By CHARLES IWUOHA

A member of the Mazi Nnamdi Kanu Global Legal Consortium, Christopher Chidera, has said the Supreme Court of Nigeria erred in ordering the continuation of the prosecution of IPOB leader, Nnamdi Kanu, after his discharge and acquittal by the Court of Appeal.

Chidera made the claim in a petition addressed to the Nigerian Bar Association (NBA) and the International Bar Association (IBA).

He urged the NBA and the IBA to ask the Supreme Court to account for the laws on which it relied on to restore counts in the charge against Kanu that were quashed by the Court of Appeal.

The Court of Appeal had in an October 13, 2022, judgment, declared Kanu’s arrest in Kenya illegal and discharge and acquitted him.

However, on December 15, 2023, in a suit numbered SC/CR/1361/2022, the Supreme Court set aside the Court of Appeal judgment and ordered the continuation of Kanu’s trial, remitting the case to the Abuja Federal High Court.

Noting that the Supreme Court has the power to set aside the decision of the Court of Appeal, Chidera faulted the apex court’s decision to continue the trial.

The lawyer listed a number of what he described as errors in the Supreme Court’s decision to continue the trial instead of ordering a retrial.

He said: “The Court of Appeal had not adjourned. It had discharged the accused and quashed the charges. The Supreme Court did not order a retrial. It ordered continuation. Continuation of what?

“Error one — the repealed law was called extant. The terrorism charge was brought under the Terrorism Prevention Act 2011 as amended in 2013. That Act was repealed on 12 May 2022 by the Terrorism (Prevention and Prohibition) Act 2022, section 98. The Customs and Excise Management Act Cap C45 was repealed on 20 April 2023.

On 15 December 2023 Lawal Garba JSC described the relevant legislation as “extant and existing law that was/is in force at the material time/now”.

“A repealed Act is repealed. Section 122 of the Evidence Act 2011 is mandatory: the court shall take judicial notice of enactments now or previously in force. Repeal is a fact of law. Transitional provisions existed. That is not the issue. The issue is what they saved. That is section 97 of the TPPA 2022.

“Error two — the Court of Appeal discharged him and quashed the charges. On 13 October 2022 the Court of Appeal allowed the appeal, discharged Kanu, and quashed the charges. It held that the courts were divested of jurisdiction. It relied on the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. We do not treat “the lis was extinguished” as a proved conclusion. That is the question the remittal must answer. The operative facts are enough: discharged; charges quashed; final appellate disposition. The Supreme Court set that aside and ordered continuation, not retrial.

“Error three — the Charter Act was not confronted. The Charter Act is domesticated Nigerian law. In Abacha v Fawehinmi (2000) 6 NWLR (Pt. 660) 228, Ogundare JSC held that it possesses “a greater vigour and strength than any other domestic statute.” It is inferior only to the Constitution. Ogugu v The State (1994) 9 NWLR (Pt. 366) 1: Charter rights are justiciable here. The Charter Act outranks every terrorism statute.

“The Court of Appeal used that superior municipal law as a ground of jurisdictional nullity after extra-judicial cross-border kidnapping. The Supreme Court could reverse only by confronting that hierarchy. The word “continuation” is not a confrontation.

“Error four — the Court named the kidnapping a crime and still ordered continuation. Emmanuel Agim JSC, in this same remittal, found that agents of the Federation kidnapped and abducted Kanu and extra-ordinarily renditioned him to Nigeria without extradition. He held that abduction or kidnap of an accused from another country to face trial is prohibited by law.

“Extraordinary rendition without due process is unlawful. He called it brazen lawlessness and criminal act. He said the prosecution was unfair and oppressive. That is a Supreme Court finding of a crime. Not a paperwork error. Kidnap. Abduction. Prohibited by law.

“The panel then refused to apply that finding. They said the kidnap does not stop the trial. The victim may sue for damages. The charge goes on. That is not the law they were bound to apply.

“The Court of Appeal had already held that this same seizure, in breach of the African Charter Act, divested Nigerian courts of jurisdiction. The Charter Act is Nigerian law. Abacha v Fawehinmi puts it above every ordinary statute, including the terrorism laws. Only the Constitution sits above it.

“On 15 December 2023 the living terrorism statute was the TPPA 2022. That Act lists kidnapping and treaty violation as acts of terrorism. The panel ignored it. They called the dead 2013 Act extant. They put a US common-law doctrine Ker-Frisbie rule above the African Charter Act and above the statute then in force.

“They named the crime. They would not enforce the prohibition. They ordered continuation of counts the Court of Appeal had already quashed. A court that finds kidnap, prohibited by law, and then treats the Charter Act as a damages claim, has not applied the law. It has stepped around it.

“Error five — jurisdiction cannot be conferred by the order itself. Lawal Garba JSC, in the same judgment: “It is trite law that jurisdiction cannot be conferred by consent, agreement, or acquiescence of parties. Not even this court can confer jurisdiction where none exists”.

“On page 46 he left other issues for the trial court. Jurisdictional objections were raised before Justice Omotosho. He declined to hear them and convicted. If not even the Supreme Court can confer jurisdiction where none exists, “continuation” cannot be the source of the Federal High Court’s power over the counts the Court of Appeal had quashed.”

Childera insisted that the Supreme Court should explain if the Court of Appeal judgment that discharged and acquitted Kanu was a nullity. “Explain why it had to be set aside. If it was valid but wrong, explain the legal effect of setting it aside on the quashed counts. The State cannot occupy both positions,” he stressed.

The lawyer further challenged the Supreme Court to explain what law restored the charges quashed by the Court of Appeal on October 13, 2022, so that a fresh plea could be taken on March 21, 2025.

He therefore urged the NBA and IBA to demand answers over the Supreme Court’s decision to order a continuation of the trial, after the Court of Appeal had discharged the defendant.

He added: “A criminal proceeding if finally disposed of by an appellate court. The accused is discharged. The charges are quashed. The higher court funds kidnap, called repealed statutes extant, and orders continuation. A fresh plea is taken, conviction and life sentence follow. What legal mechanism connected the final appellate disposition to the new proceeding?”