09/11/2025
LEGAL EFFECTS OF KANU'S TRIAL UNDER A REPEALED LAW
There has been a substantial debate on the issue of trial under a repealed law and the legality of such proceedings. Ordinarily, the general rule is that no one can be tried under a repealed law unless the new law contains a saving clause. The Terrorism (Prevention and Prohibition) Act, 2022 contains such a saving clause under Sections 97 and 98, which provide:
Section 97:
Any regulation, order, requirement, certificate, notice, direction, decision, authorisation, consent, application, ongoing cases in the courts, request, or thing made, issued, given or done under the repealed Acts or amended sections shall, if in force at the commencement of this Act, continue to be in force and have effect as if made, issued, given or done under the corresponding provisions of this Act.
Section 98:
(1) The Terrorism (Prevention) Act, No. 10, 2011 is repealed.
(2) Any regulation, order, requirement, certificate, notice, direction, decision, authorisation, consent, application, ongoing cases in the courts, request or thing made, issued, given or done under the repealed Acts shall, if in force at the commencement of this Act, continue to be in force and have effect as if made, issued, given or done under the corresponding provisions of this Act.
(3) Any proceeding, prosecution, sentence, judgment, charge or cause of action pending or existing immediately before the commencement of this Act under any of the repealed Acts... may be continued or commenced as if this Act had not been made..
On 13 October 2022, the Court of Appeal, Abuja Division, ruling on Kanu’s appeal challenging the competence of the charges, held that the Federal High Court lacked jurisdiction to try him because he was extraordinarily renditioned from Kenya to Nigeria in violation of international law, domestic law, extradition protocol, and constitutional rights to fair hearing and due process. The Court of Appeal therefore discharged the charges and held that the trial was unlawful.
The Federal Government appealed to the Supreme Court. On 15 December 2023, the Supreme Court restored the trial, meaning that the charges could proceed. However, the Supreme Court strongly criticized the Government for the extra ordinary rendition, holding it illegal, but also held that illegality of arrest does not automatically bar trial.
The Supreme Court then ordered the Federal Government to amend and restructure the charges to comply with valid provisions of Nigerian law. This order means that the charges must now reflect the Terrorism (Prevention and Prohibition) Act, 2022, in line with the saving clause in Sections 97 and 98.
Kanu was originally arrested on 14 October 2015 and arraigned on 23 November 2015. He was re-arraigned on 8 November 2016 before Justice Binta Nyako, based on the Terrorism (Prevention) Act, 2011 and the Customs and Excise Management Act, Cap C45 LFN 2004. After the seeming assassination attempt on Kanu in 2017, he left Nigeria and was later renditioned back on 27 June 2021.
The Terrorism (Prevention) Act under which he was charged was repealed in 2022, and the Customs and Excise Management Act was repealed in 2023 by the Nigeria Customs Service Act, 2023. These repeals are why the Supreme Court ordered the amendment of the charges, but this was not done.
Accordingly, while the saving clause permits continuation of proceedings, the charges must be amended to correspond with the provisions of the current law. Failure to amend the charges renders the ongoing trial invalid, in violation of Section 36(12) of the Constitution, which prohibits the trial of any person for an offence not defined in a written law currently in force.
The last part of Section 98(3) stating that proceedings may continue “as if this Act had not been made” does not dispense with the need for amendment, because the Supreme Court has already directed otherwise, and whatever the Supreme Court declares as the meaning of a statute is binding. As held by the Supreme Court in A.-G., Lagos State v. A.-G., Federation (2003) 12 NWLR (Pt. 833) 1: “The duty of the Court is to declare the law and once declared, that declaration becomes the law.”
This means that the trial may continue, but not under the repealed wording. For the trial to proceed lawfully, the charges must be amended to reflect the definitions and procedural safeguards under the 2022 Act Therefore, where the Supreme Court orders that charges be amended to align with the current statute, failure to comply renders the trial a nullity.