By ALOY EJIMAKOR
For the benefit of those who asked me, the truth is that Mazi Nnamdi Kanu properly exercised his constitutional right back September last year when he requested Justice Binta Murtala-Nyako to recuse herself from presiding over his case.
By any definition, it was an informed decision that is bereft of any personal animosity or any intransigence to the judicial order, even when it rankled some as brazen and gutsy.
In particular, the action was propelled by a simmering loss of confidence in the judge, stemming from these key events:
First, back in June 2021, the judge conducted a hearing by which Mazi Kanu (an awaiting-trial) was ordered remanded without notice to, and the presence of his former counsel (of record) at the hearing. That was a grave constitutional error that turned highly prejudicial against Mazi Kanu.
Second, Mazi Kanu was ordered detained in a DSS cell instead of a prison as the law requires, albeit with some exceptions. The excuse then (which – by the way – fell outside the exceptions) was that every penitentiary in Nigeria is porous or pathetically low-security. This excuse suggested a judicial state of mind that imputed a proclivity for jailbreak to Mazi Kanu. That’s wrong and presumptuous.
Third, when the DSS detention posed grave risks to Mazi Kanu’s constitutional right to fair hearing and to counsel, the judge summarily refused his application for transfer to prison or other less restrictive facility. That’s manifest injustice.
Fourth, when the Supreme Court ruled against Mazi Kanu’s bail revocation, the same judge who had revoked his bail refused to reinstate the bail. That’s an egregious violation of the constitution and the doctrine of stare decisis.
Fifth, the Supreme Court had held that, by revoking Mazi Kanu’s bail, the judge’s impartiality has become suspect. If you would like a partial judge to try your case, go ahead and take the chance, but keep in mind that it will amount to deadly hubris to ignore such a weighty censure from the apex court.
And sixth, despite the enormous risks to Mazi Kanu’s right to fair hearing posed by the strict conditions of his detention at the DSS, the judge ordered an accelerated trial. That’s the last straw that broke the camel’s back.
If you are wondering about the next steps, here it is: Given that the judge had affirmed the recusal in good faith and enrolled an order in that regard, the case will remain in limbo until another judge is assigned to handle it by the Chief Judge of the Federal High Court.
That a new or another judge has not been assigned to the case and such has lingered for an unreasonable period of time, a vigorous case can be made that the continued incarceration of Mazi Kanu has become unconstitutional by effluxion of time.
In plain terms, the constitution forbids the authorities from detaining anybody without trial beyond a limited period of time. In this very case, that period time has come and passed.
And this: This judicial gridlock is not the fault of Mazi Kanu. It’s instead the fault of the authorities that have proved unable or unwilling to conduct Mazi Kanu’s case in accordance with the dictates of the constitution and the statutes pertinent to the case. And to make matters worse, the extraordinary rendition brought its own unique complications that have not settled to this day.
Presently, there is no pathway for legally resuming the trial before Justice Binta Murtala-Nyako, because her order of recusal remains extant and subsisting to boot. Thus, any step taken in violation of the order will trigger a rash of countervailing measures that will surely culminate in more significant legal complications. Bottom line: Mazi Kanu is never going back to Egypt.
Aloy Ejimakor is the Special Counsel for Mazi Nnamdi Kanu
