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The legal team representing the detained leader of the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu, has rejected the application of the doctrine of male captus bene detentus — a legal principle suggesting that an illegally captured person can still be lawfully detained — to Kanu’s case, describing it as inconsistent with Nigeria’s constitutional and international human-rights obligations.

In a rejoinder issued on Thursday and signed by Onyedikachi Ifedi, Esq., for the Mazi Nnamdi Kanu Global Defence Consortium, the team argued that applying the doctrine to justify Kanu’s arrest and rendition from Kenya in 2021 would amount to endorsing executive illegality.

“The claim that an illegal abduction can yield a lawful detention is a relic of colonial jurisprudence long buried by modern constitutionalism and international human-rights law,” the statement said.

“It is irreconcilable with Sections 35, 36 and 46 of the 1999 Constitution (as amended) and Articles 6 and 7 of the African Charter on Human and Peoples’ Rights.”

According to the defence, the doctrine of male captus bene detentus has been rejected in several common-law jurisdictions, including the United States and the United Kingdom.

Citing United States v. Toscanino (1974) and R v. Horseferry Road Magistrates’ Court, ex parte Bennett (1994), the team noted that both courts held that no trial could proceed where an accused person was brought before the court through “deliberate, brutal and illegal abduction.”

The statement further referenced the Nigerian Supreme Court’s decision in Abacha v. Fawehinmi (2000), which affirmed the binding force of the African Charter in domestic law.

“To rely on male captus bene detentus,” the team said, “is to urge Nigeria back to an age of impunity incompatible with constitutional democracy.”

The consortium recalled that the Federal High Court in Umuahia (in suit no. FHC/UM/CS/30/2022) had declared Kanu’s abduction and return to Nigeria as “unlawful and unconstitutional,” while the Court of Appeal, Abuja Division, also ruled that the extraordinary rendition rendered the ongoing trial invalid. “These judgments stand unvacated and remain the only competent judicial pronouncements on record,” Ifedi stated.

The statement also cited the 2022 ruling of the ECOWAS Court of Justice and the findings of the United Nations Working Group on Arbitrary Detention, both of which faulted Kanu’s rendition and called for his release and compensation.

“By Section 12(1) of the Constitution and Article 26 of the Vienna Convention on the Law of Treaties, Nigeria is bound by these rulings. Ignoring them would amount to undermining the very instruments that confer legitimacy on our nationhood,” the consortium noted.

Reacting to the 2023 Supreme Court judgment in FRN v. Nnamdi Kanu, the defence team said the decision, delivered by a five-member panel, could not displace the earlier seven-member ruling in Abacha v. Fawehinmi on the supremacy of the African Charter.

“Under the doctrine of stare decisis, a smaller panel cannot overrule or contradict a larger one,” Ifedi explained, adding that the 2023 judgment “failed to reference binding precedents” and was therefore “rendered per incuriam” — a legal term meaning given in ignorance of the law.

The consortium argued that jurisdiction could not be founded on illegality. “Jurisdiction cannot arise from constitutional defilement; the Constitution remains supreme to any errant panel of the Court,” the statement said.

The defence team urged stakeholders and public institutions to uphold constitutionalism and the rule of law in addressing Kanu’s case. “The extraordinary rendition of Mazi Nnamdi Kanu remains an act inconsistent with constitutional and international standards. Neither judicial misdirection nor public commentary can cleanse its illegality,” Ifedi said.

Quoting the Supreme Court in A.G. Federation v. Abubakar (2007), the statement added, “The Constitution is supreme, and any act inconsistent with it is null, void, and of no effect whatsoever.”