IPOB: Ejimakor Explains Why Justice Nyako Can No Longer Preside Over Kanu Case

Justice Binta Nyako of the Federal High Court, Abuja, is no longer eligible to conduct the alleged terrorism trial against Mazi Nnamdi Kanu because she consented to her recusal request made by Kanu on September 24, 2024.

Kanu, the leader of the Indigenous People of Biafra, had on the day announced that he had lost confidence in Justice Nyako, and demanded the change of his trial judge, a demand Nyako consented to.

Kanu appeared before the court today after being summoned, upon which he reinstated his position that he would not be tried by Nyako, alleging bias. During Monday’s appearance, Nyako had adjourned the matter sine die.

Kanu’s lead counsel, Barr Aloy Ejimakor, clarified that the process by which Justice Murtala-Nyako exited from the case as the trial judge was a ‘judicial event’, as it emanated from the court order she made on 24th September 2024 where she “graciously consented to the recusal”.

Quoting Ejimakor, “The said order is extant and subsisting and was never appealed. It remains valid in all ramifications, such that strains the legality of the hearing conducted before the same judge today, 10th February.

“His Lordship cannot review, reopen and revisit the matter of her recusal because she no longer possesses the jurisdiction and she has become function officio.”

Citing Sanusi v. Ayoola (1992) 11/12 SCNJ 142; (1992) LPELR- 3009 (SC), among others, Ejimakor asserted that, “We have been informed by our client (Mazi Nnamdi Kanu) and we have obtained a copy thereof that he has initiated a petition or a complainant bordering on judicial misconduct against Justice Binta Murtala-Nyako. This alone, without more, is enough to oust justice from subjecting Mazi Kanu to any trial before her court.”

He stated that the petition against Justice Nyako was filed on 14th January 2025 and it is pending, adding that the reasons Kanu had to recuse Justice Nyako included: “That in June 2021, the same judge conducted a hearing by which Mazi Kanu (an awaiting-trial) was ordered remanded without notice to, and the presence of his former counsel at the hearing”.

The release read, “That was a grave constitutional error that turned highly prejudicial against Mazi Kanu. Second, Kanu was ordered detained in DSS cell instead of a prison facility as the law contemplates. The excuse then was that every penitentiary in Nigeria is porous or pathetically low-security. This excuse suggested a judicial state of mind.

“Third, when the DSS detention posed grave risks to Mazi Kanu’s constitutional right to fair hearing and to counsel, the judge summarily refused his application for transfer to prison or other less restrictive facility and instead ordered an accelerated trial. That’s manifest injustice.”

Another, according to Ejimakor, is that when the Supreme Court ruled against Mazi Kanu’s bail revocation, Justice Nyako, who had revoked his bail, refused to reinstate the bail, adding that, “That’s an egregious violation of the constitution and the doctrine of stare decisis.”

He added, “The Supreme Court had held that, by revoking Mazi Kanu’s bail, the judge’s impartiality has become suspect. In the face of this damning indictment from the apex court, it would amount to a dangerous gamble for Kanu to ignore this and take his chances in a trial that has six capital offences arrayed against him.

“Despite the enormous risks to Mazi Kanu’s right to fair trial posed by the strict conditions of his detention at the DSS and the illegality of the charges, the judge summarily refused our meritorious application to adjourn the trial until the exhaustion our appeal challenging her jurisdiction to try the case. For Mazi Kanu, this is the last straw that broke the camel’s back.”

He stated further that when Kanu was presented in court on 29th June 2021, following his rendition from Kenya, the court had a duty to make inquiries regarding the locale of his “arrest”; and if abroad, whether his “arrest and surrender” to Nigeria complied with the pertinent laws of the country of his refuge, as well as that of Nigeria and the international laws on point.

Quoting him, “We are aware that the court never made such an inquiry because if it did, it would have revealed the earliest indication of the infamous extraordinary rendition that has complicated jurisdiction to this day.”

He alleged that a former Attorney-General had falsely claimed that Mazi Nnamdi Kanu was lawfully extradited, adding that, “If not for the dexterity of one Mazi Nnamdi Kanu’s counsel who had told Nigerians what actually happened, this grave falsity would have persisted as the truth to this day.”

He continued, “The post-recusal summons issued to Kanu that brought us to court on 10th February cannot be blamed on the court alone”, noting that, “The prosecution grandfathered it by a letter it wrote to the court on 5th December 2024, requesting that the case be re-calendared for a hearing before Justice Murtala-Nyako”.

Ejimakor stated that the said letter strained the boundaries of prosecutorial misconduct, leading to its counter by Kanu’s legal team. According to him, in the efforts of Kanu’s legal team to stave off what they determined to be a burgeoning unconstitutionality that lies in sending the case back to the recused judge, they generated a Letter to the Honorable Chief Judge of the Federal High Court, requesting the transfer of the case to the Southeast.

He alleged that, “We were reliably informed that the ‘official’ reason for sending the case back to the recused judge is because no other judge in the Abuja Division of the Federal High Court is willing to take the case. And the reason why Southeast is in play is because, being the place where the offences were alleged to have impact, it possesses far superior jurisdiction to every other division.”

He advised that, “If no judge (other the recused judge) in Abuja is willing to try the case, the next lawful thing to do is to transfer the case to any of the Federal High Court divisions in the Southeast.

“If there’s some sort of a ‘secret official embargo’ in having Mazi Nnamdi Kanu tried in the Southeast, you cannot keep him in an endless limbo while he’s detained as an awaiting-trial. In any common law country, when a state has an insurmountable difficulty in putting a detainee on trial within a reasonable time, the next option is to release such a detainee until such a time his trial can be properly conducted, subject to any statute of limitation that may be applicable.

“Under the constitution, every criminal suspect, especially a detainee, deserves to be tried within a reasonable time. The Administration of Criminal Justice Act prescribed a day-to-day trial for every criminal suspect. It becomes more urgent and compelling when such a suspect is in detention, and a lengthy one to boot.”

He said that the federal government, having proved unable to bring Mazi Nnamdi Kanu to trial within a reasonable time, should honorably release Kanu either through restoration of his bail or otherwise – by a discontinuance of a case that was burdened by the indices of internecine politics from its inception ten years ago in 2015.”

IPOB: Ejimakor Explains Why Justice Nyako Can No Longer Preside Over Kanu Case is first published on The Whistler Newspaper