By Prof. MarkAnthony Nze
(From the Series: “How Justice Omotosho Goofed in Kanu’s Trial”)
When the Federal High Court of Nigeria, sitting in Abuja and presided over by Justice James Kolawole Omotosho, delivered its judgment on November 20, 2025, the question before the nation was not merely what it would decide about Nnamdi Kanu, but what it would reveal about the Nigerian judiciary itself.
That day, the robe of justice slipped — not quietly, but in full view of the law it was meant to protect. The judgment handed down was not a triumph of jurisprudence but a tragedy of judicial confusion, a ruling that contradicted both logic and legality. It was a performance masquerading as adjudication.
A Judgment that Read Like a Script
From the moment Justice Omotosho began reading, it was clear that the verdict was not unfolding but being recited. Observers described the judge holding a document that seemed to have been written long before arguments concluded, its language rehearsed and its tone sterile. There was no engagement with defense motions, no structured reasoning through points of law. Instead, there was the unmistakable cadence of a predetermined outcome.
If courts exist to interpret the law through impartial reasoning, what occurred on November 20 was its opposite: law fitted to conclusion, not conclusion drawn from law. The bench, in that instant, ceased to be a sanctuary of justice and became a theatre of compliance.
The Constitution’s Bright Line — and How It Was Crossed
At the heart of the debacle lies one of the most fundamental provisions in Nigeria’s constitutional framework — Section 36(12) of the 1999 Constitution (as amended). It reads:
“A person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law.”
This clause enshrines the principle of legality, expressed in Latin as nullum crimen, nulla poena sine lege — no crime and no punishment without law. It is the foundation of every legitimate criminal justice system, from Westminster to Washington.
By ignoring this clause, Justice Omotosho did not just err; he abolished the boundary between legality and arbitrariness. To convict under an undefined offence is to transform the judiciary into a legislative body — a constitutional impossibility. No judge, no matter how eminent, may invent crimes by inference or conviction by convenience.
This error was not technical. It was structural — a direct assault on the architecture of constitutional due process. It rendered the judgment not merely controversial but void ab initio.
The Erosion of Due Process
The proceedings themselves reflected a troubling pattern. Defense applications challenging jurisdiction were brushed aside without written rulings. Requests for clarity on which statutes underpinned the charges were ignored. When lawyers asked the court to specify the “written law” justifying conviction, the bench deflected, saying only that “the law is clear.”
Read also: How Justice Omotosho Goofed In Kanu’s Trial—Intro
But the law was not clear — it was absent. The clarity lay in its omission.
This procedural indifference struck at the essence of fair hearing under Section 36(1) of the Constitution, which guarantees every person a trial “before an independent and impartial court.” Independence is not a posture; it is a practice — the willingness to decide according to law even when power demands otherwise. On that test, the judgment failed spectacularly.
A Judiciary Performing Power
To understand the weight of Omotosho’s error, one must place it within Nigeria’s broader judicial decline. In too many politically charged cases, judges have begun to mirror the anxieties of the state rather than the authority of the Constitution. Their rulings read like bureaucratic justifications, not legal reasoning. What Justice Omotosho delivered was a symptom of this wider malaise — the domestication of the judiciary under the shadow of executive politics.
When a judge allows political context to override legal content, justice becomes an accessory to state narrative. The court transforms from arbiter to actor, and the rule of law becomes stagecraft. In such a system, conviction is not the product of guilt but the punctuation of a script already written elsewhere.
The Three Cardinal Violations
Omotosho’s ruling offended three pillars of Nigerian constitutionalism:
- The Principle of Legality:Convicting under an offence not defined by law violated Section 36(12) and the jurisprudence of both the Supreme Court and ECOWAS Court, which have consistently held that “no citizen shall suffer criminal sanction without statutory definition.”
- The Right to Fair Hearing:The failure to deliver reasoned rulings on defense applications breached Section 36(1) and decades of appellate precedent requiring that every objection be addressed with clarity and citation.
- The Doctrine of Judicial Impartiality:By reproducing the state’s arguments while ignoring counterpoints, the court abandoned neutrality — the oxygen of justice.
Each of these violations is, on its own, fatal. Together, they constitute a constitutional catastrophe.
A Verdict Without a Law
What Justice Omotosho delivered was not a lawful judgment but a legal impossibility — a verdict without statute, a conviction without crime. The most astonishing aspect of this ruling is not its outcome but its indifference to process. It was not the law that failed Justice Omotosho; it was Justice Omotosho who failed the law.
For the Nigerian judiciary, this moment was more than a personal lapse — it was an institutional confession. It revealed how deep the erosion has gone, how normal it has become for courts to speak the language of authority rather than legality.
A judiciary that forgets restraint ceases to interpret the law; it begins to impersonate it. That is where Nigeria stands today — in the dangerous space where the Constitution is recited but not respected.
The Verdict of History
Judges may command silence in their courts, but they cannot silence history. Long after Justice Omotosho’s ruling fades from headlines, it will remain in textbooks — an example of how not to judge, how not to reason, and how not to forget the limits of power.
Tomorrow, in Day 2 – “Conviction Without Definition,” we will turn from rhetoric to doctrine, dissecting the precise constitutional breaches embedded in this ruling — and demonstrate, with the cold precision of law, why the Omotosho judgment is not only unjust but juridically null.
