The case is a spillover of Nnamdi Kanu’s year-long pen-and-ink battle with the UK government over his detention in Nigeria.
The leader of the proscribed Indigenous People of Biafra (IPOB), Nnamdi Kanu, has lost an appeal in a legal action he filed against the United Kingdom (UK) government concerning his detention in Nigeria.
The separatist leader, who holds British citizenship alongside his Nigerian nationality, launched the action in London last year to mount pressure on the UK government to intervene in his case with the Nigerian government.
The court case is another layer in his battle with the UK government which began with the exchange of a series of letters over his detention in Nigeria, straining his relationship with the government of his second country almost to a breaking point last year.
Inspired by the presumption that the UK government owed him, as a British citizen, the responsibility of consular assistance regarding his detention in Nigeria, Mr Kanu had approached UK courts to obtain an order to compel the UK government to take a stand and a definite action, including making public statements to condemn his detention.
He commenced his legal battle against the UK government by filing his case at a High Court in London last year. He sued the Secretary of State for Foreign, Commonwealth and Development Office (FCDO) – also referred to as Foreign Secretary – as the representative of the UK government.
The court dismissed his case on 23 March 2023.
He subsequently filed an appeal at the Civil Division of the Court of Appeal, Royal Courts of Justice, in London to challenge the High Court’s decision.
The Court of Appeal affirmed the High Court’s verdict and dismissed Mr Kanu’s appeal on 7 July, ruling that it could not interfere in the decision of the UK government on the IPOB leader’s detention and conditions in Nigeria.
The court also held that it could not force the Foreign Secretary sued by Mr Kanu as the representative of the UK government to “reach a firm view” on the matter while the Nigerian government’s case against him was still at Nigeria’s Supreme Court.
“I consider, therefore, that it is not irrational for the Foreign Secretary to refrain from reaching a firm view while the matter is still properly before the Nigerian courts,” the court ruled.
The court also held that there was no procedural breach committed by the Foreign Secretary by refusing to make a public statement to condemn Mr Kanu’s incarceration.
“Here the Respondent has given information about the steps which have been taken on Mr Kanu’s behalf; and has explained why he is unwilling to make public statements. The real complaint in this case is substantive (refusal to reach a firm view) rather than procedural,” the judgement read.
Engagement with UK government
The case that eventually made its way to the UK courts is a fallout of irreconcilable differences between the UK’s Foreign Secretary and Mr Kanu on the appropriate steps to take over his arrest and alleged maltreatment in Nigerian custody.
It started with the first letter by Mr Kanu’s legal team to the Foreign Secretary shortly after the Nigerian government captured him in Kenya and brought him to Nigeria in June 2021.
The focus of the initial correspondence was to urge the British High Commission to obtain permission to visit Mr Kanu in custody at Nigeria’s State Security Service (SSS) in Abuja.
In reaction, the British High Commission requested permission by a note verbale sent on 1 July 2021 to the Nigerian government. But, for a significant period, the Nigerian authorities provided no response.
On 22 July 2021, Mr Kanu’s lawyers sent another letter to the Foreign Secretary contending that the failure to provide consular assistance, and in particular the failure to take steps to do so beyond simply asking the Nigerian authorities, was unlawful.
The tone of the letters sent by Mr Kanu’s legal team became more confrontational with each response of the office of the Foreign Secretary detailing the steps the government had taken to provide assistance to Mr Kanu. The office insisted that it would continue to handle the matter as it considered best appropriate.
Two contentious letters
Two of the letters by the Foreign Secretary stood out in forming the basis for the legal action filed by Mr Kanu’s legal team last year.
One of the letters dated 14 April 2022, responded to a suggestion by Mr Kanu’s legal team to the Foreign Secretary to reconsider its strategy for assisting Mr Kanu.
The other letter dated 9 June 2022 responded to a further pre-action protocol letter from Mr Kanu’s solicitors which was severely critical of the UK Foreign Secretary.
The responses of the Foreign Secretary’s office in the two letters are basically the same, insisting that it had acted in the most appropriate manner on the basis of available information and guided by international law.
“That view is subject to reassessment in light of changing information and evidence available to her. There is no obligation on the Secretary of State to share that view, the Secretary of State does not consider that it would be appropriate to do so and the Claimant (or Mr Kanu) could not have had any legitimate expectation that this would occur,” part of the correspondence read.
They also acknowledged that there were a range of diplomatic tools which could be deployed in any case where a British national was detained in another jurisdiction, but it added “ministers have given specific consideration to a range of alternative options, including those suggested by or on behalf of your client.”
The letter said the secretary of state did not feel obliged to give account of actions being taken on Mr Kanu’s matter because ministers only needed “to determine what approach is appropriate in the particular circumstances of an individual case at a particular time.”
Nigerian officials’ defiance to UK government
The letters from the office of the Foreign Secretary are replete with highlights of various forms of interventions of the UK government through its officials in Mr Kanu’s matter. The separatist leader’s lawyers believed the steps were insufficient.
The correspondences highlight how the British High Commissioner raised Mr Kanu’s case during meetings with top officials of the Nigerian government, including Ibrahim Gambari, the chief of staff to then President Muhammadu Buhari; the Attorney General of the Federation, Abubakar Malami, and the Minister of Foreign Affairs, Geoffrey Onyeama.
On one occasion, the UK foreign secretary said it sent a letter to Mr Malami to provide additional information requested by him.
On another occasion in October and November 2021, FCDO officials raised Mr Kanu’s case with Nigerian Ministry of Justice and Ministry of Foreign Affairs officials and the SSS, according to correspondences quoted in the UK Court of Appeal’s judgement.
In December 2021, the British High Commissioner met with the Chief of Staff to President Buhari over Mr Kanu’s case, and then delivered a letter to the SSS “raising specific welfare requests following our consular visit with Mr Kanu”.
“This letter made clear the UK Government’s support for Mr Kanu’s transfer out of solitary confinement,” one of the FCDO’s letters read.
Also in December 2021, the FCDO said a note verbale was sent to the Nigerian Ministry of Foreign Affairs formally requesting an explanation of how Mr Kanu was transferred to Nigeria.
It also contained a request that Mr Kanu be transferred out of solitary confinement.
Nigerian, Kenyan officials remain defiant to UK’s behind-the-scenes interventions
The UK government officials’ behind-the-scenes engagements with the Nigerian government continued in 2022. But they yielded no result.
The letters said, for instance, on 13 January 2022, the British High Commissioner, Catriona Laing, met Nigeria’s foreign affairs minister, Mr Onyeama, and raised concerns about Mr Kanu’s “ongoing solitary confinement; his health and welfare and also pressed for a response to HMG’s (UK government’s) of 14 December 2021”. They got nothing from the engagement.
When Nigerian officials were not forthcoming with information, the UK government turned to Kenya to seek insights about Mr Kanu’s transfer from the East African country to Nigeria.
On 18 January 2022, FCDO Minister, Vicky Ford, met with the Kenyan Minister of Foreign Affairs and raised concerns regarding the transfer of Mr Kanu from Kenya to Nigeria;
Again, on 21 January 2022, the British High Commissioner, Catriona Laing, brought up the same issues during a meeting with the President Buhari’s Chief of Staff, Mr Gambari.
Similarly, on 1 February 2022, Ms Ford raised the same issues with the Nigerian National Security Adviser and requested further consular access to Mr Kanu, according to correspondences cited in the UK court’s judgement. During the meeting, she also raised concerns over Mr Kanu’s detention conditions and sought an explanation on his transfer from Kenya to Nigeria.
During an official visit to Nigeria in February 2022, Ms Ford also raised Mr Kanu’s case during a meeting with Mr Onyeama, requesting further consular access, and raising concerns over the conditions in which Mr Kanu was detained. She also sought an explanation on his transfer from Kenya to Nigeria, the document stated.
On 28 February 2022, the British High Commission in Nairobi issued a note verbale requesting a response to its previous note verbale which raised allegations of human rights violations, including torture and mistreatment and unlawful transfer of Mr Kanu.
On 1 March 2022, Ms Ford raised the case with the Kenyan High Commissioner to London, again requesting a response to the notes verbale from Kenya.
Kanu’s lawyers displeased
All of these explanations did not go down well with Mr Kanu’s lawyers, who continued to express their displeasure in the series of letters they exchanged with the FCDO.
In a reply dated 23 March 2022, the legal team said despite the FCDO recognised the serious breaches of international law by the Nigerian government, “there has been virtually no progress in providing consular assistance to Mr Kanu and/or securing his release or transfer out of detention.”
They also belittled the UK government officials’ once-in-a-while access to Mr Kanu in custody.
“Being granted access to Mr Kanu once in over nine months does not count as progress in circumstances where no further access has since been granted and there has been no material change in Mr Kanu’s situation,” the lawyers stated in their letter dated 23 March 2022.
In their final letter dated 25 May 2022 which they sent to the FCDO before deciding to head to court, they said the Foreign Secretary “failed, in your capacity as Secretary of State, to lawfully determine what further steps you should be taking to assist Mr Kanu, because you have failed to reach a view on whether Mr Kanu has been subject to extraordinary rendition, in breach of international law.”
“Reaching a view on that central question is a legally necessary prerequisite to deciding what steps to take in such a case.”
Court of Appeal dismisses Kanu’s appeal
The UK Court of Appeal dismissed Mr Kanu’s appeal on 7 July, refusing to order the Foreign Secretary to take drastic actions requested by Mr Kanu over the IPOB leader’s detention by the Nigerian government.
The judge, David Bean, delivering the lead decision of the court’s three-member panel, acknowledged that there was a limit to which the Foreign Secretary could go to help Mr Kanu while proceedings were still going on against him in Nigeria.
He said while the judgment of Nigeria’s Court of Appeal was clear and emphatic, it was significant that the same court “on 20 October 2022, granted a stay of the effect of the judgment pending the Government’s appeal to the Supreme Court.”
“It is regrettable that, more than eight months later, that appeal has not been heard, but the fact remains that it is pending,” the court held.
The court also noted the contention by Mr Kanu’s lawyer to the effect that Nigeria’s government case was “effectively hopeless because of what she says is the plain violation of international law”.
“But I do not think that we can say, particularly where the Federal Court of Appeal has itself granted a stay pending an appeal to the Supreme Court, that the appeal must be treated as manifestly unfounded.
“I consider, therefore, that it is not irrational for the Foreign Secretary to refrain from reaching a firm view while the matter is still properly before the Nigerian courts.”
The court also absolved the Foreign Secretary, whose office, it said, “has given information about the steps which have been taken on Mr Kanu’s behalf; and has explained why he is unwilling to make public statements.”
“The real complaint in this case is substantive (refusal to reach a firm view) rather than procedural,”
The judge said while he had deep concerns about the treatment of Mr Kanu in Nigeria and Kenya, however, “for the reasons I have given, I would dismiss the appeal.”
There has been no evidence of further correspondences between Mr Kanu’s legal team and the UK government since the judgement.
Mr Kanu’s troubles
The IPOB leader has been in and out of detention in Nigeria since 2015, the fallout of his run-in with the Nigerian government over his separatist campaigns.
He and his IPOB, already designated as a terrorist organisation in Nigeria, are seeking the secession of an independent Biafra nation comprising the five Igbo-dominated South-east states from Nigeria.
He was arrested in September 2015 and subsequently charged with treasonable felony for allegedly attempting to take up arms against the Nigerian state.
The Federal High Court in Abuja granted him bail in 2017.
While he was on bail, the military invaded his country home in Afara-Ukwu, near the Abia State capital, Umuahia, in September 2017. He fled Nigeria in the wake of the military invasion.
He would later appear in Israel after a period of confusion about his whereabouts. After some time, he re-emerged in the UK, where he continued his incendiary Biafra secessionist campaigns through his social media channels, instigating violence in Nigeria’s South-east region.
Years later, Mr Kanu was captured in Kenya by the Nigerian government and brought back to Nigeria under controversial circumstances.
Details of what took him to Kenya remain unclear, but his arrest and transfer to Nigeria have been described in subsequent court proceedings. It was noted in court records that Nigerian agents abducted Mr Kanu on 19 June 2021 at the Nairobi International Airport, and held him in Kenya for about eight days. While in detention in Kenya, Mr Kanu, it was said, faced inhuman and degrading treatment.
On 27 June 2021, he was illegally moved from Kenya and detained in Nigeria, the UK Court of Appeal’s judgement stated, citing records of Nigerian courts.
With the separatist leader back in Nigeria, the government, in a move to firm up its case against him, amended the charges by adding terrorism offences to the original treasonable felony charges. This brought the number of charges to 15.
But ruling on the preliminary objection filed by Mr Kanu on 8 April 2022, the Federal High Court in Abuja struck out eight of the charges for lack of competence.
Mr Kanu was displeased with the ruling for not striking out the entire 15 counts, so he headed to the Court of Appeal to challenge it.
He got a reprieve in a judgement delivered by the Court of Appeal in Abuja on 13 October 2022, as the court’s three-member panel unanimously dismissed the remaining charges, citing the inappropriate manner of capturing him in Kenya and bringing him to Nigeria to face trial.
The judgement evinced the critical view of Nigerian courts about the manner of transferring Mr Kanu from Kenya, as the decision was quickly followed by another verdict condemning the Nigerian government’s action.
On 26 October 2022, the Federal High Court in Umuahia, Abia State gave a judgement faulting the “extraordinary rendition” of Mr Kanu from Kenya. The judge, Evelyn Anyadike, not only awarded a whopping N500 million as damages in favour of the IPOB leader, but also ordered the government to return him to Kenya, to restore status quo (the starting point).
These were only a part of a string of positive reviews of the case in favour of Mr Kanu by independent bodies.
Much earlier before the judgements condemning his capture in Kenya, the Abia State High Court, Umuahia, had awarded N1 billion to him in compensation for the invasion of his Afara Ukwu home by the military in September 2017.
On the international scene, the United Nations Working Group on Arbitrary Detention (UNWGAD), part of the Office of the UN High Commissioner, also weighed in on the matter, similarly condemning the treatment meted out to Mr Kanu in Kenya and Nigeria.
On 4 April 2022, the Working Group adopted an opinion expressing concerns about Mr Kanu’s treatment in the two countries. The Working Group concluded that Mr Kanu was being arbitrarily held, and called for his release. This echoed the Working Group’s earlier concerns about Mr Kanu’s detention on 30 December 2021.
But despite the dismissal of his charges by the Nigerian Court of Appeal, Mr Kanu has remained in detention, due to the court’s subsequent grant of a stay of its judgement to give the Nigerian government an opportunity to exhaust its right of appeal to the Supreme Court.
Meanwhile, while Mr Kanu was battling to extricate himself from trial and detention, his lawyers, including Aloy Ejimakor, were engaging the UK Foreign Secretary in a series of correspondences to ratchet up pressure on the UK government to intervene in his matter in Nigeria.