NNAMDI KANU HEADS BACK TO SUPREME COURT TO BATTLE A JUDGMENT THAT DESTROYED JUSTICE (Part 1)

Issued by: Njoku Jude Njoku, Esq.

INTRODUCTION: A JUDGMENT THAT SHOOK THE FOUNDATION OF JUSTICE

 

On 15 December 2023, a five-member panel of the Supreme Court of Nigeria led by Justice Garba Lawal and comprising Justices Emmanuel Agim, Kudirat Kekere-Ekun, Tijjani Abubakar, and Ibrahim Musa Saulawa delivered a judgment that will go down in Nigerian legal history not for its jurisprudential brilliance, but for its calculated assault on constitutional justice.

What unfolded that morning was not a judicial error. It was a conscious judicial manoeuvre designed to ensure that Mazi Nnamdi Kanu remained in perpetual captivity, despite a binding Court of Appeal judgment discharging him of all charges. The Supreme Court knew the law had died, acknowledged that a repealed statute cannot sustain a criminal charge, yet proceeded to resurrect a dead law to send Kanu back to the Federal High Court.

This was not an accident, nor an intellectual slip. It was a deliberate judicial ambush.

A DEAD LAW WAS RESURRECTED TO PUNISH NNAMDI KANU

At the heart of the current application before the Supreme Court is a disturbing and undeniable fact:

The Supreme Court relied on a repealed law to remit Kanu for trial, even after acknowledging that a dead law cannot sustain a criminal proceeding.

In fact, on 15 December 2023, when the judgment was delivered, the Supreme Court expressly described the Terrorism (Prevention) (Amendment) Act 2013 under which Kanu was charged as an “extant and subsisting law”, when clearly it was not. That law had died on 12 May 2022 when it was repealed and replaced by the Terrorism (Prevention and Prohibition) Act 2022 over a year before that fateful December morning.

The Supreme Court did not merely overlook the repeal it affirmatively misrepresented a dead law as alive.

This was not ignorance. It was judicial falsehood with consequential oppression.

WHY THIS WAS NOT A SIMPLE ERROR BUT A JURISDICTIONAL NULLITY:

A repealed law is a legal corpse. It cannot be revived, acted upon, or used to create criminal liability. Once the enabling statute is abolished, the proceedings built upon it collapse.

The Supreme Court knows this principle. It has set aside judgments of lower courts for far less grievous errors. Yet in Kanu’s case, the Court applied two contradictory legal positions in one ruling:

They admitted that a repealed law cannot sustain a criminal charge, and They still remitted the same repealed law charge for trial.

This contradiction is not an “error of evaluation” it is a jurisdictional error that voids the judgment ab initio.

A court loses jurisdiction the moment it relies on a non existent law. No doctrine of finality can shield a nullity. Where a judgment is rooted in illegality, the Supreme Court has inherent power and duty to purge its own record.

THE SUPREME COURT IGNORED A MANDATORY STATUTORY DUTY

The Evidence Act imposes a non negotiable obligation on all courts – including the Supreme Court:

Section 122 of the Evidence Act 2011 requires judicial notice of all repealed, amended, or newly enacted laws.

The Court did not merely “miss” the repeal, it violated a mandatory statutory duty to acknowledge it.

By pretending that the repealed 2013 Act was still in force, the Court acted per incuriam – in ignorance of a binding legal requirement.

A judgment delivered per incuriam is not protected by finality.

The Supreme Court has set aside its own per incuriam decisions before; to refuse to do so here would confirm institutional bias.

THE TRUE TARGET OF THE JUDGMENT: DESTROY DOUBLE JEOPARDY PROTECTION

The most dangerous aspect of the judgment is not even the resurrection of a dead law. It is that the Supreme Court knowingly crushed a non-derogable constitutional protection:

Section 36(9) of the 1999 Constitution prohibits a person from being tried again on the same offence after acquittal or discharge.

The Court of Appeal had discharged Kanu, which triggered this constitutional shield. Yet the Supreme Court stripped him of this fundamental right, and sent him back to face the very same counts.

This was not judicial reasoning. It was judicial punishment.

It signalled to the Nigerian State: “Bring him back and try him again — we have removed the shield.”

That is not law — it is vindictive jurisprudence.

WHY THIS SUIT IS NECESSARY FOR THE SURVIVAL OF THE RULE OF LAW

If this per incuriam judgment is allowed to stand:

Dead laws can be revived to prosecute citizens

Double jeopardy will lose its meaning

Judicial panels will be free to use “discretion” to override constitutional safeguards

Courts will become co-agents of government reprisal

Correcting this is not just about Mazi Nnamdi Kanu — it is about protecting every Nigerian from future judicial overreach.

(Part 2 coming soon)