The Core Principle

Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) guarantees the Right to Fair Hearing. It is a non-derogable right—absolute and inviolable. Neither the Executive nor the Legislature, and certainly not even the Supreme Court, has the authority to suspend or violate it. Any trial or proceeding built upon the denial of this right is void ab initio—a nullity from the very beginning.

 

What Happened

Mazi Nnamdi Kanu, leader of the Indigenous People of Biafra (IPOB), was not returned to Nigeria through lawful extradition proceedings as mandated by the Extradition Act, Cap E25 LFN 2004. Instead, he was subjected to extraordinary rendition—a state-sponsored kidnapping executed in collusion with foreign agents. This unlawful act stripped him of his right to notice, legal representation, and due judicial process, thereby violating his constitutional guarantees under Section 36.

 

The Legal Problem

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The Supreme Court of Nigeria, in FRN v. Nnamdi Kanu (SC/CR/1361/2022, judgment delivered 15 December 2023), acknowledged the illegality of the rendition. Yet, rather than uphold the clear consequences in law, the Court remitted the case for trial before the Federal High Court. This is a fatal judicial error, for the following reasons:

1. You Cannot Build Justice on Injustice
   In Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348, the Supreme Court held that a court is competent only if:

it is properly constituted,
it has jurisdiction over the subject matter, and
the case comes before the court initiated by due process of law.
Extraordinary rendition is the antithesis of “due process.” A case commenced in this manner collapses at the threshold. Any proceedings thereafter are null and void.

 

1. No “Civil Remedy” for a Constitutional Crime
   The suggestion that Kanu may seek damages in a civil action is an absurdity that trivializes the Constitution. In Ariori v. Elemo (1983) 1 SCNLR 1 at 9, the Supreme Court emphatically ruled that:

“Once there is a denial of fair hearing, the whole proceedings no matter how well conducted is rendered a nullity.”

The remedy for constitutional breach is not monetary compensation but nullification of the tainted proceeding. The government cannot buy the right to break its own supreme law.

 

1. The Judiciary Must Not Sanction Illegality
   In Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 at 636, the apex Court declared:

“The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. The courts cannot condone illegality.”

By remitting Kanu’s case for trial despite acknowledging his unlawful rendition, the Supreme Court risks transforming itself into an instrument of executive illegality—legitimizing the very crime it should be condemning.

 

The Bottom Line

The Constitution, not the government and not even the Supreme Court, is the ultimate source of authority in Nigeria. To allow this trial to proceed despite its foundation in illegality is to make a mockery of democracy and the rule of law. It signals to the Executive that it can trample the Constitution with impunity, secure in the knowledge that the judiciary will look the other way.

The only just, legal, and constitutional outcome is to declare the entire proceeding against Mazi Nnamdi Kanu a nullity. This is the only way to uphold the Constitution, protect the judiciary from complicity in illegality, and affirm the principle that in Nigeria, no one is above the law—especially the government itself.

 

Signed:
Christopher Chidera Esq.,
Public Advocate & Human Rights Lawyer