By Onyedikachi Ifedi, Esq.
For the Mazi Nnamdi Kanu Global Defence Consortium
Abuja | London | Washington | Nairobi | The Hague
Date: October 11, 2025
Colonial Shadows in Modern Justice
The recent reliance on an old colonial-era doctrine known as male captus bene detentus meaning “wrongly captured, rightly detained” in the ongoing trial of Mazi Nnamdi Kanu exposes how deeply Nigeria’s judicial system remains trapped in the legacies of British imperial law.
This same concern was powerfully echoed by former Vice President Professor Yemi Osinbajo, SAN, in his recent lecture on the urgent need to “decolonize Nigeria’s justice system.” His warning now appears prophetic.
In December 2023, the Supreme Court of Nigeria, in FRN v. Nnamdi Kanu (SC/CR/1364/2022), invoked the male captus bene detentus principle to justify proceeding with Kanu’s trial, even after acknowledging that he was illegally abducted from Kenya in 2021 and brought to Nigeria through extraordinary rendition — a violation of international law.
A Colonial Doctrine Revived
The doctrine of male captus bene detentus dates back to 19th-century colonial jurisprudence, when imperial powers justified the unlawful arrest of anti-colonial agitators so long as their detention served the “interest of justice.”
In today’s world, this reasoning has been rejected globally as incompatible with human rights, due process, and the rule of law. Yet, Nigeria’s Supreme Court has revived it prioritizing state convenience over constitutional safeguards.
This is precisely the danger Osinbajo warned against: a justice system that “elevates procedural formalities above real justice.” By applying a principle born in colonial courts, the Supreme Court effectively weakened Nigeria’s standing as a constitutional democracy.
Erosion of Legal Protections
The Court’s decision has far-reaching implications for both the Nigerian Constitution and the African Charter on Human and Peoples’ Rights, which Nigeria has domesticated into law.
- Article 7 of the African Charter guarantees the right to a fair trial.
- Article 12(2) prohibits unlawful arrest, abduction, or expulsion.
- Section 36 of the 1999 Constitution guarantees fair hearing and due process.
In October 2022, the Court of Appeal had declared Kanu’s abduction from Kenya illegal, ruling that such extraordinary rendition stripped the Federal Government of jurisdiction to continue the trial.
However, by overturning that decision, the Supreme Court signaled that illegality in arrest no longer matters, so long as the trial proceeds a position that effectively rewards the government for violating international law.
This interpretation not only dilutes the sanctity of Section 36 but also renders the African Charter toothless. It sends a troubling message: that the state may break the law to enforce the law.
Justice in Chains
The use of this doctrine reflects a deeper institutional problem a judiciary that appears more comfortable preserving colonial technicalities than pursuing genuine justice.
In the ongoing proceedings before Justice Omotosho of the Federal High Court, the prosecution continues to rely on outdated terrorism laws that were repealed and replaced by the Terrorism Prevention and Prohibition Act (TPPA) 2022. Despite this, the case moves forward, illustrating how procedural rigidity has replaced constitutional fairness.
As Osinbajo warned, “our judiciary risks becoming a threat to the rule of law if it continues to worship the ghost of colonial technicality.” In Kanu’s case, that ghost is alive and well.
The Path to Decolonizing Justice
To rebuild public confidence in Nigeria’s judiciary and restore its moral authority, a genuine decolonization of the judicial mindset is needed. This means:
- Rejecting Outdated Doctrines: Courts must abandon colonial-era legal theories like male captus bene detentus that prioritize control over justice.
- Upholding Treaty Obligations: The African Charter must be enforced as binding law, not treated as a symbolic document.
- Reforming Legal Education: Law schools and the Nigerian Bar must promote human-rights-based learning instead of replicating British imperial reasoning.
- Legislative Action: Lawmakers should move to outlaw any doctrine that legitimizes unlawful state conduct.
Decolonizing justice is not an academic idea it is a necessary step toward saving Nigeria’s judiciary from moral and institutional decay.
Conclusion: Justice or Colonial Continuity?
The application of male captus bene detentus in Nnamdi Kanu’s case represents more than a technical misjudgment it symbolizes a judiciary still chained to its colonial past.
If Nigeria truly seeks to uphold justice and the rule of law, its courts must stop defending illegality under the guise of procedure. The Supreme Court should serve as the final guardian of liberty, not the final echo of empire.
As Osinbajo warned, “Decolonizing the justice system is not rhetoric; it is the only path to preserving the soul of our democracy.”
The question now is: Will Nigeria’s judiciary listen before justice itself becomes a casualty of colonial continuity?
