Citing the 1928 opinion of U.S. Supreme Court Justice Louis D. Brandeis in Olmstead v. United States, Fein stressed that governments erode the rule of law when they themselves violate it.
Bruce Fein, the United States counsel representing the detained leader of the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu, has addressed a letter to Justice James Omotosho of Nigeria’s Federal High Court in Abuja, seeking the dismissal of all charges against the IPOB leader for lack of jurisdiction.
In the letter dated October 28, 2025, and titled “Dismissal of prosecution of Mazi Nnamdi Kanu for lack of jurisdiction,” Fein argued that the Nigerian government must not profit from what he described as its own “criminality” in the circumstances surrounding Kanu’s rendition to Nigeria.
“No government should profit from its own criminality. That has been binding law from time immemorial,” Fein stated, invoking the principle that justice forms the foundation of government and civil society.
Referring to the 1928 opinion of U.S. Supreme Court Justice Louis D. Brandeis in Olmstead v. United States, Fein noted that governments jeopardize the rule of law when they choose to violate it.
“In a government of laws, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, omnipresent teacher.
“For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
“To declare that, in the administration of the criminal law, the end justifies the means – to declare that the Government may commit crimes in order to secure the conviction of a private criminal – would bring terrible retribution,” Fein quoted from Justice Brandeis’ ruling.
Fein argued that both the United Nations Working Group on Arbitrary Detention and Nigerian courts have acknowledged that the Federal Government committed “multiple crimes” in bringing Kanu into Nigerian custody, including kidnapping, torture, and extraordinary rendition.
According to Fein, these acts qualify as jus cogens crimes under international law — offenses so severe that no state can lawfully commit them — thereby stripping Nigerian courts of jurisdiction to continue prosecuting Kanu.
He referenced paragraph 107 of the UN Working Group’s July 20, 2022, opinion, which ordered the Nigerian government to ensure the “immediate unconditional release” of Kanu.
Fein also cautioned Justice Omotosho that proceeding with the case would implicate the court in the alleged illegalities of Kanu’s rendition.
“If you refrain from dismissing all outstanding charges against Mr. Kanu for lack of jurisdiction, you will be legally implicated in the crimes perpetrated by the Government of Nigeria in bringing Mr. Kanu before your tribunal,” he wrote.
“You will be vulnerable to prosecution before the International Criminal Court. You will have been unfaithful to your professional duty to see that justice is done.”
The Nigerian government has maintained that Kanu faces terrorism-related charges before the Federal High Court in Abuja, while his lawyers insist that his abduction and forced transfer from Kenya render the entire trial unlawful.
The letter comes amid an ongoing impasse in Kanu’s case before the Federal High Court in Abuja.
The IPOB leader has refused to present his defense, maintaining that the court lacks jurisdiction to prosecute him due to his extraordinary rendition from Kenya in June 2021.
Kanu’s legal team continues to argue that his forcible return to Nigeria violated both domestic and international law, making any subsequent proceedings an abuse of judicial process.
His Nigerian counsel, Barrister Aloy Ejimakor, has repeatedly maintained that the government’s refusal to comply with multiple court orders — including those granting bail and directing Kanu’s release — further undermines the court’s moral and legal standing.
Justice Binta Nyako, who handled earlier stages of the case, had ruled that Kanu must face trial despite his objections, leading to appeals and renewed motions challenging jurisdiction.
The case was eventually reassigned to Justice Omotosho for further hearings.
Kanu has remained in the custody of the Department of State Services (DSS) in Abuja since June 2021, following his rendition from Kenya by Nigerian authorities — an act already declared unlawful by a Kenyan court.
His prolonged detention and the Nigerian government’s management of his case have continued to attract widespread condemnation from human rights organizations and international observers.
Fein, a former U.S. Associate Deputy Attorney General, continues to represent Kanu on the international front and has persistently advocated sanctions against Nigerian officials over alleged breaches of international law.
