A lawyer representing the detained leader of the Indigenous People of Biafra, Nnamdi Kanu, Onyedikachi Ifedi, has questioned the legal basis for the Supreme Court’s decision ordering the continuation of Kanu’s trial after the Court of Appeal had earlier quashed the charges against him.
Ifedi, a member of the legal consortium representing Kanu, raised the questions on Sunday while challenging the legal implications of the Supreme Court’s December 15, 2023 judgment.
The Court of Appeal had, on October 13, 2022, quashed the charges against Kanu and discharged him. However, the Supreme Court subsequently set aside the decision and ordered that his trial should continue.
According to Ifedi, the Supreme Court’s appellate jurisdiction did not, by itself, confer on it the power to revive criminal charges that had been quashed by the Court of Appeal.
He argued that although the recusal of Justice Binta Nyako and the subsequent transfer of the case to another judge could have resulted in procedural changes, they did not resolve the legal status of the counts that had previously been quashed.
“Recusal can change the judge and restart procedure. It cannot answer a more fundamental question: what was the legal status of the counts to which the accused was asked to plead?” he said.
The lawyer also questioned the treatment of Count 15, which was later numbered Count 7 at the Federal High Court.
He said the count originally cited Section 47(2)(a) of the Criminal Code Act, Cap C45, but that Justice Lawal Garba held that the citation was erroneous and that the facts disclosed an offence under Section 47(2)(a) of the Customs and Excise Management Act, Cap C45.
Ifedi argued that the Supreme Court should identify the legal authority empowering it to substitute the statutory foundation of a criminal charge.
“The Supreme Court is not the prosecutor. It is a neutral arbiter. If the law gives it the power to substitute the statutory foundation of a criminal accusation, show us the law,” he said.
He further challenged the continued reference to the Customs and Excise Management Act, Cap C45, as an extant law in December 2023, arguing that the legislation had been repealed by the Nigeria Customs Service Act 2023 on April 20, 2023.
The lawyer therefore questioned whether any law preserved the continued applicability of CEMA after its alleged repeal.
“If such a law exists, identify it. Show us the law,” he said.
Ifedi maintained that the Federal High Court’s jurisdiction over terrorism-related offences should be distinguished from the question of whether there was a valid charge before the court in Kanu’s case.
He argued that the proper legal sequence should be “law, charge, jurisdiction, trial,” rather than allowing a court order to create the basis for a criminal charge and subsequent trial.
The lawyer cited the Supreme Court’s decision in Onu Okafor v The State (1976), arguing that it reinforced the need for a valid legal foundation for criminal proceedings.
He said the Supreme Court’s final position within Nigeria’s judicial hierarchy did not mean the court could create criminal law or exercise powers not conferred on it by legislation.
“The Supreme Court’s finality does not mean that law becomes unnecessary,” Ifedi said.
He consequently urged members of the legal community to identify the statutory provisions supporting the revival of the quashed charges, the substitution of the statutory foundation of Count 15 and the continued applicability of CEMA Cap C45 after its alleged repeal.
