Kanu’s Lawyer Cites Constitution, Seeks Reversal Of Conviction

A lawyer to convicted Indigenous People of Biafra (IPOB) leader Nnamdi Kanu, has challenged the legal basis of the conviction, arguing that the trial court relied on a repealed terrorism law instead of the legislation in force at the time of judgment.

Christopher Chidera, who is also a member of the Global Legal Consortium for Kanu, argued Kanu’s conviction violated Section 36(12) of the 1999 Constitution, stressing that the section prohibits conviction for an offence except under a written law that defines the offence and prescribes its penalty.

He faulted the court’s reliance on the Terrorism (Prevention) Act 2013, contending that the Terrorism (Prevention and Prohibition) Act 2022 had replaced the earlier legislation.

According to him, the central issue is whether a conviction and sentence can stand when the trial court relies directly on repealed statutory provisions despite the existence of a replacement law.

“Saved liability is not saved law. Saved proceedings are not saved penal provisions,” Chidera said, challenging the argument that statutory savings provisions could preserve the use of repealed penal provisions in the judgment.

He argued that Section 98(3) of the 2022 Act could not override the constitutional requirements for a valid conviction.

“The framers of Section 36(12) never contemplated a savings clause as a constituent element of a valid written law,” he said.

Chidera maintained that the constitutional provision required a valid legal basis for both the offence and the punishment at the time of conviction and sentencing.

He distinguished between provisions preserving liabilities and pending proceedings following the repeal of a law and provisions authorising a court to convict and sentence a defendant under the repealed legislation.

According to him, Section 98(3) protects accrued liabilities and pending proceedings from automatically terminating because of the repeal of a statute, but does not necessarily authorise a court to impose punishment under repealed provisions.

He also cited Sections 97 and 98(2) of the 2022 Act, arguing that the trial court should have applied the statutory transition provisions governing the change from the 2013 legislation to the 2022 law.

“Justice Omotosho committed a fatal double error: he treated a permissive savings clause (Section 98(3)) as authority to convict under a dead law, while flatly disobeying the mandatory transition commands in Sections 97 and 98(2) directing migration to the 2022 Act,” he said.

Chidera further argued that the constitutional requirement could not be satisfied merely because the conduct for which a defendant was convicted was also an offence under the replacement legislation.

“Under Section 36(12), ‘written law’ means an active, subsisting Act in force on the date of conviction and sentencing. That the 2013 TPA was once written law does not make it written law on judgment day,” he said.

He contended that the court’s reliance on repealed penal provisions raised a fundamental question about the legal authority for the sentence imposed on Kanu.

The lawyer also disputed the reliance on previous Supreme Court decisions, including Adonike v. State, Ogbomor v. State and Awosika v. IGP, which he said had been cited to support the argument that references to repealed laws could amount to harmless errors.

According to Chidera, those cases were distinguishable because, in his interpretation, the convictions and sentences were ultimately based on laws that remained in force.

He argued that in Adonike v. State (2015), the reference to the defunct 1976 Bendel Criminal Code appeared on the charge sheet, while the trial judge applied the Delta State Criminal Code 2008 in evaluating the offence and imposing the sentence.

He similarly maintained that the decisions in Ogbomor and Awosika did not establish that a conviction could be upheld where the trial judge had relied directly on repealed provisions for both conviction and sentencing.

“The Golden Rule: In every affirmed case in Nigerian history, extant law supplied the conviction and penalty; the repealed citation was pleading only,” Chidera said.

He added that the principle of substantive equivalence, under which similar conduct may remain criminal under a replacement law, could not by itself resolve the constitutional question.

“‘Substantive equivalence’ (that the conduct was wrong under both laws) satisfies moral intuition, not Section 36(12), which demands an active written law at conviction,” he said.

Chidera also raised concerns about how the Court of Appeal could address the alleged error without compromising Kanu’s constitutional right to a fair hearing.

He outlined two possible approaches for the appellate court: quashing the conviction on the ground that it was based on repealed provisions, or attempting to uphold it by identifying corresponding provisions in the 2022 Act.

He argued that the second approach could raise fair-hearing concerns if the appellate court relied on provisions that were not the basis of the case defended at trial.

“Manufacture an ‘analogous’ 2022 Act provision sua sponte on appeal to rescue the trial judge’s ratio—violating Section 36(1) & (6)(a) Fair Hearing guarantees by convicting on appeal under a statute the appellant never defended against at trial,” he said.

Chidera further claimed that Kanu had drawn the trial court’s attention to Sections 97 and 98(2) during proceedings but that the provisions were not applied as he believed they should have been.

The lawyer called on those defending the judgment to identify a precedent in which a conviction was upheld despite the trial judge expressly basing the conviction and sentence on a repealed statute while leaving the replacement legislation unapplied.

He warned that accepting such an approach would weaken the constitutional protection against conviction and punishment without a valid written-law basis.

“If appellate courts hold that a trial judge can pronounce a sentence under a repealed statute—and hide behind a savings clause to ignore mandatory transition commands—then Section 36(12) of the Constitution is dead, and nullum crimen sine lege is a myth in Nigeria,” he said.

Concluding his argument, Chidera maintained that the alleged defect went beyond an incorrect statutory reference in a charge sheet and affected the legal foundation of the conviction itself.

“Without an active, extant written law at the foundation of the judgment, the conviction as entered is an absolute, incurable nullity,” he said.