Nullum Crimen Sine Lege and the Constitutional Necessity of Entering Nolle Prosequi:
By: Charles Ude, Esq.
The prosecution and continued detention of Mazi Nnamdi Kanu now present a converging crisis of constitutional law, criminal jurisprudence, and national security policy. Two unavoidable legal conclusions emerge with clarity:
(1) the charges are constitutionally incompetent due to reliance on repealed and inapplicable statutory frameworks, and
(2) national stability and public interest constitutionally compel the Attorney-General of the Federation to invoke nolle prosequi under Section 174 of the 1999 Constitution.
This matter has transcended ordinary prosecution and now poses a fundamental test of Nigeria’s commitment to legality, due process, and constitutional governance.
- The Constitutional Incompetency of the Charges
1.1. The Principle of Legality: A Constitutional Firewall
The Nigerian Constitution entrenches the foundational criminal-law doctrine of nullum crimen sine lege and nulla poena sine lege. Sections 36(8) and 36(12) erect a non-negotiable bar against:
retroactive criminalisation,
prosecution for conduct not criminalised at the time of its occurrence,
and trials based on repealed, amended, or otherwise inoperative statutes.
These provisions form part of Nigeria’s immutable constitutional architecture. Courts cannot supplement, revive, or retroactively apply criminal provisions,a repealed law is a legal corpse incapable of sustaining prosecution.
1.1.1. Supreme Court Precedent: The Aoko Foundation
In Aoko v. Fagbemi (1961) All NLR 400, the Supreme Court held that no person may be tried for an offence not defined and punishable under a written law in force at the material time. This doctrine remains unimpeached and has guided subsequent pronouncements, including AG Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 and Okoro v. State (1988) 5 NWLR (Pt. 94) 255.
It follows that where any count in the amended charge sheet against Kanu relies on provisions of the Terrorism Prevention Act that:
were not in force when the alleged conduct occurred,
had been repealed,
or had undergone substantive legislative modification,
such counts are incurably bad and incompetent. A trial court cannot assume jurisdiction over an offence that did not legally exist. Jurisdiction cannot be conjectured into existence; it must derive from extant law.
1.2. The Illegality of Rendition and the Doctrine of Abuse of Process
The circumstances under which Kanu was brought back to Nigeria,his forced and illegal rendition from Kenya,remain a profound legal stain on the proceedings.
In Kanu v. FRN (2022) LPELR-59367 (CA), the Court of Appeal held that illegal rendition constitutes:
a violation of international law,
a breach of domestic constitutional guarantees,
and an abuse of judicial process significant enough to vitiate the prosecution.
1.2.1. Madukolu Principles and the Illegality Barrier
Under Madukolu v. Nkemdilim (1962) 2 SCNLR 341, a court acquires jurisdiction only when:
- the court is properly constituted;
- the subject matter is within jurisdiction; and
- the case is initiated by due process of law.
Illegal rendition poisons the third limb. A defendant cannot be hauled before a court through unconstitutional means and yet be subjected to a legitimate trial. The State cannot profit from its own wrong (ex turpi causa non oritur actio).
Even though the Supreme Court later addressed jurisdiction differently, the illegality of the rendition itself remains uncontested and continues to taint the integrity of any resulting prosecution.
1.3. The No-Case Submission: A Constitutional and Evidential Reckoning
The defence’s no-case submission is grounded in well-established jurisprudence. A no-case submission must be upheld where the prosecution:
fails to establish a prima facie case (Ajidagba v. IGP (1958) 3 FSC 5),
relies on unconstitutional or illegally obtained evidence, or
proceeds under incompetent charges.
Given the constitutional defects in the charges and the procedural improprieties of the rendition, the continuation of trial would amount to judicial validation of unconstitutional conduct,an outcome no court is empowered to permit.
- The Constitutional and Political Imperative for Nolle Prosequi
Even assuming arguendo that the charges were facially competent (which they are not), the Constitution grants the Attorney-General of the Federation the political and legal prerogative to discontinue the proceedings in the public interest.
2.1. Section 174: The Attorney-General’s Plenary Discretion
Section 174(1)(c) empowers the AGF to enter nolle prosequi at any stage before judgment. Section 174(3) imposes three constitutional guideposts:
- public interest,
- the interest of justice,
- and the need to prevent abuse of legal process.
2.1.1. Supreme Court Guidance in Ilori v. The State
In Ilori v. The State (1980) 8–11 SC 81, the Supreme Court held that the AGF’s discretion is quasi-political and may only be questioned on proof of bad faith. The Court emphasized that the power exists to safeguard the State in moments where criminal prosecution intersects with national security and broader public welfare.
Kanu’s case is the classic scenario contemplated by Section 174, a prosecution whose continuation threatens public order and national stability.
2.2. Public Interest, National Security, and the South-East Crisis
The destabilisation of the South-East through the “sit-at-home” phenomenon, economic paralysis, loss of lives, and widespread unrest constitutes irrefutable evidence that Kanu’s continued detention has metastasised into a national-security problem.
Public interest under Section 174(3) is not a rhetorical abstraction; it is a constitutional command. When prosecution becomes a catalyst for regional insecurity, the AGF is constitutionally obligated,not merely permitted,to intervene.
To continue the prosecution under these conditions is to elevate procedural obstinacy above national cohesion.
Conclusion:
The Only Constitutionally Sound Path Forward:
The prosecution of Mazi Nnamdi Kanu is fatally flawed at multiple legal layers:
charges founded on repealed or inoperative statutes,
illegal rendition constituting abuse of process,
constitutional violations under Sections 36(8) and 36(12),
evidential insufficiency exposed through the no-case submission.
Overlaying these defects is the broader national-security reality: his continued incarceration aggravates instability and undermines the Nigerian State’s constitutional responsibility to maintain peace.
A nolle prosequi at this juncture is therefore not only constitutionally permissible but constitutionally compelled. It aligns with the supremacy of the Constitution, established case law, prosecutorial discretion, and the overarching need to preserve national cohesion.
The constitutional, legal, and political logic converges on one conclusion:
Mazi Nnamdi Kanu ought to be released without further delay.
