Abuja — 5 February 2026
A major jurisdictional controversy has emerged in the appeal against the terrorism conviction of Mazi Nnamdi Kanu, following a detailed legal memorandum arguing that the Federal High Court lacked the constitutional authority to convict or sentence him under a law that had already been repealed.
The memorandum, prepared by the Defence Legal Research and Strategy Desk and addressed to the Appeal Unit, focuses on the interpretation of Sections 97 and 98 of the Terrorism (Prevention and Prohibition) Act 2022 (TPPA 2022), the statute that repealed the earlier Terrorism (Prevention) (Amendment) Act 2013 (TPAA).
Mandatory Migration to the 2022 Terrorism Law
At the heart of the appeal is Section 97 of the TPPA 2022, which provides that all existing terrorism proceedings “shall continue to be in force and have effect as if made under the corresponding provisions of this Act.”
According to the defence, the use of the word “shall” imposes a mandatory obligation on courts to migrate all pending terrorism cases to the new legal regime established by the 2022 Act. They argue that this provision leaves no room for judicial discretion and automatically displaces reliance on the repealed 2013 statute.
The memorandum cites long-standing Supreme Court authorities confirming that “shall” denotes compulsion, not choice, particularly where jurisdiction and criminal liability are concerned.
Savings Clause Cannot Override Mandatory Provision
The prosecution has relied on Section 98(3) of the TPPA 2022, which states that pending proceedings “may be continued as if this Act had not been made.”
However, the defence counters that this clause is merely permissive and enabling, intended only to prevent procedural collapse—not to authorise conviction or sentencing under a repealed penal statute.
In cases of apparent overlap, the defence notes, Nigerian courts consistently hold that specific and mandatory provisions prevail over general and permissive ones, especially in transitional legislation. Any interpretation allowing punishment under a repealed law, they argue, would render Section 97 meaningless.
De Novo Trial Undermines Any “Savings” Argument
A critical factual point highlighted in the memorandum is that the trial did not merely continue after the 2022 Act came into force—it restarted de novo in March 2025 following appellate interventions and reassignment to a new judge.
The defence argues that once a trial recommences afresh, there is no prior proceeding left to be “saved” by a savings clause. Jurisdiction must then be determined strictly by the law in force at the time of the new trial.
By 2025, the TPAA 2013 had been fully repealed for nearly three years.
Constitutional Barrier to Conviction Under Repealed Law
Beyond statutory interpretation, the memorandum anchors its argument in Section 36(12) of the 1999 Constitution, which prohibits conviction for offences not defined by a law in force at the time of conviction.
According to the defence, sentencing a defendant in November 2025 under a statute repealed in May 2022 constitutes a direct constitutional violation, not a procedural irregularity. Such a defect, they argue, goes to jurisdiction and renders the entire trial a nullity.
Nigerian courts, the memorandum notes, have consistently rejected attempts to impose criminal liability under spent legislation, even where alleged conduct occurred earlier.
Appeal Targets Jurisdiction, Not Mere Error
The defence emphasises that the appeal does not seek a discretionary review of the evidence but challenges the competence of the trial court itself. If the appellate court agrees that the wrong statute was applied, the conviction cannot be corrected—it must be set aside entirely.
Legal analysts note that jurisdictional defects are among the few grounds Nigerian appellate courts treat as fatal, regardless of the merits of the case.
What Comes Next
The Court of Appeal is expected to consider these arguments once briefing is complete. If upheld, the reasoning could have far-reaching implications for terrorism prosecutions initiated under repealed legislation and retried under newer statutory frameworks.
For now, the appeal places renewed focus on statutory compliance, constitutional safeguards, and the limits of judicial power in politically sensitive criminal trials.
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