By Aloy Ejimakor

Following the debriefing of his legal team led by Chief Kanu Agabi, SAN, Mazi Nnamdi Kanu firmly announced his intention to personally handle his own defence. The trial court accepted this waiver of counsel, asked if he wanted an assigned lawyer, noted his rejection, and then proceeded.

Now that the case lies on appeal, the deeper, central question the Court of Appeal must confront is this: Can a defendant facing charges that carry the death penalty legally waive his right to counsel under Nigerian law?

The short answer is no. In allowing Nnamdi Kanu to represent himself in a trial involving capital offences, the learned trial judge unarguably committed a fatal fundamental error in law. Under the Nigerian criminal justice system, the right to legal representation in capital offences is not a luxury the defendant can decline; it is a rigid and mandatory constitutional safeguard that the court has an absolute duty to enforce, even against the explicit wishes of the defendant.

At first glance, there exists an illusion of permissible self-representation that lies in Section 36(6)(c) of the Constitution, which appears to sanction self-representation by stating that every person charged with a criminal offence is entitled to defend himself “in person or by legal practitioners of his own choice.”

That may be so in misdemeanours or less severe felonies, where the choice to speak for oneself is a permitted prerogative. However, the Constitution does not operate in a vacuum. It is anchored on the ultimate pillar of fair hearing, and contemporary Nigerian criminal jurisprudence has long recognised that the gravity of capital offences (where human life hangs in the balance) strips away the court’s discretion to permit self-representation.

The statutory directive is enacted under the Administration of Criminal Justice Act, which explicitly curtails the right to self-representation when the stakes are grave. Section 267(2) of the ACJA leaves no wiggle room for ambiguity when it provides that: “Where a defendant is charged with a capital offence or an offence punishable with life imprisonment and he is not represented by a legal practitioner, the court shall appoint a legal practitioner for his defence.”

The operative word utilised in the above provisions is “shall”. In statutory interpretation, it is an established canon that “shall” denotes a command; it imposes a mandatory duty, leaving zero room for judicial discretion or a defendant’s personal whims.

Thus, when Kanu’s legal team stepped aside, Justice Omotosho’s question should not have been, “Do you want me to assign a lawyer to you?” Instead, the Judge should have immediately made an unyielding decision to appoint a lawyer for him. Why? Because Kanu’s refusal of counsel is invalid as a matter of law, pure and simple.

In an unbroken chain of case law, the Supreme Court has repeatedly solidified this principle, treating the presence of a legal practitioner in capital trials as a condition precedent to the validity of the proceedings.

In Josiah v. State (1985), the apex court held that in capital offences, a defendant must be represented by counsel at all stages of the trial. This was reaffirmed forcefully in Ganiyu v. State (2013), where the Supreme Court made it abundantly clear that a trial conducted for a capital offence without legal representation is a nullity, as its absence completely robs the trial court of its jurisdiction.

Granted that Justice Omotosho may have felt justified in forging ahead, given Kanu’s articulate disposition. Yet, as a matter of law, lay competence is not a substitute for counsel. A capital trial involves intricate rules of evidence, procedure, and navigation of highly complex constitutional and statutory frameworks unique to capital offences trials.

So, by permitting Kanu to navigate this labyrinth alone, the court allowed a fundamental constitutional infraction that may very well void the entire outcome of the trial.