A constitutional lawyer and consultant to the Mazi Nnamdi Kanu Global Defence Consortium, Barrister Njoku Jude Njoku, has strongly criticised the Supreme Court of Nigeria over its decision to remit the terrorism trial of the leader of the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu, back to the Federal High Court in Abuja after he had been discharged and acquitted by the Court of Appeal.
In a detailed statement issued in Abuja and titled “A Devastating Critique: The Nigerian Supreme Court’s Unlawful Remittal of Nnamdi Kanu’s Case, the Inviolability of Section 36(9) Immunity, and the Universal Doctrine of Finality of Appellate Discharge,” Njoku described the apex court’s ruling as a grave constitutional error and a direct assault on the rule of law.
He argued that the Supreme Court’s decision of December 15, 2023, to remit a case already nullified by the Court of Appeal’s judgment of October 13, 2022, was “a blatant constitutional perversity” and a violation of Section 36(9) of the 1999 Constitution (as amended), which protects individuals from double jeopardy after being discharged or acquitted.
Njoku maintained that once the Court of Appeal discharged Kanu, the federal prosecution had lost every jurisdictional authority to retry him. “The Constitution is superior to the Supreme Court,” he said, adding that the apex court overstepped its powers by reopening a case that had been conclusively settled by a competent appellate court.
“The non-derogable immunity conferred by Section 36(9) upon a person discharged by a court of competent jurisdiction is self-executing, absolute, and beyond the reach of any judicial organ, including the Supreme Court,” he said.
According to the lawyer, the apex court’s remittal not only violated the doctrine of finality of appellate discharge but also undermined Nigeria’s constitutional democracy. “Once the Court of Appeal pronounced discharge, Mazi Nnamdi Kanu became constitutionally untouchable for the same offences. The prosecution was extinguished at its root, and jurisdiction to retry him permanently lost,” Njoku asserted.
He described the action of the Supreme Court as “judicial overreach masquerading as appellate review,” accusing the five-member panel of committing what he termed a “jurisprudential heresy.”
To support his argument, Njoku cited several international judicial precedents, including R v. Pinfold (England, 1843), R v. Green (England, 1950), R v. Riddle (Canada, 1980), and Davern v. Messel (Australia, 1984), all of which establish that once an appellate court quashes a conviction or issues a discharge, the defendant cannot be retried for the same offence.
“In Nigeria,” he noted, “this doctrine is constitutionally enshrined in Section 36(9) and judicially fortified in Dokubo-Asari v. FRN (2007), where the appellate discharge ‘ends the matter finally and irrevocably.’”
Njoku further argued that the Supreme Court’s ruling was “void ab initio” because it contravened the supremacy of the Constitution, which no court has the power to override. He contended that the ruling not only disregarded Nigeria’s own legal precedents but also violated binding African Charter jurisprudence, which forms part of Nigeria’s supreme law under Section 12 of the Constitution and Article 1 of the African Charter on Human and Peoples’ Rights.
He added that by remitting Kanu’s case, the apex court effectively overturned a settled constitutional precedent established by a seven-member full bench of the Supreme Court—an act he described as “judicial insubordination to stare decisis.”
“This violates the doctrine of stare decisis et non quieta movere (stand by what is decided), undermines the Court’s institutional integrity, and collapses its hierarchical coherence,” Njoku declared.
He concluded by stating that “no court, not even the Supreme Court, may lawfully derogate from a fundamental right explicitly protected by the Constitution,” stressing that the appellate discharge of Nnamdi Kanu remains final and irrevocable.
“Mazi Nnamdi Kanu stands immune,” Njoku said. “The Constitution reigns supreme, not the Supreme Court. The remittal judgment is unconstitutional, void, and an affront to Nigeria’s justice system.”
