The Doctrine Of Double Criminality That Departed Kanu’s Trial

 

By Aloy Ejimakor

In one of my previous public comments on the infamous conviction of Mazi Nnamdi Kanu, I had briefly mentioned how the failure to state the foreign locale of the alleged offenses robbed the court of jurisdiction by cutting the court off from determining whether or not the alleged broadcasts constituted offenses in the foreign country where they emanated. At law, this is known as double criminality, a key jurisdictional doctrine in Nigeria’s criminal jurisprudence when it comes to an alleged criminal act that occurred outside Nigeria.

Under the repealed TPAA 2013, an act committed abroad was an offence only if it had an "impact in Nigeria." But under the TPPA 2022 in force (when Kanu’s matter commenced anew), that same act is only an offence if it (i) has an impact in Nigeria, and (ii) is also a crime in the foreign country where it was committed (that is: double criminality) - which fundamentally alters the legal definition of an extraterritorial offense or the act constituting the offense.

Recall that, whereas the charges levied against Kanu claimed that the broadcasts (made from an unnamed foreign soil) “had impact in Nigeria”, they failed to expressly state that the broadcasts are “also a crime in the foreign country where they were made” (double criminality). This is a key omission that rendered all the pertinent charges incompetent, thus robbing the court of the requisite jurisdiction to have subjected Kanu to trial, without more. To be sure, TPPA 2022 acts as a legislative gatekeeper for the court's power. Without satisfying the double criminality test, the court lacks the jurisdiction to try the accused for acts committed extraterritorially. In FRN v. Usman (2019) 12 NWLR (Pt. 1687) 298, failure to specify offense location vitiated jurisdiction in cross-border fraud.

So, the double criminality provision affords a significant substantive right to an accused person: the right not to be tried in Nigeria for a conduct that was lawful in the jurisdiction where it happened. This is a core element of the principle of legality and fairness in international criminal jurisdiction and the Nigerian Constitution.

Further, the Supreme Court's decision to allow the trial to continue was predicated on the general jurisdiction of Federal High Courts; it was not a final determination on the applicable substantive law for the trial on the merits. So, when the trial de novo (anew) was ultimately underway before Justice Omotosho, the court was bound to first determine the applicable law in use, and this was exactly what Kanu had requested in his preliminary objection which the court flatly refused to determine. In Military Governor of Lagos State v. Ojukwu, judicial reassignment post-recusal mandated fresh hearings. Thus, Kanu’s trial was not “pending” under Section 97 TPPA 2022 but a new proceeding under the TPPA 2022. This also comports with Section 36(12) Constitution under which offenses are triable only under a “written law in force” at the time or moment of trial. TPAA 2013 was no longer in force in 2025 when Kanu’s trial actually commenced.

Therefore, for the court to assert extraterritorial jurisdiction, the prosecution was required to plead and prove that Kanu’s alleged acts (broadcasts) constituted a criminal offence both in Nigeria, and also in the United Kingdom or Kenya, which were the places Kanu was domiciled between 2018 and 2021 when the broadcasts were alleged to have been made (according to the charge sheet).

It is, therefore, left to conjecture that the only reason the prosecution was dodgy on the law that applied was this: Knowing that the broadcasts were made from either Britain (where Kanu is a citizen) or Kenya (where he was itinerant), it was clear to the prosecution that such acts do not constitute acts of terrorism under the domestic laws of those countries, otherwise Kanu would have been arrested and tried in either Britain or Kenya.

To be sure, the requirement for a charge to be specific and unambiguous is not a mere technicality; it is a cornerstone of the right to a fair hearing as guaranteed by Section 36 of the 1999 Constitution. The accused must be told, in clear and certain terms, the nature of the accusation against him to enable him to adequately prepare a defence, hence the reason Kanu was insisting: “show me the law”.

Thus, the failure to specify the foreign situs or country where the broadcasts were made was profoundly prejudicial to Kanu. The charges also failed the muster of Section 220 of the Administration of Criminal Justice Act 2015 (ACJA) which bars jurisdiction if the charges omitted a legally required information that could mislead the defendant on how to frame his defense. The Supreme Court in Yakubu v FRN (2020) and other authorities, has consistently held that a charge which fails to disclose an essential ingredient of the offence is void and confers no jurisdiction on the court.

It is on the basis of these reasons (plus more) that I had insisted from day one that the Federal High Court lacked jurisdiction to have proceeded with Kanu’s trial.