Incarcerated IPOB leader, Nnamdi Kanu, won a stunning legal victory this week, with the Abuja Court of Appeal dismissing all the outstanding counts in the federal government’s treason case against him. The government, however, insists Kanu has not been acquitted and seems disinclined to release him from detention. Government recalcitrance could unleash a spate of violence in the South East and agitation elsewhere, except if regional leaders intervene to secure the legal result or find a political solution.
By Chudi Okoye
It has a whiff of Greek mythology and an unmistakable hint of political chicanery written all over it. On one level, it is a mesmerizing judicial victory; a grand vanquishment of the mighty federal government by an overmatched but scrappy Biafra agitationist. Yet, it could become a victory that revives history; one that rekindles a waning but toxic Biafra separatist movement, potentially hurting the South East’s chances in the arena of conventional politics. Especially in the upcoming presidential election.
Choose your allusion: A Greek gift. A Pyrrhic victory. A Catch-22. It might be all that, and possibly done by design. The question however is how to harness the opportunity afforded by the unfolding legal drama whilst avoiding the landmines probably being laid by canny political strategists.
News broke late afternoon on Thursday, October 13, that the Court of Appeal sitting in the Federal Capital Territory, Abuja, had vacated the seven remaining counts in a treason and terrorism case which had been brought by the federal government of Nigeria against Nnamdi Kanu, leader of the proscribed Indigenous People of Biafra (IPOB). The three-member appellate panel, led by Hon. Justice Jummai Hannatu Sankey, based its unanimous decision chiefly on the technicality that Kanu’s extraordinary rendition by the federal government – allegedly from Kenya to Nigeria – was an illegal act which made the terrorism charges against him incompetent and unlawful. “With [its] appalling disregard for local and international laws,” the Appeal Court ruled, “the federal government has lost the right to put the appellant on trial for any offence.” The court also argued that it was fatal to its case that the federal government failed to disclose where and when the alleged offences were committed, making the charges liable to dismissal.
This new Appeal Court ruling follows an earlier one delivered in April by the trial court where the presiding judge, Hon. Justice Binta Nyako, struck out eight of the 15 counts filed by the federal government against Kanu. The trial judge had argued that the liquidated counts were “incompetent” because they did not disclose any valid offences committed by the defendant. Whilst dismissing those charges, however, the judge had overruled the objection of Kanu’s lawyers by upholding the legality of the federal government’s forceful rendition of Kanu and the validity of the remaining charges. She upheld those charges on the ground that there was a “surviving bench warrant” for Kanu’s arrest which predated the 2021 rendition, having been issued by her in 2018; and that the rendition was lawful because Kanu had jumped bail. “There is a bench warrant for the arrest of the defendant,” the judge had insisted. “He is a fugitive that is wanted in court. The bench warrant survives until he is brought to court.” This is the argument now roundly rejected by the appellate panel.
With the Appeal Court striking down the remaining charges against Nnamdi Kanu, the question now is whether the federal government will be inclined to release him in compliance with court order. It appears, for the moment at least, that there is some reluctance to do so. The Attorney General of the federation, Abubakar Malami, has already stated through a spokesperson that “Kanu was only discharged and not acquitted.” He claimed that the court’s decision was only based on the extradition of Kanu, and that it did not apply to those charges predating it which “remain valid issues for judicial determination.”
Experts seem to disagree on this matter. One constitutional and human rights lawyer, Luka Musa Haruna, told the BBC that although Kanu is now technically a “free man” and should be released, there is nothing preventing the federal government from re-arraigning him on different charges. Similarly, a Lagos-based lawyer, Eustace Odunze, told Awka Times that the Appeal Court’s ruling “completely sets [Kanu] free from detention by the government because the government committed an illegality of extraordinary rendition of [Kanu].” Odunze argued that “the decision also discharges [Kanu] from both current and further prosecution by the government on any post-rendition charges.” He noted however that since Kanu “was undergoing pre-rendition trial for which he has neither been discharged nor acquitted,” the Appeal Court’s ruling “may not have ousted the government’s right to continue that particular case at the lower court where it subsists.”
As might be expected, Kanu’s lawyers have a different view of the Appeal Court’s ruling. One of the IPOB leader’s attorneys, Aloy Ejimakor, wrote on Twitter that “no new charges can ever stick against [Kanu] because the extraordinary rendition has created a permanent barrier to his prosecution.” Another one of Kanu’s lawyers, Ifeanyi Ejiofor, offers an equally aggressive interpretation. He argues that the federal government is at liberty to challenge the Appeal Court’s ruling at the Supreme Court but he insisted that the government cannot re-institute the charges pending against Kanu before the rendition since they were the same charges that the Appeal Court had already vacated.
Similar to his colleague Aloy Ejimakor, Ejiofor argues that
“the declaration by the Court of Appeal that the Federal High Court has no jurisdiction to try… Nnamdi Kanu because of the illegality of his abduction and extraordinary rendition to Nigeria is an all pervading instrumentality that effectively bars any indictment of… Kanu in any court in Nigeria.”
Nnamdi Kanu’s lead counsel, Chief Mike Ozekhome, takes the argument further, telling Channels television that “Nnamdi Kanu was set free and discharged by the Court of Appeal” and that “the Supreme Court has said such a discharge amounts to discharge and acquittal.” Ozekhome urged the federal government to accept the ruling, noting that an appeal would “amount to persecution and no longer prosecution.”
We should not perhaps expect Kanu’s lawyers to offer anything but a maximalist interpretation of the Appeal Court’s favorable ruling. We will see if Kanu will be released imminently as his lawyers demand, or if the federal government will continue to detain him whilst exploring other legal recourse.
Whether or not Kanu will be immediately released, this latest court ruling has been received as some sort of triumph for the tested IPOB leader, reportedly sparking spontaneous jubilations across Igboland. The jubilation, if correctly reported, is understandable: it is a humane and spontaneous show of empathy for the person of Nnamdi Kanu who has languished in long and lonely detention since his capture last year; it is a sigh of relief from South-easterners who have been suffering the strangulating effects of IPOB’s sit-at-home campaign and the reign of terror associated with it; and it might be a triumphal exclamation from IPOB protagonists seeing this as a boon to their movement.
But there could yet be a different form of ‘jubilation’ manifesting elsewhere for reasons that may not be altogether benign. A judicial victory for Kanu, if not carefully managed, portends the resurgence of IPOB and a rekindling of Biafra agitation possibly in a manner that threatens Igbo claim in mainstream Nigerian politics. In particular, it could impact the political mobilization of the South East in the current presidential election cycle, possibly disorienting even the campaign of Peter Obi, the Labour Party presidential candidate who is currently making great strides in his quest for the Nigerian presidency. Herein lies the risk, which I will do my best to articulate below.
There are two broad tendencies in Igbo politics that can be easily discerned. On the one hand, there is an otherish or outsider mentality, driven by an acute sense Igbo marginalization, which leads to a persistent separatist tendency or at least a desire for a semi-autonomous existence within the Nigerian federation. There is, on the other hand, an integrationist complex seeking admission to the apex of power in Nigeria, in a way as a corrective to the perceived marginalization. (In an earlier article, I had disaggregated these two broad complexes in Igbo politics into a model of five behavioral tendencies. See here for that article, and here as well where I did a follow-up). These strains have historical resonance, reaching back to the pan-Nigeria politics of Nnamdi Azikiwe versus the separatist drive of Odumegwu Ojukwu which led eventually to the Civil War.
These political tendencies are also, to some extent, class-based. The Igbos with favorable prospects in the political economy of Nigeria will find the unthreatening cadence of conventional politics appealing. Other Igbos, however, especially those at the margins who are more seriously impacted by the perceived marginalization of the South East, will find the pull of separatist rhetoric irresistible.
But we must not assume a strict class differentiation here. The radical rhetoric of Biafra separatism has cross-cutting ideological appeal, with avid adherents even within the relatively affluent strata of Igbo society. Part of the reason for this is the absence of an alternative logos. Mainstream Igbo politics tends to be sterile and transactional, bereft of any organizing or animating ideology, with mainstream political leaders seen mainly as self-seekers out to feather their own nests. Of course this is not unique to Igbo political leaders. It is an affliction of the entire Nigerian political class. But the egalitarian and acephalous nature of Igbo society places Igbo political leaders under greater scrutiny, and thus probably more graphically revealed in their shortcomings. As such, mainstream Igbo political leaders lack firm affinitive following among the Igbo rank-and-file.
There is, you might say, a vacuum in pan-Igbo political leadership. And it is into this vacuum that IPOB breathes its political radicalism.
Nnamdi Kanu and his cohorts embody that radicalist strain in Igbo politics. Though with a myriad personal faults, including a tendency to megalomania, Kanu serves as a fulcrum of Igbo disaffection, with a name recognition and personal magnetism that cuts across social circumstances – something which eludes any single mainstream Igbo politician today, except perhaps for Peter Obi. Kanu’s incarceration had hobbled his already proscribed IPOB to a great degree; the malevolent terrorism and wanton criminality unleashed by his associates on Igbo communities had also greatly damaged IPOB brand among the Igbos. Peter Obi emerged in these circumstances – a soft-spoken, mild-mannered, complaisant fellow squarely located in the mainstream of Nigerian politics. But, although Obi has presumptive appeal – especially among the youths, the urban dwellers and the intelligentsia as well as those in the diaspora, he does not aspire so much to a pan-Igbo essence as to a pan-Nigerian leadership. There remains therefore something of a lacuna in pan-Igbo political leadership.
If the new Appeal Court ruling occasions the imminent release of Nnamdi Kanu, he could re-emerge as a gravitational force for Igbo political radicalism: not in the sense of formal leadership but symbolically and charismatically (to invoke a Weberian distinction), notwithstanding the setbacks his IPOB group has suffered. The Igbos love a hero, a dike who overcomes great odds to accomplish great feats. If Kanu emerges from the cavernous entrails of federal detention with an irreversible judicial victory, there will be wild welcome awaiting him, a triumphal reception for a ‘hero’ who entered the lion’s den so to say and came out unscathed. Some admirers already laud him as the ‘Lion of Biafra’. He’ll enjoy a new level of empathy and admiration which could possibly translate into political leverage. This sentiment may not endure, but Kanu is savvy enough to exploit its window. Yet, there is no knowing how he might deploy such leverage. Will he mobilize his following for full engagement with conventional politics, perhaps even urging them in favor of a particular presidential candidate? Certainly Kanu will not have significant influence across all strata of Igbo polity, but he might hold sway with a swathe of the disaffected rank-and-file unenthused by conventional politicians but whose instincts were sublimated into mainstream politics with Kanu’s detention. His return could unlatch them from previous compromises.
If, on the other hand, the federal government continues to hold Kanu in detention in contravention of court order, there may be great upheaval across Igboland, hampering voter turnout or probably even preventing elections from holding in the Igbo country. Kanu’s IPOB associates are already threatening mayhem if he is not released imminently. No one should minimize the seriousness of that threat. We are dealing with a set of arguably irrational actors who might not see reason to modulate their reactions and not hurt South East chances in the arena of conventional politics. They will not be persuaded to act in the interest of the larger group, especially if they become convinced, based on the interpretation of Kanu’s lawyers, that the IPOB leader, having survived prosecution, is now being ‘persecuted’. We have only to recall the reign of terror visited upon Igboland in the course of Kanu’s trial to imagine what might be unleashed in the circumstance of a sabotaged legal victory.
The question then is whether the federal government will act in the interest of peace, or continue to prosecute the case against Kanu, holding him in detention despite the appearance of wanton persecution. Put differently, does the federal government have any incentive to pursue the path of peace? Or might the ruling party, All Progressives Congress (APC), in order to stall the supposed surge of Peter Obi in the run-up to the February 2023 presidential election, orchestrate the extension of Kanu’s case as a way to destabilize Peter Obi’s primary constituency, the South East? We have not seen any major party in Nigeria shrink from using dirty tricks to achieve its political objectives.
We are not clear yet about the formal reaction of the government to the Appeal Court ruling. Besides the statement released by the Attorney General’s office, the National Security Council has also issued a statement, after a meeting on Friday October 14, affirming the AG’s position that Kanu was discharged but not acquitted. The NSC said it was “considering the appropriate action to be taken,” and that the government would explore other legal instruments to pursue the matter.
In light of the developments, it is imperative that the political leadership of the South East should rally to avert what looks like a looming crisis over Nnamdi Kanu’s supposed judicial victory. So far, it appears that only the Igbo socio-cultural group, Ohaneze, as well as Alaigbo Development Foundation have weighed in on the matter. Both applauded the Appeal Court ruling and urged the release of Kanu from detention. There is not as yet a concerted intervention by the political leadership – not the presidential candidates or governors or legislators or party leaders from the South East.
It is important to have a concert of opinion from South East political leadership on this matter. The conflagration that could result if the federal government is not persuaded to release Kanu will engulf the entire region.
The South East political leadership also has a role to play, if and when Kanu is freed, to corral his post-release exertions into the mainstream.
The isolated interventions so far on display from Igbo leadership simply will not do.