The doctrine of double criminality, a key principle governing the exercise of extraterritorial criminal jurisdiction, may have been overlooked in the trial and conviction of Mazi Nnamdi Kanu, according to a fresh legal argument by his counsel, Aloy Ejimakor.

Ejimakor contended that the prosecution’s failure to state the foreign location from which the alleged broadcasts were made deprived the Federal High Court of jurisdiction to determine whether the acts constituted offences in the countries where they allegedly occurred.

He argued that the issue was not a mere technicality but went to the foundation of the court’s jurisdiction and Kanu’s constitutional right to a fair hearing.

According to him, the doctrine of double criminality became particularly significant following the enactment of the Terrorism (Prevention and Prohibition) Act 2022 (TPPA), which replaced the Terrorism (Prevention) Amendment Act 2013.

Under the repealed 2013 law, Ejimakor explained, an act committed outside Nigeria could constitute an offence where it had an “impact in Nigeria.”

The 2022 legislation, however, introduced an additional requirement: the act must not only have an impact in Nigeria but must also constitute a criminal offence in the foreign jurisdiction where it was committed.

He described the additional requirement as a fundamental alteration in the legal treatment of alleged extraterritorial offences.

Ejimakor noted that although the charges against Kanu alleged that his broadcasts, which were made from an unnamed foreign country, “had impact in Nigeria”, they did not expressly state that the broadcasts were also criminal offences in the foreign country where they were made.

That omission, he argued, rendered the relevant counts incompetent.

“The TPPA 2022 acts as a legislative gatekeeper for the court’s power,” Ejimakor said, maintaining that unless the double-criminality requirement was satisfied, the court could not validly exercise jurisdiction over alleged criminal acts committed outside Nigeria.

He cited FRN v. Usman (2019) 12 NWLR (Pt. 1687) 298, where, he said, failure to specify the location of an alleged offence in a cross-border fraud case was held to have implications for jurisdiction.

Ejimakor further argued that the double-criminality requirement confers a substantive protection on an accused person – the right not to be tried in Nigeria for conduct that was lawful in the jurisdiction where it occurred.

He described the protection as consistent with the principle of legality and the constitutional guarantee of fair hearing.

The lawyer also challenged the premise that the Supreme Court’s earlier decision allowing the trial to proceed amounted to a final determination of the substantive law applicable to the case.

According to him, the Supreme Court’s decision was based on the general jurisdiction of the Federal High Court and did not finally determine which substantive legislation governed the merits of Kanu’s trial.

He argued that when the trial was subsequently commenced de novo before Justice James Omotosho, the court was required to determine the law applicable to the fresh proceeding.

That, he said, was the basis of Kanu’s preliminary objection asking the court to determine the applicable law, which the court declined.

Ejimakor further relied on Section 36(12) of the 1999 Constitution, which provides that a person can only be convicted of a criminal offence established by a written law in force at the time the act was committed.

He maintained that because Kanu’s trial de novo commenced in 2025, the repealed 2013 legislation could no longer provide the applicable legal framework for the fresh proceedings.

On that basis, Ejimakor contended that the prosecution was required to establish both the Nigerian criminality of the alleged broadcasts and their criminality in the foreign jurisdiction where they were made.

According to the charge sheet, he said, Kanu was domiciled in Britain or Kenya during the period between 2018 and 2021 when some of the broadcasts were allegedly made.

The lawyer therefore asked why the prosecution failed to identify the precise foreign jurisdiction in which the alleged acts occurred.

He suggested that the omission may have been deliberate because, had the broadcasts constituted terrorism offences under the laws of Britain or Kenya, the Nigerian authorities could have relied on those jurisdictions’ laws and enforcement mechanisms.

Ejimakor stressed that the requirement that a criminal charge be specific and unambiguous was central to the constitutional right to fair hearing.

He argued that an accused person must be told in clear terms the precise nature of the allegations against him so that he can know the case he is required to meet.

“This is why Kanu was insisting: ‘show me the law,’” he said.

He further contended that the failure to identify the foreign situs of the alleged broadcasts was materially prejudicial to Kanu because it deprived him of the opportunity to challenge whether the conduct was criminal in the jurisdiction where it occurred.

The lawyer also invoked Section 220 of the Administration of Criminal Justice Act 2015, arguing that the provision bars jurisdiction where a charge omits legally required information capable of misleading an accused person in preparing his defence.

He cited Yakubu v. FRN (2020) and other authorities for the proposition that a charge that fails to disclose an essential ingredient of an alleged offence is fundamentally defective and incapable of conferring jurisdiction on a court.

Ejimakor therefore maintained that the question of double criminality was central to the legality of the proceedings against Kanu.

“It is based on these reasons, plus more, that I had insisted from day one that the Federal High Court lacked jurisdiction to proceed with Kanu’s trial,” he said.