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From Godwin Tsa, Abuja
The Abuja division of the Court of Appeal has stopped execution of its own judgement that quashed the terrorism charge the Federal Government filed against the detained leader of the Indigenous People of Biafra, IPOB, Nnamdi Kanu.
In a ruling on Friday, Justice Haruna Tsanami granted the application by the Federal government to stay the execution of the judgment pending the hearing and determination of its appeal before the Supreme Court.
Justice Tsanami in a brief ruling held that the counter affidavit filed against the Federal Government application by Kanu’s legal team was misleading.
FG, in the notice of appeal it hinged on seven grounds, wants the apex court to stay the execution of the judgement the appellate court delivered on October 13.
The appellant among other things, contending that the appellate court panel erred in law and occasioned a miscarriage of justice when it relied on the manner Kanu was renditioned from Kenya to Nigeria after he jumped bail the trial court granted to him in 2017, to quash the entire charge against him.
The Court of Appeal had in a unanimous judgment now under appeal, accused federal government of flagrantly violating all known laws in the way it forcefully rendered Kanu from Kenya to the country for the continuation of his trial.
In the judgment that was delivered on October 13, a three-member panel of the appellate court held that such extraordinary rendition, without adherence to due process of the law, was a gross violation of all international conventions, treaties, protocols and guidelines that Nigeria is signatory to, as well as a breach of the Appellant’s fundamental human rights.
In addition, the appellate court noted that federal government failed to refute the allegation that the IPOB leader was in Kenya and that he was abducted and brought back to the country without any extradition proceeding.
It held that FG was “ominously silent on the issue”, which it described as very pivotal in determining whether the trial court would still have the jurisdiction to continue with the criminal proceeding before it.
The appellate court held that FG’s action tainted the entire proceeding it initiated against Kanu and amounted to “an abuse of criminal prosecution in general”.
“The court will never shy away from calling the Executive to order when it tilts towards Executive recklessness”, the appellate court held, even as it accused FG of engaging in “serious abuse of power”.
However, the federal government has approached the court with a motion to stay the execution of the judgment following its appeal challenging the decision at the Supreme Court.
In a fresh affidavit filed to support the application, federal government maintained that Kanu posed a flight risk, insisting he would escape from the country as soon as he was freed from detention.
An Assistant State Counsel in the office of the Attorney-General of the Federation, Mr. David Kaswe, who moved the application told the court that the case against Kanu bordered on national security.
Kaswe had while relying on the case of Federal government Vs Asari Dokubo, argued that Kanu’s fundamental rights should not supercede the interest of the nation.
He submitted that once a case touched on national security, the right of the individual affected took secondary place.
“It is important to appreciate the gamut of depositions in our application. The Respondent is a flight risk person and one of the ground of our application is that this matter touches on national security of the state.
“We further rely on the case of FRN Vs Dokubo, where the Supreme Court held that where national security is threatened or when there is likelihood of it being threatened, human rights take secondary place.
“Once there is a threat to national security, human rights of any individual can be suspended until such threat is taken care of.
“Once security of the nation is in jeopardy, the individual right may not even exist,” government’s lawyer argued.
Besides, he told the court that intelligence report in government’s possession indicated that releasing the IPOB leader from detention would worsen the security situation in the South East.
“The defendant has shown that he has the capacity to jump bail or to escape from lawful custody. There is reasonable intelligence that the enforcement of judgement of this court, pending determination of our appeal at the Supreme Court, may impact negatively on the declining security in the South East.
“No court can close its eyes on activities happening around it. As we speak, the entire social media is awash with threat to security in the country.
“We believe that there is an exceptional circumstance to warrant this court to grant our application.
“We urge this court to resolve the sole issue we raised and find our application meritorious, in the interest of justice and unity of the country,” Kaswe added.
Responding, the lead counsel to Kanu, Chief Mike Ozekhome, SAN, urged the appellate court to dismiss FG’s application which he said was tantamount to seeking the stay of the liberty of a citizen.
Ozekhome argued that contrary to FG’s position, Kanu’s release from detention would guarantee peace in both the South East and the country.
In its appeal before the Supreme Court, the Federal Government maintained that the appellate court acted in error by striking out the charge against the IPOB leader on the premise that the trial judge no longer had the jurisdiction to handle the matter.
Therefore, FG, through the office of the Attorney-General of the Federation and Minister of Justice, is praying the apex court to in the interim, suspend the execution of the Court of Appeal verdict, pending the hearing and determination of its appeal.
