27/08/2026
OPEN LETTER TO THE NIGERIAN BAR ASSOCIATION
PART II OF III
THE SIX FATAL ERRORS OF THE SUPREME COURT — AND THE QUESTION THEY REFUSED TO ANSWER
By Christopher Chidera, Esq.
26 August 2026
On 15 December 2023, the Supreme Court ordered the “continuation” of Nnamdi Kanu's trial.
That order rests on six fundamental legal errors. The consequences of those errors reached the trial that followed and the conviction entered by Justice Omotosho.
Here they are.
ERROR ONE: THE “EXTANT LAW” FALLACY
What the Supreme Court did
Lawal Garba JSC called the Terrorism Prevention Act 2013 “extant and existing law” on 15 December 2023.
That Pronouncement is a fatal flaw
That Act had been repealed on 12 May 2022 by section 98 of the Terrorism (Prevention and Prohibition) Act 2022.
SECTION 122 REQUIRED THE COURT TO KNOW BOTH THE LAW AND ITS REPEAL
Section 122 of the Evidence Act says the Court shall take judicial notice of laws having the force of law “now or previously in force” in Nigeria.
The Court is required to know both the living law and the dead law.
Justice Lawal Garba JSC himself demonstrated this duty in the very judgment. He went to the statute book, discovered that the Criminal Code cited in Count 15 as Cap C45 was actually Cap C38, and corrected the citation.
That same statutory duty required the Court to know that the 2013 Terrorism Act had been repealed in 2022.
Section 122 does not permit a court to know that an Act existed yesterday and then pretend that the same Act remains the law today.
Yet the Court called the repealed 2013 Act “extant and existing law” in December 2023.
The Court was required to know.
It knew how to read the statute book.
It corrected Cap C45 to Cap C38.
It therefore cannot claim that the statute book was invisible when it came to the repeal of the 2013 Terrorism Act.
In Ogwueche v FRN, the Supreme Court stated that courts are empowered to take judicial notice of Nigerian laws and “give effect to existing statutes whether cited by counsel or not.”
The duty was not optional.
The consequence
The Court built its reasoning on a legal co**se.
A repealed Act does not become extant because a judge calls it extant.
The crucial question was therefore not whether the 2013 Act once existed.
It did.
The question was:
WHAT LAW KEPT THE PROCEEDING ALIVE AFTER THAT ACT WAS REPEALED?
That question leads directly to section 97 of the TPPA 2022.
And that is the question Part III will confront.
ERROR TWO: “CONTINUATION” VERSUS “RETRIAL” — THE PROCEDURAL FRAUD
What the Supreme Court did
It ordered “continuation” — language suggesting that the original proceeding remained alive.
The fatal flaw
On 13 October 2022, the Court of Appeal did not merely adjourn the case.
It:
discharged the accused;
quashed the charges;
and held that the courts had been divested of jurisdiction on the basis of the African Charter Act.
That was a final appellate disposition.
The Supreme Court subsequently set that judgment aside.
But setting aside the Court of Appeal judgment does not answer the separate question:
WHAT WAS THE LEGAL STATUS OF THE QUASHED COUNTS AFTER THAT SETTING-ASIDE?
Section 36(9) of the Constitution expressly contemplates the possibility of a superior court ordering another trial.
The Supreme Court did not say “retrial.”
It said “continuation.”
That distinction matters.
If the first proceeding had legally ended, then a continuation cannot simply pretend that it never ended.
The consequence
You cannot continue what has ceased to exist unless the law provides the mechanism by which it is brought back into existence.
The Supreme Court had to identify that mechanism.
It did not.
That missing bridge is the central question of this entire case.
ERROR THREE: THE AFRICAN CHARTER — THE ELEPHANT IN THE COURTROOM
What the Supreme Court did
The Supreme Court quoted Abacha v Fawehinmi and reproduced the law governing the African Charter Act.
Then it ordered continuation without giving that law the consequence demanded by its own statement of the law.
The fatal flaw
On pages 38–40 of the remittal judgment, the Supreme Court itself stated that once the African Charter was incorporated into Nigerian law, “our courts must give effect thereto like all other laws falling within the Judicial power of the courts.”
It further quoted Abacha v Fawehinmi:
“By cap. 10, the African charter is now part of the laws of Nigeria and like all other laws the courts must uphold it.”
And the judgment reproduced the statement that where there is conflict between the Charter Act and another domestic statute, the Charter's provisions will prevail because the legislature is presumed not to intend to breach an international obligation.
It also reproduced the famous description that the Charter possesses “a greater vigour and strength” than other domestic statutes, while remaining subordinate to the Constitution.
Those are not my words.
They are the Supreme Court's own words.
The Court of Appeal had relied on that same African Charter Act when it held that the unlawful seizure of Kanu had stripped the Nigerian courts of jurisdiction.
The Supreme Court set that judgment aside.
But it did not explain how the African Charter Act ceased to have the legal force that the Supreme Court itself had just described.
The contradiction
The Court said:
The Charter is Nigerian law.
The courts must uphold it.
The courts must give effect to it.
It has greater vigour and strength than ordinary domestic statutes.
Then the Court found that Kanu had been kidnapped and extraordinarily renditioned into Nigeria.
And then it ordered:
“Continue the trial.”
That is the problem.
The African Charter cannot be treated as binding law when being quoted and as decorative language when being applied.
Section 251 does not solve that problem.
It confers jurisdiction on the Federal High Court over specified matters. It does not repeal the African Charter Act.
The proviso concerning redress against the Federal Government does not convert an unlawful rendition into lawful process.
A right to sue for damages is not a licence to disregard a statutory jurisdictional consequence.
The consequence
The Court quoted the law requiring courts to give effect to the Charter.
Then it failed to give effect to it.
The law was on the page. The Court simply walked around it.
ERROR FOUR: THE KIDNAPPING PARADOX — THE COURT CONTRADICTS ITSELF
What the Supreme Court did
My lord Justice Emmanuel Agim, in the same remittal judgment, found that Nigerian agents kidnapped and abducted Kanu and subjected him to extraordinary rendition from Kenya to Nigeria.
He described the conduct as:
“prohibited by law”;
“brazen lawlessness”;
and said the prosecution had become “unfair and oppressive.”
The fatal contradiction
The Court found the unlawful seizure.
The Court identified the illegality.
The Court called it kidnapping.
The Court called it abduction.
The Court called it prohibited by law.
And yet the trial continued.
THE COURT NAMED THE WRONG. THEN REFUSED TO GIVE THE WRONG ITS LEGAL CONSEQUENCE.
That is not a failure to find the law.
That is a failure to apply the law.
But the wrong was not merely a moral wrong. It was a crime under the law of the place where it occurred — and it was also terrorism under Nigeria's own law.
FIRST: KENYAN LAW
Kenya has a Penal Code (Cap 63). It defines kidnapping in plain terms:
“Any person who conveys any person beyond the limits of Kenya without the consent of that person ... is said to kidnap that person from Kenya.”
And it prescribes punishment:
“Any person who kidnaps any person from Kenya or from lawful guardianship is guilty of a felony and is liable to imprisonment for seven years.”
Kanu was in Kenya. He was conveyed beyond the limits of Kenya without his consent.
That is the statutory definition of kidnapping under Kenyan law.
The very act the Supreme Court found — kidnapping from Kenya — is a felony in Kenya, punishable by seven years' imprisonment.
A Kenyan court has since confirmed this. The High Court of Kenya declared Kanu's abduction and forcible removal from Kenya “unlawful and unconstitutional,” holding that there were “no extradition proceedings” and that the “abduction and incommunicado confinement were not lawful acts.”
SECOND: NIGERIAN LAW — THE TPPA 2022
But the more devastating point is this:
Nigeria's own terrorism law defines the State's conduct as terrorism.
The Terrorism (Prevention and Prohibition) Act 2022 (TPPA) — the living law in Nigeria on 15 December 2023 and today — defines an “act of terrorism” to include:
Section 2(3)(f) — an act that violates an international treaty or resolution to which Nigeria is a party.
Section 2(3)(g)(ii) — an act that involves or results in the kidnapping of a person.
The African Charter on Human and Peoples' Rights is a treaty to which Nigeria is a party. It has been domesticated into Nigerian law. It prohibits arbitrary arrest and detention, and it prohibits the extra-judicial removal of a person from one country to another without due process.
So by the plain text of Nigeria's own terrorism law:
The State kidnapped Kanu → Section 2(3)(g)(ii) — an act of terrorism.
The State violated the African Charter through extraordinary rendition → Section 2(3)(f) — an act of terrorism.
The State is a terrorist by its own law.
The consequence
So here is the position:
The TPPA 2022 says kidnapping is terrorism.
The TPPA 2022 says treaty violation is terrorism.
The Supreme Court found that Nigeria kidnapped Kanu.
The Supreme Court found that Nigeria violated the African Charter through extraordinary rendition.
The same Court then allowed the State to prosecute Kanu for terrorism.
The State cannot be both the terrorist and the prosecutor.
The perpetrator of the crime cannot be the accuser.
He who goes to equity must go with clean hands.
ERROR FIVE: MADUKOLU AND THE JURISDICTIONAL BRIDGE THAT DOES NOT EXIST
What the Supreme Court did
The Supreme Court itself recited the foundational rule in Madukolu v Nkemdilim.
A court is competent only where:
it is properly constituted;
the subject matter is within its jurisdiction and there is no feature preventing the exercise of jurisdiction; and
“the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”
The Supreme Court has repeatedly treated these conditions as necessary to found jurisdiction.
Then comes the devastating part.
The same Supreme Court found that Kanu was unlawfully abducted and extraordinarily renditioned from Kenya to Nigeria without lawful extradition.
So the question is no longer complicated.
HOW DID A CASE BROUGHT INTO NIGERIA THROUGH UNLAWFUL ABDUCTION SATISFY MADUKOLU'S MANDATORY REQUIREMENT THAT THE CASE COME BEFORE THE COURT THROUGH DUE PROCESS OF LAW?
It did not.
Lawful extradition was not used.
The rendition was unlawful.
The Supreme Court said so.
Yet the trial was ordered to continue.
That is the contradiction.
Madukolu does not say that due process is optional after a court acquires subject-matter jurisdiction.
It makes the manner in which the case comes before the court part of the conditions necessary for competence.
And the consequence of a defect in competence is equally clear:
“Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided.”
Now place that beside Lawal Garba JSC's own words in this very judgment:
“It is trite law that jurisdiction cannot be conferred by consent, agreement, or acquiescence of parties. Not even this court can confer jurisdiction where none exists.”
Those two principles leave no hiding place.
Here is the question the Supreme Court refused to answer:
IF NOT EVEN THE SUPREME COURT CAN CONFER JURISDICTION WHERE NONE EXISTS, WHERE DID JUSTICE OMOTOSHO GET THE JURISDICTION TO REVIVE THE QUASHED COUNTS?
Justice Omotosho did not have the power of the Supreme Court.
The Supreme Court said even it cannot confer jurisdiction.
So how did a lower court do what the Supreme Court itself says it cannot do?
Due process is a condition of jurisdiction.
The Supreme Court found that the lawful process of extradition was absent.
The rendition was unlawful.
The Supreme Court cannot create the missing jurisdiction by calling the proceeding a “continuation.”
A label cannot manufacture due process.
An appellate order cannot retrospectively turn kidnapping into extradition.
A continuation order cannot cure a jurisdictional defect that existed before the trial continued.
MADUKOLU WAS NOT OPTIONAL.
The Supreme Court knew the rule.
It recited the rule.
It knew the accused had not been brought through lawful extradition.
It found the rendition unlawful.
It said not even the Supreme Court can confer jurisdiction.
And yet it ordered continuation.
And Justice Omotosho took that order as a licence to proceed.
But if the Supreme Court itself cannot confer jurisdiction, then the Federal High Court cannot acquire it from the Supreme Court.
The Supreme Court can only send back what exists. It cannot send back jurisdiction that does not exist.
So the question remains:
WHERE DID THE FEDERAL HIGH COURT GET THE JURISDICTION TO REVIVE QUASHED COUNTS?
If the Supreme Court cannot confer jurisdiction, and the Federal High Court cannot create it, then the only possible source is law.
So show us the law.
ERROR SIX: SECTION 76 — THE DOUBLE-CRIMINALITY GATEKEEPER
What the Supreme Court did
It failed to confront section 76(1)(d)(iii) of the TPPA 2022.
The statutory gatekeeper
Section 76 addresses offences committed outside Nigeria and provides, in the relevant circumstance, jurisdiction where the conduct of a Nigerian outside Nigeria would also constitute an offence under the law of the country where the offence was committed.
That is a statutory condition.
The question therefore becomes brutally simple:
WHERE IS THE KENYAN OR BRITISH LAW THAT MAKES THE ALLEGED CONDUCT AN OFFENCE?
The allegations against Kanu included broadcasts made while he was outside Nigeria.
If the prosecution relies upon conduct occurring outside Nigeria, the statutory jurisdictional gateway cannot simply be ignored.
The statute says what must be established.
A court cannot replace a statutory condition with assumption.
The consequence
If the statutory condition is not satisfied, the jurisdictional gateway is not satisfied.
And once again:
NO JURISDICTION CAN BE CREATED BY JUDICIAL LANGUAGE.
THE KENYA QUESTION: WHY WAS LAW NOT USED?
The central fact remains brutally simple.
Kanu was in Kenya.
Nigeria wanted him in Nigeria.
The lawful mechanism for obtaining custody of a person located in another sovereign state is not kidnapping.
It is lawful process.
Extradition exists precisely because sovereign states do not simply cross borders, seize people and transport them into their own criminal courts.
But that is what the Supreme Court itself found happened.
And after finding it unlawful, the Court still ordered continuation.
That is the problem.
The question is not whether Nigeria wanted Kanu prosecuted.
The question is whether Nigeria's desire to prosecute permitted Nigeria to bypass the law governing how a person is brought before its courts.
Madukolu says the case must come before the court through due process of law.
The Supreme Court found that due process was not used.
Lawal Garba JSC said not even the Supreme Court can confer jurisdiction.
That contradiction has never been satisfactorily answered.
THE UNANSWERABLE QUESTION: WHAT LAW RESTORED THE QUASHED COUNTS?
Now put the entire record together.
On 13 October 2022:
The Court of Appeal discharged Kanu.
The charges were quashed.
On 15 December 2023:
The Supreme Court set that judgment aside.
But what happened to the counts?
Where is the statutory mechanism that restored them?
Where is the law that converted quashed into alive?
Where is the law that converted discharged into continuing?
Where is the law that converted an unlawful rendition into due process?
Where is the law that converted a repealed statute into “extant and existing law”?
Where is the law that allowed the Charter Act to be quoted as binding law and then ignored when its jurisdictional consequence became inconvenient?
Where is the law that gave Justice Omotosho jurisdiction when the Supreme Court itself says not even it can confer jurisdiction?
WHERE IS IT?
That is the question.
Not rhetoric.
Law.
THE SPINE OF THE CASE
A. Did the Supreme Court have jurisdiction to hear the appeal?
Yes.
B. Did the Supreme Court have power to set aside the Court of Appeal judgment?
Yes.
C. Did that appellate power automatically restore the quashed counts?
Show the law.
D. Did the Federal High Court acquire jurisdiction merely because the Supreme Court used the word “continuation”?
No court can create jurisdiction by a label.
E. Did the case satisfy Madukolu's requirement that it come before the court through due process of law?
The Supreme Court's own findings make that question unavoidable.
F. What statutory provision kept the proceeding alive after the repeal of the 2013 Act?
Section 97 must answer that question.
And that is where this case ultimately lands.
THE BOTTOM LINE
The Supreme Court:
called a repealed law “extant”;
ordered “continuation” after discharge and quashing;
quoted the African Charter law requiring Nigerian courts to give it effect, then refused to confront its jurisdictional consequence;
found kidnapping and unlawful extraordinary rendition, then allowed the prosecution to continue despite its own terrorism law defining kidnapping and treaty violation as acts of terrorism;
recited Madukolu's due-process requirement while accepting that lawful extradition had not occurred;
declared that “not even this court can confer jurisdiction where none exists”;
then proceeded to act as if its “continuation” order had conferred jurisdiction;
and failed to confront the statutory jurisdictional gateway in section 76.
Then a fresh plea was taken.
Then the trial continued.
Then conviction followed.
That is the sequence the Nigerian legal profession must examine.
The issue is not whether Nnamdi Kanu is popular or unpopular.
It is not whether the State considers him dangerous.
It is not whether the allegations against him are serious.
The more serious the allegation, the more important the law becomes.
A terrorism prosecution does not create a terrorism exception to jurisdiction.
A Supreme Court order does not become a source of jurisdiction merely because it came from the Supreme Court.
A repealed statute does not become living law because a judgment calls it extant.
A quashed charge does not resurrect itself.
An unlawful rendition does not become due process because the victim is eventually placed before a judge.
And “continuation” is not a magic word.
THE DEMAND
To the Nigerian Bar Association.
To the International Bar Association.
To every lawyer who still believes that jurisdiction comes from law and not judicial assertion:
SHOW US THE LAW.
Show us the law that restored the quashed counts.
Show us the law that made a repealed Act “extant” in December 2023.
Show us how the proceeding satisfied Madukolu when the Supreme Court itself found that the accused was unlawfully abducted and extraordinarily renditioned into Nigeria without lawful extradition.
Show us how a case that did not come before the court through due process of law acquired jurisdiction.
Show us how the African Charter Act could be declared binding Nigerian law and then ignored when its application became inconvenient.
Show us how the Supreme Court could say:
“Not even this court can confer jurisdiction where none exists.”
and then do precisely what that principle forbids.
Show us the statutory basis for the Federal High Court's jurisdiction under section 76.
Show us where Justice Omotosho got the jurisdiction to revive quashed counts.
SHOW US THE LAW.
Not explanation.
Not labels.
Not “continuation.”
LAW.
Because the entire prosecution after the remittal rests on one unanswered question:
WHAT LAW RESTORED THE QUASHED COUNTS?
Until that question is answered, the word “continuation” is not a legal bridge.
It is merely a word placed over a jurisdictional gap.
TO BE CONTINUED — PART III
SECTION 97 OF THE TPPA 2022
SECTION 36(12) OF THE CONSTITUTION
THE REPEALED TPAA AND THE LAW THAT CANNOT BE USED TO CONVICT
Christopher Chidera, Esq.
26 August 2026
Sources and authorities are checked against the certified judgment and official law reports before publication. The Madukolu formulation and its treatment as a jurisdictional condition are confirmed in Nigerian Supreme Court authorities.
The Biafran Vanguard
The Voice of the People of Biafra
