being “detained under a fraudulent charge”, which he claimed, “the Supreme Court has said it ought not to be.”

He urged the judge to release him immediately or grant him bail on grounds of ill health.

His decision not to enter a defence is his first major legal step he has taken yet in the terrorism trial since taking over his own defence after suddenly sacking his lawyers last Thursday.

Despite the judge cautioning against not entering a defence when the defendant’s no-case submission has been dismissed, Mr Kanu insisted there was no valid charge to defend.

Considering that Mr Kanu was not represented by a lawyer, the judge advised him to consult with legal experts. Although the prosecution insisted that the IPOB leader already made his choice not to enter a defence, the judge postponed proceedings till 4 November to enable the IPOB leader to take his final decision.

One week of shifts

Mr Kanu’s decision to wave aside the court’s call to enter his defence, after the prosecution closed its case with five witnesses in June, is the latest in a string of surprises the IPOB leader has sprung up amid fast-paced developments regarding the case in the last week.

On Monday, 20 October, a protest led by human rights activist Omoyele Sowore called for Mr Kanu’s unconditional release from a four-year detention where the IPOB leader had been held since June 2021.

On the following day, Tuesday, he filed a list of proposed defence witnesses, including former and serving public officers, whom he wanted the court to summon to appear to testify in his defence.

He stated that he intended to call 23 witnesses, divided into two categories: those he described as “ordinary but material witnesses” and those he termed “vital and compellable”. He sought to have them summoned under Section 232 of the Evidence Act, 2011.

He also asked the court to grant him 90 days to conclude his defence, citing the number of witnesses he planned to call.

On Wednesday (23 October), with the trial judge’s permission, he met with his lawyers in the courtroom for hours, ahead of Thursday’s proceedings scheduled for his defence to start.

But at Thursday (24 October)’s proceedings, Mr Kanu suddenly announced the disengagement of his legal team led by former Attorney-General of the Federation and Minister of Justice, Kanu Agabi, a Senior Advocate of Nigeria (SAN). He told the court he was ready to defend himself. He then sought an adjournment till Friday to prepare for the case.

On Friday (25 October), Mr Kanu told the judge he was not ready to begin his defence because he had yet to retrieve his case file from his disengaged defence lawyers. The judge reluctantly adjourned the case till Monday (today) with a warning that Mr Kanu should either open his defence or waive his right to present a defence.

Monday’s court session was the latest in the series of proceedings the judge had scheduled for Mr Kanu to open his defence since the prosecution closed its case with five witnesses in June.

Judge explains procedure

When the case was called on Monday, Mr Kanu told the judge that he had reviewed the case file and realised that the charges lacked merit.

The trial judge interrupted him to enlighten him on the procedure of law in criminal proceedings.

Mr Omotosho explained that in a criminal trial, after the prosecution closes its case, there are three options open to the defendant.

According to the judge, the first option is to file a no-case submission, which is a call by the defendant to the court to dismiss the charges on grounds of lack of prima facie evidence presented by the prosecution to warrant his defence. If the no-case submission succeeds, that will be the end of the trial.

But the judge said if the no-case submission fails, the defendant should enter defence.

He said the third option is for the defendant to decide “not to put in a defence”. The judge said, this means the defendant has opted to “rely on the case of the prosecution.”

Judge speaks on implication of not entering defence

Responding, prosecution lawyer, Adegboyega Awomolo, a SAN, said Mr Kanu’s declaration that there was no valid charge for him to defend implied that he had opted to rely on the case of the prosecution. By this option, Mr Awomolo said the case had been brought to a close and the judge should adjourn for judgement.

But responding to the prosecution, Mr Omotosho clarified that the defendant did not say he had no defence. “What he said is that the charges against him should not be in the first place, and that in itself is a defence.”

Turning to Mr Kanu, Mr Omotosho warned that not entering a defence after a no-case submission had been “heard and overruled is very dangerous.”

When Mr Kanu insisted there were no charges against him, the judge said he only spoke out of duty to protect everyone, noting that it was his responsibility, since the defendant had no legal representation. “And I know God will hold me responsible if I don’t,” the judge added.

The judge said, “I am inclined, in the interest of justice, to give an adjournment either for the defendant to put in his defence or adopt his position not to enter a defence.”

He directed Mr Kanu to file a written address to that effect and serve the prosecution.

The judge also advised him to consult experts in criminal law on the implications of the decision he had taken.

Reacting to the judge’s decision, Mr Awomolo queried the decision to adjourn the case again at the defendant’s instance, urging the court to stick to its earlier order for the defendant to present his defence within six days.

But the judge, noting that Mr Kanu is not a lawyer, explained that the defendant had yet to open his defence, therefore the six days allotted to him had not started counting.

The court fixed 4, 5, and 6 November for further proceedings.

Arrest and journey to and back from Supreme Court

Mr 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, which began in 2015, has been heard by four judges of the Federal High Court in Abuja, the current one being the latest, and has involved successive defence teams.

The Biafra agitator was released on bail from SSS custody in 2017, but subsequently 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.

Mr Kanu, a citizen of Nigeria and the United Kingdom, is standing trial on terrorism charges that accuse him of inciting violence that led to killings and destruction of property for years in the South-east states.

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.

But the Supreme Court overturned the Court of Appeal’s decision in December 2023 and ordered the trial to continue at the Federal High Court.

The Supreme Court ruled that there is no Nigerian law that prohibits the use of “illegally obtained evidence for the trial of a defendant.”

The prosecution subsequently opened and closed its case with five witnesses.

The prosecution, which closed its case with five witnesses in June, accused him of making inflammatory social media remarks that allegedly led to killings and destruction of property in the South-east.

After the prosecution closed his case, Mr Kanu filed a no-case submission, which the court subsequently dismissed.

Since then, Mr Kanu has raised a litany of complaints.

At one time, he said he was not medically fit to stand. But the claim was later debunked by a panel that the court ordered the Nigerian Medical Association to set up to review Mr Kanu’s health status.

He also complained of a lack of adequate access to his lawyers in custody of the State Security Service (SSS), where he has been detained since June 2021. Addressing his complaint, the judge vacated the courtroom for him last Wednesday to meet with his lawyers for hours.

Charges

Mr Kanu is facing seven charges that stemmed from his agitation for the secession of Nigeria’s South-east and parts of neighbouring states as Biafra.

Six of the charges, which accused him of incitement, enforcement of a sit-at-home order in the region, intimidation, threat against Nigerians and security personnel, and professing to be a member of IPOB, a proscribed organisation, 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.

Mr Kanu allegedly ordered whoever flouted the order to “write his/her will”. The prosecution said as a result of the order, banks, schools, markets, shopping malls, fuel stations, and human and vehicular movements in the South-east of Nigeria were grounded.

The prosecution said the offence is punishable under section 1(2)(b) of the Terrorism (Prevention) Amendment Act (2013).

The prosecution also alleged that “on diverse dates” between 2018 and 2021, Mr Kanu professed himself to be a member and leader of IPOB, a proscribed organisation in Nigeria.

This, the prosecution said was an offence contrary to and punishments under section 16 of the Terrorism Prevention Amendment Act 2015.

Also within the same period, the prosecution alleged, Mr Kanu made broadcasts inciting people to hunt and kill Nigerian security personnel.

In another count, he was accused of inciting members of the public in Nigeria to hunt and kill families of Nigerian security personnel.

The offences are said to be punishable under 1(2)(h) of the Terrorism Prevention Amendment Act 2013.

The prosecution also accused him of directing members of the public to burn down every federal facility in Lagos resulting in major economic loss to the federal government. It said the alleged act violated section 1(2) of the Terrorism (Prevention) Amendment) Act 2013.

It also alleged that between March and April 2015, Mr Kanu imported into Nigeria and kept in Ubulisluzor 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 declared as used household items.

The alleged offence was said to be contrary to section 47(2)(a) of Criminal Code Act.