MATTERS ARISING: Does Nnamdi Kanu require a surety to be released?

It has been three months since the court of appeal in Abuja struck out the terrorism charge filed against Nnamdi Kanu, leader of the Indigenous People of Biafra (IPOB), by the federal government.

Since then, conversations about the federal government getting a stay of execution from the court to ensure Kanu remains in custody pending the determination of the case at the supreme court have continued to wear fresh perspectives.

A fortnight ago, Orji Kalu, chief whip of the senate and former governor of Abia, the south-east state where Kanu hails from, said he is ready to stand surety for him if he is released from incarceration.

Days later, Chukwuma Soludo, governor of Anambra state, asked the federal government to release Kanu because he is needed “around the table” to have “a comprehensive heart-to-heart conversation on the future of the south-east”.

Soludo said if the federal government cannot release Kanu unconditionally, he will stand as surety to ensure Kanu is available whenever needed.

The governor said Kanu is critical to the security conversation in the south-east and is needed to discuss the future of the region.

Days after Soludo’s statement, IPOB said Kanu does not need anyone to stand surety for him before he is released.

According to Emma Powerful, IPOB spokesperson, a court of competent jurisdiction has ordered the unconditional release of Kanu and so the discussion of standing surety for the IPOB leader does not arise.

WHY IS KANU IN CUSTODY?

Kanu was facing terrorism and treason felony charges before Binta Nyako, judge of the federal high court in Abuja, and was granted bail on “health grounds” in April 2017.

In September of the same year, soldiers reportedly invaded his hometown in Abia and allegedly killed some persons.    

During the invasion, Kanu escaped and subsequently fled the country. Nyako later issued a warrant of arrest for him because of his absence at trial.

Alloy Ejimakor, one of Kanu’s lawyers, said his client escaped during the raid as the “rule of self-preservation”.

In June 2021, the federal government announced Kanu’s arrest and extradition from Kenya to Nigeria.

After his repatriation to Nigeria, the IPOB leader was re-arraigned before Nyako on a 15-count charge bordering on terrorism and treasonable felony, but in April 2021, eight of the charges were struck out by the trial judge.

Afterwards, Kanu, through his lawyers, approached the court of appeal and asked for the dismissal of the outstanding seven counts for being devoid of merits.

In October 2022, a three-member panel of the court of appeal in Abuja struck out the remaining charges against the IPOB leader.

The appellate court held that Kanu’s extradition from Kenya to Nigeria to stand trial was illegal.

The federal government later filed a suit to stay the execution in the appellate court and it was granted.

The government also approached the supreme court challenging the judgement — and subsequently filed an amended charge before a federal high court.

WHY IS KANU STILL BEING HELD?

Although the appeal court quashed the terrorism charges against Kanu, he is yet to be released and is still being held in custody because of the stay of execution granted to the federal government by the appeal court.

A stay of execution is a court order to temporarily suspend the execution of a judgment.

DOES KANU NEED A SURETY TO BE RELEASED?

Olu Daramola, a senior advocate of Nigeria (SAN), said Kanu was discharged by the court and the charges against him were thrown out, hence, he does not need anybody to stand surety for him.

“The essence of bail is that you will be available to defend your case — that is the whole purpose of bail,” he told TheCable.

“You are presumed innocent until your matter is determined by the court, but in his own (Kanu’s) case, his matter has been determined. The court has found him not guilty.

“So ordinarily, in a country where the rule of law works and operates well, he does not need anybody to stand surety for him. There is no criminal case pending against him anywhere.

“Of course, the government have the right to appeal. They have appealed. But having won his case, until that judgement is set aside, he is completely innocent of the charges.”

Reinforcing Daramola’s position, Inibehe Effiong, a human rights lawyer, told TheCable that by virtue of the court of appeal judgement, Kanu has no charges against him and thus, the debate for bail should not arise.

He said the fresh charges filed by the federal government “is an exercise in futility” because the court of appeal judgement invalidated the original charge.

“Nnamdi Kanu is not facing any trial or any charge in any court,” he said.

“Whatever charge they claim they have amended is just an attempt to ridicule the legal system because the judgment of the court of appeal is quite unequivocal that no charge can be preferred against him in any court in Nigeria because of the issue of extraordinary rendition and the charges that were earlier filed before the federal high court tried by Justice Nyako -– the entire charge was set aside by the court of appeal.

“So, there is really no basis in law for anyone to say they want to amend a charge that no longer exists or to say that they want to file a fresh charge.

“Now, if the federal government has gone to the supreme court to appeal against the judgement of the court of appeal –- the court of appeal in its wisdom granted a stay of execution of their own judgement. Even though some of us have reservations about the decision — that is the law. We must respect the decision of the court of appeal and await the decision of the supreme.

“So, technically, as of today there is no basis for them to discuss bail. Bail for what? Nnamdi Kanu is not facing trial. There is nothing warranting him being released on bail.”

HOW CAN KANU BE RELEASED?

Inibehe said pending the determination of the appeal by the supreme court, the federal government can decide to resolve the matter by releasing Kanu and discontinuing the case at the apex court.

“What the federal government should rather do is if they want to resolve the matter, they can release him and then discontinue the appeal at the supreme court. That is what the federal government can do,” he said.

When contacted to speak on the matter, Ejimakor said his opinion may be “prejudicial” because Kanu is his client.

“Regarding what Governor Soludo had said about the release of Mazi Nnamdi, I don’t think it’s appropriate for me to give a personal opinion. Because as Kanu’s lawyer, my personal opinion might become prejudicial to my client or injure his legal interest in some latent way,” he said. 

And one last question;

CAN A GOVERNOR STAND AS SURETY?

Modibbo Bakari, a legal practitioner, said not all high-ranking public officials can stand surety for a person seeking bail.

He said all bail has terms and conditions and not all persons can fit in. 

“Because you are a serving governor or senator will not automatically make you qualify to stand surety in every matter or everybody,” he said.

In his opinion, Effiong said governors cannot stand as surety to any person because by the virtue of immunity they enjoy, they cannot be summoned if the defendant absconds.

“Legally, when someone offers to stand as a surety – in the circumstance that the defendant is not available to stand trial, the court can order the surety to show cause,” he said.

“The court can also order the surety to come to court to explain the whereabouts of the defendant. That is not possible in the case of a governor who has immunity. So the governor can’t stand as a surety for anybody.”