The Federal High Court in Abuja has thrown out the preliminary objection filed by Biafra agitator Nnamdi Kanu against his terrorism trial, clearing the way to give judgement on the merit of the charges against him.
Trial judge James Omotosho ruled on Thursday that all the grounds on which he anchored the objection were baseless.
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Mr Kanu, who took over his defence after sacking his team of senior lawyers last month, had argued that denial of fair hearing, being charged on repealed law, and his extraordinary rendition from Kenya in June 2021 invalidated his charges. Apart from these, Mr Kanu maintained that he was also not medically fit to stand trial.
But the judge dismissed all the arguments of Mr Kanu, who is facing terrorism charges for his violence-inciting campaign for the independence of Nigeria’s South-east as Biafra.
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On the argument of denial of fair hearing, Mr Omotosho said “this court had been extremely patient and lenient with the defendant” to put in his defence but refused to do so.
He said the court could only offer an opportunity to defendants to put their defence, “Failure to use the opportunity to defend himself will be entirely his fault.”
He expressed surprise that Mr Kanu deliberately delayed his trial, an attitude that was ordinarily common with the prosecution.
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On the issue of “extraordinary rendition”, the judge ruled that Mr Kanu’s argument was pointless as he failed to call witnesses to support the claim as required.
Mr Omotosho who cited a line of judicial authorities to back his stance, said the issue of extradition is quasi-criminal in nature, and therefore requires the parties to call witnesses to testify and be cross-examined.
He cited a Supreme Court authority that specifically ruled that “only oral evidence should be entertained in quasi-criminal proceedings” in accordance with section 135 Evidence.
“The defendant had the duty to call witnesses to testify on oath to enable the other party to cross-examine the witnesses,” the judge said. “The law is trite in Nigeria, once a criminal element is introduced, it must be proved beyond reasonable doubt.”
With Mr Kanu’s failure to call witnesses, Mr Omotosho ruled, the allegation “is simply an assertion without proof.”
The judge said Mr Kanu only relied on affidavit evidence which is often used in civil matters. “The gap in evidence is that there is no evidence that was led to prove the extraordinary rendition,” Mr Omotosho held.
Mr Omotsho also cited the Supreme Court judgement delivered on 15 December 2023 which ordered Mr Kanu’s trial to continue.
The judge who quoted various parts of the Supreme Court verdict held that Mr Kanu’s illegal extraordinary rendition from Kenya, although unfair and oppressive, does not rob the trial court of its jurisdiction to try the defendant on charges for which he had been validly arraigned.
Mr Omotosho likened the stance taken by the Supreme Court to the Ker-Frisbie doctrine in the United States, which presupposes that though the act of extraordinary rendition is illegal, a trial court may assert jurisdiction to try the defendant on charges over which the court has jurisdiction. The judge cited cases in the United States where objection to trial had been dismissed applying the
He faulted Mr Kanu’s reliance on the Cout of Appeal’s decision given on 22 October 2022 dismissing the charges against him.
Mr Omotosho noted that the judgement of the Court of Appeal was overturned by the Supreme Court’s judgement delivered on 15 December 2023, declaring that the illegal rendition of Mr Kanu from Kenya did not rob the Federal High Court of its jurisdiction to try him for the alleged offences.
“The Supreme Court’s decision is final and binding on all courts and authorities, including that of the Court of Appeal, which the defendant has erroneously relied on,” Mr Omotosho ruled.
He also noted that Mr Kanu was awarded monetary compensation by a Kenyan court, which declared his abduction in Kenya as a violation of his fundamental rights and awarded damages against the Kenyan government for the act. He added that Mr Kanu cannot make the same case for the charges against him to be quashed.
He maintained that issues of fundamental rights violations or other pre-trial issues do not rob the court of its jurisdiction to try the defendant.
Also dismissing Mr Kanu’s argument that the charges against him were invalid because they were based on repealed Terrorism Prevention Act 2013.
Mr Omotosho described the argument as “interesting”.
“It is interesting because it shows the defendant’s stark misunderstanding of the law and wilful disregard of the facts cumulative in this case,” Mr Omotosho said.
He explained that the charges against Mr Kanu remained valid as much as they were filed based on the law in existence as of the time the offences he was accused of were allegedly committed.
“As of when the extant charge was filed, the extant law in operation in Nigeria was the Terrorism Prevention Act 2013,” the judge said.
He noted that Mr Kanu was being prosecuted for offences he allegedly committed between 2018 and 2021, while the new Terrorism Prevention Act 2022 only became operational in May 2022.
He also cited section 98 (3) of the new law which provides that any proceedings, prosecution, interest, judgements, charge or course of action pending before the new law may be enforced and continue.
He said the provision, referred to as saving provision/preservation provision, was put in place to ensure smooth transition and ensure prior proceedings were not washed away.
Earlier on Thursday, the judge ordered him to be ejected from court over his unruly behaviour, insisting that the scheduled judgement could not be delivered because he filed applications to contest it.
The judge is now delivering judgement on the substance of the case.
Mr Kanu is facing trial on terrorism charges which accuse him of inciting violence and killings in Nigeria’s South-east to achieve the independence of the region as a sovereign Biafra state.
The Nigerian and British citizen, who leads the now proscribed Indigenous People of Biafra (IPOB), has repeatedly denied wrongdoing. He insists he has a right to self-determination.
He had been due to open his defence after the prosecution closed its case with five witnesses in June.
Instead of opening his defence, he filed a no-case submission, arguing that the prosecution failed to lead credible evidence against him to warrant putting forward any defence.
However, in September, the judge dismissed the no-case submission, ruling that he had a case to answer and should enter his defence.
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Since then, several proceedings have been scheduled for him to start his defence. Things took dramatic turns last month, when he suddenly sacked his lawyers and subsequently revived his objection to the validity of the charges.
He clung to the arguments that the charges against him were brought under a repealed terrorism law, which he said invalidates the charges in the case that dates back to 2015.
He spurned the court’s repeated persuasion for him to call witnesses to defend himself against the case of the prosecution built on the testimonies of five prosecution witnesses and several exhibits.
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