As the trial of Nnamdi Kanu resumes today, legal analysts and observers are bracing up for a slew of dramatic scenes that would play out.
These involve varied reactions over the separatist leader’s escape from Nigeria — and the fate of a serving senator and two others who stood sureties for him in April 2017.
Mr Kanu who is facing trial on alleged treasonable offences, appeared recently in a widely circulated video intended to prove among other things, that the leader of the Indigenous People of Biafra (IPOB) survived a military raid at his country-home in Abia State in September, 2017.
But much more than proving this, Mr Kanu’s reappearance will redirect previous debates while introducing new arguments.
Trial Before Kanu’s Disappearance
Before his disappearance, Mr Kanu’s trial sessions witnessed a heavy presence of pro-Biafra agitators, with many of them clashing with military officials in court, for various reasons.
Although, the trial continued after Mr Kanu’s disappearance, the presence of the IPOB members obviously reduced, while military officials mellowed down on the extent of checks on lawyers, journalists and others seeking to attend the trial sessions.
Also ahead of his reappearance, the prosecution and the defence team where enmeshed in a series of allegations and counter-allegations, with the defence team alleging a possible murder of Mr Kanu, while the prosecution demanded the revocation of Mr Kanu’s bail accusing the defendant of violating his bail conditions.
On her part, the trial judge, Binta Nyako ordered Mr Kanu’s sureties to either produce the defendant or risk losing N100 million and going to jail.
“Even if you apply from today till tomorrow, you have only three options: produce Nnamdi Kanu, forfeit the bond (N100 million), or request for time to bring him back to court to face his trial.
“Once you sign to be somebody’s surety, that person automatically becomes your responsibility,” Mrs Nyako said, while talking to a lawyer representing one of Mr Kanu’s sureties, Eyinnaya Aberibe, a Nigerian senator in court.
According to a lawyer, Folarin Aluko, Mr Kanu’s trial can only continue in his presence, based on the provisions of the law.
“Trial in absentia is a procedure unknown to Nigeria’s procedural law. It is obviously a negation of fair trial. The criminal trial therefore cannot proceed until Mr Kanu submits himself to custody willingly or by administrative means.”
But what are the options available for ensuring the return of Mr Kanu, to proceed with his trial?
A Senior Advocate of Nigeria, Simon Ameh, said Nigerian courts cannot give a direct order for Mr Kanu’s return for the purpose of continuing his trial
“Such a thing can only be done through diplomatic agreements, by the two countries. The courts in Nigeria cannot order his return,” Mr Simon said.
The lawyer added that countries are however at liberty to refuse returning a citizen, if they believe that the fugitive is wanted for reasons related to political intimidation.
In a similar opinion, Mr Aluko gave details of constitutional provisions guiding possible extradition measures that might be taken in court.
“Nigeria can apply for Mr Kanu’s extradition to Nigeria, following the procedures laid down in the Extradition Law of the foreign country, and the provisions of Nigeria’s Extradition Act. These processes are subject to constitutional and regional safeguards that secure the fundamental human rights of people from state abuse of the mechanism of extradition.
“Looking at Nigerian law, for example, Section 1 of the Extradition Act provides for the judicial determination of an Extradition Application. The Federal High Court is vested with the jurisdiction by virtue of Section 251 (i) of the 1999 Constitution (as amended), while the Extradition is within the jurisdiction of the Federal Government, by virtue of Item 27 of the Exclusive Legislative list contained in Part 1, Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended).
“Moreover, extradition laws all over the world, including in Nigeria, frown on the use of extradition applications for offences that are prosecuted in bad faith, and this includes prosecuting someone for his/her race, religion, nationality or political beliefs.
“Another option open to the federal government is to enter into negotiations with Mr Kanu, given the special nature of his grievances. For example, the prosecution can enter into a plea bargain with Mr Kanu. The Administration of Criminal Justice Act allows a defendant to propose and enter into a plea bargain with the prosecution.
“A plea bargain under the ACJA would however imply an admission of guilt on the part of the defendant,” Mr Aluko said.
The lawyer however warned that Nigeria must comply with the rule of law, regardless of the decision intended to be taken.
In a similar opinion, another lawyer, Ejeh Monday, said the sureties who stood for Mr Kanu, ahead of his bail would bear the brunt of the defendant’s absence if they cannot provide him.
“What Tochukwu Uchendu, Senator Enyinnaya Abaribe and Ben El Shalom; who guaranteed the continuous availability of Nnamdi Kanu for his trial need to do is to provide him on the next adjourned date or ordinarily stand the risk of coughing out the sum in the bail bond to the federal government or stand the risk of, at most, six months imprisonment for failure to so do.”
Mr Monday also spoke on the possibility of a trial in absentia.
“The Administration of Criminal Justice, 2015, already anticipates situations such as this and has some provisions to cushion the effect.
“Section 352 subsection 4 of ACJA provides that when a defendant who is on bail, in this case Nnamdi Kanu, fails to make himself available for trial, the court can continue his trial in his absence and even proceed to convict him if the evidence led by the prosecutor establish the case against the defendant,” Mr Monday said.
He added therefore that the prosecution could demand the continuation of Mr Kanu’s trial in his absence.