REJOINDER TO LEADERSHIP NEWSPAPER EDITORIAL: The Fallacy of Applying Male Captus, Bene Detentus to the Extraordinary Rendition of Mazi Nnamdi Kanu

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A Matter of Grave Constitutional Concern

  Leadership Newspaper published an editorial titled “Legality of Applying Male Captus, Bene Detentus Rule to Kanu’s Rendition Argument.”

Because the article appeared as an official editorial, it carries the full institutional authority of the newspaper. Unfortunately, it misstates the law and distorts Nigeria’s constitutional order.

The claim that an illegal abduction (male captus) can yield a lawful detention (bene detentus) is a colonial-era relic long buried under modern constitutionalism and international human rights law.

It directly contradicts Sections 35, 36, and 46 of the 1999 Constitution (as amended) and Articles 6 and 7 of the African Charter on Human and Peoples’ Rights (Cap A9, LFN 2004).

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An Editorial Built on a Doctrinal Fallacy

The Leadership editorial contends that once Mazi Nnamdi Kanu is before a Nigerian court, the manner of his capture becomes irrelevant. That view has been consistently rejected across the common-law world.

In United States v. Toscanino (500 F.2d 267 [2d Cir. 1974]), the court held that jurisdiction collapses when an accused is produced through “deliberate, brutal and illegal abduction.”

Similarly, in R v. Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42, the House of Lords ruled that no court may condone executive illegality without undermining the very foundation of justice.

In Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228, the Supreme Court of Nigeria affirmed that the African Charter has constitutional force, and all organs of state must act in conformity with its provisions.

To rely on male captus, bene detentus is therefore to revert Nigeria to an age of impunity incompatible with constitutional democracy.

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A Doctrine Buried by Constitutionalism

The male captus rule once excused kidnappings before the codification of extradition law. It cannot coexist with the UN Charter (1945), Universal Declaration of Human Rights (1948), and the African Charter (1981) — all binding on Nigeria.

The Federal High Court, Umuahia (FHC/UM/CS/30/2022, Anyadike J.) declared Kanu’s abduction from Kenya “unlawful, illegal, and unconstitutional.”

The Court of Appeal, Abuja Division (CA/ABJ/CR/625/2022) subsequently ruled that such rendition destroyed the jurisdiction of the trial court.

These judgments stand unvacated and remain the only competent judicial pronouncements on record regarding Kanu’s extraordinary rendition.

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International Condemnations Nigeria Cannot Ignore

The ECOWAS Court of Justice, in Mazi Nnamdi Kanu v. Federal Republic of Nigeria (ECW/CCJ/APP/06/16), found Nigeria guilty of violating Articles 6, 9, and 11 of the African Charter.

Likewise, the United Nations Working Group on Arbitrary Detention, in Opinion No. 25/2022, declared Kanu’s rendition a “flagrant violation of international law” and demanded his immediate release and compensation.

Under Section 12(1) of Nigeria’s Constitution and Article 26 of the Vienna Convention on the Law of Treaties (1969), such international obligations are binding.

To disregard them is to defy the very instruments that affirm Nigeria’s legitimacy within the international order.

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Why the Garba Panel Judgment Cannot Stand

The Leadership editorial leans heavily on the Supreme Court’s judgment of 15 December 2023 in FRN v. Nnamdi Kanu (SC/CR/1361/2022), authored by Mohammed Lawal Garba, J.S.C.

Respectfully, that judgment is jurisprudentially inferior and per incuriam.

1. Hierarchy within the Supreme Court

The Garba panel comprised five Justices. However, the binding precedent on the supremacy of the African Charter—Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228—was decided by a seven-Justice full constitutional bench.

Under the doctrine of stare decisis, as reaffirmed in Odi v. Osafile (1985) 1 NWLR (Pt. 1) 17 and Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250, a smaller panel cannot contradict or override a larger one.

2. Per Incuriam Status

The Garba judgment failed to reference Abacha v. Fawehinmi or the Court of Appeal’s decisions affirming that rendition nullifies jurisdiction.
A Supreme Court decision rendered in ignorance of such binding authority is per incuriam and cannot alter established precedent.

3. Inapplicability to a Tainted Trial

Because the Garba panel’s ratio conflicts with a superior constitutional decision, it cannot sustain a trial tainted by illegality.
Jurisdiction cannot arise from constitutional defilement; the Constitution remains supreme to any errant panel.

Thus, FRN v. Kanu (2023) cannot displace Abacha v. Fawehinmi (2000).
Until a full constitutional bench expressly departs from it, Abacha remains the governing authority in Nigeria’s human-rights jurisprudence.

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The True Rule: Male Captus, Male Detentus

Modern constitutional law recognises that an illegal capture invalidates subsequent detention.
In S v. Ebrahim (1991) (2) SA 553 (A), the South African Appellate Division held that abduction from a foreign jurisdiction destroys judicial competence.

Nigeria, bound by both the African Charter and its own Constitution, cannot preach the rule of law while practising impunity under male captus, bene detentus.

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A Call for Editorial Rectitude

Leadership Newspaper must rise above executive propaganda and return to its historic role as a sentinel of liberty.
To defend a discredited doctrine is to stand against the Constitution itself.

As the Supreme Court held in A.G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1,

“The Constitution is supreme; and any act inconsistent with it is null, void, and of no effect whatsoever.”

The extraordinary rendition of Mazi Nnamdi Kanu remains such an act.
Neither judicial misdirection nor editorial endorsement can sanitize its illegality.