Departure Of Openness And Fairness In The Criminal Prosecution Of Nnamdi Kanu & Ors: Time For Defense Counsel And IPOB To Re-Jig And Rethink

(Intersociety/SBCHROs, Onitsha Nigeria, 18th December 2016)-The

leaderships of International Society for Civil Liberties and the Rule

of Law (Intersociety) and the Southeast Based Coalition of Human

Rights Organizations (SBCHROs) have, again, observed with deepest

dismay the recent militarist and undemocratic rulings of Hon Justice

Binta Murtala Nyako’s Federal High Court; leading to denial of bail

and right to open and public trial of Citizens Nnamdi Kanu, Benjamin

Madubugwu, David Nwawusi and Chidiebere Onwudiwe. We totally disagree

with the findings or rulings of Hon Justice Binta Murtala Nyako and

grounds upon such militarist and undemocratic findings were made.

We hold, in line with the provisions of the 1999 Constitution of

Nigeria, that that a citizen accused by the State in the open of

committing crime of whatever magnitude in the open, must also be tried

in the open court and that he who alleges must also prove; that

security operatives as witnesses are not more exposed to security

threats, if any, than other witnesses who are not security operatives;

that Nigeria is not a despotic and militarist republic by its current

international status and must not be allowed to be made one by the

likes of Retired Gen Muhammadu Buhari, his SSS and hired and

conformist members of the Bench; and that any form of secret trial or

proceeding unknown to the mandatory sections of the Fundamental Human

Rights Chapter of Nigeria’s 1999 Constitution; must be roundly

rejected by all Nigerians at all times.
As Nigerians and members of the international community are aware,

Citizens Nnamdi Kanu, Ben Madubugwu, David Nwawusi and Chidiebere

Onwudiwe have been in indefinite detention or custody of the State

Security Services (SSS) since July and October 2015; and June 2016

respectively, over allegations by the Buhari Administration that they

committed political crimes, which the Administration tagged

“treasonable felony”, “terrorism” and “unlawful of possession of

(un-prohibited) firearms”. The four Citizens are chieftains of the

Indigenous People of Biafra (IPOB); a non violent self determination

and indigenous rights advocacy movement, advocating for the group and

citizen’s rights of the Igbo and other Southern Ethnic Nationalities

in Nigeria. IPOB and its indigenous rights campaigns are recognized

by the Economic and Social Council of the United Nations or ECOSOC

under the UN Declaration of the Rights of the Indigenous Peoples;

strictly on account of its nonviolent methodology.
According to Buhari Administration, Citizen Nnamdi Kanu committed “a

treasonable felony” (i.e. seeking to violently or militarily unseat

his government) by operating Radio Biafra London (RBL) with associated

agitation messages for a separate statehood and self determination;

that Chidiebere Onwudiwe is “a terrorist” by “being caught in Enugu

studying how to manufacture Improvised Explosive Devices (IEDs)”; that

Benjamin Madubugwu is “a possessor of unlawful firearms” by “being

caught possessing two Pump Action guns without a license”; and that

David Nwawusi is “a reasonable felon” by “being linked to illegal

importation of radio transmitters for transmission of separatist and

hate messages ”.
By the plain language of the Black’s Law Dictionary: Ninth (9th)

Edition 2009; the four nonviolent Citizens under reference are nothing

but State’s victims of Prosecutorial Vindictiveness; defined by the

globally most respected and widely used law dictionary as the act or

an instance of intentionally charging a more serious crime or seeking

a more severe penalty in retaliation for a defendant’s lawful exercise

of a constitutional right.
We wish to quickly recall that the Hon Justice Binta Murtala Nyako’s

Federal High Court sitting in Abuja, Nigeria had on December 1st and

13th 2016 respectively, denied Citizen Kanu and three others bail and

deprived them of their constitutional and international rights to be

tried and heard in public or openly conducted court proceedings. With

the two militarist and undemocratic rulings of Hon Justice Binta

Murtala Nyako, mentioned above, it has become clearer that fairness

and openness have departed the criminal prosecution of Citizen Nnamdi

Kanu and three others. Their prosecution has also changed to

persecution with strong circumstantial evidence of convictable verdict

already prepared waiting to be delivered at the end of their makeshift

trial.
Pieces of circumstantial evidence foreclosing the chances of Citizens

Nnamdi Kanu, Benjamin Madubugwu, David Nwawusi and Chidiebere Onwudiwe

getting fairness and openness in their criminal prosecution are a long

list. Some of them are as follows: 1. Benjamin Madubugwu was arrested

and detained indefinitely since July 2015 by SSS without criminal

trial till date; a period of seventeen months; 2. Citizens Nnamdi Kanu

and David Nwawusi were arrested by SSS and detained indefinitely since

October 2015 without criminal trial till date; a period of fourteen

months; 3. Citizen Chidiebere Onwudiwe was arrested and detained

indefinitely since June 2016 by SSS without criminal trial till date;

a period of over six months; 4. Citizen Justice O. Udeh was arrested

and thrown into indefinite detention by SSS since July 2016 without

any court arraignment or trial till date; a period of over five

months;
Others: 5. Citizen Sunday Chukwuka Obasi was arrested; shot at his two

legs and thrown into indefinite detention by SSS since August 2016

without any court arraignment or trial till date; a period of over

four months; 6. Citizens Ikechukwu Ugwuoha, Asochukwu Ugochukwu,

Sunday J. Okafor, Ekene Onuoha and Joseph Okorie (Ogbuawa) were

arrested and thrown into indefinite detention by SSS since August 2016

without any court arraignment or trial till date; a period of over

four months respectively. In all these, processes and procedures used

by the Buhari Administration in arresting and detaining the eleven

nonviolent citizens grossly run contrary to the Fundamental Human

Rights Chapter of Constitution of the Federal Republic of Nigeria 1999

as well as the African Charter on Human and Peoples Rights of 1981 and

the UN Covenant on Civil and Political Rights of 1976, all ratified by

Nigeria in 1983 and 1993 respectively.
Other persecutorial elements foreclosing fair and open trial as well

as fair justice in the criminal prosecution of Citizen Nnamdi Kanu and

three others are: total disregard and disobedience of several court

pronouncements for the enforcement and protection of the detained

Citizens’ legal and constitutional rights such as court bails;

mindless killing of over 250 Pro Biafra campaigners and attempted

murder of over 300 others by army, police and navy; languishing in

prisons and other detention centres across Nigeria of over 150 Pro

Biafra Campaigners; criminalization and stigmatization of IPOB’s

nonviolent campaigns by the Buhari Administration and its

killer-security forces; high executive meddlesomeness in the judicial

proceedings of the detained citizens; SSS continued onslaught and

crackdown on nonviolent and unarmed IPOB and other innocent Pro Biafra

campaigners by way of indiscriminate arrest at odd hours or times of

blue law and their long detention without trial; enforced

disappearances of scores of IPOB activists; recent militarist and

undemocratic rulings of Hon Justice Binta Murtala Nyako’s Federal High

Court and associated scripted proceedings; to mention but few.

As we had earlier held, the ongoing criminal proceedings of Citizens

Nnamdi Kanu, Ben Madubugwu, Dave Nwawusi and Chidiebere Onwudiwe have

disastrously moved from Prosecution to Persecution in all its

ramifications; and it may most likely be safe to declare same as

political trial and non-judicially triable!
Further, by the plain and unmistakable language of the Black’s Law

Dictionary: Ninth (9th) Edition 2009; Prosecution is a criminal

proceeding in which an accused person is tried or a conspiracy trial

involving trial of more than one person over alleged commission of

same offence. The respected global law dictionary further says that

the opposite of Prosecution is Persecution; which it defines as a

political or judicial violent, cruel and oppressive treatment directed

towards a person or group of persons because of their race, religion,

sexual orientation, politics, or other beliefs.
The globally respected and widely used law dictionary also provides

the following terms and their precise definitions: Criminal Trial: A

formal judicial examination of evidence and determination of legal

claims in an adversary proceeding; Closed Trial: A trial that is not

open to the public usually because of some overriding concerns such as

a need to protect a child’s anonymity; Open Trial: A trial that is

open to the public; Nemo Judex In Sua Causa: No one or no man should

be a judge in his own case or cause; Audi Altarem Partem: Let the

other side be heard as well; or nobody should be condemned unheard;

Fair Trial: A trial by an impartial or disinterested tribunal in

accordance with regular procedures, especially a criminal trial in

which the defendant’s constitutional and legal rights are respected.

Hearing: A judicial session, usually open to the public, held for the

purpose of deciding issues of facts or of law, sometimes with

witnesses testifying; Fair Hearing: A judicial or administrative

hearing conducted in accordance with due process; Due Process: The

conduct of legal proceedings according to established rules and

principles for the protection and enforcement of private rights,

including notice and the right to a fair hearing before a tribunal

with power to decide the case. Source: Black’s Law Dictionary: Ninth

(9th) Edition 2009.
Constitutionally speaking, the express or literal meaning of (optional

or exceptional) secret or non public trial, provided under Section 36

of the 1999 Constitution of Nigeria is that it is optional and not

mandatory. What is constitutionally mandatory is the trial of accused

citizens in open and fair court in Nigeria. In the context of optional

or exceptional secret trial, which Hon Justice Binta Murtala Nyako

crookedly interpreted, every accused citizen in Nigeria is also left

with a constitutional option or choice to accept or reject his or her

trial in secrecy or outside open court particularly if he or she

reasonably suspects that he or she shall not get fair hearing and fair

trial under such a militarist circumstance.
It is on account of these, therefore, that we strongly advise the

Defense Counsel or Legal Team of Citizens Nnamdi Kanu, Benjamin

Madubugwu, David Nwawusi and Chidiebere Onwudiwe to critically and

strategically rethink and re-jig. That is to say that time is here,

apt and ripe for them to evaluate and re-evaluate the ugly goings on

so as to thwart and scuttle nimbly and courageously all attempts and

efforts of the Buhari Administration to “rot “ their “probono” clients

in jail at all costs. The rethinking and re-jigging under firm

advocacy demand of ours must incorporate the reasonable opinions of

their “probono” clients and other leaders of the IPOB. The Pro Biafra

nonviolent struggle led by IPOB and others has indeed entered advanced

and critical stage and requires commensurate lawful and legitimate

response from the defense team and the IPOB leadership in general.

As the Defense Legal Team are aware, there are no guesswork, gambling,

sentiments and rigmarole in criminal adjudication and law; just as

orbita dicta, not ratio decidendi, are immaterial in judicial

findings. Where it is elementarily clear to the defense legal team

that the Hon Justice Binta Murtala Nyako’s proceedings; likewise other

subsequent proceedings have been brutally operated upon by the Buhari

Administration and laid outside the confines of open and fair trial,

fair hearing, due process, fair prosecution and fair findings; it is

our strong and informed advice that the defence team and their

“probono” clients should publicly back out or withdraw from the

makeshift trial until the reverse becomes the case.

On no account must Citizen Nnamdi Kanu and three others be allowed to

be convicted and despotically jailed by the Buhari Administration

under the prevailing biased, militarist and undemocratic

circumstances. It is far better to remain in despotic custody without

any form of trial than to be convicted and sent to jail under

prosecutorial and procedural vindictiveness and despotism.

IPOB, on its part, should remain sticky to its nonviolent stand at all

times, in spite of State provocations and persecution, but must add

more techniques, tactics and strategies in the overall midwifery of

its nonviolent campaigns. Part of these is the need to engage in

strategic global campaigns to draw the attention of respected

international governments, institutions and personalities over

intensified persecution against it by the Buhari Administration. Its

nonviolent campaigns must be taken beyond the confines of surface

approach; synchronous and asynchronous web conferencing and radio/web

jingling and sarcasms; to strategic and critical approaches grounded

in information numeracy and literacy and letters of the law.

On our part, we renew our earlier call and reminder to the authorities

of the Human Rights Watch, USA and their research team in Nigeria that

the world and Nigerians still await their reportorial position on

indiscriminate killing and maiming of unarmed and nonviolent Pro

Biafra Campaigners by the Buhari Administration since July/August 2015

as well as indiscriminate arrest and long detention without trial of

hundreds of IPOB members and supporters by SSS, police and soldiers.

To convince Nigerians and international watchers that its Nigerian

research team headed by a female South-westerner; are not caught in

the web of ethnic bias, the world respected rights watchdog should toe

the commendable line of Amnesty International, UK, just as it (HRW)

did in the Zaria Shiite Massacre of December 2015.
Signed:
For: International Society for Civil Liberties & the Rule of Law (Intersociety)

Emeka Umeagbalasi, Board Chairman
Mobile Line: +2348174090052
Email: [email protected]
Website: http://www.intersociety-ng.org
Signed:
For: Southeast Based Coalition of Human Rights Organizations (SBCHROs)

1. Comrade Aloysius Attah (+2348035090548)
For: Civil Liberties Organization, Southeast Zone
2. Comrade Peter Onyegiri (+2347036892777)
For: Centre for Human Rights & Peace Advocacy
3. Comrade Samuel Njoku (+2348039444628)
For: Human Rights Organization of Nigeria
4. Engineer Rufus Duru (+2348037513519)
For: Global Rights & Development International
5. Comrade Chike Umeh ( +2348064869601)
For: Society Advocacy Watch Project
6. Obianuju Joy Igboeli, Esq. (+2348034186332)
For: Anambra Human Rights Forum
7. Comrade Alex Olisa(+2348034090410)
For: Southeast Good Governance Forum
8. Jerry Chukwuokoro, PhD (+2348035372962)
For: International Solidarity for Peace & Human Rights Initiative

9. Mr. Tochukwu Ezeoke (+447748612933)
For: Igbo Ekunie Initiative (Pan Igbo Rights Advocacy Group)

10. Comrade Vincent Ezekwume (+2348171793911)
For: Civil Liberties Organization, Anambra State Branch