A Critical Analysis of the Supreme Court’s Decision in Federal Republic of Nigeria v. Nnamdi Kanu:
A Jurisdictional Nullity and a Violation of the Doctrine of Appellate Finality.

Date: 19th September 2025.

Prepared by: Njoku Jude Njoku Esq.,
(Consultant to Mazi Nnamdi Kanu Global Defence Consortium)

 

Chapter I: Executive Summary

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The case of Federal Republic of Nigeria v. Nnamdi Kanu (SC/CR/1364/2022) represents a constitutional crisis without precedent in Nigerian jurisprudence. On 13 October 2022, the Court of Appeal, in a unanimous judgment, discharged Nnamdi Kanu on the ground that his extraordinary rendition from Kenya fatally violated Nigerian law, the Constitution, and binding international treaties. That discharge, though styled as such, was final in nature and operated as an acquittal. However, on 15 December 2023, the Supreme Court overturned this discharge and remitted the matter for trial under a repealed statute. This judgment, it will be demonstrated, is void ab initio.

The principle of finality is a cornerstone of justice. As Oputa JSC held in Adebayo v. Johnson (1969) NMLR 24 at 26, “there must be an end to litigation.” In criminal jurisprudence, finality is safeguarded by the doctrine of double jeopardy. Section 36(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:

“No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence.”

 

This provision is reinforced by Nigeria’s treaty obligations. Article 14(7) of the International Covenant on Civil and Political Rights provides:

“No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”

 

Similarly, Article 7(2) of the African Charter on Human and Peoples’ Rights provides:

“No one may be tried or punished again for an offence for which he has already been finally convicted or acquitted.”

These guarantees are non-derogable. They admit of no exception, not even on grounds of national security.

 

The Court of Appeal found that Kanu’s abduction from Kenya was a flagrant violation of both municipal and international law. It violated Section 46 of the Administration of Criminal Justice Act 2015, which prescribes lawful arrest and arraignment procedures; it violated Section 36(6) of the Constitution, which guarantees the right to fair hearing; and it violated binding treaties regulating extradition. Relying on Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348, the court correctly held that the trial court lacked jurisdiction. Its order discharging Kanu therefore amounted to a final acquittal.

 

The Supreme Court erred gravely by entertaining an appeal against this acquittal. In Esiaga v. University of Calabar (2002) 7 NWLR (Pt. 765) 42 at 58–59, the Supreme Court held that acts done contrary to constitutional bars are nullities. The appeal was incompetent ab initio. Worse still, the Supreme Court mischaracterised the Court of Appeal’s decision as if it were a procedural irregularity, when in fact it was a jurisdictional nullity. A nullity cannot be remitted for trial.

Even more egregiously, the Supreme Court ordered trial under the Terrorism Prevention (Amendment) Act 2013. That statute had been expressly repealed. Section 98(1) of the Terrorism (Prevention and Prohibition) Act 2022 states:

“The Terrorism Prevention Act, No. 10, 2011 and the Terrorism Prevention (Amendment) Act, 2013 are hereby repealed.”

 

Repealed laws are legally dead. As held in Cole v. COP (1966) 1 All NLR 131, repealed statutes cannot sustain proceedings unless accrued liabilities subsist. Here, all liabilities had been extinguished by acquittal.

 

Section 1(3) of the Constitution entrenches supremacy:

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

Therefore, any judgment that endorses or legitimises a violation of Section 36 goes to no moment and is unconstitutional. Once Kanu was denied fair hearing by abduction from Kenya, all subsequent proceedings were nullities.

 

Comparative jurisprudence affirms this. In R v. Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 42 at 61, the House of Lords held that abduction in breach of extradition treaties vitiates jurisdiction. In the United States, United States v. Toscanino 500 F.2d 267 (2d Cir. 1974) at 275–276 held that government misconduct which breaches extradition arrangements offends due process and nullifies jurisdiction. The High Court of Kenya in 2023 declared Kanu’s abduction unlawful, further proving that rendition voids jurisdiction.

The implications are severe. Domestically, it erodes legal certainty by suggesting that acquittals are not final. Internationally, Nigeria has breached Article 14(7) ICCPR and Article 7(2) ACHPR. Politically, the judgment entrenches executive impunity and reinforces perceptions of judicial complicity in persecution.

 

The conclusion is unavoidable: the Supreme Court’s decision of 15 December 2023 is unconstitutional, illegal, and void ab initio. The Court of Appeal’s discharge of 13 October 2022 remains the only lawful and binding outcome.

 

Chapter II: The Principle of Finality in Criminal Jurisprudence

The doctrine of finality is a cornerstone of adjudication, intended to provide closure and certainty to litigation. In the absence of finality, the judicial process degenerates into an instrument of harassment, allowing the state to perpetually prosecute an individual until conviction is secured. The Nigerian courts have long recognised this danger. In Adebayo v. Johnson (1969) NMLR 24 at 26, Oputa JSC affirmed that “there must be an end to litigation.”

 

In criminal jurisprudence, the finality principle finds its highest expression in the protection against double jeopardy. Section 36(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:

“No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence.”

 

This provision bars not only repeated trials after conviction but also retrials after acquittal. It insulates final judgments of discharge or acquittal from further attack by the state.

The scope of this protection is strengthened by international law. Article 14(7) of the International Covenant on Civil and Political Rights provides:

“No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”

Article 7(2) of the African Charter on Human and Peoples’ Rights echoes the same protection:

“No one may be tried or punished again for an offence for which he has already been finally convicted or acquitted.”

 

Nigeria is a party to both instruments. The African Charter has the force of law in Nigeria by virtue of Cap A9, Laws of the Federation of Nigeria 2010. The ICCPR, though not domesticated, is binding on Nigeria as an international obligation and has been recognised by Nigerian courts as persuasive authority, especially in cases concerning non-derogable rights.

The combined effect of Section 36(9) CFRN, Article 14(7) ICCPR, and Article 7(2) ACHPR is that acquittals are sacrosanct. They are final judgments that cannot be appealed by the state. To allow otherwise is to erode the doctrine of finality and render constitutional protections illusory.

 

The FRN v. Nnamdi Kanu matter brings this principle into sharp focus. Once the Court of Appeal discharged the appellant on jurisdictional grounds, that discharge was equivalent to acquittal. By entertaining an appeal against it, the Supreme Court violated not only the domestic Constitution but also Nigeria’s international obligations.

 

Chapter III: The Court of Appeal’s Discharge as an Acquittal

On 13 October 2022, the Court of Appeal, per Adefope-Okojie JCA (with Sankey JCA and Tobi JCA concurring), delivered a judgment of enormous constitutional significance. The court considered the manner in which Nnamdi Kanu was brought before the Federal High Court — namely, by way of extraordinary rendition from Kenya. It held that the rendition was unlawful, violated domestic statutes, offended constitutional guarantees, and breached Nigeria’s international obligations. Consequently, it discharged him of all charges then pending.

The court’s reasoning was not based on procedural irregularity but on a fundamental jurisdictional defect. Section 46 of the Administration of Criminal Justice Act 2015 prescribes lawful arrest and arraignment procedures, while Section 36(6) of the Constitution guarantees the right to fair hearing, including the right to be brought before a court in accordance with due process. By abducting Kanu from Kenya without recourse to extradition procedure, the Nigerian state flouted these provisions. It also violated binding international norms, including the African Charter and the International Covenant on Civil and Political Rights.

The doctrinal anchor for the Court of Appeal’s conclusion is the locus classicus Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348, where Bairamian FJ set out the conditions precedent to jurisdiction. A court is competent to adjudicate only if the case comes before it initiated by due process and upon fulfilment of all conditions precedent. Where these are absent, proceedings, no matter how well conducted, are a nullity. The Court of Appeal correctly applied this principle in holding that Kanu’s unlawful rendition destroyed jurisdiction at the trial court ab initio.

 

Though the order was framed as a “discharge,” in substance it amounted to an acquittal. Nigerian case law recognises that the nomenclature of an order does not determine its legal effect. In Okoye v. FRN (2022) LPELR-57346(CA) per Abiru JCA at pp. 28–29, the Court of Appeal affirmed that where prosecution is nullified by illegality, a discharge operates as an acquittal. Similarly, in Dari v. State (2021) LPELR-55692(SC) per Augie JSC at paras. 36–38, the Supreme Court made clear that once jurisdictional defects are incurable, proceedings cannot be revived, and any discharge given in such circumstances has the finality of acquittal.

Therefore, the Court of Appeal’s discharge was not interlocutory; it was a final judgment that activated Section 36(9) of the Constitution. From that moment, the matter was res judicata. The state had lost the competence to prosecute Kanu again on the same facts, and no further proceedings could lawfully be initiated.

 

Chapter IV: The Supreme Court’s Ultra Vires Intervention

On 15 December 2023, the Supreme Court delivered its judgment in FRN v. Nnamdi Kanu, setting aside the Court of Appeal’s discharge and remitting the case for trial before the Federal High Court. This intervention was unconstitutional for several reasons.

First, the state had no right of appeal against a judgment that was tantamount to acquittal. The constitutional protection against double jeopardy in Section 36(9) bars any further trial after acquittal. By implication, it also bars appeals against acquittals. In Esiaga v. University of Calabar (2002) 7 NWLR (Pt. 765) 42 at 58–59, the Supreme Court held that where the Constitution prohibits a proceeding, any act done in defiance of that prohibition is void ab initio. The state’s appeal was incompetent from the outset, and the Supreme Court lacked jurisdiction to entertain it.

 

Second, the Supreme Court mischaracterised the Court of Appeal’s decision. It treated the discharge as if it were a procedural irregularity capable of being remedied by remittal. This analysis was erroneous. The Court of Appeal had not ordered remittal because it found a jurisdictional nullity. A nullity cannot be remitted; it cannot be cured. To attempt to remit a nullity is to engage in judicial resurrection of a dead process, a constitutional impossibility.

 

Third, the Supreme Court ordered trial under the Terrorism Prevention (Amendment) Act 2013. Yet that statute had been expressly repealed before the judgment was delivered. Section 98(1) of the Terrorism (Prevention and Prohibition) Act 2022 provides in unequivocal terms:

“The Terrorism Prevention Act, No. 10, 2011 and the Terrorism Prevention (Amendment) Act, 2013 are hereby repealed.”

 

The principle is well settled that repealed laws are legally dead. In Cole v. COP (1966) 1 All NLR 131, the Supreme Court affirmed that a repealed statute ceases to exist for the purpose of sustaining ongoing or new proceedings, except in so far as accrued liabilities survive. In Kanu’s case, the Court of Appeal’s discharge had extinguished all liabilities. There was nothing left to be preserved. The Supreme Court’s order for trial under a repealed statute was therefore not only ultra vires but a statutory impossibility.

By entertaining an incompetent appeal, mischaracterising a jurisdictional nullity, and directing trial under a repealed law, the Supreme Court acted without jurisdiction and contrary to the Constitution. Its judgment of 15 December 2023 is therefore a nullity ab initio.

 

Chapter V: Anticipated Counter-Arguments and Rebuttals

In defence of the Supreme Court’s ruling of 15 December 2023, certain arguments may be advanced. However, each of these collapses under constitutional and doctrinal scrutiny.

One likely argument is that the Supreme Court, being the apex court, has inherent powers to correct the errors of all lower courts, including the Court of Appeal. This position misconceives the nature of judicial power in a constitutional democracy. While the Supreme Court is the final appellate court, its jurisdiction is not omnipotent. It is circumscribed by the Constitution itself. As the Court recognised in Ubwa v. Tiv Area Traditional Council (2004) 11 NWLR (Pt. 884) 427 at 441, jurisdictional bars apply to all courts, including the Supreme Court. Inherent jurisdiction cannot be invoked to override express constitutional provisions such as Section 36(9).

Another argument is that national security demands that Kanu’s trial proceed, regardless of procedural irregularities in his rendition. This argument is seductive but ultimately unconstitutional. The Constitution admits of no national security exception to the rights guaranteed in Section 36. In A.G. Abia v. A.G. Federation (2002) 6 NWLR (Pt. 763) 264, the Supreme Court warned that constitutional supremacy cannot yield to expediency. To permit national security to override constitutional rights would be to enthrone arbitrariness and tyranny.

It may also be contended that extraordinary rendition is a mere procedural irregularity that can be cured at trial. Comparative jurisprudence decisively rejects this claim. In R v. Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 42 at 61, Lord Griffiths declared that courts must decline jurisdiction where an accused has been unlawfully abducted in breach of extradition arrangements. Rendition is not a trivial irregularity but a substantive illegality that destroys jurisdiction ab initio.

Finally, the state may argue that Section 97 of the Terrorism (Prevention and Prohibition) Act 2022 preserves the right to continue prosecution under the repealed 2013 Act. This interpretation misrepresents the purpose of savings clauses. Savings clauses protect subsisting rights and liabilities; they do not resurrect extinguished proceedings. Once the Court of Appeal discharged Kanu, no liability survived to be preserved. In Esiaga v. University of Calabar (2002) 7 NWLR (Pt. 765) 42 at 58–59, the Supreme Court affirmed that extinguished rights cannot be revived by a savings clause. The state’s reliance on Section 97 of the TPPA 2022 is therefore unsustainable.

In sum, all anticipated counter-arguments fail when tested against constitutional text, binding precedent, and comparative authority.

 

Chapter VI: Conclusion – A Judgment Without Foundation

The Supreme Court’s decision of 15 December 2023 in FRN v. Nnamdi Kanu stands on no legal foundation. It transgressed three cardinal doctrines of Nigerian constitutional law. First, it violated Section 36(9) of the Constitution by permitting an appeal against an acquittal-equivalent discharge, thereby subjecting the appellant to double jeopardy. Second, it mischaracterised a jurisdictional nullity as a procedural irregularity capable of remittal, a doctrinal impossibility since a nullity cannot be remitted. Third, it directed trial under a statute repealed by Section 98(1) of the TPPA 2022, an act contrary to Cole v. COP (1966) 1 All NLR 131, which affirms that repealed laws are legally dead.

The combined effect of these errors is that the judgment is void ab initio. It exists in a legal vacuum, unenforceable and illegitimate. The only lawful outcome remains the Court of Appeal’s discharge of 13 October 2022, which operated as a final acquittal insulated by Section 36(9) and binding international law.

In this light, the Supreme Court’s judgment is not merely erroneous; it is unconstitutional. As Section 1(3) of the Constitution makes clear: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.” By endorsing proceedings inconsistent with Section 36, the Supreme Court acted in a manner voided by the Constitution itself.

 

Chapter VII: Judicial Fraud and Abuse of Process

The Supreme Court’s decision of 15 December 2023 in FRN v. Nnamdi Kanu cannot be understood merely as an error of law. It represents what may be properly termed judicial fraud and abuse of process. Fraud on the court arises where judicial authority is deployed to validate illegality, or where a judgment is rendered in open defiance of constitutional and statutory commands. Abuse of process occurs when court procedures are employed for purposes they were never intended to serve.

The continuation of trial after the Court of Appeal’s discharge is a paradigmatic case of abuse. In Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 at 188, the Supreme Court held that abuse of process consists in the improper use of judicial process to the irritation and annoyance of the opponent and the obstruction of the due course of justice. To remit a case that has already been discharged on constitutional grounds for retrial is precisely to obstruct the due course of justice.

Furthermore, by directing a trial under the repealed Terrorism Prevention (Amendment) Act 2013, the Supreme Court engaged in what may be described as judicial necromancy: the resurrection of a dead statute. Section 98(1) of the Terrorism (Prevention and Prohibition) Act 2022 provides:

“The Terrorism Prevention Act, No. 10, 2011 and the Terrorism Prevention (Amendment) Act, 2013 are hereby repealed.”

Once repealed, the 2013 Act ceased to exist for purposes of prosecution. As held in Cole v. COP (1966) 1 All NLR 131, repealed laws are legally dead. To continue proceedings under them is fraudulent because it purports to derive authority from a non-existent source of law.

 

The cumulative effect is that the Supreme Court’s decision was not only ultra vires but a conscious abuse of judicial authority, undermining both constitutional supremacy and the integrity of the judicial process.

 

Chapter VIII: Comparative International Jurisprudence

Comparative jurisprudence across common law jurisdictions reinforces the conclusion that extraordinary rendition vitiates jurisdiction, especially where extradition treaties exist.

In the United Kingdom, the House of Lords in R v. Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 42 at 61 held that where extradition procedures exist, courts must decline jurisdiction if those procedures are ignored by the executive through abduction. Lord Griffiths stated emphatically that the courts could not countenance executive illegality by allowing a trial to proceed where extradition treaties had been bypassed. This principle has become a cornerstone of English criminal jurisprudence.

In the United States, the early case of Ker v. Illinois 119 U.S. 436 (1886) permitted trial despite abduction. However, the authority of Ker has been severely limited by subsequent due process jurisprudence. In United States v. Toscanino 500 F.2d 267 (2d Cir. 1974) at 275–276, the Second Circuit held that where government misconduct offends due process and violates extradition arrangements, jurisdiction is destroyed. The court observed that a trial court should divest itself of jurisdiction where it has been obtained through deliberate and outrageous lawlessness by the state. Thus, modern American jurisprudence converges with the English position.

 

In Israel, the Supreme Court in Attorney-General v. Eichmann (1962) 36 ILR 277 admitted that Eichmann’s abduction from Argentina was unlawful and in breach of international law. Although trial proceeded, the court’s acknowledgment of illegality underscores the tension between sovereignty, due process, and jurisdiction. The case is widely regarded as exceptional, justified only by the unprecedented gravity of the crimes charged.

Most relevantly, in 2023 the High Court of Kenya declared that the abduction of Nnamdi Kanu from its territory was unlawful. It ordered restitution of his rights, emphasising that Kenya’s sovereignty had been violated and that Nigeria had acted in breach of its extradition obligations. This ruling, emanating from the very state whose sovereignty was infringed, is compelling persuasive authority that extraordinary rendition voids jurisdiction in Nigeria.

 

Constitutional Supremacy and Nullity of All Proceedings Post-Rendition

The doctrine of constitutional supremacy in Nigeria provides the final word on the matter. Section 1(3) of the Constitution of the Federal Republic of Nigeria 1999 states:

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

This clause means that the Constitution overrides not only statutes but also judicial decisions. Once Section 36 of the Constitution — which guarantees fair hearing and prohibits double jeopardy — is violated, any judicial act purporting to ratify or endorse such violation is void.

 

Section 36(6) CFRN provides:

“Every person who is charged with a criminal offence shall be entitled to — (a) be informed promptly in the language that he understands and in detail of the nature of the offence; (b) be given adequate time and facilities for the preparation of his defence; (c) defend himself in person or by legal practitioners of his own choice; (d) examine, in person or by his legal practitioners, the witnesses called by the prosecution; and (e) have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”

 

And Section 36(9) CFRN provides:

“No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence.”

These provisions are non-derogable. Once Kanu was abducted in Kenya and denied the opportunity to contest his removal under fair extradition proceedings, his Section 36 rights were violated. Every subsequent proceeding in Nigeria was tainted by that violation. As Section 1(3) dictates, any judgment endorsing such illegality is void.

It follows that the Supreme Court’s judgment of 15 December 2023, insofar as it attempted to legitimise proceedings that originated in constitutional violation, is itself void and of no legal effect. As the Constitution is supreme, no judicial authority can override its guarantees.

 

Chapter IX: Implications for Rule of Law and International Standing

The implications of the Supreme Court’s decision in FRN v. Nnamdi Kanu are grave, both domestically and internationally.

Domestically, the ruling erodes the certainty of judicial outcomes. If acquittals or their equivalents can be appealed by the state and overturned, then the constitutional protection against double jeopardy in Section 36(9) becomes meaningless. Citizens can no longer trust that once acquitted, they will not face further prosecutions. This undermines confidence in the judiciary and transforms the criminal justice system into a tool of perpetual harassment.

Internationally, Nigeria has violated binding treaty obligations. Article 14(7) of the International Covenant on Civil and Political Rights and Article 7(2) of the African Charter on Human and Peoples’ Rights categorically prohibit double jeopardy. Both provisions are non-derogable, admitting no exception for national security or political expediency. By remitting Kanu for trial after discharge, Nigeria has breached these obligations.

These violations expose Nigeria to scrutiny before international and regional human rights bodies. The UN Human Rights Committee, charged with interpreting and enforcing the ICCPR, may receive individual complaints and issue findings that Nigeria is in breach. The African Commission on Human and Peoples’ Rights, which oversees compliance with the African Charter, may do the same. Both institutions have historically censured states for double jeopardy violations.

Most importantly, Nigeria faces liability before the ECOWAS Court of Justice. By virtue of Article 9(4) of the 2005 Supplementary Protocol, the ECOWAS Court has jurisdiction to determine cases of human rights violations alleged by individuals against member states. Since the African Charter is domesticated in Nigeria, and since Section 36 of the Constitution reflects Charter guarantees, the ECOWAS Court is empowered to hold Nigeria accountable. The Court has in prior cases, such as SERAP v. Nigeria (2010) ECW/CCJ/APP/08/08, recognised that individuals may enforce non-derogable rights before it, including the right to fair hearing and protection against arbitrary detention. It is therefore foreseeable that the ECOWAS Court could rule against Nigeria for breaching Kanu’s fair trial rights and exposing him to double jeopardy.

 

Beyond legal implications, the political consequences are severe. The judgment entrenches executive impunity by signalling that courts will legitimise unlawful executive conduct. It deepens the perception among marginalised groups that the judiciary is complicit in their persecution, thereby fuelling disaffection and exacerbating calls for self-determination. It also damages Nigeria’s reputation internationally, painting it as a state unwilling to uphold constitutional guarantees or abide by treaty commitments.

 

Chapter X: Normative and Prescriptive Lessons

From this jurisprudential debacle, several lessons emerge.

First, judicial self-restraint must be restored. Courts, especially the Supreme Court, must recognise that their jurisdiction is circumscribed by the Constitution. As Madukolu v. Nkemdilim teaches, where conditions precedent to jurisdiction are absent, proceedings are void no matter how well conducted. Courts must resist the temptation to use inherent powers to cure incurable defects.

Second, legislative reform is urgently required to prevent prosecutorial abuse. Parliament should enact a categorical prohibition against appeals by the state from acquittals or their equivalents, to give clear statutory effect to Section 36(9) of the Constitution. This will ensure that no prosecutor can re-litigate a case once a competent court has discharged or acquitted the accused.

Third, international oversight must be embraced. Nigeria’s disregard for non-derogable rights justifies stronger monitoring by the UN Human Rights Committee, the African Commission, and the ECOWAS Court of Justice. Engagement with these bodies is necessary to ensure compliance and accountability.

Fourth, legal scholars, practitioners, and civil society must continue to expose the per incuriam nature of the Supreme Court’s judgment. Silence or acquiescence risks ossifying this unconstitutional precedent into Nigeria’s jurisprudence. Academic critique, petitions to professional bodies, and public advocacy are essential to preserving the supremacy of the Constitution.

Finally, this case should serve as a warning to future courts: when the judiciary bends the Constitution to suit political ends, it loses legitimacy. The survival of the rule of law depends on the courts’ fidelity to constitutional text, not to expediency.

 

Final Conclusion

The Supreme Court’s decision of 15 December 2023 in FRN v. Nnamdi Kanu is unconstitutional, unlawful, and void ab initio. It transgressed the doctrine of finality, violated Section 36(9) of the Constitution, mischaracterised a jurisdictional nullity as a remittable irregularity, and directed trial under a repealed statute contrary to Section 98(1) of the Terrorism (Prevention and Prohibition) Act 2022. In so doing, the Court exceeded its constitutional limits and acted ultra vires.

The judgment also contravened Section 1(3) of the Constitution, which provides:

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

By purporting to validate proceedings born of extraordinary rendition — itself a violation of Section 36 fair hearing rights — the Supreme Court set itself against the Constitution. Under the doctrine of constitutional supremacy, such a judgment is void. As was made clear in Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348, where conditions precedent to jurisdiction are absent, the entire process is a nullity no matter how well conducted.

 

The only lawful outcome in this matter remains the judgment of the Court of Appeal delivered on 13 October 2022 by a properly constituted panel comprising Oladotun Adefope-Okojie JCA (author of the lead judgment), Jummai Hannatu Sankey (JCA as she was then), and Tobi Ebiowei JCA concurring. That decision discharged Kanu on grounds that extraordinary rendition destroyed jurisdiction and violated both the Constitution and international law. In substance, it amounted to an acquittal and triggered the bar of double jeopardy under Section 36(9). From that moment, the matter was res judicata and closed to further litigation.

Comparative jurisprudence — from Bennett in the United Kingdom to Toscanino in the United States, from Eichmann in Israel to the 2023 High Court of Kenya ruling — affirms the same principle: where extradition treaties exist, abduction vitiates jurisdiction. Nigeria’s judiciary cannot lawfully depart from this settled international consensus without undermining its own constitutional foundation.

 

The implications of the Supreme Court’s error are profound. Domestically, it erodes public confidence in the judiciary by rendering acquittals uncertain. Internationally, it exposes Nigeria to liability before the UN Human Rights Committee, the African Commission on Human and Peoples’ Rights, and the ECOWAS Court of Justice for violations of non-derogable rights. Politically, it entrenches executive impunity and deepens perceptions of judicial complicity in persecution.

For the survival of constitutionalism and the rule of law, it must be recognised that the Supreme Court’s judgment of 15 December 2023 is a nullity ab initio. The Constitution, the statutes, binding precedents, and international law all converge on this conclusion. The discharge pronounced by the Court of Appeal on 13 October 2022 remains the only valid, lawful, and binding outcome. To hold otherwise is to subvert the very foundations of Nigeria’s criminal jurisprudence, to enthrone illegality, and to betray the supremacy of the Constitution.

 

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