Nnamdi Kanu Seeks Court Ruling to Stop Prosecution Over Repealed Terrorism Charges

Nnamdi Kanu, leader of the Indigenous People of Biafra (IPOB), has filed a preliminary objection seeking to halt his ongoing prosecution on terrorism-related charges.

Kanu contends that prosecuting him under the repealed Terrorism (Prevention) Amendment Act 2013 violates several constitutional provisions, including Sections 1(3), 36(1)–(12), and 42 of the Nigerian Constitution, as well as Articles 7 and 26 of the African Charter on Human and Peoples’ Rights.

The motion was filed before the Abuja Federal High Court, presided over by Justice James Omotosho, under SUIT NO: FHC/ABJ/CR/383/2015.

Kanu’s legal team insists that the court must rule on the preliminary objection before he proceeds to enter his defence in the case.

The motion reads: “A Declaration that the continued prosecution of the Defendant under the repealed Terrorism (Prevention) Amendment Act 2013, and upon a proscription order obtained ex parte and without fair hearing, violates Sections 1(3), 36(1)–(12), and 42 of the Constitution and Articles 7 and 26 of the African Charter, and is therefore null and void.

“A Declaration that the Federal High Court’s ex parte order proscribing IPOB, obtained without notice or hearing and while Justice Binta Nyako’s subsisting ruling (that ‘IPOB is not an unlawful society’) remained in force, is unconstitutional, unlawful, and cannot ground criminal liability.

“An Order striking out or permanently staying Counts 1–8 (save Count 15) of the Amended Charge dated 14 January 2022 for being barred by double jeopardy, having the same factual ingredients as Counts 6–14 earlier struck out by the Federal High Court on 8 April 2022.

“An Order declaring that the Defendant’s extraordinary rendition from Kenya without extradition proceedings or due process violated Section 36(1) & (9) of the Constitution, the Extradition Act (Cap E25 LFN 2004), and Articles 12 and 13 of the African Charter, thereby robbing this Honourable Court of jurisdiction.

“An Order nullifying all proceedings conducted in breach of the Defendant’s right to adequate facilities for defence, confidential communication with counsel, and fair hearing—particularly the eavesdropping, seizure of legal materials, and denial of unmonitored access. And for such further order(s) as this Honourable Court may deem fit to make in the circumstance.”

The IPOB leader said his continued prosecution despite the “binding Court of Appeal discharge of 13 October 2022 and eight-day post-judgment detention constitutes flagrant contempt of court.”

The motion of preliminary objection was supported with an affidavit deposed to by Kanu himself.

According to the affidavit: “I, MAZI NNAMDI KANU, Male, Adult, British Citizen and Nigerian, currently detained at the Headquarters of the Department of State Services, Abuja, DO SOLEMNLY SWEAR AND STATE AS FOLLOWS:

“That I am the Defendant/Applicant in this Motion and I depose to this affidavit based on my personal knowledge, except where it is otherwise stated.

“I was first arrested in Lagos on 14th October 2015 by officers of the DSS led by one Temisan John; and I was subsequently first arraigned on 23rd November 2015 before the Abuja Chief Magistrate Court for charges of criminal conspiracy, intimidation, and membership/leadership of an illegal organization (IPOB), etc., whereupon I was granted bail but the bail order was not obeyed.

“On 16th December 2015, I was DISCHARGED by the Abuja Magistrate Court pursuant to an application brought by the DSS on grounds that the Magistrate Court lacked jurisdiction to try the charges.

“On 11th November 2015, Justice Adeniyi Ademola of the Federal High Court, Abuja, granted an application brought under Section 27(1) of the Terrorism Prevention (Amendment) Act 2013 by the DSS for my pre-trial detention, whereby my detention continued.

“On 17th December 2015, the same Justice Ademola ordered the DSS to RELEASE me forthwith and unconditionally since no charge was pending against me at the time of the order. Justice Ademola was later arrested and detained by the DSS because of this order of release.

“While steps were being taken to free me from detention pursuant to Justice Ademola’s order of unconditional release, the DSS/AGF filed new six-count charges against me and two others before the Federal High Court, Abuja. The charges bordered on criminal conspiracy, treason, illegal importation of radio transmitter and possession of firearms, defamation of late President Buhari, and membership of an unlawful/illegal organization (IPOB). There were no charges bordering on incitement of terrorism.

“On 23rd December 2015, I was arraigned for the first time before a Federal High Court presided over by Justice Mohammed in Abuja. The Judge was later recused from the case.

“On 26th September 2016, I appeared before another judge of the Federal High Court (Justice John Tsoho), who later transferred the case to Justice Binta Murtala-Nyako.

“On 1st March 2017, pursuant to my motion, Justice Nyako partially upheld my preliminary objection and struck out some of the counts, including the one relating to membership/management of an unlawful/illegal organization or proscribed organization (i.e. IPOB). See Exhibit MNK 1.

“On 25th April 2017, Justice Nyako granted me BAIL and I was released the same month; the case was then set for trial on 20th October 2017, whereupon I travelled to my hometown of Afaraukwu Ibeku, Abia State, and awaited my next trial date.

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“Between 10th and 17th September 2017, the Nigerian Army (aided by other security agencies, including the DSS) launched military operations against me and my family at my ancestral (royal) home in the said Afaraukwu Ibeku, Abia State, which directly caused me to flee Nigeria and thus ultimately miss my next trial date set for October 2017. My parents (who were at home during the attack) sustained severe injuries from the military attack and died a few days apart from the complications of their injuries. Twenty-eight persons (mostly young people) were killed, and many others taken into custody and detained to this day at Wawa Barracks in Niger State and other disparate military/DSS locations in Nigeria.

“In January 2022, the High Court of Abia declared the said September 2017 military assault as a violation of my fundamental rights and awarded me ONE BILLION NAIRA and ordered the Complainant to apologize to me. The Court also called on the Federal Government to pursue the path of ‘amicable settlement’ of the charges standing against me. See Exhibit MNK 2.

“On 20th September 2017, the Federal Government succeeded on an ex parte application that proscribed the IPOB and declared it a terrorist group. The application was filed the same day (20th September 2017). The IPOB appealed the proscription, and following the decision of the Court of Appeal upholding it, the IPOB proceeded on appeal to the Supreme Court, has now settled the Brief, and has equally filed an application for injunction pending appeal. The processes are currently pending before the Supreme Court. To date, the Respondent in the appeal (Complainant and its confederate) has neither filed its Brief nor countered the application for injunction pending appeal. To be sure, six of the seven-count charges levied against me are predicated on the said ex parte order that remains non-final, as it is currently pending the determination of the Supreme Court.

“On 18th March 2018, the African Union, through its human rights tribunal (the African Commission on Human and Peoples’ Rights), in an Interim Decision, declared the proscription of IPOB and my arrest and prosecution as violations of the African Charter on Human and Peoples’ Rights, which Nigeria ratified in 1983. Consequently, the Commission issued a ‘cease and desist’ directive to late President Buhari to halt any further arrests and prosecutions in order ‘to prevent irreparable injury’ to myself and the IPOB. See Exhibit MNK 3.

“On 1st October 2020, the United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism declared the proscription of IPOB/the terrorist tag and my arrest/prosecution as violations of international human rights laws and an act of discrimination against the Igbo ethnic group. See Exhibit MNK 4.

“In October 2022, the High Court of Enugu State declared as unconstitutional the executive and administrative steps taken by the Federal Government to proscribe IPOB and awarded EIGHT BILLION NAIRA against the Complainant. This judgment is subsisting and not appealed. See Exhibit MNK 5.

“In November 2018 (so soon after I managed to make my way to Israel), I took prompt steps to execute a detailed deposition personally sworn to by me, in which I fully disclosed my location. In the affidavit, I copiously averred to the life-and-death reasons (bordering on the said military assault and the Complainant’s unrelenting hot pursuit of my person), which altogether compelled me to flee for my safety and self-preservation, and I undertook to return to Nigeria and appear for my trial if my safety from the Complainant could be guaranteed; yet this affidavit was never considered by the former trial judge before she revoked my bail.

“In the course of my exile abroad, I travelled to the Republic of Kenya several times solely on my British passport, and on 12th May 2021, I entered Kenya as a bona fide British citizen and was legally admitted as such on my British passport. I carried no Nigerian passport. After my admission, I settled in at a temporary location in Nairobi, Kenya.

“On 19th June 2021, I drove myself to Jomo Kenyatta International Airport, Nairobi, Kenya, on a personal errand. And as soon as I pulled to a stop at the parking lot of the airport and alighted from my vehicle, several armed men (later determined to be agents of the Complainant) violently accosted and abducted me, handcuffed me, blindfolded me, bundled me into a vehicle, and sped away.

“My abductors took me to a nondescript private house (not a police station or other official location) somewhere in Nairobi, Kenya, and chained me to the floor. Throughout this ordeal, I was not shown any Kenyan arrest warrant or extradition warrant, nor was I informed of the existence of any such warrant.

“While chained to the floor, my abductors took turns beating and torturing me to the point that I fainted several times and was intermittently revived when they poured cold water on me.

“I remained chained to the floor for eight (8) days and was not allowed to bathe, was fed only bland bread once a day, and given non-sanitary water to drink.

“My entreaties to my abductors to avail me medications for my hypertension were flatly refused; they also refused to present me before a Kenyan Court or police station or any other official law enforcement facility, and I was not allowed a phone call to a lawyer, my relatives, or doctor.

“On the eighth day (27th June 2021), my abductors brought me out of the house, bundled me into a waiting car, drove me straight to the tarmac of Jomo Kenyatta International Airport, where they evaded Kenyan immigration and forcibly bundled me into a private jet that departed the airport at about 12 noon on June 27, 2021, and arrived in Abuja, Nigeria, in the evening of the same day. Throughout the flight, I was handcuffed to the iron rail of the aircraft seat, which caused me significant wrist bruises. My legs were also manacled in a very painful and excruciating manner.

“On arrival in Nigeria, I was taken to and detained at the headquarters of the National Intelligence Agency (NIA) in Abuja, where I spent the first night sleeping on the floor with very bright electric bulbs deliberately left on throughout the night. Two days later, I was transferred to the DSS detention facility in Abuja and held in solitary confinement.

“On 29th June 2021, I was presented (by the DSS) before Justice Binta Murtala-Nyako, and without notice to my Counsel of record before the Court, the Court conducted a hearing and remanded me to the custody of the DSS, pursuant to the DSS’s application. The Complainant’s Counsel was present in Court and addressed the Court, urging my non-prison remand.

“Between June 2021 and January 2022 (post-rendition), the Complainant amended the charges several times and in the process dropped ALL the pre-rendition charges except the one that bordered on importation of a radio transmitter. All the fourteen new charges (or post-rendition charges) bordered on membership of IPOB and incitement of terrorism and were brought under the Terrorism Prevention (Amendment) Act (TPAA) of 2013 that was still extant at the time.

“On 26th August 2021, the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman Treatment declared my abduction, disappearance, torture (in Kenya), and subsequent extraordinary rendition to Nigeria as violative of all pertinent international laws. See Exhibit MNK 6.

“In July 2022, the United Nations Human Rights Council, in an opinion, declared my forcible return to Nigeria (and absence of extradition proceedings in Kenya) as an ‘act of extraordinary rendition’ and directed that I be unconditionally released and compensated. See Exhibit MNK 7.

“In October 2022, the Federal High Court declared as unconstitutional my ‘arrest’ and continued detention in Abuja and awarded FIVE HUNDRED MILLION NAIRA to me and against the Complainant. See Exhibit MNK 8.

“On 8th April 2022, the Federal High Court (coram: Justice Binta Murtala-Nyako) struck out eight of the 15-count charges and set down seven counts for trial, whereupon I appealed to the Court of Appeal against the remaining charges.

“On 13th October 2022, the Court of Appeal, in a landmark judgment, allowed my appeal, held that the Federal High Court lacked jurisdiction to try me due to the Complainant’s ‘reckless and grotesque’ violation of my fair hearing rights (of extradition) and the resort to extraordinary rendition, and consequently DISCHARGED me from all charges, yet the Complainant refused to release me from detention, justifying it on a stay of execution it obtained eight days later from the same Court of Appeal.

“Prior to my discharge by the Court of Appeal, the TPAA 2013 under which I was charged (and still charged) had already been repealed by the Terrorism Prevention and Prohibition Act, 2022 (TPPA), which came into force in July 2022.

“The Complainant appealed the Court of Appeal’s discharge to the Supreme Court, and on 15th December 2023, the Supreme Court set aside the Court of Appeal’s judgment on jurisdictional grounds but affirmed the act of rendition as illegal and ‘criminal’. It then remitted the case to this Honourable Court for trial. See Exhibit MNK 9.”