LEGAL ANGLE ON WHY PRESIDENT BUHARI SHOULD NOT RELEASE NNAMDI KANU:

 LEGAL ANGLE ON WHY PRESIDENT BUHARI SHOULD NOT RELEASE NNAMDI KANU: 

23/11/2021

         DR ABUBAKAR ALKALI

The 1999 constitution (as altered) is very clear, explicit and unambiguous that each of the 3 arms of government: the executive, the legislature and the judiciary should adhere to their separate constitutional roles and no one arm should interfere with the functions of the other arm while working towards the same objective to preserve the rule of law and protect the public interest.

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These relevant sections state that:

EXECUTIVE: Section 5. (1) Subject to the provisions of this Constitution, the executive powers of the Federation: 

b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make law

JUDICIARY: Section 6. (1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

To this extent, President Buhari lacks the powers to release Nnamdi Kanu because the 1999 constitution says the President had no judicial powers and judicial powers are vested in the courts. The combined effect of sections 5 and 6 of the 1999 constitution also asserts that the executive should allow the judiciary to do its job.  

By sticking to the constitutional provision of separation of powers, President Buhari has been able to maintain a very stable relationship between the 3 arms: executive, legislature and the judiciary largely because he doesn’t interfere with the functions of the other arms (especially the judiciary). 

President Buhari deeply respects the principle of separation of powers and this position helped him and his government in relations with the other arms of government to implement government policies and programmes. 

Releasing Nnamdi Kanu will rock the boat, abuse the constitutional doctrine of separation of powers and change the current harmonious working relationship between the executive and the judiciary. The Buhari administration cannot afford a frosty relation between the 3 arms especially at this time of very serious insecurity engulping the entire nation and at the last lap of its tenure.

PREROGATIVE OF MERCY 

Albeit the 1999 constitution has restricted the powers of the President to interfere in legislative and judicial matters based on the doctrine of separation of powers as enshrined in sections 4,5 and 6, it has given the President a window for clemency to persons either undergoing trial or convicted of an offence. This is spelt out in section 175 which grants powers for clemency on the President in consultation with the national council of states. 

S.175 states inter alia, that 

(1) The President may -

(a) grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions;

(b) grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;

(c) substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or (d) remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or

forfeiture otherwise due to the State on account of such an offence.

(2) The powers of the President under subsection (1) of this section shall be exercised by him after consultation with the Council of State.

Despite this window given to the President to exercise the prerogative of mercy, it is clear that releasing Nnamdi Kanu will jeopardise the public interest and potentially lead to more bloodshed in Nigeria. A political solution cannot be applied where there is clear and real danger to the public interest. 

PUBLIC/NATIONAL INTEREST 

Using section 175 of the constitution to release Nnamdi Kanu could tantamount to abusing the constitution due to the overriding consideration to PUBLIC INTEREST and NATIONAL SECURITY. Nnamdi Kanu, a global fugitive has made it very clear in words and actions, on both print and electronic media notably through the secessionist so-called Radio Biafra which he operates from abroad, that he is out to destabilise Nigeria using every available violent means including murder, destruction, rape, arson etc. Mr Kanu did not just stop at threats but he went on to establish the so-called independent people’s of Biafra (IPOB) and it’s militant wing, the Easter Security Network (ESN) which is currently waging what they call ‘campaign to achieve Biafra’ by killing innocent people including security agents. The secessionists have also displaced hundreds of thousands of people and are on the march to creating a very serious humanitarian crisis in the South-East geopolitical zone. 

In the light if all these realities, it is too dangerous to release Nnamdi Kanu. Mr President shouldn’t succumb to pressure to release Nnamdi Kanu but allow the judiciary complete its job. 

Someone who is plotting to dismember Nigeria deserves no clemency from the same constitution he doesn’t recognise. 

The President is also mandated by the constitution to implement and maintain the constitution. This is clearly stated in section 5(1)(b) that: 

‘The executive powers shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws’

Clearly section 5(1)(b) has given credence on the need to safeguard the sanctity of the constitution which will be jeopardised if Nnamdi Kanu is released. 

Releasing Nnamdi Kanu will violate  sections 2 and 3 of the constitution which clearly indicate that there shall be a nation called Nigeria comprising of 36 states and the federal capital territory: Nnamdi Kanu has repeatedly, persistently, publicly and unapologetically said he doesn’t believe in Nigeria and called our dear motherland a ZOO. 

Nnamdi Kanu must be made to understand that there is the need to think before action not action before thinking. 

Let the law run its full course on Nnamdi Kanu even if to serve as a deterrent to such criminals and wannabe secessionists and other terrorists that the law will catch up with them no matter how long it takes. 

THE ROLE OF THE ATTORNEY- GENERAL OF THE FEDERATION 

The prerogative granted to Mr President on the powers to release a suspect or convict by the 1999 constitution (as altered) may be exercised through the attorney - general of the federation. In this manner, the President may direct the attorney - general of the federation to withdraw or review the charges against the suspect. 

As a matter of fact, the constitution has also given direct powers to the attorney- general of the federation to discontinue a case or withdraw charges against a suspect as contained in section 174. 

Without prejudice to section 174. (1) of the 1999 constitution (as amended) on the concept of NOLLE PROSEQUI which empowers the attorney-general of the federation to withdraw charges  on persons undergoing trial in a court of competent jurisdiction, it must be observed that this is allowed only if it doesn’t jeopardise the PUBLIC INTEREST. 

Section 174 (1) (c) states that: 

The Attorney-General of the Federation shall have power -

(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

Section 174(3) is clear that in exercising these powers to discontinue a case, the attorney - general of the federation must consider the PUBLIC INTEREST. The relevant section 174 (3)  is unambiguous that:

‘In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the PUBLIC INTEREST, the interest of justice and the need to prevent abuse of the legal process.

In this context, it is clear that NOLLE PROSEQUI is not a blank cheque for the attorney- general of the federation to withdraw charges at will. Indeed, withdrawing charges and releasing Nnamdi Kanu will tantamount to the following:

1. Jeopardising the PUBLIC INTEREST as Mr Kanu will potentially continue from where he stopped in mobilising members of the outlawed independent people of Biafra (IPOB) to continue their violent campaign of killings across the South East.

2. Abuse the LEGAL PROCESS as the judiciary has commenced the trial of the fugitive Kanu since 2016 and ongoing. It will be counter-productive to discontinue Nnamdi Kanu’s trial at the middle of it. The legal process is on course to prosecute Nnamdi Kanu and take the case to its logical conclusion. There is absolutely no reason to stop the trial. 

3. A Disrespect and Disservice to the FAMILIES of innocent victims including policemen killed while carrying out their legitimate duties during the #EndSars protests in October 2020 allegedly as a result of Nnamdi Kanu’s direct or indirect actions. The families of these police officers and other alleged victims of Nnamdi Kanu deserve justice and the only way to ensure that justice is served is to take Nnamdi Kanu’s trial to its logical conclusion. 

Indeed, the amended charges against Nnamdi Kanu which border on Terrorism and Treason are too weighty to be the ignored.  

THE #ENDSARS CARNAGE:

Clearly, Nnamdi Kanu was the unsung terror commander of the #EndSars protest last year 2020 where several lives were lost and property destroyed. The secessionist leader reeled out orders and wowed his troops using the so-called Radio Biafra to kill, destroy, maim, attack and rape  security agents doing their legitimate work and other innocent victims. 

It should be noted that the federal government last month through the attorney-general and Justice  minister, Abubakar Malami accused Nnamdi Kanu of inciting attacks through the so-called Radio Biafra which led to the killing of 175 security personnel which included

1. 128 policemen

2. 37 military personnel

3. 10 other security operatives

Security infrastructure were also allegedly destroyed by IPOB/ESN and other hoodlums during the #EndSars protests allegedly on the orders of Nnamdi Kanu;

Mr Kanu is also alleged to have mobilised his outlawed IPOB/ESN terrorists masquerading as ‘UNKNOWN GUNMEN’ to kill several innocent citizens including traditional rulers, Suya sellers and government officials before and after the #EndSars protests: ‘If you kill a Policeman, cut off his head. I say give me his head’ Mr Nnamdi Kanu is alleged to have ordered his IPOB/ESN troops on radio Biafra. 

‘Whoever contributed to the murder of my parents will pay for it’ Mr Kanu is alleged to have threatened on Radio Biafra.

Nnamdi Kanu hijacked the #EndSars protest which started peacefully and ordered the vulnerable youths who played into his game, to attack democratic institutions. Kanu’s actions during the #EndSars protests led to the destruction of the following property belonging to the independent national electoral commission (INEC):

1. 19 offices burnt down 

2. 18 logistical vehicles burnt down 

3. Several election materials, equipment and ICT gadgets. 

SENDING THE WRONG SIGNALS 

Releasing Nnamdi Kanu will send the wrong signals that no matter the weight of your alleged crimes, you can walk free once you have the right connections. Just commit murder and ask the traditional rulers in your area to go and put pressure on Mr President to release you unconditionally. This cannot be allowed in any country worth its name. 

It will also make a mockery of the judiciary and disrespect the constitution. Most importantly, releasing the secessionist leader will mean NO JUSTICE to the people killed as a result of the violent campaign of IPOB/ESN and also during the #EndSaRs protests last year. 

Recall that the outlawed IPOB/ESN are currently on a violent campaign which has led to the killing of several innocent people in the South East. Many hardworking people have lost their businesses and other means of livelihood as a result of the so-called sit-at-home order in the South East routinely issued by IPOB/ESN. 

The gruesome killings of several innocent Nigerians is allegedly linked to the violent campaign of IPOB. Recall that the Nigerian security agencies have allegedly linked the killing of Chief Akunyili and Ahmed Gulak to IPOB/ESN. 

NNAMDI KANU AND CIVIL WAR 2

Nnamdi Kanu is plotting to dismember Nigeria and potential cause civil war 2 but some people are urging him on and calling for his release. Yes, the 93- year old     First Republic parliamentarian and Minister of Aviation, Chief Mbazulike Amaechi is a respected leader but it has to be said that Nnamdi Kanu has absolutely NO respect or recognition for the leaders of the South - East who are trying to pile pressure on Mr President to release him unconditionally. The leaders of the South East are politicising criminality by calling for the release of Nnamdi Kanu. They should allow the judiciary to do its work. 

By his antecedents, Nnamdi Kanu, if ever released will continue to be a big problem to the entire South - East through the use of IPOB/ESN to carry on with their campaign of violence. It is surprising that Nnamdi Kanu who said times and again that he is ready to ‘die for Biafra’ is now begging for amnesty. Someone who called the President names including a ‘paedophile’ is now cowardly kneeling down before Mr President to ask for mercy. Nnamdi Kanu said he is super intelligent but he has now been turned into a pitiful nonentity and glorified pawper. He looks subdued, intimidated, and miserable. 

The sanctity of Nigeria’s constitution 1999 (as amended) should be respected. Any attempt to release Nnamdi Kanu will turn our dear country into a lawless nation where criminals are given a blank cheque to break the law and walk free. The federal government should deploy the same energy it has expended on Nnamdi Kanu to the terrorist bandits and kidnappers that have turned the North-West and North-Central geopolitical zones into killing fields. All criminals should answer their crimes because the law is no respecter of tribe or region.