The charge sheet on which jailed Indigenous People of Biafra, IPOB, leader, Nnamdi Kanu, was convicted of terrorism did not identify any terrorist act he committed, a lawyer, Onyedikachi Ifedi, has declared.
Ifedi, a member of the Mazi Nnamdi Kanu Defence Consortium, who spoke to journalists amid the delay by the Court of Appeal in listing the appeal filed by Kanu to challenge his conviction, said the charge sheet failed to name a single terrorism act against Kanu.
He argued that the trial failed an elementary rule of criminal pleading by not identifying the primary crime allegedly committed by the defendant.
"We issue a direct, precise challenge to Justice Omotosho, the prosecution team, and every legal practitioner in Nigeria: point to a single count on the charge sheet that identifies the distinct, primary act of terrorism Mazi Nnamdi Kanu’s broadcasts allegedly furthered. Not the broadcast itself. Not a political statement. Not a threat. Name the primary terrorist act. Show us the count. Name the primary terrorist act. Show us the count," Ifedi said.
He further argued that attaching the statutory label "in furtherance of an act of terrorism" to an alleged broadcast does not convert speech into a primary violent crime. "An indictment must state an offence known to law by pleading its essential statutory ingredients. Where a count alleges conduct "in furtherance" of a crime but fails to plead what primary act was being furthered, it fails to disclose an offence," he added.
Counts 1 and 2 of the charge accused Kanu of making broadcasts in furtherance of an act of terrorism against the Federal Republic of Nigeria, while counts 4 and 5 accused him of making broadcasts in furtherance of an act of terrorism in which he incited members of the public to hunt and kill Nigerian security personnel and their families.
In count 8, the Nigerian government accused Kanu of making a broadcast in furtherance of an act of terrorism, directing members of IPOB to manufacture bombs.
However, faulting the trial and eventual conviction, Ifedi noted that the legal question is not whether a contemplated terrorist act was completed, nor is it whether the prosecution introduced evidence at trial that an act occurred.
The lawyer stated, "The question is purely one of pleading: what distinct terrorist act did the prosecution allege these broadcasts furthered, and where did it identify that act in the counts?"
"The prosecution cannot answer this challenge by pointing back to the broadcast itself and asserting that the broadcast was the act of terrorism. That merely repeats the conduct alleged against the defendant; it does not identify the separate act to which the allegation of "furtherance" relates.
"A broadcast is the alleged means. "In furtherance" is the alleged relationship. Where is the distinct terrorist act that completes the allegation?"
Ifedi faulted the court for proceeding with the trial, stressing that a charge sheet must give explicit, written notice of every essential ingredient of the offence charged.
"A judge cannot act as a prosecutor. If Justice Omotosho failed to notice that the charge sheet contained no primary terrorist act, he demonstrated a fundamental deficiency in criminal procedure. If he did notice and convicted anyway, he attempted to rewrite an unparticularised charge sheet from the bench to save a dead prosecution.
"A trial judge is an impartial adjudicator. He possesses zero jurisdiction to reconstruct an unpleaded theory of criminal liability in his judgment to supply particulars omitted by the prosecution," he stated.
Ifedi insisted that the trial did not comply with Section 36(6)(a) of the Constitution which stipulated that every person charged with a criminal offence is entitled to be informed promptly, in detail, of the nature and cause of the accusation.
According to him, failing to identify the primary terrorist act allegedly furthered deprives the defendant of the factual particulars necessary to prepare a defence against the specific act he is alleged to have advanced.
According to Ifedi, Kanu's defence explicitly raised objections challenging the competence of the charge sheet for failing to plead the essential statutory ingredients of the offences charged but the judge reserved these objections for final judgment and then failed to determine them.
He faulted the judge's action, noting that it is settled law that a court's authority to adjudicate is conditioned upon the charge sheet satisfying the fundamental conditions of legal competence.
Ifedi argued that the conviction cannot survive the appeal while describing Kanu's prosecution as a trial that ended before it started.
He said, "This is the crucible of the entire trial: a conviction followed on a terrorism charge sheet that did not state any overt terrorist act.
"Under Nigerian criminal jurisprudence, a court cannot convict a citizen when the indictment fails to plead the primary act required by the statutory framework.
"Speech is not a self-subsisting terrorist act under Section 1(2)(b). Alleging that a broadcast was made "in furtherance of an act of terrorism" without identifying the primary terrorist act yields a hollow legal conclusion.
"Under Madukolu v. Nkemdilim and Section 36(6)(a) of the Constitution, a trial court lacks subject-matter jurisdiction to convict on a charge sheet that fails to disclose the factual ingredients of an offence."
Charge sheet did not identify any terrorist act committed by Nnamdi Kanu - Defence team