Nnamdi Kanu: Nigerian Army Is In Contempt Of Court

This piece is a summary of the legal/other consequences of the Army’s mid-September armed invasions of Mazi Nnamdi Kanu’s homestead at Umuahia, Abia State.

The state of affairs before the invasion was that Nnamdi Kanu was free on bail on a subsisting court order; his bail was not on personal recognizance but on a bond posted by a third-party obligor/surety; and Kanu was neither judicially-ordered to be re- arrested for breaching his bail, or on account of any new charges filed.

It is beyond argument that the invasion achieved complete routing of Nnamdi Kanu’s home and caused fatalities and injuries to a yet to be determined number of people, including Nnamdi Kanu, who were present and trapped at the premises throughout the attacks.

The invading forces also ‘captured’ an undetermined number of occupants of the premises, none of whom is accounted for to date.

Most significantly, Nnamdi Kanu has not been seen or heard from since then. The inevitable question that has arisen from the foregoing set of facts is this: What are the consequences of such an obviously deadly military action against an accused person who was free on bail? The following analysis will provide some answers.

At common law, a bail is simply a binding promise by an obligor or a surety to produce an accused in court whenever required to do so.

Any monetary or property item offered by the obligor to back up his promise becomes the bond that he stands to lose should he fail to produce the accused when required to do so by the State.

In other words, a bail bond is a written contract in which the State is the Promisee, and the obligor is the Promisor. The accused is merely the subject matter (or the res) of the contract.

And the fundamental purpose or consideration is to have the accused appear in court by compulsion of the bond. So, just like any other contract, a contract of bail is subject to universal rules of contract, including – in this particular case of Nnamdi Kanu – an implied covenant on the part of the Nigerian State that it will not in any way interfere with or impair the ability of the obligor to produce Kanu whenever required to do so.

This includes the covenant that the State will not take any steps with the res (the accused, the subject of the bail) that will increase the risks of ‘flight of safety’ or the extra-judicial killing of the accused, which will inevitably lead to nonperformance by the obligor. So, when the Nigerian State, through her Army invaded Nnamdi Kanu’s home, it breached the basic covenant that required the Nigerian State (or the Federal government) not to create a situation that will make it impossible for the obligor to produce Kanu in court.

And given that Kanu’s death, mortal wounding or capture are the foreseeable consequences of the invasion, the contractual doctrines of frustration and force mejeure also come into play.