Aloy Ejimakor, ccounsel to IPOB leader Nnamdi Kanu, has explained why pro-Biafra agitator legal team blocked his trial and why he believes the Court of Appeal may overturn Kanu’s life sentence.
Ejimakor said the team halted the trial because the charges were based on broadcasts allegedly made abroad between 2018 and 2021, and under the current Terrorism Prevention and Prohibition Act 2022, such offences require a double criminality test—meaning the alleged act must also be a crime in the country where it occurred.
He argued that the prosecution relied instead on the repealed 2013 terrorism law to avoid this requirement.
He added that the charges were defective because they did not specify the foreign country from which the broadcasts were made, a flaw he said deprived the court of jurisdiction.
Ejimakor maintained that these legal issues—along with the shift to a fresh trial after the case was reassigned—rendered the proceedings invalid and would likely lead to Kanu’s conviction being overturned on appeal.
“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 the trial time”, he said.
