A lawyer, Onyedikachi Ifedi, has questioned the Supreme Court’s decision to revive charges quashed by the Court of Appeal in the trial of the leader of the Indigenous People of Biafra, IPOB, Nnamdi Kanu.

The Court of Appeal had, while acquitting and discharging Kanu in a ruling on October 13, 2022, thrown out counts 6, 7, 8, 9, 10, 11, 12 and 14 of the 15-count charge on the grounds that they did not disclose any offense against the defendant. The court, however, retained counts 1, 2, 3, 4, 5, 13, and 15.

However, in a judgment on December 15, 2023, the Supreme Court set aside the Court of Appeal decision which discharged and acquited Kanu. The apex court also remitted the trial to the Federal High Court for continuation.

Ifedi, a member of the Mazi Nnamdi Kanu Global Legal Consortium, also faulted what he described as the Supreme Court’s decision to rewrite the foundation of count 15, which later became count 7 when the trial was remitted to the Abuja Federal High Court for continuation.

The lawyer, in a statement made available to newsmen in Umuahia, raised two questions for the Supreme Court to answer.

“What law revived the seven counts quashed by the Court of Appeal? What law authorised the Supreme Court to substitute the statutory foundation of Count 15, later numbered Count 7 at the Federal High Court?

“The Supreme Court had appellate jurisdiction. But appellate jurisdiction does not itself confer a power to resurrect a quashed charge or rewrite the statutory foundation of a criminal accusation,” Ifedi said.

He challenged the Supreme Court to produce the law that empowered it to take the decisions.

“If the law permits either act, show us the law,” he said, stressing that the Supreme Court is not supreme over the law.

Further criticising the apex court’s role in the IPOB leader’s trial, Ifedi said, “Some describe the Supreme Court as a ‘court of policy’. That cannot mean policy gives a court powers which the law has withheld. Policy cannot revive a quashed charge. Policy cannot replace a repealed statute. Policy cannot confer criminal jurisdiction.

“The Supreme Court may interpret and develop the law. It cannot legislate the criminal law required to reach a preferred outcome. It is supreme within the judicial hierarchy. It is not supreme over the law.”

Noting that Justice Binta Nyako’s subsequent recusal may explain why proceedings had to commence before another judge and why a fresh plea became necessary, the lawyer argued, “Recusal can change the judge and restart procedure. It cannot answer a more fundamental question: what was the legal status of the counts to which the accused was asked to plead?

“The counts had been quashed by the Court of Appeal. The Supreme Court said the trial should “continue”. A new judge subsequently took a fresh plea and proceeded to trial. The question is therefore not whether recusal could require a fresh plea. The question is: what law made the quashed counts legally cognisable again so that they could be put before a new judge for plea and trial?

“That is the question recusal cannot answer. A change of judge is procedural. The existence of a criminal charge is jurisdictional. One cannot be used to answer the other. General terrorism jurisdiction is not enough. The Federal High Court has jurisdiction over terrorism offences. Nobody disputes that. But jurisdiction over terrorism generally is not the same thing as the existence of a live charge against a particular person.

“There must first be a legally cognisable accusation. Lawal Garba JSC himself stated the governing principle: “A court cannot confer jurisdiction where the law has not conferred it.” That principle does not apply only to lower courts.

“If a quashed count needed to be revived before it could support another criminal proceeding, the law that revived it must be identified.”

Ifedi alleged that the Supreme Court’s decision in Nnamdi Kanu’s trial contradicted its earlier pronouncement in Onu Okafor v The State (1976), where the apex court refused a retrial because the original proceeding lacked the legal authority required to commence it.

Accusing the Supreme Court of failing to conduct itself as a neutral arbiter, Ifedi questioned the legality of the court’s decision to substitute the foundation of count 15.

He said, “Before the Supreme Court, the accusation was Count 15. It concerned the alleged importation and concealment of a radio transmitter. It was pleaded under Section 47(2)(a) of Criminal Code Act, CAP C45 LFN 2004.

“Lawal Garba JSC examined that citation. At page 32 of the remittal judgment, he held that Cap C45 was CEMA, not the Criminal Code Act. He then held that the facts disclosed an offence under Section 47(2)(a) of CEMA Cap C45.

“He described the reference to the Criminal Code as a “mere mistake”. The court therefore supplied CEMA as the statutory foundation of the count and treated Count 15 as recognised, cognisable and grounded in that law.

“The question is straightforward: What law authorised the Supreme Court to do that? What law authorised the court to take a count pleaded under one Act and send it to trial under another? The Supreme Court is not the prosecutor. It is a neutral arbiter. If the law gives it the power to substitute the statutory foundation of a criminal accusation, show us the law.”