A constitutional lawyer, Njoku Jude Njoku Esq., has raised strong concerns over what he describes as the “false interpretation of double jeopardy and superior court” in the ongoing trial of Indigenous People of Biafra (IPOB) leader, Mazi Nnamdi Kanu.

In a detailed statement issued on Monday, Njoku accused Nigerian courts, including the Supreme Court, of misapplying Section 36(9) of the 1999 Constitution in Kanu’s case, leading to what he called a “perverse jurisprudence that undermines the Constitution itself.”

Judicial Misinterpretation

According to Njoku, the dominant judicial reasoning in Nigeria wrongly interprets Section 36(9) — which prohibits double jeopardy — by equating the phrase “superior court” with “higher court in hierarchy.”

“This position,” he argued, “is based on outdated precedents such as Orakunnure v. State (1969) and Erekannure v. State (1973), and has no place under the current constitutional framework.”

He maintained that “superior court” as used in the Constitution refers not to hierarchy but to the class of superior courts of record listed under Section 6(5), which includes the Supreme Court, Court of Appeal, Federal High Court, and State High Courts.

Jurisdiction Contradictions

Citing the landmark decision in Madukolu v. Nkemdilim (1962), Njoku criticized Nigerian courts for declaring trials void for lack of jurisdiction, only to later order retrials.

“If jurisdiction is the lifeblood of adjudication, as the courts themselves repeatedly say, then once absent, the body (case) is dead — it cannot be revived by judicial decree,” he said.

The Dikko Precedent

The legal analyst highlighted the Supreme Court’s own decision in Dikko v. The State (2016), where it was held that once a trial is declared a nullity, the accused stands discharged and acquitted, and the matter cannot be reopened.

“This binding precedent was ignored in Kanu’s case. By law, the Court of Appeal’s discharge of Kanu in October 2022 ended his jeopardy permanently,” he stated.

Njoku further explained that even the option of filing fresh charges is unavailable since the Terrorism Prevention (Amendment) Act 2013 under which Kanu was initially tried has been repealed.

Hierarchy Error and Rights Violation

Njoku argued that by interpreting “superior court” to mean “higher court,” Nigerian judges create a two-tier system of justice where only cases that reach the Supreme Court benefit from constitutional protections.

“That cannot be the law,” he said. “Fundamental rights apply to all Nigerians, not just the privileged few.”

Kanu’s Case as a Constitutional Crisis

He accused the Supreme Court in FRN v. Kanu (SC/CR/1364/2022) of contradicting its own precedents and undermining the rule of law.

“The apex court declared lack of jurisdiction, yet ordered a retrial, effectively manufacturing jurisdiction where none existed,” he said. “This is judicial self-contradiction — an attempt to square a circle.”

Recommendations

Njoku called for:

  • A declaration that “superior court” in Section 36(9) refers to the class of superior courts of record, not hierarchy.

  • Recognition that once a discharge is entered by a competent superior court, retrial is unconstitutional.

  • Affirmation of Dikko v. State (2016) as binding authority that nullity equals discharge and acquittal.

  • A finding that the Supreme Court’s ruling of December 2023 in FRN v. Kanu was unconstitutional and void.

Conclusion

“The Constitution guarantees double jeopardy protection to all Nigerians. Once the Court of Appeal discharged Kanu, jeopardy ended. Any retrial is unconstitutional,” Njoku insisted.

He warned that unless corrected, the judiciary’s current stance risks eroding public trust entirely:

“In this case, Nigeria’s judiciary has turned itself into a muddle, trying to justify the unjustifiable. Unless this perverse jurisprudence is corrected, it will bury what little confidence remains in the courts.”