By Aloy Ejimakor

This article sets out the reasons why the legal team of Mazi Nnamdi Kanu had successfully blocked his trial when I was lead counsel between February 2024 and February 2025. They are the same reasons Kanu had also insisted that Justice Omotosho should ‘show him the law’ under which he was being tried. And going forward, they are the same reasons the Court of Appeal will most likely overturn Kanu’s conviction.

To begin with, the charge sheet indicated that all the terrorism-related charges against Kanu were predicated on broadcasts he made between 2018 and 2021 from locations outside Nigeria, presumably from Britain and Kenya. The charges were initially brought under the Terrorism Prevention (Amendment) Act 2013 (TPAA 2013), which granted the Federal High Court extraterritorial jurisdiction without a double criminality requirement, meaning that jurisdiction lies whether the act (broadcast) occurred in Nigeria or abroad, provided that it had impact in Nigeria.

In 2022, the TPAA 2013 was repealed and replaced by the Terrorism Prevention and Prohibition Act 2022 (TPPA 2022). Section 76(1)(d)(iii) of the TPPA 2022 introduced a double criminality test as a condition precedent before the Federal High Court can assert extraterritorial jurisdiction, stating clearly that the act (broadcast) must also “constitute an offence under the law of the foreign state” where the broadcast was made.

Recall that Kanu was extraordinarily renditioned to Nigeria in June 2021. While the Court of Appeal discharged him in October 2022 due to this illegality, the Supreme Court, in December 2023, upheld the validity of the trial on the charges, despite the rendition, and remitted the case for trial. Before Justice Murtala-Nyako, myself and the legal team had raised an objection to Justice Murtala-Nyako’s jurisdiction on the basis of two issues, namely: Whether the Court should apply the double criminality test under Section 76 of the TPPA 2022; and whether the failure to specify the foreign country from which the broadcasts were made constitutes a fatal jurisdictional defect. Justice Murtala-Nyako overruled our objection and we appealed to the Court of Appeal. But while the appeal was pending, Justice Murtala-Nyako was recused in February 2025 and the case was assigned to Justice James Omotosho for a trial de novo (anew). For avoidance of doubt, under long-standing Nigerian jurisprudence, a de novo trial post-repeal invokes the new law (Adegbenro v. Akintola (1963) 1 WLR 797 (PC).

When the case commenced anew before Justice Omotosho, I was no longer lead counsel and the new lead counsel decided that – instead of raising the same objection based on jurisdiction – it was smarter to allow the trial to proceed because of his assessment that the charges lacked evidentiary merit. But simmering in the background was this nagging feeling that the Court is bound to apply the double criminality test under Section 76 of the TPPA 2022; and that the prosecution’s stubborn reliance on the repealed TPAA 2013 smacked of sophistry aimed at avoiding this substantive safeguard in the new law.

It is conceded that the offences with which Kanu was charged were allegedly committed between 2018 and 2021 when the TPAA 2013 was still in force. It is also true that the TPPA 2022 did not repeal the TPAA 2013 into oblivion and it contains specific savings clauses in Sections 97 and 98 that preserved liabilities incurred, investigations and legal proceedings commenced and ongoing under the repealed Act. At first impression, this suggests that the trial itself can continue. However, the Supreme Court has held in many cases that repealed laws cannot sustain trials (Ifediora v. Idigo (1988) 2 NWLR (Pt. 76) 239). Section 98 TPPA (relied upon by Justice Omotosho) saves offenses allegedly committed pre-repeal (2018–2021) but not a jurisdictional issue like double criminality, a substantive precondition that must be met. In DPP v. Okocha (2004) 8 NWLR (Pt. 874) 186, jurisdictional hurdles were assessed under current law, not the repealed law, despite saving clauses. More reasons are as follows:

First, the double criminality requirement fundamentally alters the legal definition of an extraterritorial offence. Under the TPAA 2013, an act committed abroad was an offence only if it had an “impact in Nigeria.” Under the TPPA 2022, 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.

Second, Section 76 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 under the new legal regime.

Third, 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.

Fourth, the Supreme Court’s decision to allow the trial to continue was based on the existence of the charges, not a final determination on the applicable substantive law for the trial on the merits. Now that a trial de novo (anew) was ultimately underway, the court must determine the applicable law in use and that is exactly what Kanu had demanded in his preliminary objection which the court flatly refused to determine until the day it delivered the judgment which was wrong.

Fifth, reassignment after recusal restarts proceedings. In Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621, judicial reassignment post-recusal nullified prior interlocutory acts, mandating fresh hearings. Thus, Kanu’s trial was not “pending” under Section 97 TPPA 2022 but a new proceeding under the TPPA 2022. This comports with Section 36(12) Constitution under which offenses are triable only under a “written law in force” at trial time.

Furthermore, the established principle of interpretation is that “all statutes are prospective unless expressly made retrospective.” The TPPA 2022 is not expressly retrospective. Therefore, while the proceedings (the trial) are saved, they must be conducted under the substantive law in force at the time of the trial, unless doing so would create a retrospective offence or penalty. Thus, applying the TPPA 2022 with the double criminality requirement does not criminalize a lawful act; it merely imposes a new, more protective condition that must be met before any current prosecutions could succeed.

Therefore, for the first issue (double criminality), Justice Omotosho was expected to have sustained Kanu’s objections by applying the TPPA 2022. To be sure, for the court to exercise extraterritorial jurisdiction, the prosecution should have been required to plead and prove that the Kanu’s alleged acts (broadcasts) constituted a criminal offence both in Nigeria and in the United Kingdom or Kenya, which were the places Kanu was domiciled between 2018 and 2021. The only reason the prosecution was dodgy on the law that applied was this: Given that the broadcasts were made from the UK (where Kanu is a citizen and thus a legal resident) and Kenya (where he was itinerant) and the content was political speech (geared to self-determination and calls for self-defense against terrorists), it is highly unlikely that such acts would constitute terrorism under the domestic laws of those countries.

Now, coming to the second question which is: Does the failure of the charges to state the specific foreign country from which the broadcasts were made rob the Federal High Court (Justice Omotosho) of jurisdiction? The short answer is: Yes, it does because this failure is a fundamental flaw that renders the charges incompetent, thus robbing the court of jurisdiction, especially in light of the double criminality requirement addressed in detail above. In FRN v. Usman (2019) 12 NWLR (Pt. 1687) 298, failure to specify offense location vitiated jurisdiction in cross-border fraud.

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”, which meant that the court should first decide whether it was lawful to try the case under the harsher (and more prosecution-friendly) provisions of TPAA 2013 or the less harsh (and more defendant-friendly) double criminality provisions of TPPA 2022.

In other words, the failure to specify the foreign situs or country where the broadcasts were made was profoundly prejudicial to Kanu because it robbed him of his right to effectively raise these affirmative defenses, namely: That the said broadcasts are not considered a crime in either Britain or Kenya (where he was at the time); that the factual basis of the alleged “impact in Nigeria” from that specific location is suspect; and that even if perchance he was convicted, the court is bound to determine his sentence under the less harsh TPPA 2022 (I had analyzed this in a previous article which was widely published and circulated a few days ago).

Above all, this vagueness (as to location of the broadcasts) violated Kanu’s constitutional right to be informed of the nature of the offense, which is also hit by the fell consequences of Section 220 of the Administration of Criminal Justice Act 2015 (ACJA) that bars jurisdiction if the charge omitted a legally required information that could mislead the defendant on how to frame his defense. Thus, under the Constitution, TPPA and ACJA, this omission is fatal to jurisdiction.

To be sure, the identity of the foreign country is not just a detail; it is a jurisdictional fact. The court cannot even begin to apply the double criminality test if it does not know which country’s laws to examine. And it is the prosecution’s duty and burden to plead this essential element of the offence in the charge. A charge that fails to disclose every essential element of the offence is incompetent and cannot trigger the court’s jurisdiction. 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.

In summation, I posit that the confluence of the new substantive law (TPPA 2022) and the defective charges presented a formidable legal barrier to the prosecution (and conviction) of Mazi Nnamdi Kanu. The double criminality requirement in Section 76 of the TPPA 2022 is a substantive provision that protects him from being tried for extraterritorial acts that were not criminal in the jurisdiction where they occurred.

Furthermore, the prosecution’s failure to specify the foreign country in the charges is not a minor oversight but a fundamental flaw that prejudices the defence and prevents the court from establishing a key jurisdictional fact. For these reasons, it is my firm belief that the Federal High Court lacked the jurisdiction to proceed with this trial on the incompetent charges and under the repealed TPAA 2013. Thus, a robust appeal on this ground alone would succeed without more.

Ejimakor, American-trained Lawyer, is Kanu’s Special Counsel

By Abraham Amah

Whenever Nigerians hear of a sudden surge in foreign inflows—whether the widely circulated twenty point nine billion dollar figure or the officially documented six point one billion dollars that entered the economy in October 2025—the instinctive reaction is often excitement, scepticism, or confusion. Some interpret such a surge as a sign that the economy is recovering and that foreign investors are regaining confidence in Nigeria. Others accuse political actors of exaggeration or argue that such figures mean little unless they translate into improved living standards for ordinary citizens. Beyond these reactions, one fundamental truth stands out. Nigerians must understand what these inflows actually represent, how they are composed, how they compare with previous years, and what they imply for the nation’s economic future.

Capital inflows are not a single category of money. They are made up of several components with very different implications for national development. Broadly, inflows fall into four main categories: external borrowing, foreign direct investment, foreign portfolio investment, and diaspora remittances. Export earnings also contribute, while in some cases aid, grants, and multilateral support enter the inflow statistics. Not all inflows reflect economic health. Some represent opportunities and long-term commitments, while others reflect risk, instability, or short-term speculation. Understanding the composition, quality, and sustainability of these inflows is far more important than celebrating the headline figure.

Borrowing is historically the largest contributor to sudden spikes in Nigeria’s inflow numbers. When the Federal Government raises Eurobonds, draws multilateral loans, or receives budget support, such proceeds are recorded as inflows. However, these inflows simultaneously increase the national debt and future repayment commitments. Borrowing is not inherently negative; it becomes harmful only when the funds are used for consumption rather than production. Nigeria’s history demonstrates that too often borrowed funds have been used to service recurrent expenditures instead of building long-term infrastructure or supporting manufacturing and agriculture. Any inflow figure that is significantly influenced by borrowing should therefore be interpreted with caution rather than celebration.

Foreign direct investment, the most valuable type of inflow, has consistently been the smallest in Nigeria over the past decade. FDI represents long-term investment into factories, manufacturing plants, farms, refineries, technology hubs, and infrastructure. It creates jobs, enhances skills, brings technology transfer, and strengthens productive capacity. Unfortunately, insecurity, policy inconsistency, unreliable electricity supply, and high operating costs have discouraged major foreign investors from committing long-term capital to Nigeria. When inflows rise sharply, FDI rarely contributes more than a small percentage. A country cannot industrialize, significantly reduce unemployment, or diversify its economy without strong FDI inflows. That is the crucial context Nigerians must bear in mind as they interpret the 2025 surge.

Foreign portfolio investment has historically been the dominant driver of inflow increases. Portfolio inflows are highly sensitive to interest rates, currency stability, political signals, and global risk sentiment. They move quickly into Nigerian Treasury Bills, government bonds, and equities when returns appear attractive, and they exit just as quickly when uncertainty emerges. These flows are often referred to as hot money because they are short-term, speculative, and extremely volatile. The 2017 experience remains instructive. After Nigeria introduced the Investors and Exporters FX Window in April 2017, portfolio inflows surged sharply, boosting foreign reserves and lifting the Nigerian stock market by over forty percent. Yet when the 2019 election cycle approached and investors anticipated policy uncertainty, a large portion of those inflows exited abruptly, putting pressure on the naira. The 2025 inflow surge shows similar characteristics, reinforcing the need for Nigerians to interpret these trends intelligently.

Diaspora remittances represent the most stable inflow Nigeria receives. These are the funds sent home by Nigerians abroad to support families, pay school fees, build homes, invest in small businesses, and contribute to community development. Remittances have consistently outperformed foreign direct investment and often rival or exceed oil revenues in several years. During the economic turbulence of 2020, when the global pandemic triggered a dramatic collapse of oil prices and led to widespread capital flight from developing countries, remittances remained resilient. Despite global hardship, Nigerians abroad sent home nearly eighteen billion dollars, providing crucial support that kept millions of families afloat. Remittances have a human face; they reflect the sacrifices and resilience of citizens abroad who continue to invest emotionally and financially in their homeland.

Nigeria’s export earnings, especially from non-oil exports, represent another important potential inflow. However, the country has not fully harnessed this potential. Nations with similar population sizes export refined petroleum, processed agricultural products, manufactured goods, and advanced technologies. Nigeria continues to rely heavily on crude oil, raw agricultural products, and a narrow range of manufactured items. Until Nigeria expands its productive base and moves into value-added exports, inflow surges will continue to be driven by borrowing and speculative capital rather than genuine economic productivity.

A clearer picture emerges when Nigeria’s inflows are compared across different years. The inflow surge of 2016 and 2017 came after Nigeria entered its first recession in decades following the collapse of global oil prices in 2014. Portfolio inflows dominated those years because Nigeria offered high interest rates and introduced policy reforms that briefly restored investor confidence. The country recorded an inflow increase of over one hundred percent in 2017, but more than seventy percent of that was portfolio investment. Foreign direct investment remained weak. When political uncertainty rose ahead of the 2019 elections, most of those inflows disappeared. The lesson is that inflow spikes without structural reforms produce only temporary relief.

The inflow patterns of 2020 provide another contrast. That year, Nigeria faced both the COVID 19 pandemic and a global market crash. Portfolio inflows declined sharply as global investors fled to safe assets. Nigeria relied heavily on emergency borrowing, including the three point four billion dollar IMF Rapid Financing Instrument, and on remittances from Nigerians abroad. These inflows helped the country survive, but they did not reflect renewed investor confidence. They represented crisis response rather than recovery.

The projected inflow patterns for 2026 suggest a range of possibilities. If Nigeria undertakes bold structural reforms in security, fiscal policy, foreign exchange management, and the business environment, FDI could gradually increase. If interest rates remain high, portfolio inflows may return in large numbers. If oil production stabilizes and non-oil exports grow, export earnings could strengthen the reserves. But none of these projections will produce lasting value unless Nigeria strengthens the underlying structures of its economy. Inflows alone cannot save a nation. Only governance, stability, productivity, and genuine reform can.

Against this historical and structural backdrop, the inflow surge of October 2025 must be understood clearly. Whether one references the officially published six point one billion dollar FX inflow or the circulated twenty point nine billion dollar figure, Nigerians must avoid simplistic interpretations. The key questions are straightforward. How much of the inflow is new borrowing? How much is speculative hot money? How much is foreign direct investment? How much came from diaspora remittances? How much will remain in the economy long enough to create jobs and stimulate production? Without answers to these questions, the mere announcement of large inflows means little.

The true concern is the quality, sustainability, and purpose of the inflows. Nigeria must begin to shift from celebrating statistics to interrogating their meaning. Borrowing should be tied to development, not consumption. Portfolio inflows should be seen as temporary liquidity rather than a foundation for planning. Remittances should be encouraged through secure and formal channels. Foreign direct investment must be prioritized by making Nigeria safe, stable, and predictable. Export earnings must grow through deliberate investment in agriculture, manufacturing, mining, technology, and the creative economy.

Ultimately, Nigeria’s future will not be shaped by the size of its inflows but by the quality of its institutions and the productivity of its economy. Inflows may rise and fall, but national progress depends on stability, policy clarity, infrastructure, and human capital. The inflows of 2016 and 2017, the crisis inflows of 2020, the surge of 2025, and projections for 2026 all point to one conclusion. Nigeria must build a resilient economic foundation that converts inflows into lasting development. Until then, inflow headlines will remain fleeting victories rather than engines of national transformation.

Elder Amah, a frequent commentator on current issues writes from Umuahia, Abia State