By Segun Martins
Nnamdi Kanu, the detained leader of the Indigenous People of Biafra (IPOB), is seeking a Federal High Court ruling to stop his ongoing terrorism prosecution, arguing that the specific law under which several charges were brought has been repealed. Kanu’s legal challenge asserts that continuing the trial under a defunct statute is unconstitutional and an abuse of process.
The Core of the Legal Argument
Kanu, who recently opted to represent himself after dismissing his legal team, has filed a motion challenging the court’s jurisdiction to hear charges based on the Terrorism (Prevention) Act of 2013.
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His argument rests on Section 36(12) of the Nigerian Constitution, which prevents anyone from being convicted of an offense that was not a crime at the time it occurred, or under a law that is no longer in force.
Kanu’s legal motions contend that the procedural jurisdiction to prosecute him under the 2013 Act “evaporated with its repeal” and replacement by the Terrorism (Prevention and Prohibition) Act of 2022. His team has long maintained that counts related to the repealed act are incurably defective.
At a recent hearing, the prosecution argued that the new Act includes a continuity clause allowing ongoing cases to proceed. However, Kanu and his lawyers counter that a de novo (fresh) trial is a new proceeding, not an extension of the former one, rendering the continuity argument invalid in his case.
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The presiding judge, Justice James Omotosho, has scheduled November 20, 2025, to deliver judgment on the application and the entire terrorism charges against Kanu. This decision follows the court’s earlier rejection of Kanu’s “no-case submission” in September 2025, when Justice Omotosho ruled that the prosecution had established a prima facie case requiring Kanu to enter his defence.
Kanu subsequently refused to open his defence, leading to the current stage of the proceedings.
The legal battle is part of a high-profile saga that has garnered global attention.
The trial’s legitimacy has been questioned due to several factors, including a 2022 Court of Appeal ruling that discharged Kanu and ordered his release, citing his illegal extraordinary rendition from Kenya as a violation of international and domestic laws, although this was later overturned by the Supreme Court.
A United Nations Human Rights Council directive in July 2022 calling for his unconditional release.
Allegations by Kanu of unhindered access to lawyers being denied while in the custody of the Department of State Services (DSS).
The upcoming judgment on November 20 is a pivotal moment that could either see the charges dismissed based on the repeal argument or lead to the continuation of the trial.
Kanu contends that prosecuting him under the repealed Terrorism (Prevention) Amendment Act 2013 violates several constitutional provisions, including Sections 1(3), 36(1)–(12), and 42 of the Nigerian Constitution, as well as Articles 7 and 26 of the African Charter on Human and Peoples’ Rights.
The motion was filed before the Abuja Federal High Court, presided over by Justice James Omotosho, under SUIT NO: FHC/ABJ/CR/383/2015.
Kanu contends that prosecuting him under the repealed Terrorism (Prevention) Amendment Act 2013 violates several constitutional provisions, including Sections 1(3), 36(1)–(12), and 42 of the Nigerian Constitution, as well as Articles 7 and 26 of the African Charter on Human and Peoples’ Rights.
The motion was filed before the Abuja Federal High Court, presided over by Justice James Omotosho, under SUIT NO: FHC/ABJ/CR/383/2015.
Kanu’s legal team insists that the court must rule on the preliminary objection before he proceeds to enter his defence in the case.
The motion reads: “A Declaration that the continued prosecution of the Defendant under the repealed Terrorism (Prevention) Amendment Act 2013, and upon a proscription order obtained ex parte and without fair hearing, violates Sections 1(3), 36(1)–(12), and 42 of the Constitution and Articles 7 and 26 of the African Charter, and is therefore null and void.
“A Declaration that the Federal High Court’s ex parte order proscribing IPOB, obtained without notice or hearing and while Justice Binta Nyako’s subsisting ruling (that ‘IPOB is not an unlawful society’) remained in force, is unconstitutional, unlawful, and cannot ground criminal liability.
“An Order striking out or permanently staying Counts 1–8 (save Count 15) of the Amended Charge dated 14 January 2022 for being barred by double jeopardy, having the same factual ingredients as Counts 6–14 earlier struck out by the Federal High Court on 8 April 2022.
“An Order declaring that the Defendant’s extraordinary rendition from Kenya without extradition proceedings or due process violated Section 36(1) & (9) of the Constitution, the Extradition Act (Cap E25 LFN 2004), and Articles 12 and 13 of the African Charter, thereby robbing this Honourable Court of jurisdiction.
“An Order nullifying all proceedings conducted in breach of the Defendant’s right to adequate facilities for defence, confidential communication with counsel, and fair hearing—particularly the eavesdropping, seizure of legal materials, and denial of unmonitored access. And for such further order(s) as this Honourable Court may deem fit to make in the circumstance.”
The IPOB leader said his continued prosecution despite the “binding Court of Appeal discharge of 13 October 2022 and eight-day post-judgment detention constitutes flagrant contempt of court.”
The motion of preliminary objection was supported with an affidavit deposed to by Kanu himself.
According to the affidavit: “I, MAZI NNAMDI KANU, Male, Adult, British Citizen and Nigerian, currently detained at the Headquarters of the Department of State Services, Abuja, DO SOLEMNLY SWEAR AND STATE AS FOLLOWS:
“That I am the Defendant/Applicant in this Motion and I depose to this affidavit based on my personal knowledge, except where it is otherwise stated.
“I was first arrested in Lagos on 14th October 2015 by officers of the DSS led by one Temisan John; and I was subsequently first arraigned on 23rd November 2015 before the Abuja Chief Magistrate Court for charges of criminal conspiracy, intimidation, and membership/leadership of an illegal organization (IPOB), etc., whereupon I was granted bail but the bail order was not obeyed.
“On 16th December 2015, I was DISCHARGED by the Abuja Magistrate Court pursuant to an application brought by the DSS on grounds that the Magistrate Court lacked jurisdiction to try the charges.
“On 11th November 2015, Justice Adeniyi Ademola of the Federal High Court, Abuja, granted an application brought under Section 27(1) of the Terrorism Prevention (Amendment) Act 2013 by the DSS for my pre-trial detention, whereby my detention continued.
“On 17th December 2015, the same Justice Ademola ordered the DSS to RELEASE me forthwith and unconditionally since no charge was pending against me at the time of the order. Justice Ademola was later arrested and detained by the DSS because of this order of release.
“While steps were being taken to free me from detention pursuant to Justice Ademola’s order of unconditional release, the DSS/AGF filed new six-count charges against me and two others before the Federal High Court, Abuja.
The charges bordered on criminal conspiracy, treason, illegal importation of radio transmitter and possession of firearms, defamation of late President Buhari, and membership of an unlawful/illegal organization (IPOB). There were no charges bordering on incitement of terrorism.
“On 23rd December 2015, I was arraigned for the first time before a Federal High Court presided over by Justice Mohammed in Abuja. The Judge was later recused from the case.
“On 26th September 2016, I appeared before another judge of the Federal High Court (Justice John Tsoho), who later transferred the case to Justice Binta Murtala-Nyako.
“On 1st March 2017, pursuant to my motion, Justice Nyako partially upheld my preliminary objection and struck out some of the counts, including the one relating to membership/management of an unlawful/illegal organization or proscribed organization (i.e. IPOB). See Exhibit MNK 1.
“On 25th April 2017, Justice Nyako granted me BAIL and I was released the same month; the case was then set for trial on 20th October 2017, whereupon I travelled to my hometown of Afaraukwu Ibeku, Abia State, and awaited my next trial date.
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