The male captus, bene detentus rule is an old principle of law that gained prominence in the 19th Century across the United States of America (USA) and some European countries. The rule, which translates as ‘wrongly captured, legally detained’, seeks to balance the need for due process with the imperative of ensuring justice for everyone involved in a criminal disputation. It aims to ensure that a defendant, especially one accused of grave crimes, is not allowed to evade prosecution solely because the process of their arrest, detention or presence in court was flawed.
Nnamdi Kanu came to national attention towards the end of 2014 when he formed the Indigenous People of Biafra (IPOB), an organisation dedicated to forcing the secession of the Igbo people from Nigeria. Before he formed IPOB, Kanu was a lieutenant of Ralph Uwazurike, another Igbo agitator, who had previously formed the Movement for the Actualization of the Sovereign State of Biafra (MASSOB).
Matters eventually inevitably came to a head in October 2015 when the government of former President Muhammadu Buhari arrested and charged Kanu with terrorism related offences. He was kept in custody until 2017, when he was admitted to bail with stringent conditions. However, shortly after he was granted bail, Kanu fled from Nigeria, claiming his life was in danger because of a military operation conducted by members of Nigeria security service in his village during which his family home was ransacked. Kanu claimed he had to leave Nigeria because the military operation targeted him for annihilation. In 2019 his bail was revoked having repeatedly failed to present himself in Court for continuation of his trial and he was declared wanted.
Kanu was in exile from 2017, traveling across different continents, until the 19th of June 2021 when he was reportedly abducted in Nairobi by agents of the Government of Kenya and repatriated to Nigeria where he was subsequently re-arraigned to continue his aborted trial.
Upon his re-arraignment in 2021, Kanu filed a preliminary objection to his trial on the ground that, amongst others, his extraordinary rendition to Nigeria has robbed the Nigerian courts of jurisdiction to try him. The high court dismissed his claim. Dissatisfied, Kanu filed an appeal to the Court of Appeal which found in his favour and held that the extraordinary rendition of Kanu to Nigeria effectively deprived courts in the country jurisdiction to try him. The charges against him were accordingly discharged by the Court.
The Nigerian government appealed Kanu’s discharge and in the judgment of the Supreme Court (SC) dated 15 December 2023, the SC reversed the Court of Appeal judgment, directing that Kanu should face his trial. In the said SC judgment (Federal Republic of Nigeria V. Nnamdi Kanu- (2024) 11 NWLR (Pt. 1949) 231), the SC gave several compelling explanations for its decision on the matter in a manner that ought to have put the issue to bed.
However, at the conclusion of the prosecution’s case against Kanu in July this year, Chief Kanu Agabi (SAN), Kanu’s lead defence counsel, made a no case submission and invited the court to discharge Kanu of all the charges. Chief Agabi stated that the evidence adduced by the prosecution, taken at its highest, has not discharged the burden placed on the prosecution to prove the essential elements of the charges against Kanu. In addition, the Learned Silk argued that the fact that Kanu was extraordinarily rendered to Nigeria has ipso facto nullified the Nigeria’s court jurisdiction to prosecute him.
On Friday 26 September 2025, Hon Justice JK Omotosho of the Federal High Court, Abuja Division, dismissed Kanu’s no case application and held that he does have a case to answer and should proceed to defend the charges against him. However, His Lordship declined to go into the details of the extraordinary rendition element of the defence argument, stating no evidence of such was placed before his court.
This writer intends to make the argument, using the male captus, bene detentus rule, that it is in the public interest that the case against Nnamdi Kanu proceeds to trial despite the manifest irregularity of his repatriation to Nigeria.
But first what is extraordinary rendition?
There are several but identical legal definitions for this concept, but we shall adopt the definition provided by brittanica.com which defines Extraordinary rendition as the practice of transferring a detainee to a foreign country for detention and interrogation, often bypassing the legal safeguards and human rights protections that would otherwise avail the detained person in the transferring country. In some instances, it may involve capturing an individual of interest in a foreign country and transferring them to a third country where they would be interrogated without human rights restraints.
Thus, extraordinary rendition typically involves two or sometimes three countries. The first country is the country interested in the individual, accusing the person of involvement in some grave crimes, usually terrorism related offence but doesn’t want them interrogated or tried on its soil. The second, is another country where the individual of interest may be resident or otherwise passing by at the time of capture, and the third country is the country which has availed the first country the right to interrogate the individual on its soil to circumvent the legal protections available in the first country. In some instances, the second and third countries may be the same country.
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Given this, it becomes clear that legally speaking, Kanu’s abduction from Kenya does not meet the criteria of an extraordinary rendition. Kanu is a Nigerian. He was undergoing a lawful trial in Nigeria before escaping from jurisdiction. Unlike the example of the USA transferring suspects to third countries, Nigeria wants Kanu back in the country and has no interest in transferring him to a third country for either interrogation or trial. Thus, this writer argues that Kanu’s case isn’t a classic extraordinary rendition case, even if the repatriation from Kenya remains an irregular one.
The argument for male captus, bene detentus rule in the Nnamdi Kanu’s case.
The male captus, bene detentus rule gained prominence in the 19th century and seeks to balance the need for due process with the imperative of ensuring justice for everyone involved in a criminal disputation. The rule aims to ensure that a defendant is not allowed to evade prosecution solely because the process of their arrest, detention or presence in court was flawed. The courts in the USA favour this rule whilst the jurisprudence in the United Kingdom which previously opposed this rule is now beginning to have a more nuanced approach to it.
The locus classicus in the USA is the 1886 case of Ker v Illinois 119 US 436 (1886). Ker, a US citizen was alleged to have committed some crimes in the state of Illinois for which he was declared wanted. He fled to Peru where an agent of the US government forcibly abducted him and rendered him to Illinois to face trial, after which he was convicted of the crimes. His appeal ultimately reached the US Supreme Court which held that:
“Mere irregularities in the manner in which [Ker was] … brought into the custody of the court did not entitle him to escape prosecution’’.
The SC Court stated that the proper remedy for the breach of international law was at the diplomatic level, and the physical presence of the accused before the Court, no matter how he had been brought there, sufficed to validate the proceedings. The implication of the Ker’s case was that the illegality of the defendant’s abduction and repatriation to the US would not prohibit the domestic Courts in the US from exercising jurisdiction over the case. Several cases in the US have since been decided based on the Ker’s judgment. These includes United States v Alvarez-Machain 31 ILM 902 (1992) and a host of other cases.
In the French case of Re Argoud (1965) 45 ILR 90, the French Court of Cessation (Supreme Court) held that a French national wanted in France and who was abducted in Germany and brought to Paris could be tried despite the illegality of the act and that the illegality of the accused abduction did not rob the Court of jurisdiction.
Although historically, the male captus, bene detentus rule did not enjoy the approval of British Courts- see especially Bennett v Horseferry Road Magistrate’s Court and another [1993] 3 All ER 138, nevertheless, even UK Courts have begun to accept that interest of justice would not be served if a defendant is allowed to escape prosecution for grave crimes just because of procedural irregularities of bringing them to Court. This was the decision in R v Mohammed [2006] EWCA Crim 1880. The accused was arrested in India and brought to the UK to stand trial without following proper extradition procedures. He was charged with several serious offences in the UK and the Court found as facts that formal extradition procedures between India and the UK were not followed; that the UK authorities were aware that the correct procedures were not followed and that the repatriation of Mohammed to the UK was thus contrary to international law and all applicable treaties.
Although the court expressed strong disapproval of the process of Mohammed’s return to the UK, it nevertheless allowed the trial to proceed, ruling that the English court’s jurisdiction was not ousted just because the defendant was brought to the UK illegally. Despite the irregularity in his capture and transfer, the court upheld his detention and allowed the prosecution to proceed, ruling that the illegality of his apprehension did not affect the jurisdiction of the court to try him.
The courts, both in common and civil law jurisdictions, it appears, are increasingly reluctant to allow a defendant charged with serious crimes rely on procedural irregularities to escape justice. This writer supports the view that in exceptional circumstances, especially in cases of terrorism and others hinging on national security, the overall interest of justice demands the prosecution of certain offences irrespective of the flaws in the manner the defendants are brought to court.
Several contemporary writers and jurists endorse this approach. Geoffrey Robertson (QC) a well-respected Barrister and writer advocates for a balanced approach to the matter. In his book, ‘’The struggle for global justice” Oxford University Press (2012), although he did not explicitly advocate for male captus, bene detentus rule, he nevertheless recognises the fact that strict adherence to traditional rule of law considerations may serve the very opposite of rule of law. Thus, in limited circumstances, argument may be made for the prosecution to be allowed to proceed even if the defendant was irregularly apprehended.
Antonio Cassese respected Italian jurist and former President of the International Court for the Yugoslavia (ICTY) and the Special Tribunal for Lebanon was less coy on his view on male captus, bene detentus rule. In his book, ‘’International Criminal Law, 2nd ed., Oxford University Press, 2008’, Cassese argues that “the legitimacy of international criminal tribunals lies not in the regularity of the apprehension, but in the fairness of the proceedings and the opportunity for the accused to defend themselves.”
Another authoritative figure on International Criminal Law, Williams Schabas, in his book, ‘An Introduction to the International Criminal Court 5th ed., Cambridge University Press, 2017 also supports the male captus, bene detentus rule.
This writer remains of the view that in the main, executive actions in the investigation of cases must comply with human rights principles and fully agree with the dictum of Lord Bridge in the Horseferry case (above) that:
‘There is no principle more basic to any proper system of law than the maintenance of the rule of law itself … To hold that the court may turn a blind eye to executive lawlessness … is, to my mind, an insular and unacceptable view’.
Yet, in exceptional and grave cases bothering on terrorism, war crimes, crimes against humanity, genocide etc, this writer also remains firmly convinced that procedural irregularities should not allow anyone accused of such crimes to escape justice. To do so will engender impunity for serious crimes and endanger national security. In cases of this nature, what should occupy the mind of the court is the principle outlined in the Attorney-General of the Government of Israel v Eichmann (1961) 36 ILR 5 to wit;
‘The illegality of a defendant’s apprehension should not automatically invalidate his subsequent trial, as long as the tribunal itself has proper jurisdiction and the trial is conducted fairly. The Court should focus on the gravity of defendant’s crimes because the interest of justice outweighed the irregularities in such defendant’s capture which is individual right’
In criminal law, crimes are committed against the totality of the society and not just the victim. That is why it Is the State that prosecute crimes and not the victim. The essence is for the State, as the guardian of social order, to step in and maintain society’s confidence in the system. Kanu’s case involves balancing individual human rights against the public interest to prosecute individuals accused of heinous crimes. In cases of this nature, the court must weigh Kanu’s fundamental right against the State’s obligations to safeguard national security, justice for victims of alleged crimes and the need for deterrence.
Nnadi Kanu has pleaded not guilty to the charges against him. The prosecution has concluded its case against him. Kanu now has the opportunity to prove his innocence. Kanu has the benefit of being represented by some of the sharpest legal minds in Nigeria and in a trial that is open, free and fair. The most enduring restoration of his reputation is for the judicial process to ultimately confirm his innocence and acquit him of all the charges against him. And if found guilty, he should face the consequences of his actions.
Adebayo Kareem
