By Ikechukwu Nnochiri
ABUJA – The Federal Government may try the embattled leader of the proscribed Indegeniuos People of Biafra, IPOB, Mr. Nnamdi Kanu, in absentia, Vanguard learnt on Monday.
Kanu was billed to appear before trial Justice Binta Nyako to be re-arraigned on an amended five count charge marked FHC/ABJ/CR/383/2015, alongside three other pro-Biafra agitators- Chidiebere Onwudiwe, Benjamin Madubugwu, David Nwawuisi and Bright Chimezie.
However, Kanu’s whereabouts has remained unkown, a development that has placed his sureties, including a serving Senator, Enyinnaya Abaribe and a Jewish High Chief Priest, Immanuu El-Shalom, at risk of being sent to prison.
FG is prosecuting the defendants through the office of the Attorney General of the Federation and Minister of Justice.
Charges against them border mainly on criminal conspiracy and treasonable felony.
A member of the prosecuting team who spoke to Vanguard on Monday said FG was determined to proceed with the matter even if the IPOB leader failed to present himself before the court.
He said such practice was allowed, once it was proved that the defendant deliberately made himself unavailable for trial.
“It will not be the first time a defendant is tried in absentia. Take the case of a former Niger Delta militant, Mr. Tompolo for instance. When he refused to make himself available, FG proceeded to try him in absentia”, the lawyer who craved anonymity because he was not cleared to speak on matter added.
He maintained that under extant laws in the country, a defendant so tried, could still be convicted and made to face whatever penalty that was imposed by the court.
Kanu who is the 1st defendant, is facing four out of the five count amended charge.
It will be recalled that Justice Nyako had in a ruling on April 25, released Kanu on bail after he had spent a year and seven months in detention, though the court okayed his co-defendants to remain in prison custody.
The court which stressed that it released Kanu on health ground, however compelled him to produce three sureties, including “a Jewish leader” and a “highly placed person of Igbo extraction”, who all deposited N100million each.
Both Abaribe who is representing Abia South Senatorial District, El-Shalom and a Chartered Accountant residing in Abuja, Mr. Tochukwu Uchendu, had on April 28, entered an undertaken to produce Kanu before the court to face his trial.
However, barely 17 hours to the scheduled trial, no one has heard from or seen the IPOB leader who has remained incommunicado since the Nigerian Military carried out its code-named Operation Python Dance II, in the South East, particularly in his state, Abia.
A source at the Justice Ministry had earlier disclosed to Vanguard that FG would on the slated trial date, not only move the court to revoke Kanu’s bail, but equally apply for a bench warrant to be issued against his three sureties.
“The position of the law is very clear to the effect that when a defendant jumps bail, his surety is made to pay for the offence upon which the trial was based. It is there in the Administration of Criminal Justice Act.
“If for any reason Kanu fails to submit himself for trial on October 17, we will have no other option than to apply for immediate arrest of all his three sureties. We will move the trial court to issue a bench warrant against them.
“We have their full details, and don’t forget that they were made to sign an undertaken by the court before the defendant was released on bail”, he added.
Kanu’s lead counsel, Mr. Ifeanyi Ejiofor, had in a telephone interview with Vanguard, insisted he does not know the whereabouts of his client.
Ejiofor said his only contact with the IPOB leader was on September 14, few minutes before the Nigerian Army “invaded” his (Kanu’s) hometown.
He said that Kanu called him on phone, complaining that he was under attack from soldiers that were deployed to his compound by FG.
Ejiofor who said he would not be surprised if FG decides to move against those that stood surety for his client, maintained that the burden was on the prosecution to produce Kanu in court on the adjourned date.
“The fact is that they are in a position to produce him at the next adjourned date. It is public knowledge that my client had before his house was invaded, always made himself available for trial.
“He never evaded trial as he made it known that he was ready. If he wanted to jump bail, he would have done so immediately he was released from prison. But he did not run.
“The last time I spoke with my client was the day his house was invaded by soldiers. He called me and complained that he was being attacked by soldiers who he said were shooting sporadically. since then, I have not heard from my client again.
“If he is alive, they should tell the court on that day. They will not only explain to the trial court, but will also produce the soldiers that went to his home to attack him”, Ejiofor added.
Meantime, investigations by Vanguard revealed that the case may not actually proceed on Tuesday, as the trial Judge was said to be out of jurisdiction on an “important government assignment”.
Justice Nyako is currently heading a team ot Judges that were selected by FG to conduct the trial of over 1,600 Boko Haram suspects at Kainji detention facility in Niger state.
Kanu’s lawyer, Mr. Ejiofor has already filed a separate suit, asking the High Court in Abuja to compel the Chief of Army Staff, Lt.-Gen. Tukur Buratai, to produce his client in court on Tuesday, dead or alive.
Ejiofor told the court that he has not seen or heard from his client since the “Nigerian Army invaded the Applicant’s house on a murderous raid, where life and mortar bullets were fired on unarmed and defenseless populace, leaving 28 persons dead and abducting many”.
Pursuant to section 40 of the Federal High Court Act, F12, LFN 2005 and section 6(6) (1) (4) of the 1999 constitution, as amended, Kanu’s lawyers applied for “an order of Habeas Corpus ad subjiciendum, commanding the Respondent, to produce the Applicant in Court”.
In a supporting affidavit that was deposed by one Prince Mandela Umegborogu, the deponent said he was told by Kanu’s younger brother, Emmanuel, that on September 12, “Soldiers of Nigerian Army, numbering about 200 ( two hundred) fully armed to the teeth invaded the residential home of the Applicant in Afarauwku- Ibeku, Umuahia, in Abia State”.
According to the affidavit, “On the 12th September, 2017, the Nigeria Military Soldiers acting under express command handed down by the Respondent, violently invaded the Applicant’s home in Afara-ukwu Ibeku, Umuahia Abia State, wherein scores of his relative were brutally wounded and many killed.
“On 14th day of September, 2017, the Nigerian Military led by Soldiers of the Nigerian Army invaded the Applicant’s house on a murderous raid, where life and mortar bullets were fired on unarmed and defenseless populace, leaving 28 persons dead and abducting many.
“The Applicant who was in the house during this bloody onslaught by the Soldiers, has not been heard from or seen after this bloody attack in his home by the Agents of the Respondent since the 14th day of September 2017.
“That the invading Soldiers in their desperate bid to ensure that the Applicant is caught in the attack climbed stairs to his bedroom upstairs to shot him; walls of his bedroom were riddled with bullets.
“The invading Soldiers who had direct contact with the Applicant on this fateful day (14th day of September 2017) should be in a position to produce the Applicant before the court. It is either the Respondent’s rampaging Soldiers abducted the Applicant during this raid or must have killed him in the process”.
Kanu had prior to the Army operation, prayed the trial court to vary some of his bail conditions which he said were directly in conflict with his constitutionally guaranteed fundamental human rights and therefore ought to be set-aside.
As part of his conditions for bail, Kanu who was arrested upon his return to Nigeria from the United Kingdom on October 14, 2015, was expressly barred by the court from attending any rally or granting any form of interview.
“I must stress it here that the defendant must not attend any rally. He must not be in a crowd exceeding 10 persons”, the Judge warned.
The court insisted that the IPOB leader must sign an undertaken to make himself available for trial at all times.
He was equally ordered to surrender his Nigerian and British international passports.
Aside challenging the variation request, FG, in a fresh application it filed on August 25, applied for Kanu’s bail to be revoked.
It predicated the application on section 169 and 173(2) of the Administration of Criminal Justice Act, 2015.
Describing the IPOB leader as a threat to national security, FG alleged that he engaged in several acts it said were capable of sparking civil unrest and anarchy in the country.
It specifically applied for an order “directing the arrest and committing of the 1st defendant to custody pending trial”.
FG had among other things, alleged that Kanu, his co-defendants and other persons still at large, had “on diverse dates in 2014 and 2015 in Nigeria and London, United Kingdom, did conspire amongst yourselves to broadcast on Radio Biafra monitored in Enugu and other areas within the jurisdiction of this honourable court, preparations being made by you and others at large, for states in the South-East and South-South zones and other communities in Kogi and Benue States to secede from the Federal Republic of Nigeria with a view to constituting same into a Republic of Biafra and you thereby committed an offence punishable under section 516 of the Criminal Code Act, Cap C38 Laws of the Federation of Nigeria, 2000”.
It told the court that Kanu had “on or about the 28th April, 2015 in London, United Kingdom did in a broadcast on Radio Biafra monitored in Enugu, Enugu state and other parts of Nigeria within the jurisdiction of this honourable court, referred to Major General Muhammadu Buhari, GCON, President and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria as a paedophile, a terrorist, an idiot and an embodiment of evil, knowing same to be false and you thereby committed an offence contrary to section 375 of the Criminal Code Act, Cap C. 38 Laws of the Federation of Nigeria, 2004”.