As the trial of Nnamdi Kanu, leader of the Indigenous People of Biafra, IPOB, continues to linger, judges’ withdrawal from his case is raising concerns.
The Nigerian Government has been prosecuting Kanu since 2015.
He is standing trial for several charges ranging from treasonable felony to terrorism.
In 2017, Justice Binta Nyako of an Abuja Federal High Court granted him bail in the sum of N100 million, but the IPOB leader absconded from Nigeria after the military allegedly invaded his residence in Afaraukwu, Abia State.
Kanu was, however, rearrested in July 2021 in Kenya and subjected to extraordinary rendition back to Nigeria where he was re-arraigned on charges bordering on terrorism.
In October 2022, the Court of Appeal in Abuja discharged and acquitted Kanu of all the 15 count charges, describing them as illegal and unlawful.
The Court held that the Federal Government breached all local and international laws by subjecting the Biafra agitator to extraordinary rendition from Kenya to Nigeria, a situation that makes the terrorism charges against him incompetent and unlawful.
However, the Supreme Court ruled that Kanu should return to the High Court and face trial afresh.
Three judges have recused themselves from Kanu’s trial
DAILY POST reports that a total of three judges have stepped down from handling Kanu’s trial since its inception in 2015.
In December 2015, Justice Ahmed Mohammed stepped down from Kanu’s trial after the IPOB leader said he had no confidence in him.
In September 2016, Justice John Tsoho of the Federal High Court in Abuja pulled out of Kanu’s case.
In a petition his then lawyer, Ifeanyi Ejiofor sent to the National Judiciary Council, NJC, Kanu accused Justice Tsoho of “judicial rascality” and called for the council to investigate the judge for giving parallel judgments on the same issue.
Following the petition, Justice Tsoho who stepped down from the case said: “Even if I am cleared of any bias by the NJC, I will not continue with this case.”
In September 2024, Justice Binta Nyako of Abuja Federal High Court also recused herself from Kanu’s case following his declaration of lack of confidence in her.
Despite arguments from the Federal Government’s lawyer, Adegboyega Awomolo, Justice Nyako had said: “I hereby recuse myself and remit the case file back to the Chief Judge.”
But, Kanu’s lead Counsel, Aloy Ejimakor, said the decision of judges to recuse themselves from Kanu’s trial was evidence that the judiciary was having a hard time.
Speaking with DAILY POST, Ejimakor said: “Three judges have been withdrawn from Kanu’s trial since its inception in 2015. This is affirmative evidence that the judiciary is having a hard time or a conflict with coming to a verdict that Kanu committed any real offense.
“Another incident that demonstrates the conflict within the judiciary is the acquittal by the Court of Appeal that was reversed by the Supreme Court on reasons that do not comport with good law.
“Yet another point of judicial conflict in the case is the inexplicable refusal of Justice Binta Murtala-Nyako of the Federal High Court to abide by the finding of the Supreme Court that Kanu did not jump bail.
“These anomalies have posed complexities that are not supposed to be allowed in a society governed by rule of law and fundamental fairness.”
Breaking the Jinx of judges stepping down
Ejimakor said the IPOB leader must be treated in accordance with the constitution.
He added that if the Supreme Court restored Kanu’s bail, judges wouldn’t need to step down.
“To break what you called a jinx of judges recusing themselves, all that is required is for Kanu to be treated in accordance with the law and the Constitution.
“For instance, he is not supposed to be detained at the DSS where his preparations for trial are hampered by the monitoring of his conversations with his lawyers and interdiction of his confidential legal documents.
“Sometimes, the DSS even blocks his lawyers from meeting with him. He is supposed to be detained in prison or a correctional facility that does not engage in such unconstitutional acts.
“Another fair way is for his bail to be restored as the Supreme Court held. This is even better because a Court or Judge that refuses to follow the Supreme Court and restore Kanu’s bail is unlikely to give him a fair trial.
“One might also add that it is up to the government of the day to discontinue a trial that has become an albatross and a blight that makes this administration look like the infamous one it succeeded,” he added.
On his part, activist lawyer, Madubuachi Idam suggested that with a fair trial, judges won’t need to recuse themselves from Kanu’s trial.
Idam told DAILY POST: “The only thing here is a fair trial, where the trial is seen to be fair and not just fair, where the trial is just and speedy, where there are no needless delays on the part of the state.
“You can see that the state has made a series of applications for amendment of charges, those amendments led the matter to be protracted.
“The delay was not occasioned by Nnamdi Kanu or his team but by the state. When you have that delay, many things would have lasted; the period the case lasted in Justice Nyako’s Court, it could have been concluded without needing to get to this point.
“The case has lasted in that court for many years, whereas, the case could have been concluded within a few months.
“The state is not interested in giving Kanu a fair trial but only interested in getting him through a horrendous experience.
“Two or three months is enough to conclude the trial.
“The continued prosecution of Nnamdi Kanu, leader of the Indigenous People of Biafra, IPOB, has not solved any problem or security issues in Nigeria.
“The state has a right to enter a law called Nolle prosequi – a constitutional right given to the Attorney General to decide to discontinue a case instituted by the Federal government.
“Anybody undergoing criminal prosecution is undergoing that at the instance of the state.
“The Attorney General can decide to prosecute two out of 10 people for a crime and nobody will question him for not prosecuting the others. He can decide to withdraw the same case along the way.
“It’s a sane and honourable thing for the judge to recuse herself from a case if the judge entertains an application requiring her to recuse herself, especially when such an application is meritorious.”
Political solution in Kanu’s case
Ejimakor also noted that Kanu’s case is still open to both political and judicial solutions.
“The two paths you mentioned (political solution and the judiciary) are not foreclosed. They are still open and ongoing.
“Presently, the legal team is working quietly to ensure that Kanu’s case is treated in accordance with the Constitution, equity and good conscience,” he added.
Similarly, Idam said President Bola Tinubu might be considering toeing the path of a political solution.
He suggested that the president might be consulting with relevant stakeholders on the need to consider a political solution in Kanu’s case.
“I don’t want to believe that a political solution has failed because there is no limit to exploring a political solution.
“I have not seen Tinubu make a concrete statement in respect of Nnamdi Kanu since his assumption of office unlike what we had during Buhari.
“At least, we know that Buhari said let the law take its course, so we knew that he was not willing to throw his weight to see that Kanu gets a soft landing.
“But, in the case of the present government, we haven’t seen him come out to make a bold statement with respect to Kanu, so nobody should say that a political solution is no longer feasible.
“I still believe that he’s considering or making consultations to give Kanu that political solution, which is necessary under this circumstance.
“He should take advantage of his power and enter a Nolle for his case. There is no need to continue pursuing this matter. The matter is heating the polity more,” he advised.