Why we blocked Nnamdi Kanu’s trial when I was lead counsel

BY ALOY EJIMAKORThis article sets out the reasons why the legal team of MaziNnamdi Kanu had successfully blocked his trial when I was lead counsel betweenFebruary 2024 and February 2025. They are the same reasons Kanu had alsoinsisted that Justice Omotosho should ‘show him the law’ under which he wasbeing tried. And going forward, they are the same reasons the Court of Appealwill most likely overturn Kanu’s conviction. To begin with, the charge sheet indicated that all theterrorism-related charges against Kanu were predicated on broadcasts he madebetween 2018 and 2021 from locations outside Nigeria, presumably from Britainand Kenya. The charges were initially brought under the Terrorism Prevention(Amendment) Act 2013 (TPAA 2013), which granted the Federal High Courtextraterritorial jurisdiction without a double criminality requirement, meaningthat jurisdiction lies whether the act (broadcast) occurred in Nigeria or abroad,provided that it had impact in Nigeria. In 2022, the TPAA 2013 was repealed and replaced by theTerrorism Prevention and Prohibition Act 2022 (TPPA 2022). Section76(1)(d)(iii) of the TPPA 2022 introduced a double criminality test as acondition precedent before the Federal High Court can assert extraterritorialjurisdiction, stating clearly that the act (broadcast) must also “constitute anoffence under the law of the foreign state” where the broadcast was made. Recall that Kanu was extraordinarily renditioned to Nigeriain June 2021. While the Court of Appeal discharged him in October 2022 due tothis illegality, the Supreme Court, in December 2023, upheld the validity ofthe trial on the charges, despite the rendition, and remitted the case fortrial. Before Justice Murtala-Nyako, myself and the legal team had raised anobjection to Justice Murtala-Nyako’s jurisdiction on the basis of two issues,namely: Whether the Court should apply the double criminality test underSection 76 of the TPPA 2022; and whether the failure to specify the foreigncountry from which the broadcasts were made constitutes a fatal jurisdictionaldefect. Justice Murtala-Nyako overruled our objection and we appealed to theCourt of Appeal. But while the appeal was pending, Justice Murtala-Nyako wasrecused in February 2025 and the case was assigned to Justice James Omotoshofor a trial de novo (anew). For avoidance of doubt, under long-standingNigerian jurisprudence, a de novo trial post-repeal invokes the new law(Adegbenro v. Akintola (1963) 1 WLR 797 (PC). When the case commenced anew before Justice Omotosho, I wasno longer lead counsel and the new lead counsel decided that – instead ofraising the same objection based on jurisdiction – it was smarter to allow thetrial to proceed because of his assessment that the charges lacked evidentiarymerit. But simmering in the background was this nagging feeling that the Courtis bound to apply the double criminality test under Section 76 of the TPPA2022; and that the prosecution’s stubborn reliance on the repealed TPAA 2013smacked of sophistry aimed at avoiding this substantive safeguard in the newlaw. It is conceded that the offences with which Kanu was chargedwere allegedly committed between 2018 and 2021 when the TPAA 2013 was still inforce. It is also true that the TPPA 2022 did not repeal the TPAA 2013 intooblivion and it contains specific savings clauses in Sections 97 and 98 thatpreserved liabilities incurred, investigations and legal proceedings commencedand ongoing under the repealed Act. At first impression, this suggests that thetrial itself can continue. However, the Supreme Court has held in many casesthat repealed laws cannot sustain trials (Ifediora v. Idigo (1988) 2 NWLR (Pt.76) 239). Section 98 TPPA (relied upon by Justice Omotosho) saves offensesallegedly committed pre-repeal (2018–2021) but not a jurisdictional issue likedouble criminality, a substantive precondition that must be met. In DPP v.Okocha (2004) 8 NWLR (Pt. 874) 186, jurisdictional hurdles were assessed undercurrent law, not the repealed law, despite saving clauses. More reasons are asfollows: First, the double criminality requirement fundamentallyalters the legal definition of an extraterritorial offence. Under the TPAA2013, an act committed abroad was an offence only if it had an “impact inNigeria.” Under the TPPA 2022, that same act is only an offence if it (i) hasan impact in Nigeria, and (ii) is also a crime in the foreign country where itwas committed. Second, Section 76 acts as a legislative gatekeeper for thecourt’s power. Without satisfying the double criminality test, the court lacksthe jurisdiction to try the accused for acts committed extraterritorially underthe new legal regime. Third, the double criminality provision affords asignificant substantive right to an accused person: the right not to be triedin Nigeria for a conduct that was lawful in the jurisdiction where it happened.This is a core element of the principle of legality and fairness ininternational criminal jurisdiction and the Nigeria

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