1. Introduction
The recent invocation of the colonial-era doctrine male captus bene detentus — Latin for “wrongly captured, rightly detained” — in the prosecution of Mazi Nnamdi Kanu raises serious constitutional, ethical, and human rights concerns.
This doctrine, relied upon by the Supreme Court of Nigeria in FRN v. Nnamdi Kanu (SC/CR/1364/2022, delivered December 15, 2023), mirrors the very colonial-era rigidities that former Vice President Professor Yemi Osinbajo, SAN, GCON, warned against in his October 9, 2025 address calling for the decolonization of Nigeria’s justice system.
By upholding a principle that prioritizes procedural technicalities over substantive justice, the Court has undermined the protective guarantees enshrined in Section 36 of the 1999 Constitution (as amended) and Articles 7 and 12 of the African Charter on Human and Peoples’ Rights (Cap A9 LFN 2004) — both of which guarantee fair trial and protection against arbitrary arrest or expulsion.
2. The Doctrine: A Colonial Relic That Prioritizes Detention Over Rights
Originating from 19th-century British colonial jurisprudence, male captus bene detentus was historically used to justify the trial of persons abducted or unlawfully seized, provided their detention served “justice.” The doctrine effectively allowed imperial governments to suppress dissent, disregarding fundamental rights in favor of state authority.
In contemporary human rights law, this principle has been universally rejected as incompatible with due process and the rule of law. Yet, in Kanu’s case, the Supreme Court revived this discredited colonial doctrine to validate his trial following his extraordinary rendition from Kenya in June 2021 — an act widely acknowledged as a violation of international law and Nigeria’s own extradition statutes.
This position directly conflicts with Osinbajo’s observation that “Nigeria’s justice system remains trapped in colonial-era rigidities that elevate procedural formalities above the pursuit of real justice.” By endorsing a doctrine born from imperial control, the Court risks entrenching a justice system that mirrors the logic of empire rather than a constitutional democracy grounded in fairness and accountability.
3. Eroding Protections: Section 36 and the African Charter Under Siege
The implications of this judicial position are far-reaching and troubling.
(a) The African Charter on Human and Peoples’ Rights
Article 7(1) guarantees the right to a fair trial and due process.
Article 12(2) prohibits arbitrary expulsion or abduction.
The Court of Appeal in CA/ABJ/CR/625/2022 (delivered October 13, 2022) recognized Kanu’s extraordinary rendition as unlawful and inconsistent with Nigeria’s obligations under the Charter. However, the Supreme Court overturned this finding, holding that illegality in capture does not invalidate trial jurisdiction — a stance that effectively nullifies the binding nature of the Charter, domesticated under Section 12 of the Constitution.
This reasoning weakens Nigeria’s commitment to international law and sets a dangerous precedent where state misconduct can be retroactively legitimized.
(b) Section 36 of the 1999 Constitution (as Amended)
Section 36 protects the right to fair hearing, presumption of innocence, and lawful arrest.
By validating a trial resulting from unlawful rendition, the Court has effectively sanctioned executive illegality, allowing the state to benefit from its own breach of law — a concept alien to both common law and constitutional morality.
As Osinbajo aptly warned, “inconsistency becomes a threat to the rule of law when technicalities triumph over constitutional fidelity.”
4. A Judiciary at a Crossroads: Between Colonial Legacy and Constitutional Renewal
The Supreme Court’s endorsement of male captus bene detentus reflects a justice system caught between colonial mimicry and constitutional modernity. Instead of affirming Nigeria’s sovereignty and commitment to justice, this approach aligns judicial reasoning with outdated imperial doctrines where detention, not justice, is the end goal.
In Mazi Kanu’s ongoing trial before Justice Omotosho of the Federal High Court, Abuja, this colonial logic continues to manifest. Despite the repeal of the Terrorism Prevention (Amendment) Act 2013 and replacement by the Terrorism Prevention and Prohibition Act (TPPA) 2022, the prosecution persists under obsolete legal instruments, without establishing the necessary double criminality under Section 76(1)(d)(iii) TPPA 2022.
This persistence underscores a deeper institutional crisis — one where procedure eclipses principle and detention supplants justice. It exemplifies what Osinbajo described as a judiciary “in danger of becoming a threat to the rule of law when it worships the ghost of colonial technicality.”
5. The Way Forward: Decolonizing Nigeria’s Judicial Mindset
To restore credibility and align Nigeria’s judiciary with global human rights standards, the following reforms are essential:
1. Judicial Rejection of Colonial Doctrines:
Courts must affirm that trials arising from unlawful rendition contravene both constitutional and international law.
2. Enforcement of the African Charter:
The Charter, having the force of domestic law, must supersede any doctrine inconsistent with human dignity and sovereignty.
3. Legislative Action:
The National Assembly should enact clear provisions abolishing male captus bene detentus and any similar doctrines that undermine fair trial rights.
4. Reform in Legal Education:
Law faculties and judicial institutes must prioritize human rights–based jurisprudence over colonial-era procedural mimicry.
As Osinbajo emphasized, “Decolonizing the justice system is not academic theory — it is an urgent moral task to safeguard judicial integrity and national dignity.”
6. Conclusion
The application of male captus bene detentus in Mazi Nnamdi Kanu’s case transcends legal error; it represents a deeper institutional regression — the persistence of a colonial mindset within a postcolonial judiciary.
To uphold Nigeria’s constitutional promise and African identity, the nation must reject doctrines that privilege control over justice and procedure over rights. The Supreme Court’s duty is not to validate captivity but to uphold liberty through law.
Osinbajo’s call for a decolonized judiciary must therefore move beyond rhetoric — it must inspire a judicial renaissance where legality, liberty, and justice prevail over imperial logic.
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