By Niran Ajao
Third, the manner by which evidence from Mr. Kanu was collected is not likely to pass the Wong Sun’s “fruit of a poisonous tree” test because Mr. Kanu was kidnapped from Kenya without lawful process. Notably, the trial Judge cites United States v. Alvarez-Machain, 504 U.S. 655 (1992) to justify the extraordinary rendition. But the Judge fails to provide the reasoning for the holding in that case. The holding was premised on the fact that the text of the treaty between Mexico and the United States, which was at issue in that case, did not expressly forbid the United States’ extraordinary rendition. Besides, the defendant in that case eventually won.
May God save you if you ever become a defendant in a Nigerian criminal court. There is no right to jury trial; so, the possibility of appeal based on erroneous jury instruction does not exist. There is no grand jury to determine probable cause prior to any indictment – even if you may end up with death penalty. And there is nothing comparable to American Brady doctrine and professional ethics, which bind prosecutors to full disclosure of all evidence including exculpatory evidence. It is going to be you in front of one judge or magistrate.
So, a Nigerian secessionist, Mr. Nnamdi Kanu, was arrested in 2015. He was agitating for the separation of eastern Nigeria, which he hoped would form the new country of Biafra. And because he believed some assassins were after his life, he jumped bail in 2017, and escaped to United Kingdom (where I believe he is also a citizen).
From his base in UK, Mr. Kanu procured some communication equipment, and started Internet radio broadcasts. His target audience were people in eastern Nigeria. I, myself, from my North American base, listened to some of his broadcasts.
However, Mr. Kanu got so relaxed, and had a pleasure travel to Kenya in 2021. Unfortunately for him, in defiance of international norms and extradition treaty between Nigeria and Kenya, the Nigerian government got him kidnapped and sent back to jail in Nigeria.
Thereafter, Mr. Kanu was arraigned on seven charges, viz. (1,2) Intimidation of target population; (3) Being a member and leader of a proscribed organization; (4,5) Inciting others to kill security personnel and their families; (6) Directing others to manufacture bombs; and (7) Importing broadcast radio transmitter without license and the required disclosure to customs.
Two days ago, Mr. Kanu was sentenced to life imprisonment for counts 1, 2, 4, 5, and 6. For the strict-liability regulatory charges 3 and 7, he was sentenced to 20 years and 5 years imprisonment, without the option of fines.
Apart from counts 3 and 7, all the charges were for specific-intent crimes. And the evidence used in his trial were his broadcast recordings from his 2018 to 2021 sojourn in the UK, together with lots of hearsay evidence.
Now, Mr. Kanu is not a dream client for any lawyer: as soon as he was arrested and even sometimes in the presence of his lawyer, he volunteered lots of information to the police. He just can’t keep his mouth shut; and that may be his greatest undoing.
At his trial, he refused to put up a defense (and it his right not to do so), though the record shows that his lawyer cross examined some of the prosecution witnesses. Nevertheless, the burden was on the prosecution to prove the case beyond reasonable doubt, and Mr. Kanu’s silence should not be ground for his conviction.
The issue in Mr. Kanu’s case essentially boils down to whether a defendant’s speech, which incites others to non-immediate violence in Nigeria, through an Internet podcast made from United Kingdom, constitutes terrorist act in Nigeria.
The Nigerian court says, “yes.” But because the same court cites no less than three American primary sources and four American secondary sources as persuasive authorities to justify its holdings, it is fair to evaluate the court’s decision based on American jurisprudence.
First, though the statute under which Mr. Kanu was convicted prescribes the Actus Reus and the Mens Rea for each charge, and the court evaluated each charge’s Attendant Circumstance, it was also the duty of the court to determine for each charge the elements of Causation (including the but-for and proximate causation), and Concurrence of all the elements. The latter two were not done. So, Mr. Kanu’s conviction should not be upheld on appeal.
From the constitutional perspective, Nigerian constitution with respect to freedom of speech is similar to the American. Though some of Mr. Kanu’s statements would be considered low-value, with no redeeming significance, under the U.S.’s First Amendment jurisprudence, they are likely to pass the constitutional Brandenburg test because the alleged incitements lack immediacy of execution. Even the supposed “fighting words” contained in some of the broadcasts are likely to pass the Chaplinsky test because they lack particularity with respect to targeting specific identifiable individuals.
Third, the manner by which evidence from Mr. Kanu was collected is not likely to pass the Wong Sun’s “fruit of a poisonous tree” test because Mr. Kanu was kidnapped from Kenya without lawful process. Notably, the trial Judge cites United States v. Alvarez-Machain, 504 U.S. 655 (1992) to justify the extraordinary rendition. But the Judge fails to provide the reasoning for the holding in that case. The holding was premised on the fact that the text of the treaty between Mexico and the United States, which was at issue in that case, did not expressly forbid the United States’ extraordinary rendition. Besides, the defendant in that case eventually won.
Finally, what I found most disturbing was the Nigerian Supreme Court’s decision, cited in this case’s ruling on page 66, which acknowledges the pervasive civil rights violations in evidence gathering within the Nigerian justice system, and yet acquiesces to those violations.
In the end, if Mr. Kanu had not been kidnapped from Kenya, I believe he may only be found guilty of count 7, which involves importing broadcast radio transmitter. And such offense, being strict-liability offense should be punishable with reasonable fines. Count 3, which is also a strict-liability offense (premised on his membership in a proscribed organization) is likely a violation of his rights because there is no evidence he provided “material support,” beyond his broadcasts, to the organization following the proscription.
Dr. Niran Ajao lives in Boston, Massachusetts. Among other things, he possesses Juris Doctor (JD, cum laude) from the University of Massachusetts School of Law in USA and Master of Laws (LLM) degrees from Osgoode Hall Law School of York University in Canada.
