The conviction and life sentence handed to Mazi Nnamdi Kanu by an Abuja Federal High Court presided over by Justice James Omotosho has continued to generate intense debate. This is expected given that the entire circumstances of Kanu’s trial are such that are implicated in the complex medley of ethnicity and politics that has been a marked feature of our polity, and which endlessly produces contestations and divisions.
There have been suggestions that Kanu is innocent and should not have been subjected to criminal trial in the first place. Anyone who followed his Radio Biafra broadcasts would sincerely wonder how some persons ended up with this view. Many of Kanu’s speeches were inciting, directly encouraging violence and murder. I personally heard him speak thus, and the court judgment copiously quoted many of such speeches.
One doesn’t have to personally perpetrate violence to be guilty of incitement which is a criminal offence in law. Mere urging of people to break into prison and free detainees, burn police stations, kill police and military officers, overrun the British High Commission and kill the High Commissioner etc. as Kanu did via his broadcasts is itself a crime. Thus, the question of whether these acts were actually carried out or not, or whether those who carried them out were actually acting based on Kanu’s urging or not are completely immaterial. This is the law, and it is important to sound it firmly and loudly for the benefit of those arguing based on the above questions. For example, section 50 and 51 of Criminal Code Act criminalizes inciting Nigerians against the government or against themselves. This is what is called sedition or seditious libel, and it was based on it that Nnamdi Azikiwe was convicted and jailed in the Gold Coast (now Ghana) in 1937 when he was the editor of the AFRICAN MORNING POST (the same law operated both in Nigerian and Ghana as British colonies). Zik did not carry arms but was jailed for what was published in a newspaper he edited.
However, Kanu was charged under the Terrorism (Prevention and Prohibition) Act and not for sedition. But again, one does not have to carry a gun to become guilty of terrorism. Mere threat of violence can constitute terrorism based on its definition by the Nigerian law, the United Nations, the European Union, the FBI etc. I wrote my master’s thesis on terrorism, so am conversant with these definitions. Kanu’s numerous threats of bombing, violence, and killing in the course of his agitation for Biafra can easily constitute terrorism. Threats of violence in pursuit of a political goal are terrorism, according to the law and other definitions I have encountered. Threats that aim to “intimidate a population” in this way constitute terrorism based on the law. Kanu used threats of violence to intimidate the population of the southeast into observing the destructive sit-at-home exercise. Events were cancelled, travels postponed, businesses closed, examinations abandoned etc., and these were done because of fear of violence. What else is “intimidation of a population”? What else is terrorism?
However, to make Kanu’s case more irremediable, many of what he urged in his broadcasts were actually carried out. (Is that a mere coincidence? If you answer in the affirmative, the burden of proof lies on you) For instance, his repeated calls for storming of police stations and killing of police and military men were happening at the time he was urging them. In fact, after the killing of soldiers and dumping of their bodies in a well at Okporo in Orlu LGA of Imo state in 2020, Kanu, in his broadcast, hailed the perpetrators as Biafra heroes and urged more of such. Similarly, many of the violence perpetrators identified Kanu as their hero, which is very instructive here. There is ample video evidence on the Internet regarding this.
In the face of all this, however, supporters of Kanu have tried to dissociate him from the criminals. This is to no avail as the reality out there says a different thing. For example, Kanu told the world that Ikonso, a well-known killer, was the commander of his ESN. Those from Awo Omamma in Oru East LGA of Imo state are well aware of his criminal exploits. When he was killed by soldiers, Kanu spat fire threatening that his death would be avenged with 2, 000 human heads. I listened to this live broadcast on a particular Monday morning. Again, Gentle Yahoo, a notorious blood thirsty killer recently nabbed by security agents, was Ikonso’s boy (this is well-known). Both Ikonso and Gentle Yahoo were in the very nucleus of Kanu’s ESN.
Kanu sowed the seed of ideology-driven criminality in southeast Nigeria.
What of Simon Ekpa, the terrorist convicted in Finland whose activities some people have been labouring hard to dissociate Kanu from? I knew about Ekpa first on Kanu’s Radio Biafra where he introduced him as a true son of Biafra and urged all to listen to him – and indeed the likes of Gentle Yahoo listened to him. With Kanu in detention, Ekpa filled the void by continuing with the inciting and hateful broadcasts.
Then there is this question of Kanu being tried based on a repealed law. That argument labours in the face of the true position of the law that a criminal proceeding began under a law may continue and be concluded under it even if the law becomes repealed midway. The only exception is when the new law expressly states otherwise. Section 98(3) of Terrorism (Prevention and Prohibition) Act provides: “Any proceeding, prosecution, sentence, judgment, charge or cause of action pending or existing immediately before the commencement of this Act under any of the repealed Acts in respect of any right, interest, obligation or liability, may be continued or commenced, as the case may be, and any determination of a court of law, tribunal or other authorities or person may be enforced to the same extent that such proceeding, prosecution, sentence, judgment, charge, cause of action or determination might have been continued,
commenced or enforced as if this Act had not been made.”
This is what is referred to in law as “saving provision” and its purpose is to avoid any legal gaps as a result of repeal or amendment of an existing law.
Then again, another argument that has challenged the justice of Kanu’s trial and conviction is his rendition from Kenya. Kanu’s lawyers argued that his abduction and rendition, being contrary to international law, oust the jurisdiction of the court to try him. The Supreme Court disagreed with this and ruled that he could be tried. The High Court that tried him also addressed this matter of jurisdiction in the judgment, holding that the manner of apprehension of a suspect does not affect the jurisdiction of the court to try them. I completely agree with this. The court was right that a person wrongfully renditioned can only seek civil remedies and which Kanu has successfully done in Kenya where a court has declared his rendition unlawful and awarded monetary damages. What applies here is the same principle in law of evidence that states that a piece of evidence does not necessarily become inadmissible just because it was illegally obtained. This is a long established principle in Kuruma v R (1955) where the Judicial Committee of the Privy Council of the House of Lords (the highest court under the colonial Britain) held that, “The test of admissibility is relevance. If the evidence is relevant to the matters in issue, it is admissible, even if obtained illegally.” In other words, evidence is admissible if it is relevant, even if obtained improperly or illegally. The Nigerian Supreme Court has repeatedly affirmed this principle relying on the decision in Kuruma v R. The essence of such principles is to privilege justice over procedural technicalities.
But then come to think of it, even in advanced democracies we admire, cases of persons that were tried and convicted after being abducted and renditioned abound. In 1960, Israel abducted Adolf Eichmann from Buenos Aires, Argentina, renditioned him to Israel, tried him and sentenced him to death. Mordechai Vanunu equally faced 18 years imprisonment in 1986 having also been illegally repatriated from the UK by Israel. For the United States, the list is endless and includes rendition and trial of John Walker Lindh (2002), Jose Padilla (2003), and Ali Saleh Kahlah al-Marri (2003). The laws in these advanced democracies did not oust the jurisdiction of their local courts to try the renditioned suspects. Our own courts have ruled that no such laws exist in Nigeria.
In my view, among the arguments against Kanu’s conviction, the one that deserves the most serious attention is the charge that other persons from other ethnic groups have committed similar offences without being so tried and convicted. While this does not make Kanu innocent or undeserving of his punishment, it speaks directly to our institutional legitimacy and the capacity of the state to discharge its role as the custodian of equity and justice – two foundational elements of legitimate statehood. Therefore, this argument requires some in-depth and holistic treatment which I will do in the concluding part of this piece.
TO BE CONCLUDED NEXT WEEK.
Henry Chigozie Duru, PhD, teaches journalism and mass communication at Nnamdi Azikiwe University, Awka, Nigeria.
