The matter of releasing Nnamdi Kanu is not an act of mercy, executive clemency or even amnesty, says Barr Aloy Ejimakor, a constitutional lawyer.
Ejimakor is the special counsel to Mazi Kanu, leader of the Indigenous People of Biafra. Kanu is being detained at the custody of the Department of State Services despite having being freed by the Court of Appeals, Abuja, last year.
The court held that Kanu was illegally brought to Nigeria from Kenya, and ordered his restitution. Federal Government, then led by Muhammadu Buhari, ignored the order and sought stay of execution at the Supreme Court.
Kanu’s charges of jumping bail were earlier ruled in his favour by a High Court in Umuahia in a case instituted by Ejimakor.
Ejimakor, in a release, stated that releasing Kanu meant ‘doing the right by simply complying with the subsisting municipal Court Order or the standing international Tribunal Decision that independently declared his detention illegal’.
According to the legal luminary, “Alternatively, the decision can also properly proceed through a sound invocation of the copious constitutional provisions on discontinuation of prosecutions, such as this one that is irredeemably unsustainable.
“For avoidance of doubt, Nnamdi Kanu’s continuing detention is not legal but is, in the present circumstance, manifestly extrajudicial and unconstitutional to boot. Even the inception of his detention, following the rendition, was also not legal, because extraordinary rendition is an egregious State crime that destroys the legal capacity of the State to detain the victim of the rendition, in addition to also complicating the prosecutorial powers of the Sate against such victim.
“It is pertinent to note that in the previous but related matter of the infamous proscription of IPOB and the attendant criminalization of its vast members by the Nigerian government in 2017, I promptly levied a continental legal challenge against the proscription, and in March 2018, the continental Tribunal ruled in favor of Nnamdi Kanu/IPOB and accordingly directed the Nigerian government to reverse the proscription and cease and desist from any further law enforcement actions against Nnamdi Kanu and IPOB members.
“Thus, the subsequent rendition of Nnamdi Kanu, the arrests, the detentions, the tortures, the disappearances and the widespread extrajudicial killings of IPOB members should not have happened had the authorities complied with this landmark continental Decision.
“It is relevant to stress the fact that following the rendition, I had also initiated a complex constitutional suit against the government of Nigeria, and on 26th October 2022, the Federal High Court ruled in favor of Nnamdi Kanu and accordingly declared both the extraordinary rendition and the consequent detention as flagrant violations of the Constitution.
“Thus, Nnamdi Kanu’s release from detention vested from the very day this judgment was given, and the days are still counting to this day because the judgment is extant and not stayed. Therefore, if Nigeria truly respects her Constitution and her Courts, it will be needless to be constantly calling on the authorities to release Nnamdi Kanu on a competent judgment that unambiguously ordered his release.”
Recall that in July 2022, the United Nations, in a highly critical Opinion, directed that Nnamdi Kanu be freed unconditionally and even went further to call on Nigeria to pay reparations to him as recompense for the rendition.
Ejimakor asserts that, “As a bonafide member of the United Nations, Nigeria is bound by treaty and customary international law to faithfully comply with this directive. Failing to do so stigmatizes Nigeria as a nation that lacks respect for the United Nations – the same institution that passed the historic Resolution that legalized self determination and thus saw to Nigeria’s Independence.
“In view of the foregoing, it is a fallacy to suggest that releasing Nnamdi Kanu from detention is an act of mercy and failing that, an event that must await the uncertain conclusion of the appeal currently pending and delaying before the Supreme Court. To be sure, Nnamdi Kanu’s fate does not lie in this appeal alone because the appeal is but one of the several cases that were triggered – municipally and internationally – by the extraordinary rendition, and all the cases are independent, of equal stature and aimed at securing Nnamdi Kanu’s release.
“Therefore, the different moments in time when two of these several cases, in particular – the one initiated at the Federal High Court and the one initiated at the United Nations (both of which have concurrent jurisdiction over the rendition), were determined in favor of Nnamdi Kanu, the narrative that freeing him lies exclusively in the hands of the Supreme Court is fundamentally false. It is also malicious, prejudicial and profoundly injurious to Nnamdi Kanu’s legal interest, especially as it offers the authorities the umbrage and easy political cover to persist in the illegal detention of Nnamdi Kanu.
“It needs to be emphasized that for the obvious reason that Nnamdi Kanu is neither currently facing any trial, nor does he have any charges standing against him, his detention is – in reality – an imprisonment without conviction. In plain terms, he is a victim of false imprisonment by the State. A rough and tough imprisonment that is more horrendous when the locale is not a prison or a correctional institution but a hideous DSS cell, which is no different from a dank police cell or even worse in some ramifications.”