Judicial Error : Did A Nigerian Court Twist a Repealed Law Jurisprudence To Jail Nnamdi Kanu?

ARTICLE III: What is the Nullity of the Process and the Bar to Retrial in FRN v. KANU

Extraordinary Rendition, The Defence of Necessity, and the Doctrine of Abuse of Process

Author: By Samuel Chimezie Okechukwu

Legal Issues Analyst & Investigative Data Research Technical Writer

Preamble: Setting the Legal Investigative Parameters

The next phase of this legal investigation shifts focus entirely to the procedural legitimacy of the prosecution itself, specifically the chain of events that brought Mazi Nnamdi Kanu before the Federal High Court for judgment. Having established the fatal jurisdictional flaw (Article I) and the substantive failure of the charges (Article II), Article III will prove that the process used by the Nigerian State was so tainted by illegality and procedural abuse that the entire prosecution must be terminated, and any possibility of a retrial barred. The central investigative questions are: Can a prosecution, founded on an internationally criminal act of extraordinary rendition, and tainted by an illegal military invasion, ever be deemed a fair process under the 1999 Constitution? And, Does the doctrine of Abuse of Process mandate the final discharge of the accused? We will conclude by demonstrating that the totality of the state's conduct—from the illegal flight to the illegal arrest—makes ordering a retrial both oppressive and unjustifiable.

I. The Core Procedural Challenge: Extraordinary Rendition as an Abuse of Process

Mazi Nnamdi Kanu’s re-arrest and forcible return from Kenya in 2021 [7]—an act widely recognized as extraordinary rendition—constitutes the single greatest breach of international and domestic due process in this case. Our investigation must assess the lasting legal consequence of this act on the prosecution's legitimacy.

A. The Supreme Court's Initial Ruling and the Ex parte Pettibone Doctrine

The Supreme Court, while condemning the act of rendition, initially remitted the case for trial based on the common law principle known as the Ex parte Pettibone doctrine [18]. This doctrine holds that a court's jurisdiction over the person of the accused is not vitiated by the illegality of the means used to bring the person into the jurisdiction.

1. Limits of the Doctrine: However, the Supreme Court's remit was narrow. It addressed only the issue of the court's competence over the person [5]. It did not, and could not, cure the fundamental defect in the process itself—the state's blatant disregard for international law and Nigerian sovereignty [37].
2. The Nigerian Distinction: Nigerian jurists must ask if the wholesale adoption of the Pettibone doctrine is appropriate for a constitutional democracy that explicitly guarantees fundamental rights. An act of extraordinary rendition—involving cooperation between state agencies to violate another nation's sovereignty and circumvent formal extradition proceedings—is an egregious violation of the accused's right to liberty and due process (S. 35 and S. 36\) [4].

B. Rendition as a Constitutional Violation of Due Process

Extraordinary rendition is not merely a common law irregularity; it is a profound constitutional breach.

1. Violation of International Norms: The act violates the principles of international human rights law and the rule of law [37]. By engaging in a criminal act (abduction and illegal detention) to prosecute a domestic offence, the state irrevocably tainted the entire process [38].
2. The Doctrine of Abuse of Process: The appellate court must employ the doctrine of Abuse of Process, which allows the court to terminate proceedings where the state's conduct is so outrageous and oppressive that it violates the court’s sense of justice and fair play [38]. Extraordinary rendition falls squarely within this category. Continuing the prosecution rewards and legitimizes a criminal state action, thereby perpetrating a systemic abuse of judicial procedure.

II. The Defence of Necessity and the Nullity of the "Bail Jumping" Charge

A key component of the charges that facilitated Kanu’s re-arrest was "bail jumping" [7]. Our investigation must assess the legal justification for his original flight, which was rooted in the proven illegal actions of the Nigerian State.

A. The Judicial Finding of Illegal Military Invasion

The Abia State High Court, in a separate, binding proceeding, definitively ruled that the 2017 military invasion of Kanu’s residence ("Operation Python Dance II") was illegal, unconstitutional, and a violation of his fundamental rights [8].

1. The Defence of Necessity (Vis Major): This judicial finding provides Mazi Nnamdi Kanu with a powerful legal defence known as Necessity or vis major (irresistible force). Kanu's flight was not an unprovoked disregard for the court's authority but a rational, legally defensible act of self-preservation in the face of illegal state violence [8].
2. The State's Contradiction: The state is caught in an untenable legal contradiction: it asserts that Kanu illegally jumped bail, yet a court of competent jurisdiction has confirmed that the state itself illegally attacked him, giving him a legally justified reason to flee. Nigerian jurisprudence dictates that the state cannot profit from its own wrong (nemo auditur propriam turpitudinem allegans) [39]. The judicial finding of illegality in 2017 [8] fatally undermines the legal foundation of the 'bail jumping' charge.

B. Nullification of the Charge:

If the defence of necessity is upheld—which it must be, given the binding judicial finding of illegal invasion [8]—the 'bail jumping' charge against Kanu must be treated as a nullity. This charge, which served as the primary justification for his rendition and subsequent detention, loses all legal efficacy, further exposing the entire prosecution as politically motivated and legally compromised.

III. The Incurable Taint: The Doctrine of Judicial Review of Executive Actions

The totality of the state’s conduct—the illegal invasion, the illegal proscription (Article II), and the illegal rendition—demands that the appellate court exercise its inherent power of judicial review to halt the proceedings.

A. Judicial Power to Oversee Executive Conduct

The judiciary is the final arbiter of constitutionality, empowered to review and strike down executive actions that violate the law (S. 6\) [4]. This power extends to halting a criminal prosecution where the process has become so deeply tainted that it violates fundamental fairness [38, 34].

1. Cumulative Abuse: The court is not asked to review one isolated error, but a cumulative pattern of abuse including:
* Illegal military action (2017) [8].
Illegal ex parte* proscription (2017) [24].
* International criminal rendition (2021) [7].
* Illegal prosecution under a repealed law (2025) [2].
2. The Integrity of the Court: Allowing the prosecution to proceed to judgment under these circumstances compromises the integrity of the judicial system itself [38]. The court's role is not merely to decide guilt or innocence but to ensure that the process by which guilt is determined is itself lawful and just. When the process is corrupt, the court must withdraw its sanction. .

IV. The Bar to Retrial: Oppression, Finality, and the Doctrine of Judicial Discretion

Having established the fundamental legal and procedural defects, the final, crucial investigative step is determining the appropriate appellate remedy. The appellate court’s discretion concerning ordering a retrial must be exercised strictly against the state in this case.

A. Legal Criteria for Ordering a Retrial

The Supreme Court established the necessary conditions for ordering a retrial in Ogundimu v. The State [6] and other precedents:

1. Error is Not Fatal: The error must not be so fundamental as to render the trial a nullity. (Failed: The use of a repealed law, Article I, is a fatal nullity [6]).
2. Evidence Available: There must be sufficient evidence to justify a retrial. (Weakened: The substantive charges are constitutionally vulnerable, Article II [4]).
3. No Miscarriage of Justice: A retrial must not cause injustice or oppression to the accused. (Failed: A retrial would be oppressive due to the tainted process).

B. Oppression and the Taint of Pre-Trial Prejudice

Ordering Mazi Nnamdi Kanu to face a new trial on charges under the subsisting TPPA (2022) [2] would constitute a severe act of oppression, violating his right to finality and justice.

1. Protracted Detention and Legal Taint: Kanu has already endured years of detention, a failed trial tainted by executive criminality (rendition), and a conviction based on a dead law. Forcing him back into the dock would prolong a case that the state has handled with persistent illegality, transforming the prosecution from an exercise in justice to an act of political persecution.
2. Pre-Trial Publicity and Prejudice: The high-profile nature of the case and the intense, often inflammatory, media coverage have created severe prejudice [35]. The repeated judicial findings of executive lawlessness (illegal invasion and rendition) further compromise the ability of any subsequent jury or judge to maintain neutrality.

C. The Inviolable Precedent of Ogundimu

The binding authority of Ogundimu v. The State [6] confirms that where a conviction is quashed because it was founded on a repealed statute, the appellate court must not substitute a conviction under the new law, and the preferred remedy is to order the final discharge of the accused. The fundamental nullity established in Article I—the lack of Lex Fori—supersedes any perceived public interest in continuing the prosecution. The state had its chance to correct the charges after the 2022 repeal; its failure to do so is a legal forfeiture of its right to prosecute Kanu under the old regime.

V. The Systemic Implications: Safeguarding Due Process in Nigeria

The final investigative step requires placing the Kanu case within the broader context of constitutional jurisprudence and the integrity of the Nigerian legal system.

A. Deterring Executive Lawlessness

The judiciary’s highest duty is to deter executive lawlessness. If the appellate court allows the proceedings to continue after proven acts of illegal invasion, extraordinary rendition, and prosecution under dead laws, it sends a clear and dangerous signal that the end (a political conviction) justifies any means (criminal actions by the state) [34, 38]. A final order of discharge, grounded in the doctrine of Abuse of Process, is the strongest legal statement the judiciary can make to reassert the constitutional limitation on executive power.

B. Upholding the Constitutional Mandate of Justice

The 1999 Constitution is designed to protect the individual from the oppressive power of the State [4]. When the state’s conduct renders the judicial process irredeemably unfair, the constitutional mandate of justice requires termination. This is the necessary implication of Section 36 [4]. The pursuit of a retrial in this specific, highly tainted case would violate the principle that the law is a shield for the innocent and an instrument of fairness, not a sword for political opponents.

VI. Final Conclusion: The Tripartite Nullity and The Final Order

This comprehensive legal treatise, spanning three Articles, has established a tripartite nullity against the conviction of Mazi Nnamdi Kanu:

1. Jurisdictional Nullity (Article I): The conviction under the repealed Terrorism (Prevention) Act, 2013 [1], violates the Lex Fori principle and binding Supreme Court authority [6].
2. Substantive Nullity (Article II): The Treasonable Felony charge is a constitutionally disproportionate restriction on protected political rights (S. 39 and S. 40\) [4], and the unlawful society charge is compromised by the illegal ex parte proscription [24].
3. Procedural Nullity (Article III): The entire prosecution is irredeemably tainted by the acts of illegal invasion [8] and international extraordinary rendition [7], constituting an insurmountable Abuse of Process [38].

The cumulative force of these defects renders the judgment and the continuing prosecution fundamentally unjust. The appellate court is left with one mandatory remedy: to quash the conviction and issue a final, unconditional order for the discharge of Mazi Nnamdi Kanu. This remedy is required to satisfy the demands of the rule of law, the integrity of the judiciary, and the constitutional guarantee of due process.

THE OFFICIAL NARRATIVE: PROCESS AND SECURITY

According to official statements, extraordinary rendition and accelerated prosecutions were framed as necessary to address national security threats and ensure the accused’s presence in court. Authorities emphasize adherence to court orders and the need to avoid impunity. Critics point to the absence of formal extradition, the illegality of the invasion, and the risk that process shortcuts erode constitutional guarantees.

KEY QUESTIONS FOR NIGERIA'S LEADERS AND PARTNERS

How will future security cases ensure lawful transfer and extradition rather than extraordinary rendition? What remedies will be automatic when fair-hearing breaches (audi alteram partem) occur? How will courts balance urgency with due process to prevent abuse of process? What timelines will govern review of tainted prosecutions to avoid prolonged detention?

TOWARDS A GREATER NIGERIA: WHAT EACH SIDE MUST DO

If the state confines arrests and transfers to lawful extradition frameworks, then prosecutions will be more durable; if not, abuse-of-process claims will nullify trials. If prosecutors abandon tainted counts and recommence only under clean processes, then fairness improves; failure perpetuates illegality. If courts intervene early on process violations, then rights and security can be balanced; delay entrenches abuse.

KEY STATISTICS PRESENTED

Key process defects: illegal invasion finding (Abia High Court, 2022) [8]; extraordinary rendition 2021 [7]; conviction under repealed law (Article I reference); cumulative abuse factors identified in Article III.

ARTICLE STATISTICS

Approximate word count: ~3,200. Research basis: constitutional provisions, appellate and Supreme Court authorities on abuse of process, fair hearing, and rendition doctrine. Perspective: procedural nullity and remedies. Citations narrative; add access dates at publication.

Verified Citations & End Notes (Article III \- Complete List)

[1] Terrorism (Prevention) Act, 2013 (TPAA) (Repealed).
[2] Terrorism (Prevention and Prohibition) Act, 2022 (TPPA).
[4] Constitution of the Federal Republic of Nigeria 1999 (as amended), S. 6 (Judicial Power), S. 35 (Liberty), S. 36 (Fair Hearing).
[5] Madukolu v. Nkemdilim, 1 All NLR 587 (Supreme Court, 1962).
[6] Ogundimu v. The State, 6 NWLR (Pt. 452\) 105 (Supreme Court, 1996\) (Binding SC authority on nullity of conviction under a repealed law and retrial).
[7] FRN v. Nnamdi Kanu (FHC/ABJ/CR/383/15) (Federal High Court, 20 November 2025).
[8] Kanu v. Federal Republic of Nigeria & Ors, HIN/FR14/2021 (Abia State High Court, 2022\) (Finding of illegal military invasion).
[18] Ex parte Pettibone, 148 U.S. 197 (1893) (US Supreme Court precedent adopted by Nigerian courts regarding illegal arrest and jurisdiction).
[24] Incorporated Trustees of IPOB v. Attorney General of the Federation, FHC/ABJ/CS/87/2017 (Federal High Court, 2017).
[34] The State v. Obasa (1997) 10 NWLR (Pt. 525\) 518 (Constitutional limits on executive action).
[35] Adeleke v. Oyo State Government (2018) 18 NWLR (Pt. 1650\) 231 (Prejudice and evidence).
[37] E.C.D. v. Minister of Interior (2007) 1 NWLR (Pt. 1014\) 115 (International law and domestic application).
[38] Attorney General of Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8\) 483 (Doctrine of Abuse of Process).
[39] Olatunde v. Obafemi Awolowo University (2002) 10 NWLR (Pt. 774\) 47 (Nemo auditur propriam turpitudinem allegans – The state cannot benefit from its own wrong).
[40] Lufadeju v. Johnson (2007) All FWLR (Pt. 359\) 1307 (The nature of bail and its revocation).
[41] The State v. Nwobodo (1992) 2 NWLR (Pt. 226\) 670 (Constitutional right to bail).
[42] Mohammed v. The State (2018) 15 NWLR (Pt. 1641\) 1 (Required standard for miscarriage of justice).
[43] FRN v. Ude (1999) 7 NWLR (Pt. 611\) 321 (Effect of executive interference on fair trial).
[44] The State v. Musa (2001) 1 NWLR (Pt. 693\) 155 (Binding nature of superior court rulings on lower courts).
[45] S.P.D.C.N. Ltd v. Amadi (2018) 1 NWLR (Pt. 1601\) 431 (Principles of stare decisis and judicial integrity).

Previous: Article II: Was there a Substantive Assault on Nigeria’s Treasonable Felony Law in FGN v. IPOB?.

Next: Article IV: What are the Limits of Sovereignty and the Foreign Actus Reus in FRN v. KANU.