A lawyer, Onyedikachi Ifedi, has questioned the legal basis for the Supreme Court’s decision to revive charges that had earlier been quashed by the Court of Appeal in the terrorism trial of Nnamdi Kanu, leader of the Indigenous People of Biafra (IPOB).
Ifedi, a member of the Mazi Nnamdi Kanu Global Legal Consortium, argued that the apex court’s 2023 judgment did not clearly identify the law that empowered it to resurrect the counts that had been struck out by the Court of Appeal.
The Court of Appeal had, in its October 13, 2022 judgment, discharged and acquitted Kanu on several counts of the 15-count charge. It struck out counts 6, 7, 8, 9, 10, 11, 12 and 14, holding that they did not disclose offences against him, while retaining counts 1 to 5, 13 and 15.
The Federal Government appealed the decision to the Supreme Court. On December 15, 2023, the apex court set aside the Court of Appeal’s judgment and ordered that Kanu’s trial should continue at the Federal High Court.
Ifedi is now questioning how the Supreme Court’s decision effectively restored charges that the Court of Appeal had already quashed.
He asked what law authorised the Supreme Court to revive the seven counts and what law permitted it to alter the statutory foundation of another count.
According to the lawyer, appellate jurisdiction gives a higher court the authority to review decisions of lower courts, but that authority does not automatically give it the power to create or resurrect a criminal charge without a legal basis.
He also challenged the Supreme Court’s treatment of Count 15, which concerned the alleged importation and concealment of a radio transmitter.
Ifedi said the original count cited the Criminal Code Act, but the Supreme Court identified the relevant statutory provision as Section 47(2)(a) of the Customs and Excise Management Act (CEMA) and treated the reference to the Criminal Code as a mistake.
The lawyer questioned what legal provision allowed the Supreme Court to substitute one statute for another in the foundation of a criminal accusation.
He argued that the Supreme Court is an appellate court and should remain a neutral arbiter rather than effectively supplying a statutory basis for the prosecution.
Ifedi also raised questions about the effect of the subsequent recusal of Justice Binta Nyako, who had previously handled Kanu’s trial. Following her recusal, the case was assigned to Justice James Omotosho, before whom proceedings began afresh.
The lawyer acknowledged that the change of judge could explain why a fresh plea was required, but argued that it did not resolve the more fundamental question of whether the quashed counts remained legally valid.
He distinguished between procedure and jurisdiction, arguing that changing the judge could restart proceedings but could not by itself restore a criminal charge that had previously been quashed.
The controversy also touches on the legal status of statutes cited in Kanu’s charge. Kanu’s defence has repeatedly argued that some of the laws underpinning the charges had been repealed, including the Terrorism (Prevention) (Amendment) Act 2013, which was replaced by the Terrorism Prevention and Prohibition Act 2022.
The defence has therefore maintained that prosecuting Kanu under repealed legislation raises fundamental questions about whether the charges constitute offences recognised by an extant Nigerian law.
However, the Supreme Court’s 2023 decision remains binding unless it is subsequently overturned or otherwise displaced through a lawful judicial process. The latest comments from Ifedi represent a legal challenge to the reasoning and implications of that judgment rather than a reversal of it.
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