National security vs rule of law in Nigeria

The Abuja Division of the Appeals Court recently discharged and acquitted, Nnamdi Kanu, leader of secessionist group Indigenous People of Biafra (IPOB), of all terrorism charges.

Kanu, who was extradited from Kenya in 2021, was facing 15 counts of terrorism charges filed by the federal government. The three-man panel of the appellate court, led by Justice Adedotun Adefope-Okijie, said it was satisfied that the Nigerian government violated the law by forcefully removing Kanu from Kenya.

The court maintained that the rendition violated international convention and charters of organisations like the Organisation of African Unity, which stipulates that before an extradition takes place, a formal application must be sent to the host country alongside a statement of the alleged offences.

Justice Adefope-Okijie added that no court can try Kanu owing to the circumstances surrounding his rendition.

Following the judgement, there were agitations for the release of the IPOB leader, but the federal government kept him in custody and filed an application for a stay of execution on the basis of national security.

Justifying Kanu’s continued detention, the government's attorney, David Kaswe, said: “Once there is a threat to national security, human rights of any individual can be suspended until such threat is taken care of.” The lawyer further stated that releasing Kanu would worsen the security situation in the South East.

In his response, Kanu’s attorney, Mike Ozekhome, maintained that the federal government’s application was aimed at overriding the judgement of the appellate court. “My lords should not allow them because it will cause chaos and anarchy. The release of Kanu will bring peace to the South East, so there is no need to stay execution where there is no valid appeal,” Ozekhome said.

Although Justice Haruna Tsamani granted the Federal Government’s application and ordered that the records of the appellate court must be transmitted to the Supreme Court within seven days, lawyers have argued on which is superior between rule of law and national security.

In a recent interview the justice minister, Abubakar Malami (SAN), noted that the government was holding onto Kanu on account of four major issues, one of which is national security

“To release or not to release Nnamdi Kanu is a function of law and the rule of law for that matter. In arriving at a decision on whether to release or not release, is one: you look at the rule of law, two: you look at the public and the national interest, three: you look at the security situation, four: you look at international diplomacy," the minister said.

Festus Ogun, a constitutional lawyer, commented that while national security prevails when there is a clash between individual rights and national security, only a court can determine what is a threat to national security.

"The appropriate question to ask is who defines national security? This definition of ‘national security’ does not lie exclusively with a compromised federal government that has consistently shown contempt towards Kanu's kinsmen. Only a court of competent jurisdiction can pronounce when the fundamental rights of a citizen can take a back seat in the interest of the entire country’s security," he said.

This recent judgement corroborates the notion that the rule of law in Africa is a contentious topic that is difficult to grasp for even the most experienced legal experts. Enhance your knowledge of the rule of law and how it operates across various African jurisdictions by downloading Lexis Nexis Advancing the Rule of Law in Africa Report here.

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