As the trial of Nnamdi Kanu
resumes tomorrow, 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."
Possible Options
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.
Sen. Enyinnaya Abaribe
"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.
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