To begin with, the charge sheet indicated that all the
terrorism-related charges against Kanu were predicated on broadcasts he made
between 2018 and 2021 from locations outside Nigeria, presumably from Britain
and Kenya. The charges were initially brought under the Terrorism Prevention
(Amendment) Act 2013 (TPAA 2013), which granted the Federal High Court
extraterritorial jurisdiction without a double criminality requirement, meaning
that jurisdiction lies whether the act (broadcast) occurred in Nigeria or abroad,
provided that it had impact in Nigeria.

In 2022, the TPAA 2013 was repealed and replaced by the
Terrorism Prevention and Prohibition Act 2022 (TPPA 2022). Section
76(1)(d)(iii) of the TPPA 2022 introduced a double criminality test as a
condition precedent before the Federal High Court can assert extraterritorial
jurisdiction, stating clearly that the act (broadcast) must also “constitute an
offence under the law of the foreign state” where the broadcast was made.

Recall that Kanu was extraordinarily renditioned to Nigeria
in June 2021. While the Court of Appeal discharged him in October 2022 due to
this illegality, the Supreme Court, in December 2023, upheld the validity of
the trial on the charges, despite the rendition, and remitted the case for
trial. Before Justice Murtala-Nyako, myself and the legal team had raised an
objection to Justice Murtala-Nyako’s jurisdiction on the basis of two issues,
namely: Whether the Court should apply the double criminality test under
Section 76 of the TPPA 2022; and whether the failure to specify the foreign
country from which the broadcasts were made constitutes a fatal jurisdictional
defect. Justice Murtala-Nyako overruled our objection and we appealed to the
Court of Appeal. But while the appeal was pending, Justice Murtala-Nyako was
recused in February 2025 and the case was assigned to Justice James Omotosho
for a trial de novo (anew). For avoidance of doubt, under long-standing
Nigerian jurisprudence, a de novo trial post-repeal invokes the new law
(Adegbenro v. Akintola (1963) 1 WLR 797 (PC).

When the case commenced anew before Justice Omotosho, I was
no longer lead counsel and the new lead counsel decided that – instead of
raising the same objection based on jurisdiction – it was smarter to allow the
trial to proceed because of his assessment that the charges lacked evidentiary
merit. But simmering in the background was this nagging feeling that the Court
is bound to apply the double criminality test under Section 76 of the TPPA
2022; and that the prosecution’s stubborn reliance on the repealed TPAA 2013
smacked of sophistry aimed at avoiding this substantive safeguard in the new
law.

It is conceded that the offences with which Kanu was charged
were allegedly committed between 2018 and 2021 when the TPAA 2013 was still in
force. It is also true that the TPPA 2022 did not repeal the TPAA 2013 into
oblivion and it contains specific savings clauses in Sections 97 and 98 that
preserved liabilities incurred, investigations and legal proceedings commenced
and ongoing under the repealed Act. At first impression, this suggests that the
trial itself can continue. However, the Supreme Court has held in many cases
that repealed laws cannot sustain trials (Ifediora v. Idigo (1988) 2 NWLR (Pt.
76) 239). Section 98 TPPA (relied upon by Justice Omotosho) saves offenses
allegedly committed pre-repeal (2018–2021) but not a jurisdictional issue like
double criminality, a substantive precondition that must be met. In DPP v.
Okocha (2004) 8 NWLR (Pt. 874) 186, jurisdictional hurdles were assessed under
current law, not the repealed law, despite saving clauses. More reasons are as
follows:

First, the double criminality requirement fundamentally
alters the legal definition of an extraterritorial offence. Under the TPAA
2013, an act committed abroad was an offence only if it had an “impact in
Nigeria.” Under the TPPA 2022, that same act is only an offence if it (i) has
an impact in Nigeria, and (ii) is also a crime in the foreign country where it
was committed.

Second, Section 76 acts as a legislative gatekeeper for the
court’s power. Without satisfying the double criminality test, the court lacks
the jurisdiction to try the accused for acts committed extraterritorially under
the new legal regime.

Third, the double criminality provision affords a
significant substantive right to an accused person: the right not to be tried
in Nigeria for a conduct that was lawful in the jurisdiction where it happened.
This is a core element of the principle of legality and fairness in
international criminal jurisdiction and the Nigerian Constitution.

Fourth, the Supreme Court’s decision to allow the trial to
continue was based on the existence of the charges, not a final determination
on the applicable substantive law for the trial on the merits. Now that a trial
de novo (anew) was ultimately underway, the court must determine the applicable
law in use and that is exactly what Kanu had demanded in his preliminary
objection which the court flatly refused to determine until the day it
delivered the judgment which was wrong.

Fifth, reassignment after recusal restarts proceedings. In
Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621, judicial
reassignment post-recusal nullified prior interlocutory acts, mandating fresh
hearings. Thus, Kanu’s trial was not “pending” under Section 97 TPPA 2022 but a
new proceeding under the TPPA 2022. This comports with Section 36(12)
Constitution under which offenses are triable only under a “written law in
force” at trial time.

Furthermore, the established principle of interpretation is
that “all statutes are prospective unless expressly made retrospective.” The
TPPA 2022 is not expressly retrospective. Therefore, while the proceedings (the
trial) are saved, they must be conducted under the substantive law in force at
the time of the trial, unless doing so would create a retrospective offence or
penalty. Thus, applying the TPPA 2022 with the double criminality requirement
does not criminalize a lawful act; it merely imposes a new, more protective
condition that must be met before any current prosecutions could succeed.

Therefore, for the first issue (double criminality), Justice
Omotosho was expected to have sustained Kanu’s objections by applying the TPPA
2022. To be sure, for the court to exercise extraterritorial jurisdiction, the
prosecution should have been required to plead and prove that the Kanu’s
alleged acts (broadcasts) constituted a criminal offence both in Nigeria and in
the United Kingdom or Kenya, which were the places Kanu was domiciled between
2018 and 2021. The only reason the prosecution was dodgy on the law that
applied was this: Given that the broadcasts were made from the UK (where Kanu
is a citizen and thus a legal resident) and Kenya (where he was itinerant) and
the content was political speech (geared to self-determination and calls for
self-defense against terrorists), it is highly unlikely that such acts would
constitute terrorism under the domestic laws of those countries.

Now, coming to the second question which is: Does the
failure of the charges to state the specific foreign country from which the
broadcasts were made rob the Federal High Court (Justice Omotosho) of
jurisdiction? The short answer is: Yes, it does because this failure is a
fundamental flaw that renders the charges incompetent, thus robbing the court
of jurisdiction, especially in light of the double criminality requirement
addressed in detail above. In FRN v. Usman (2019) 12 NWLR (Pt. 1687) 298,
failure to specify offense location vitiated jurisdiction in cross-border
fraud.

To be sure, the requirement for a charge to be specific and
unambiguous is not a mere technicality; it is a cornerstone of the right to a
fair hearing as guaranteed by Section 36 of the 1999 Constitution. The accused
must be told, in clear and certain terms, the nature of the accusation against
him to enable him to adequately prepare a defence, hence the reason Kanu was
insisting: “Show me the law”, which meant that the court should first decide
whether it was lawful to try the case under the harsher (and more
prosecution-friendly) provisions of TPAA 2013 or the less harsh (and more
defendant-friendly) double criminality provisions of TPPA 2022.

In other words, the failure to specify the foreign situs or
country where the broadcasts were made was profoundly prejudicial to Kanu
because it robbed him of his right to effectively raise these affirmative
defenses, namely: That the said broadcasts are not considered a crime in either
Britain or Kenya (where he was at the time); that the factual basis of the
alleged “impact in Nigeria” from that specific location is suspect; and that
even if perchance he was convicted, the court is bound to determine his sentence
under the less harsh TPPA 2022 (I had analyzed this in a previous article which
was widely published and circulated a few days ago).

Above all, this vagueness (as to location of the broadcasts)
violated Kanu’s constitutional right to be informed of the nature of the
offense, which is also hit by the fell consequences of Section 220 of the
Administration of Criminal Justice Act 2015 (ACJA) that bars jurisdiction if
the charge omitted a legally required information that could mislead the
defendant on how to frame his defense. Thus, under the Constitution, TPPA and
ACJA, this omission is fatal to jurisdiction.

To be sure, the identity of the foreign country is not just
a detail; it is a jurisdictional fact. The court cannot even begin to apply the
double criminality test if it does not know which country’s laws to examine.
And it is the prosecution’s duty and burden to plead this essential element of
the offence in the charge. A charge that fails to disclose every essential
element of the offence is incompetent and cannot trigger the court’s
jurisdiction. The Supreme Court in YAKUBU v FRN (2020) and other authorities
has consistently held that a charge which fails to disclose an essential
ingredient of the offence is void and confers no jurisdiction on the court.

In summation, I posit that the confluence of the new
substantive law (TPPA 2022) and the defective charges presented a formidable
legal barrier to the prosecution (and conviction) of Mazi Nnamdi Kanu. The
double criminality requirement in Section 76 of the TPPA 2022 is a substantive
provision that protects him from being tried for extraterritorial acts that
were not criminal in the jurisdiction where they occurred.

Furthermore, the prosecution’s failure to specify the
foreign country in the charges is not a minor oversight but a fundamental flaw
that prejudices the defence and prevents the court from establishing a key
jurisdictional fact. For these reasons, it is my firm belief that the Federal
High Court lacked the jurisdiction to proceed with this trial on the
incompetent charges and under the repealed TPAA 2013. Thus, a robust appeal on
this ground alone would succeed without more.

Views expressed by contributors are strictly personal and
not of NigerianEye.