The Nigerian Bar Association (NBA) is facing criticism over its alleged silence on legal issues surrounding the continued detention of Mazi Nnamdi Kanu after the Court of Appeal discharged him and quashed the charges against him in October 2022.
In an open letter addressed to the NBA leadership and copied to the International Bar Association, lawyer Christopher Chidera accused the association of failing to speak out over what he described as serious concerns about Nigeria’s criminal justice system.
Chidera's letter focuses on the use of a civil stay of execution against the Court of Appeal's criminal discharge of Kanu.
According to him, the Court of Appeal discharged Kanu and quashed the charges against him on 13 October 2022. He said the judgment remained in effect for eight days before a civil stay was obtained.
The lawyer questioned how a civil procedure could be used to suspend the effect of a criminal appellate judgment, arguing that the matter involved Kanu's liberty rather than money, property or a commercial obligation.
He described the situation as a fundamental issue of criminal justice, insisting that “liberty is not a debt” and that a criminal discharge should not be treated like a civil judgment.
The letter also raised concerns over Kanu's detention before the Court of Appeal ruling. Chidera stated that Kanu had spent about 14 months in detention without charge following his extraordinary rendition to Nigeria.
He further questioned the continued detention after the Court of Appeal's order and referred to contempt proceedings involving the Department of State Services (DSS) and then Attorney-General of the Federation, Abubakar Malami.
Citing Lawal-Osula v. Lawal-Osula (1995) and other authorities, Chidera argued that a party disobeying a subsisting court order should not ordinarily be allowed to benefit from the court's discretionary relief while the disobedience continues.
He therefore questioned how the Nigerian government could allegedly remain in contempt of an appellate order while obtaining judicial relief that prevented the order from taking effect.
The lawyer also raised the principle of functus officio, arguing that after the Court of Appeal had finally determined the criminal appeal, quashed the charges and discharged Kanu, questions arose over the legal basis for subsequently suspending the effect of that decision through civil procedure.
Chidera said the issues should not be dismissed as legal technicalities, arguing that jurisdiction, legality, liberty, contempt and final appellate decisions are fundamental to criminal justice.
He urged the NBA to address whether the law applies equally to Kanu and whether a government can disobey an appellate order and subsequently obtain judicial protection from the consequences of that disobedience.
The lawyer also invoked the legacy of late human rights lawyer Gani Fawehinmi, arguing that the Nigerian Bar historically had a responsibility to challenge government actions it considered unlawful.
Chidera concluded by asking the NBA to explain the legal and constitutional basis for the actions surrounding Kanu's detention and discharge.
The letter is the first of a planned three-part series. According to Chidera, Part II will examine the Court of Appeal's quashing of the charges, the subsequent remittal of the case for “continuation” and the possible implications of Section 36(9) of the Nigerian Constitution, which protects against double jeopardy.