Kanu’s legal team argues that the Federal Government’s continued prosecution is unconstitutional, citing multiple violations of his fundamental rights, international law, and the jurisdictional competence of the court.
The detained leader of the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu, has filed a preliminary objection before the Federal High Court in Abuja, seeking to strike out or permanently stay his ongoing trial on terrorism-related charges.
Kanu’s legal team argues that the Federal Government’s continued prosecution is unconstitutional, citing multiple violations of his fundamental rights, international law, and the jurisdictional competence of the court.
In the motion, filed pursuant to Sections 1, 35, 36, 42, 45, and 46 of the 1999 Constitution (as amended) and several international human rights treaties, Kanu seeks a declaration that his prosecution under the repealed Terrorism (Prevention) Amendment Act 2013 is “null and void.”
He contends that the law under which he is being tried was repealed by the Terrorism (Prevention and Prohibition) Act 2022, and therefore cannot sustain any criminal charge.
Kanu also challenges the 2017 proscription of IPOB, describing the order as unconstitutional because it was obtained ex parte, without notice or fair hearing, and in disregard of a subsisting ruling by Justice Binta Nyako, who had earlier held that IPOB was not an unlawful society.
following Grounds: Ground 1 Contempt and Jurisdictional Defect.
“The continued prosecution of the Defendant despite the binding Court of Appeal discharge of 13 October 2022 and eight-day post-judgment detention constitutes flagrant contempt of court. Under Ojukwu v. Military Governor of Lagos State (1986) 1 NWLR (Pt. 18) 621, a party in disobedience cannot seek the Court’s indulgence. A court cannot lawfully proceed in favour of a contemnor; jurisdiction is ousted.
“Ground 2-Void Charge under Repealed Statutes: All charges are framed under repealed laws, namely the Terrorism (Prevention) Amend Act 2013 and the Customs and Excise Management Act, both extinguished by the Terrorism (Prevention and Prohibition) Act 2022 and the Customs and Excise Management (Repeal and Re-enactment) Act 2023. Under Section 98(3) TPPA 2022, Section 36(12) CFRN and Section 122(2)(a) Evidence Act 2011, a repealed law cannot found criminal liability.
“Ground 3 – Absence of Jurisdiction Following Extraordinary Rendition: The Defendant’s kidnap and transfer from Kenya without extradition process (CA/ABJ/CR/625/2022) violated Sections 36(1), (8), and (9) CFRN. Section 76(1)(d)(ii)-(iii) TPPA 2022. and Articles 7, 12, and 13 of the African Charter. The Court of Appeal in FRN v. Kanu (CA/ABJ/CR/625/2022) held that such rendition deprives any Nigerian court of jurisdiction to try him.
“Ground 4-Continuing Violations of Fair Hearing and International Comity. The denial of fair hearing in Kenya, the breach of international comity, and the failure to restore the Defendant to the status quo ante before re-arraignment render this prosecution unconstitutional. Section 36 is non-derogable; once violated, the trial collapses. See Garba v. University of Maiduguri (1986) 1 NWLR (Pt 18) 550; Abacha v. Fawehinmi (2000) 6 NWLR (Pt 660) 228.
“Ground 5-Denial of Adequate Facilities and Void Proscription. The State’s eavesdropping on counsel-client meetings and seizure of legal materials offend Section 36(6)(b)-(d) CFRN. The ex parte proscription of IPOB-procured in defiance of Justice Nyako’s subsisting order and pending appeal to the Supreme Court-is unconstitutional. A-G Lagos v. A-G Federation (2014) 9 NWLR (Pt 1412) 217 confirms that only express appellate reversal can alter a binding judgment.
Credit: Sahara Reporters