Understanding the latest treason charges against Nnamdi Kanu

Image: The author

This is a long legal discourse. I broke it into four parts to help you read it without stress. You can read the part you like and omit the part you are not interested in. But if you read all of it, you will be able to tell what will happen in the court if Nnamdi Kanu’s case were to go through full trial. By the way, the punishment for the offence they charged Nnamdi Kanu with is now life imprisonment. So, you need to read this if you want to know whether he will go to prison for life or not.

Part One: Introduction:

Given the wide public interest in the case Nigerian government is making against Nnamdi Kanu and two others, I decided to explain better the provisions of the law applicable. Then, I shall place the law side by side with the evidence and the charge filed by the government. I will be analyzing this case from the point of view of a defense lawyer as well as the point of view of the prosecutor.

Bear in mind that for the case to succeed, the prosecutor must neatly tie the three things together: – (1) the law, (2) the evidence, and (3) the statement of the charge. Nobody can do anything about No. (1). That is the law. It is there. Neither the prosecution nor the defense can change the law. Something can be done about No. (2). It is the evidence. The prosecution cannot create the evidence, but he must work hard to discover it, develop and package it well, and then present it persuasively. No. (3) is really where the prosecution must show experience and skill. No. (3) relates to the prosecutor’s ability to articulate the crime. The prosecution must get it right at the outset in order to tie the evidence with the offence. This task starts with the statement or definition of the offence.

Before I go further, I want to observe that the government has pursued this case since September in the poorest manner possible, which has now given rise to the suspicion that the government is on a vendetta mission out of a mere obsession against anything Biafra. Anything Biafra invokes fear and intense hatred, such that this government would go to all extent, even to the point of destroying Nigeria in order to stop the Biafra idea. It is like a man that sets his house on fire in order to hurt his roommate that he dislikes.

If government were really honest and sincere, it should have brought these latest charges immediately after Nnamdi Kanu was arrested in September. If it had done that, it would have been a different matter today. There would not have been the costly drama at the Magistrate court. There would not have been the secret order for 90-days detention, and there would not have been the incident that led to Justice Ahmed Mohammed being forced to recuse himself from the case on December 23, 2015.

Even without any feeling of sympathy for Nnamdi Kanu, I stand firm in my view that the poor handling of the case so far is sufficient ground to dismiss the case. It is a scandal, actually. The Attorney General should immediately discontinue these charges, set Nnamdi free and send all the government lawyers involved in this case back to law school. But this is not expected to happen because the government from top level has been involved in the unfortunate mishandling of this case.

Part Two: The Law and the Charge:

The government filed six counts of treasonable offenses against Nnamdi Kanu and two other persons under Section 41(C) of the Criminal Code Act, CAP C38 Laws of the Federation of Nigeria 2004. What does that section of the law say?

Section 41 provides thus:

“41. Any person who forms an intention to effect any of the following purposes, that is to say-

(c) to levy war against Nigeria in order by force or constraint to compel the President to change his measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe any House of the National Assembly or any other Legislature or legislative authority; ..”

From the statement of the charge, the government chose to go under subsection (c) above (as it pertains to the President as the target). We shall discuss that further after reviewing the statement of the charge or the particulars of offence.

THE CHARGE: As part of the administration of criminal justice, the prosecutor (the government) is required to state what exactly the accused person did, which amounted to the offence. The critical requirement of the charging process is that the statement of the offence or particulars of the offence: (a) must state the offence with reference to a section of Nigeria’s criminal law, (b) must state exactly what acts the person performed or failed to perform, which constitutes the offence. The statement of offence does not require that the prosecutor state the evidence. However, it requires that the prosecutor make an allegation that the accused person’s conduct covers all the elements of the offence. Though the evidence is not required in the statement of the offence, the statement cannot be vague. It must state what the person did exactly and when and where he did it.

The reason for this requirement is obvious. It goes to the heart of due process. In order for the accused person to know the case he is to defend against, he has to know exactly what you allege he did wrong. He has to know the time he did that thing and the place you claim he did it. This is because he may have an alibi. (The day you said he killed someone might turn out to be the day he was on admission in a hospital. He needs to bring up that alibi as defense against the charge. But if you do not state the day or period of time when he allegedly killed the person, it will be impossible for him to use the alibi. It is like starting a soccer match without fixing the goalpost until after the opponent has kicked the ball into your penalty box).

Now, let’s see how the government stated the charge to see if it meets the requirement I just explained. The particulars of the offense read as follows:

“That you, Nnamdi Kanu and other unknown persons, now at large, at London, United Kingdom, between 2014 and September, 2015 with intention to levy war against Nigeria in order to force the President to change his measures of being the President of the Federation, Head of State and Commander-in-Chief of the Armed Forces of the Federation as defined in Section 3 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) by doing an act to wit: Broadcast on Radio Biafra your preparations for the states in the South-East geo-political zone, South-South geo-political zone, the Igala Community of Kogi State and the Idoma/Igede Community of Benue State to secede from the Federal Republic of Nigeria and form themselves into a Republic of Biafra, and thereby committed an offence punishable under Section 41(C) of the Criminal Code Act, CAP C38 Laws of the Federation of Nigeria 2004.”

Having now seen the law and read the statement of the charge, what do you think?

Part Three: The Evidence: Part of the due process requirement of Nigerian law is that the government must indicate the evidence it intends to rely upon to prove the accused person guilty beyond all reasonable doubts. This evidence must be disclosed in advance. In Nigeria, the evidence is attached to the charge sheet (technically called “Information” at the State and Federal High Courts of Nigeria). The evidentiary materials are collectively titled “Proof of Evidence”. It contains the names of witnesses whom the government intends to call to testify against the accused person. It also contains any document or videotapes, or recording of broadcasts (as likely in this case) and other exhibits or materials that tend to show that the accused person actually did what he is alleged to have done.

I have not seen the Information in this case. However, I can safely assume that the state would have listed the names of DSS officers who will testify as to how they arrested Nnamdi. This is usually not necessary, but in Nigeria, they waste everybody’s time parading policemen who repeat the same stories of how they arrested a person and how they took his written statement. They do this in Nigeria because in almost all the cases, the Nigerian police or DSS force accused persons to make statements against themselves and they try to use such incriminating statements against the accused person during trial. (Such does not happen in other countries, especially in developed democracies, because the accused person hardly ever makes statements without his lawyers present. So, he is not forced to incriminate themselves).

Given the poor manner the government has developed this case, one can assume that the government does not have any real evidence. Nnamdi Kanu would not have said anything to them that is different from his call for Biafra to break away from Nigeria. He does not hide that fact. The fact that Nnamdi does not hide the fact that he wants Biafra to separate from Nigeria means that there is no need trying to prove that with any videotape of his Radio Biafra broadcast. The evidence the government needs is not evidence of the broadcasts. They need to establish an intention to “use force to compel or constrain the President of Nigeria” to do or from doing something that he wanted to do (which is the “measures” or “counsels” mentioned in the law).

Evidence of Nnamdi Kanu telling a gathering of Igbo people in the diaspora to raise money for him to buy guns to fight for the independence of Biafra is nearly useless. Such evidence may simply mean that Nnamdi Kanu was raising funds under false pretenses, which is not an offence charged. As an illustration, the mere fact that a pastor is telling his congregation to contribute money for God does not really mean the money is going to God. You cannot prove what Nnamdi does with the money he raised merely from what he said he would do with the money. Likewise, pictures of him with some boys with guns or something that looked like guns will not suffice. That might be a mere commercial for fund raising. These are mere pictures. Again, pictures of a pastor praying so fervently do not prove that he is really communicating with God or that God is hearing what he is saying.

The government needs evidence of people who will come forward to testify that Nnamdi recruited them and instructed them to start war against Nigeria. You need evidence of him buying guns, giving guns to people, training them on how to wage war against Nigeria. Or you need evidence of weapons or arms dumps seized from him. Without such evidence, you can’t win the case. Let’s say for the sake of argument, just for the sake of argument, that Nnamdi is a conman who raises funds from some gullible Igbo people by telling them he would use the money to buy guns for the independence of Biafra. That will not be a treasonable offence. Some pastors and juju men and even those who sell to you some penis-enlargement drugs are doing the same thing. That is not evidence of treasonable offence.

There is also one piece of evidentiary information that will be very helpful to Nnamdi at trial. Nnamdi’s lawyers can easily show that Nnamdi and his group never had even a single gun, that they don’t even know how to hold a gun. The way to show this is by the fact that in all these clashes between the supporters and Nnamdi and the police, there has never been an incident where any of his supporters had a gun. It had always been the police and the army that shot and killed his supporters. So, where is the gun? Where are Nnamdi’s guns if none of them has ever been seen by the police who must have been looking?

Part Four: Analysis And Conclusion: The government cannot win this case. The government lawyers are so incompetent. The manner they defined the charges or their statement of the offence is so pathetic. It is not clear whether he was to “levy” the “war”. Would he first levy the war against the Igala and Edoma people in order to get them to join him to then ‘levy’ further war against Nigeria? Or would he persuade the Igala and Edoma people by peaceful means to join him in the war against Nigeria? If all the people he wanted to be in Biafra voluntarily join him, would there still be need for war against Nigeria? It is clear that the prosecution is struggling to formulate the offence alleged. Also the reference made to Section 3 of the Constitution is such a dumb thing. A good defense lawyer should be able to quash these charges.

Post Script:

There is something very important which I had missed. And that is the effect of the right to free speech. Whatever the section 41 (c) of the Criminal Code Act may say, it must not try to wipe out Kanu’s freedom of speech.

A number of times, what the law considers a criminal conduct may be something the constitution sees as a right. In such situation, there is a conflict between the constitution and the law establishing the offence. Naturally, the constitution should prevail. But it takes an experienced lawyer to invoke the supremacy clause of the constitution successfully.

Most of the offensive remarks by Kanu such as his remarks that Nigeria is a zoo or that Buhari is Boko Haram, etc all fall within his free speech rights. As offensive as those may be, he has the right to express himself. The fact that the President does not like to hear those words is immaterial. Likewise, merely telling his audience openly that they should leave Nigeria is a matter of political speech. They are all protected speech under the constitutional enumeration of rights. You can’t do anything about it.

By Emeka Ugwuonye, Esquire