DOUBLE JEOPARDY:
THE LEGAL CONDITION OF MAZI NNAMDI KANU RIGHT NOW IN NIGERIAN LEGAL FRAMEWORK
By Barrister Ikechukwu Onuoha
In Nigerian law, the principle of double jeopardy is a constitutional safeguard rooted in **Section 36(9)** of the **1999 Constitution of the Federal Republic of Nigeria (as amended)**. It protects individuals from being tried or punished twice for the same criminal offense or for an offense with substantially the same ingredients, following a valid conviction or acquittal by a court or tribunal of competent jurisdiction. The principle derives from the common law maxim *non bis in idem* ("not twice against the same") and is designed to prevent state abuse, ensure finality in criminal proceedings, and protect individuals from repeated prosecution for the same act.
Key Provisions and Conditions
Section 36(9) states:
"No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court."
For the double jeopardy defense to apply in Nigeria, the following conditions must be met, as established in cases like *Nigerian Army v. Brig. Gen. Maude Aminun-Kano* (2010) LLJR-SC:
Prior Trial by a Competent Court
The accused must have been previously tried by a court or tribunal with proper jurisdiction.
Same Facts and Offense
The facts and offense in the new trial must be identical or substantially similar to those in the earlier trial.
Valid Outcome
The prior trial must have resulted in a conviction, acquittal, or another form of final punishment or discharge.
The defense can be raised through pleas of **autrefois acquit** (previously acquitted) or **autrefois convict** (previously convicted), which bar further prosecution for the same offense
Jurisdictional Distinction
The defense applies only within the same jurisdiction. For instance, separate trials in different states for distinct offenses (e.g., armed robbery in Lagos and Ibadan) do not trigger double jeopardy
Application in Practice
Criminal Cases Only**: Double jeopardy applies exclusively to criminal proceedings, not civil cases, which are governed by the similar but distinct principle of *res judicata*.
Judicial Interpretation
In *Nigerian Army v. Aminun-Kano* (2010), the Supreme Court emphasized that punishing a person twice for the same offense violates Section 36(9) and (10), reinforcing the principle’s role in upholding fairness. However, the court in *PML (Nig) Ltd v. FRN* (2017) clarified that if a prior conviction is overturned (e.g., by the Supreme Court) without an acquittal, double jeopardy may not apply, as seen in the case of Orji Kalu, where retrial was permitted after a conviction was invalidated
Abuse by Authorities
Some sources note that agencies like the Economic and Financial Crimes Commission (EFCC) have been criticized for filing similar charges in different courts, attempting to circumvent double jeopardy. Such practices have been deemed unlawful when the charges are substantially the same.
International Context
While double jeopardy is not a universal principle of international law, Nigeria’s adherence aligns with global standards like Article 14(7) of the International Covenant on Civil and Political Rights, which prohibits retrial after a final conviction or acquittal. However, it does not apply across different sovereign jurisdictions unless specified in treaties (e.g., EU’s Schengen
Conclusion
The double jeopardy principle in Nigerian law, enshrined in Section 36(9) of the 1999 Constitution, is a critical safeguard for ensuring fairness and finality in criminal justice. It prevents repeated trials for the same offense, except under specific conditions like a superior court’s order or distinct charges. Its application extends to labour law but is limited to criminal proceedings.