In December 2023, the Supreme Court held that it was wrong to have revoked Mazi Nnamdi Kanu’s bail, meaning that his bail should, without more, be restored by virtue of Section 287(1) of the Constitution which states that: “The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court.”
The operative part in these provisions lies in the phrase that says “by all authorities and persons, and by the courts”.
It follows therefore that since the Federal High Court refused to enforce the decision of the Supreme Court by its inexplicable failure to restore Mazi Nnamdi Kanu’s bail, the Federal Government which is an “authority” or President Tinubu or AGF Fagbemi (who are “persons”) can step in and restore Mazi Nnamdi Kanu’s bail. And they are bound to do so without more because, by the clear provisions of the Constitution, they do not need any further Court order.
In other words, it does not lie with the Courts alone to enforce the decisions of the Supreme Court. The President or the Attorney-General can also concurrently exercise the same power.
To be sure, their collective refusal to act has unwittingly turned Mazi Nnamdi Kanu to a hapless victim of false or unlawful imprisonment by the Nigerian State. This is where Britain comes in because Mazi Nnamdi Kanu is also its citizen and under British law and pertinent international law binding Nigeria and Britain, no British citizen should be detained illegally by any country regardless of dual nationality.
So, the question to ask is this: Is it lawful or constitutional for the President and the Attorney-General (who breached the Constitution by refusing to enforce the decision of the Supreme Court) to turn around and insist on subjecting Mazi Nnamdi Kanu to trial before a Federal High Court that also violated the Constitution by refusing to enforce the same decision of the Supreme Court?
The answer is obvious and that is: It is a blatant violation of Section 287(1) of the Constitution. It is unlawful. It is perverse. It also offends the basic canons of equity and good conscience and it is immoral to boot. To be sure, it is an exercise in futility and it strains basic constitutionality for Nigeria to prosecute Mazi Nnamdi Kanu in the same Court that disobeyed the Supreme Court.
Equity requires all to have clean hands. The trial of Mazi Nnamdi Kanu no longer bears any clean hands because the authorities (the President and the AGF) that prosecuted him and the Federal High Court that designed to try him brazenly dishonoured the Supreme Court and the Constitution by refusing to restore his bail.
And this: How can you subject a man to the rigours and travails of prosecution and trial under a Constitution you flagrantly violated in its black letters and spirit? Is Nigeria under a rule of law or a rule of impunity, whims and caprices? This is the crux of the matter.
Aloy Ejimakor is a barrister-at-law who is a member of Nnamdi Kanu’s legal defence team. He can be reached by email HERE.
The opinions expressed in this article are solely those of the author.
