Detained leader of the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu, on Tuesday told the Federal High Court in Abuja that the terrorism charges against him were null and void, arguing that the law under which he is being tried had been repealed.
Kanu, who appeared in person before Justice James Omotosho, insisted that there was no valid or subsisting law backing the seven-count terrorism charge preferred against him by the Federal Government.
He therefore urged the court to order his immediate release from the custody of the Department of State Services (DSS), where he has been held since 2021.
Speaking firmly from the dock, Kanu said, “You cannot ask me to begin my defence when you have not stated the law under which I am being charged. The records of this court show there is no law backing these charges. I request to be released. My Lord, please take judicial notice of all the records before this court.”
At the resumed hearing, Kanu—who is conducting his own defence after disengaging his legal team—argued that the court lacked jurisdiction to continue the case since, according to him, the Terrorism (Prevention) (Amendment) Act 2013, under which he was charged, had been repealed by the Terrorism (Prevention and Prohibition) Act 2022.
He cited Madukolu v. Nkemdilim (1962) 2 SCNLR 341, a landmark Supreme Court decision which held that a court is competent to adjudicate on a matter only if it has jurisdiction and the case comes before it under a valid law.
“Jurisdiction is the lifeblood of adjudication. Once the enabling law has been repealed, the court’s authority evaporates. My Lord, I cannot be tried under a law that no longer exists,” Kanu said.
“The Terrorism Prevention and Prohibition Act 2022 repealed the earlier Terrorism Prevention (Amendment) Act of 2013. That means the charge before this court is dead. It is void ab initio. It is like trying a man for stealing under a law that has been wiped out of existence.”
Kanu invoked Section 36(12) of the 1999 Constitution (as amended), which provides that, “A person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore prescribed in a written law.”
He argued that a repealed law ceases to be a “written law” within the meaning of the Constitution. Continuing, he said:
“There is no valid law prescribing my alleged offence. Therefore, there is no valid charge. You cannot compel me to enter a defence under a repealed law. That would amount to a violation of my constitutional right to fair hearing.”
Kanu also referenced Section 1(3) of the Constitution, which declares that any law inconsistent with the Constitution shall be void to the extent of its inconsistency. He maintained that even if there was a saving clause in the repealing legislation, it could not revive a dead law in criminal proceedings.
“Even if there were a saving clause—which there is none—it cannot breathe life into a repealed criminal law. My Lord, a repealed law is like a dead body. No amount of judicial CPR can resurrect it.”
Kanu accused the trial court of disregarding the binding judgment of the Supreme Court delivered on December 15, 2023, in FRN v. Kanu, in which the apex court reportedly held that only one of the earlier counts—relating to alleged importation of radio equipment—could potentially be triable under the Customs and Excise Management Act (CEMA).
“The Supreme Court was clear that what remains triable, if at all, falls under the Customs and Excise law. Yet, the Federal Government insists on pressing terrorism charges under a repealed statute. That is a direct violation of the hierarchy of courts,” he declared.
He went further to suggest that even the Supreme Court may have made an inadvertent error when it referred to the repealed 2013 terrorism law as “extant.” According to him, the law had already been repealed by the 2022 legislation before the apex court’s pronouncement.
“It is possible that the Supreme Court acted per incuriam on that point. I have taken legal steps to bring that to their attention. But that cannot justify this court proceeding on a repealed law,” he said, choosing not to elaborate further in open court.
To strengthen his argument, Kanu cited several cases, including Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734, where the Supreme Court held that when an enabling law is repealed, any right or proceeding founded upon it collapses automatically.
He also referred to Abacha v. State (2002) 11 NWLR (Pt. 779) 437 and Utah v. State (2016) LPELR-40077(SC), emphasizing that “a court of law cannot breathe life into a statute that has ceased to exist”.
“When a law is repealed, its soul is gone. What remains is a corpse. This court cannot dress up that corpse and pretend it is alive. It cannot sit on a jurisdiction that no longer exists,” Kanu told the judge.
Turning to the question of jurisdiction over acts allegedly committed abroad, Kanu cited Section 76(1)(d)(iii) of the Terrorism (Prevention and Prohibition) Act 2022, which provides that where an alleged act occurred outside Nigeria, jurisdiction only arises if the act also constitutes an offence under the laws of that foreign country.
“My Lord, the prosecution has not produced any evidence from Kenya to show that anything I allegedly did was a crime there. Without such evidence, this court has no jurisdiction. The doctrine of double criminality is clear and mandatory,” Kanu argued.
He insisted that his extraordinary rendition from Kenya in June 2021 was unlawful and in flagrant violation of both Nigerian and international law.
“Section 35 of the Constitution guarantees my liberty. You cannot detain me indefinitely without a valid charge. That is not judicial detention, it is executive detention. The African Charter, which is part of Nigerian law, forbids it,” he said.
Kanu also expressed concern that the court’s repeated refusal to rule on his jurisdictional objection could create an appearance of bias.
“It creates the perception that this court is not neutral; that it is more concerned with sustaining the prosecution’s narrative than upholding the law,” he stated.
When Justice Omotosho asked him whether he was suggesting that the court was biased, Kanu replied calmly, “Not yet, My Lord.”
In response, the Federal Government’s lead counsel, Chief Adegboyega Awomolo (SAN), dismissed Kanu’s submissions, saying the documents filed by the IPOB leader lacked legal weight and should be ignored.
“My Lord, the defendant is not a lawyer. The documents he has filed are not competent in law. He is merely wasting the court’s time,” Awomolo said, urging the judge to treat Kanu’s written address as his final argument so that judgment could be delivered.
He prayed the court not to further indulge the defendant, whom he accused of using “technical antics” to delay the trial.
After listening to both sides, Justice Omotosho rejected the prosecution’s argument that Kanu’s filings were incompetent. He said the court would take them into account at the appropriate time.
“The court has taken notice of the fact that the defendant is not a lawyer. Therefore, he is given an opportunity to consult a legal practitioner for proper guidance,” the judge ruled.
However, Justice Omotosho cautioned Kanu against further delaying the matter and directed him to open his defence at the next sitting or risk forfeiting the right to do so.
“The defendant must enter his defence on November 7 or be foreclosed. The court will not entertain endless pre-trial arguments,” the judge warned.
Undeterred, Kanu maintained his stance that the charges were unconstitutional, declaring:
“Even if I don’t enter any defence, My Lord, you cannot convict me because you can’t convict someone without a written law as per Section 36(12) of the Constitution of Nigeria. So, my Lord, our efforts here are wasted.”
Kanu added, “It would be a deliberate deviation from the Constitution and a conscious embrace of illegality for a court of law to compel someone to enter defence without any charge. That is a weighty responsibility no judicial officer should carry.”
The court subsequently adjourned the case till Wednesday, November 7, for continuation of proceedings, during which Kanu is expected to either open his defence or have his right to do so waived.
