From “How Justice Omotosho Goofed in Kanu’s Trial”
A Seven-Day Legal Exposé
By
Prof. MarkAnthony Nze
Investigative Journalist | Public Intellectual | Global Governance Analyst | Health & Social Care Expert | International Business/Immigration Law Professional |Strategic & Management Economist
Justice James Kolawole Omotosho’s ruling in Federal Republic of Nigeria v. Nnamdi Kanu has already entered the annals of Nigerian jurisprudence—not as a triumph of clarity, but as a cautionary example of how constitutional fidelity can yield to political convenience. It was a moment when the bench seemed to satisfy the yearnings of power rather than the precision of law, when the gavel echoed louder than the statute. To grasp the magnitude of what transpired, one must set aside sentiment and dissect the decision through the unforgiving discipline of black-letter law, where evidence, definition, and due process—not applause—determine justice.
Where Law Ends and Power Begins
Every Nigerian judge is bound by a single immovable pillar: the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Its Section 36(12) is not advisory — it is absolute. It forbids any conviction unless the offence is defined and the penalty prescribed in a written law.
In criminal jurisprudence, this is the “principle of legality.” It ensures that no court may transform political disapproval into criminal guilt.
Yet Justice Omotosho’s judgment appeared to navigate outside that map. The counts against Kanu relied on amorphous terms — “acts prejudicial to national security,” “threats to public peace,” “subversive broadcasts” — none of which are recognized as discrete crimes under the Criminal Code, Terrorism (Prevention and Amendment) Act, or any regulation in force.
To convict under undefined expressions is not adjudication; it is improvisation.
The Anatomy of a Judicial Misstep
A careful reading of the certified true copy of the judgment reveals a startling omission: nowhere does the ruling cite the specific section of a statute that defines the offence or prescribes its punishment.
Instead, it leans on what the court described as “acts known to law.”
But under Nigeria’s constitutional structure, the law is not known by implication; it is known by enactment.
Judicial notice cannot substitute for legislative authority.
A judge may interpret; he may not invent. That distinction separates the Supreme Court of Law from the court of political convenience.
Read also: The Judgment Before The Law—Part 1
Due Process Derailed
Section 36(1) of the Constitution guarantees the right to a fair hearing before an impartial court. Fairness is not merely about listening to both sides — it includes the right to clarity of charge, opportunity to prepare a defense, and trial within the boundaries of written law.
Kanu’s legal team repeatedly pressed the court to identify the enabling statute. That request was brushed aside, leaving the defense arguing against shadows.
Such opacity violates the spirit of due process and the letter of Section 36(8), which prohibits punishment for acts not previously defined as offences.
A conviction rendered without statutory mooring cannot stand on appeal. It collapses under the weight of its own illegality.
History’s Forgotten Warnings
Nigeria has travelled this road before. During the military years, decrees were weaponized to silence opposition. The framers of the 1999 Constitution inserted Section 36(12) to bury that legacy forever.
It was designed to protect precisely the kind of dissent that Nnamdi Kanu represents — controversial, divisive, but still within the perimeter of speech and belief.
By reviving the logic of elastic offences, the Federal High Court inadvertently reopened the door to arbitrary power.
Law as the Measure of Liberty
The law must be predictable, or it is no law at all.
The Administration of Criminal Justice Act (ACJA, 2015) provides that where a charge is defective or unsupported by statute, the court must strike it out or order amendment — it cannot convict on uncertainty.
The record shows none of these remedies were applied.
Instead, the bench proceeded as though the Constitution were an optional text.
Such a posture endangers every citizen. If the state may convict Kanu without a defined law, it may do the same to journalists, protesters, or religious leaders tomorrow.
The Constitutional Paradox
The Nigerian judiciary is often described as the last hope of the common man. But that hope evaporates when judges blur the line between enforcing the law and enforcing political will.
Section 1(1) of the Constitution declares it supreme over all persons and authorities, including courts. Any act inconsistent with it is void.
By convicting without a statutory base, the court contradicted the Constitution — and in doing so, nullified the very authority under which it sat.
The Broader Implications
This judgment will haunt Nigeria’s jurisprudence long after its immediate politics fade. It teaches future litigants that courts can improvise crimes when statutes fall silent.
It teaches citizens that their rights exist at the pleasure of interpretation.
And it teaches politicians that judicial compliance can be purchased with expedience.
Yet, within that cautionary tale lies a sliver of hope: the appellate process.
Higher courts have repeatedly corrected such misadventures. In Fawehinmi v. Akilu (1987), the Supreme Court reasserted that “the courts are subject to the law, not to the mood of government.”
One hopes that the same fidelity will rescue Nigeria’s legal conscience here.
A Conviction Without a Crime
In truth, what occurred on November 20 was not justice administered but justice imagined. The judgment read more like an executive communiqué than a judicial reasoning.
By convicting without clear definition, the Federal High Court constructed a precedent that endangers every Nigerian — including those who cheered the verdict.
For Nnamdi Kanu, the judgment is more than a personal loss; it is a constitutional wound. But for the Nigerian judiciary, it is an existential test — one that asks whether courts still serve the Constitution, or whether they now serve convenience.
Bibliographies
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