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A lawyer, Onyedikachi Ifedi, has questioned the Supreme Court’s decision to revive charges that had previously been struck out by the Court of Appeal in the trial of Indigenous People of Biafra, IPOB, leader Nnamdi Kanu.

The Court of Appeal, in its judgment delivered on October 13, 2022, discharged and acquitted Kanu while striking out counts 6, 7, 8, 9, 10, 11, 12 and 14 from the 15-count charge.

The appellate court held that the affected counts failed to disclose any offence against the defendant, while counts 1, 2, 3, 4, 5, 13 and 15 were retained.

However, the Supreme Court, in a judgment delivered on December 15, 2023, overturned the Court of Appeal’s decision that had discharged and acquitted Kanu.

The apex court subsequently ordered that the case be returned to the Federal High Court for continuation of the trial.

“What law revived the seven counts quashed by the Court of Appeal? What law authorised the Supreme Court to substitute the statutory foundation of Count 15, later numbered Count 7 at the Federal High Court?

“The Supreme Court had appellate jurisdiction. But appellate jurisdiction does not itself confer a power to resurrect a quashed charge or rewrite the statutory foundation of a criminal accusation,” Ifedi said.

He challenged the Supreme Court to produce the law that empowered it to take the decisions.

“If the law permits either act, show us the law,” he said, stressing that the Supreme Court is not supreme over the law.

Further criticising the apex court’s role in the IPOB leader’s trial, Ifedi said, “Some describe the Supreme Court as a ‘court of policy’. That cannot mean policy gives a court powers which the law has withheld. Policy cannot revive a quashed charge. Policy cannot replace a repealed statute. Policy cannot confer criminal jurisdiction.

“The Supreme Court may interpret and develop the law. It cannot legislate the criminal law required to reach a preferred outcome. It is supreme within the judicial hierarchy. It is not supreme over the law.”

Ifedi, a member of the Mazi Nnamdi Kanu Global Legal Consortium, also criticised what he described as the Supreme Court’s alteration of the foundation of count 15, which became count 7 after the case was remitted to the Federal High Court in Abuja.

In a statement made available to journalists in Umuahia, the lawyer raised two questions which he said required clarification from the Supreme Court.

While acknowledging that Justice Binta Nyako’s subsequent recusal could explain why proceedings had to begin before another judge and why Kanu was required to enter a fresh plea, Ifedi argued that the circumstances surrounding the charges remained questionable.

“Recusal can change the judge and restart procedure. It cannot answer a more fundamental question: what was the legal status of the counts to which the accused was asked to plead?

“The counts had been quashed by the Court of Appeal. The Supreme Court said the trial should “continue”. A new judge subsequently took a fresh plea and proceeded to trial. The question is therefore not whether recusal could require a fresh plea. The question is: what law made the quashed counts legally cognisable again so that they could be put before a new judge for plea and trial?

“That is the question recusal cannot answer. A change of judge is procedural. The existence of a criminal charge is jurisdictional. One cannot be used to answer the other. General terrorism jurisdiction is not enough. The Federal High Court has jurisdiction over terrorism offences. Nobody disputes that. But jurisdiction over terrorism generally is not the same thing as the existence of a live charge against a particular person.

“There must first be a legally cognisable accusation. Lawal Garba JSC himself stated the governing principle: “A court cannot confer jurisdiction where the law has not conferred it.” That principle does not apply only to lower courts.

“If a quashed count needed to be revived before it could support another criminal proceeding, the law that revived it must be identified.”

Ifedi further alleged that the Supreme Court’s position in Kanu’s case was inconsistent with its earlier decision in Onu Okafor v The State (1976).

According to him, the apex court had in that case declined to order a retrial because the original proceedings lacked the legal authority necessary for them to have commenced.

The lawyer questioned whether the Supreme Court had acted as a neutral arbiter in the matter, particularly regarding the decision to alter the legal foundation of count 15.

He maintained that the circumstances surrounding the charges and their subsequent modification raised important legal questions that required clarification.

He said, “Before the Supreme Court, the accusation was Count 15. It concerned the alleged importation and concealment of a radio transmitter. It was pleaded under Section 47(2)(a) of Criminal Code Act, CAP C45 LFN 2004.

“Lawal Garba JSC examined that citation. At page 32 of the remittal judgment, he held that Cap C45 was CEMA, not the Criminal Code Act. He then held that the facts disclosed an offence under Section 47(2)(a) of CEMA Cap C45.

“He described the reference to the Criminal Code as a “mere mistake”. The court therefore supplied CEMA as the statutory foundation of the count and treated Count 15 as recognised, cognisable and grounded in that law.

“The question is straightforward: What law authorised the Supreme Court to do that? What law authorised the court to take a count pleaded under one Act and send it to trial under another? The Supreme Court is not the prosecutor. It is a neutral arbiter. If the law gives it the power to substitute the statutory foundation of a criminal accusation, show us the law.”

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