The report in Today’s edition (19th January 2016) of Punch Newspaper that the leader of the Indigenous People of Biafra (IPOB), Kanu Nnamdi has filed a fresh bail application before Honourable Justice James Tsoho of the Federal High Court, Abuja for his release from the custody of the Directorate of State Security (DSS) has once again vindicated the position I canvassed last week in a rejoinder to position taken by the renowned Human Rights Lawyer, Femi Falana (SAN); that the Federal Government was in disobedience to an order made by Honourable Justice AFA Ademola for the release of Kanu Nnamdi from custody.
This is contrary to the vile and malicious campaign of calumny and propaganda that the Federal Government disobeyed the Court order releasing Kanu Nnamdi making the rounds and which dominated the media and social Medias in the country for a while.
The filing of a fresh bail application by Kanu Nnamdi has confirmed that no order for his release from bail was disobeyed by the Federal Government of Nigeria or the Directorate of State Security otherwise why would he be filing a fresh bail application before another Judge of the Federal High Court?
If the purported order for his release was valid, binding and subsisting why would he be filing a fresh bail application? In Law, if the previous order for his release was still valid and subsisting, his filing of a fresh bail application would surely amount to an abuse of court process!
The truth of the matter is that the Federal Government of Nigeria employed well thought legal manoeuvring to outsmart and outwit Kanu Nnamdi soon after the Federal High Court presided over by Honourable Justice Ademola ordered his release from bail.
However, before he perfected the bail conditions imposed by the Court, the Federal Government brought fresh charges including treasonable felony against Kanu Nnamdi and other co-accused persons-Benjamin Madubugwu and David Nwawuisi that were markedly different from the ones earlier made against him that were the subject matter of his previous bail application that led to the order that he should be released.
So, there is nothing absolutely wrong legally, morally and procedurally with the stratagem employed by the Federal Government of Nigeria to outwit and render otiose and therefore unenforceable the earlier order granted for the release of Kanu Nnamdi from the custody of DSS.
In other words, the filing of fresh charges against Kanu Nnamdi by the Federal Government barely 24 hours after Honourable Justice Ademola ordered his release took the sail out of the wind over the order for his release and that in itself does not amount to a disobedience of the order for his release.
I submit that what the Federal Government did is a familiar strategy usually employed by prosecution all over the world where a criminal suspect is facing multiple criminal charges and the prosecution doesn’t want to lose grip of such suspect.
It is worthy to note that Kanu Nnamdi is facing a charge of treasonable felony which is a very grave and serious charge which upon conviction he will be sentenced to death. Ordinarily, a charge of treasonable felony is not bail able except on exceptional circumstances.
It follows that in a bail application by an applicant facing a charge of treasonable felony or where a suspect is charged with a capital offence must show exceptional circumstances to enable the Judge hearing the application grant him bail.
Indeed Section 161 (1) & (2) of the Administration of Criminal Justice Act, 205 provides thus:
A suspect arrested, detained or charged with an offence punishable with death shall only be admitted to bail by a Judge of the High Court, under exceptional circumstances.
- For the purpose of exercise of discretion in subsection (1) of this section, “exceptional circumstances “include:
Ill health of the applicant which shall be confirmed and certified by a qualified medical practitioner employed in a Government Hospital;
extraordinary delay in the investigation , arraignment and prosecution for a period exceeding one year; or
Any other circumstances that the Judge may, in the particular facts, consider exceptional
Okoi Obono-Obla
