A detailed legal memorandum prepared by the Legal Research & Strategy Desk of the defence team in the appeal of Mazi Nnamdi Kanu has raised fundamental questions about the validity of his conviction and life imprisonment sentences handed down on 20 November 2025 by the Federal High Court, Abuja.
The memorandum, dated 5 February 2026 and addressed to the Defence Team – Appeal Unit, asserts that the trial judge committed a grave jurisdictional error by convicting and sentencing Kanu under the repealed Terrorism (Prevention) (Amendment) Act 2013 (TPAA) instead of the Terrorism (Prevention and Prohibition) Act 2022 (TPPA 2022), which was the operative law at the time judgment was delivered.
The document argues that Section 97 of the TPPA 2022, which uses the mandatory word “shall”, required all pending terrorism proceedings—including Kanu’s—to be completed strictly under the new 2022 legislation. It contends that the trial court’s reliance on the repealed 2013 Act rendered the entire conviction and sentencing process legally defective and constitutionally unsustainable.
Key Provisions at the Heart of the Dispute
Section 97 of the TPPA 2022 states that any proceedings that were pending immediately before the commencement of the new Act “shall continue to be in force and have effect as if made… under the corresponding provisions of this Act.” The defence interprets this as a clear, compulsory command that pending cases must migrate to and be concluded under the 2022 framework.
By contrast, Section 98(3) provides that such proceedings “may be continued… as if this Act had not been made.” The memorandum describes this as a permissive, validating clause designed to preserve earlier procedural steps from being nullified, but not as an override of the mandatory direction in Section 97.
The legal team argues that where two provisions appear to conflict, Nigerian courts have consistently held that:
- The word “shall” imposes an imperative obligation, while “may” is discretionary and enabling.
- Specific and mandatory provisions prevail over general and permissive ones.
- In cases of apparent tension, the construction that harmonises both sections while giving full effect to the mandatory language must be preferred.
Citing a long line of Supreme Court and appellate decisions—including Bamaiyi v. A.G. Federation (2001), Ifezue v. Mbadugha (1984), Ngige v. Obi (2006), Arowolo v. Akapo (2003), and A.G. Federation v. Abacha (2000)—the memorandum insists that Section 97 must govern the legal regime under which the trial was completed. Any attempt to continue conviction and sentencing under the repealed TPAA constitutes a jurisdictional nullity.
Constitutional and Penal Construction Arguments
The memorandum further submits that even if ambiguity existed between the two sections, settled principles of penal statutory interpretation compel the interpretation most favourable to the accused.
Nigerian law has long required that penal statutes be construed strictly and narrowly against the State. The Supreme Court has repeatedly affirmed this rule in landmark cases such as Aoko v. Fagbemi (1961), Ifegwu v. FRN (2001), and Obioha v. Dafe (1994).
More critically, Section 36(12) of the 1999 Constitution (as amended) provides that no person shall be convicted of a criminal offence unless that offence is defined and the penalty prescribed in a written law in force at the time of the conviction. The defence argues that sentencing Kanu under a repealed statute directly violates this constitutional guarantee.
The memorandum warns that allowing a court to “resurrect” a repealed penal law for the purpose of conviction or punishment would undermine the rule of law and expose the judicial process to serious legitimacy questions.
Timeline of Relevant Events
Kanu was first charged in 2021 under the TPAA 2013.
The TPPA 2022 came into force in May 2022, expressly repealing the 2013 Act via Section 98(1).
Following appellate interventions, the trial was ordered to commence de novo (afresh) before a different judge in March 2025.
Judgment and sentencing occurred on 20 November 2025—more than three years after the repeal of the TPAA—yet the court relied on the repealed law for both conviction and sentencing.
The defence contends that the de novo trial, conducted entirely after the 2022 Act took effect, ought to have been governed exclusively by its provisions.
Implications for the Appeal
The memorandum concludes that the failure to migrate the proceedings to the TPPA 2022 regime constitutes a fundamental jurisdictional defect, not a mere procedural irregularity. Such a defect, it argues, renders the entire trial, conviction, and sentences null and void.
The document frames these issues as properly raised on appeal, capable of vitiating the decision of the trial court without the need to examine the substantive evidence or merits of the charges.
Legal analysts monitoring the case note that the arguments advanced in the memorandum are grounded in well-established principles of statutory interpretation, constitutional supremacy, and the protection of fundamental rights in criminal proceedings. If upheld by the Court of Appeal, they could have far-reaching implications not only for Kanu’s case but for the handling of other pending terrorism prosecutions that straddle the 2022 repeal.
The appeal, which contains 22 grounds and was filed on 4 February 2026, is expected to place renewed scrutiny on the transitional provisions of the TPPA 2022 and the extent to which courts may lawfully apply repealed penal legislation after a new statute has taken effect.
As the matter progresses to hearing, the defence team’s position is that justice, legality, and constitutional compliance demand that the conviction be set aside and the appellant discharged and acquitted on the basis of these statutory and jurisdictional objections alone.
