El Zakzaky’s Continued Detention is an Invitation to Anarchy
“IT IS NOT IN THE GOOD IMAGE OF THE EXECUTIVE, TO LOSE A MATTER IN COURT, AND GO ON A DESTRUCTION VOYAGE OF SELF- HELP, IN THE NAME OF PUBLIC INTEREST”
ILawlessness n the past three years and counting, diverse analysts and interest groups have persistently condemned the Federal Government of President Muhammadu Buhari for its arbitrariness and lawlessness, in the handling of the legal matters involving the leader of the Islamic Movement of Nigeria (IMN) Sheikh Ibraheem El Zakzaky (and his wife, Zeenat), and the former National Security Adviser, Colonel (Rtd) Sambo Dasuki. These concerned citizens and persons have also described as lawlessness and an abuse of court process, for a Federal High Court Judge to grant from the backdoor the ex- parte order to the President, to proscribe the Islamic minority groupShiites Islamic Movement, only because the members protested the unlawful detention of their leader by the President for over three years, against a binding bail order of the same Federal High Court.
The apt description of the declaration as a terror group by government, of the IMN, is to properly contextualise it as an act of despotism, and this incredible and primitive act of lawlessness by a government in a supposed 21st century constitutional democracy, has left this writer as well as most other objective observers, to wonder why the Federal High Court whose bail orders the President disrespected, could at the same time let itself be used as an instrument of authoritarianism in seeking to criminalise civil protests by the Shiites Islamic group. "The action of the Federal High Court in granting the 'jankara market' injunction against Shiites Islamic Movement, is a great disservice to our constitutional democracy and will harm the image of the judiciary for a long time to come".
Mr Abubakar Malami
There is also corresponding similarities in these persistent violations of orders of competent courts of law, and the tendencies of the immediate past AttorneyGeneral of the Federation, in actively undermining the judicial powers of the Federation as encapsulated in Section 6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
This writer specifically carpets the Ministerial designate, Abubakar Malami, the ex-Justice Minister, for defending his unjust and illegal counsel to President Muhammadu Buhari to disobey court orders releasing on bail the duo of El Zakzaky/wife and Colonel Dasuki. The best way to call the performance of
Malami at the ministerial confirmation hearing, is to describe it as the 'display of the arrogance of power'; even as it is relevant that Malami and those in the corridors of power displaying monumental and crass irresponsibility and arrogance, are reminded that political power is transient.
In recent conversations at a meeting of our human rights group- Human Rights Writers Association of Nigeria (HURIWA), we reached a considered position that, these attitudes of violations of binding orders of the courts by government, amounts to direct invitations to anarchy.
Recall that at the just ended but globally repudiated Senate's screening on Friday, July 26, 2019, the immediate past Attorney-General of the Federation, Mr. Abubakar Malami, justified the continuing detention of certain persons in disobedience of several court orders. Quoting him verbatim:
Throwing the first salvo, was the ever vivacious and highly learned Minority Leader, Senator Enyinnaya Abaribe. Then Malami, in his magisterial arrogance which stinks of impunity, spoke of Sections 36, 37, 39, among others, of the Constitution as it relates to the rights of individuals which he
believes as follows: "I have a responsibility to protect. I concede that I have a responsibility to or I have had a responsibility as the AttorneyGeneral of the Federation to protect individual rights. But, looking at the provisions of Section 174 of the Constitution of the Federal Republic of Nigeria, I want to reiterate and state further that, the office of the Attorney- General is meant to protect public interest, and where the individual interest conflicts with the public interest, the interest of one hundred and eighty million Nigerians that are interested in having this country integrated, must naturally prevail, and I think that position has been very well captured by the Apex Court as stated in the case of Alhaji Asari Dokubo v the
Federal Government of Nigeria, that where an individual interest conflicts with the public interest, the public interest naturally prevails”.
This incredible statement couldn't have naturally come from a third year law student, but it's unbelievably unimaginable that the man who unleashed these venomous illiteracy, is a supposed Senior Advocate of Nigeria who held a high position of the Federal Attorney-General and Minister of Justice from 2015 to 2019, and is on the verge of re-emerging as the AGF for the second term, in Buhari's last constitutional tenure in office.
It is important to begin, from the premise of Mr. Malami. The so-called Section 174 Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended), does not confer unlimited powers, but only gives the Attorney-General of the Federation wide powers in very limited area, namely to “institute and undertake criminal proceedings'', “take over and continue any such criminal proceedings”, and “discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person”. Section 174(3) CRN then clearly states that:
“In exercising the powers under this section, the Attorney- General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of the legal process”.
Moreover, it is obvious from the foregoing provision, which unfortunately has been twisted by Mr. Malami, that the discretion of the Attorney-General cannot interfere with a conclusive judicial decision like a judgement or order. The power of the Attorney-General under Section 174 of the CFRN, certainly does not extend to deciding whether or not a party who has been granted bail, should be released or not. The opinion and practice of the former AGF is not only misconceived in law, but also an affront on the court, which a law officer should not be associated with. These are legal positions, that meet global thresholds.
Asari Dokubo’s Case
The case of Alhaji Asari Dokubo v Federal Government of Nigeria cited by Mr. Malami, does not support his position in any way. First and foremost, it must be mentioned that both the Federal High Court and the Court of Appeal REFUSED the bail of the Defendant in that case, and the eventual decision of the Supreme Court was based on two KNOWN principles of law: the criteria for grant of bail, and the rule that an appellate court would not interfere with a concurrent finding of lower courts. It was the decision of the court, not to grant bail.
The case is quite different from the situation being dishonestly propounded and dangerously brandished, by the present
day government. This, again, raises the question of whose duty and responsibility it is, to determine what public interest is? This is purely a legal question, which only the courts have powers to answer.
It must be stated that, judicial powers in Nigeria are vested in the courts by virtue of Section 6(1) of the CFRN, and not the executive arm of government. For avoidance of doubt, Section 6(6) of the CFRN clearly outlines the items to which the judicial power relates to, including all forms of dispute. It is not in the good image of the executive, to lose a matter in court, and go on a destruction voyage of self-help, in the name of public interest.
Refusal to obey a court order, is contempt of court and no more. It is equally not logical to cite the decision of a court, as the basis for disobeying the decision of another court. The known law is that, however stupid a decision of a court is, it has to be obeyed. The options left to an aggrieved party are either to apply to set it aside, or appeal against same. Anything otherwise, is contempt of court, which is an invitation to anarchy.
In the case of Louis B Ezekiel Hart v Chief George I Ezekiel Hart, the Supreme Court of Nigeria held thus: “It is contempt to disobey a judgement or order..... To allow Court orders to be disobeyed, would be to tread the road towards anarchy. If orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn .... If the remedies that the Courts grant to correct... wrongs can be ignored, then there will be nothing left for each person, but to take the law into his own hands. Loss of respect for the Courts will quickly result into the destruction of our society.”
The primary way in which the law guarantees both individual rights and the public interest, is by granting the right of every individual to certain basic rights. The secondary way in which the law maintains a balance between individual rights and the collective or public interest, is to specifically provide for individual rights subject to broad range of exceptions. This is the pattern in every society’s legislation, be it the grundnorm, primary or subsidiary legislation. Also worthy of note is that, public interest does not exist in vacuum, it is the aggregate interpretation of law or set of laws, and not some arbitrary practice or display of personal idiosyncrasy of a leader. Public interest does not derogate from, but aligns with the rule of law, otherwise the enforcement of any such so- called “public interest”, will be a negation of the will of the people who are assumed to be the makers of the law. "
Ex-parte Declaration of IMN as a Terrorist Group Therefore, based on the above legal opinion, this writer absolutely condemns in its entirety, the decision of the current administration to persistently disrespect court orders on these citizens. Also, the decision to procure an ex-parte declaration of Shia as a terrorist group and proscribe it, is a breach of the Constitution which guarantees freedom of religion in Chapter 4 of the Constitution.
The current Nigerian President, Muhammadu Buhari, therefore, stands accused of abuse of office by using undue advantage of his office to de-legitimise a group of the same faith group, only because they are minority, whereas, the President is Sunni which is majority amongst the Islamic faith group. This declaration of the IMN, is an attempt to use the powers of the Nigerian State, to achieve the personal agenda of a religious group opposed to Shia.
Adding salt to injury, which is absolutely vexatious, the President, Muhammadu Buhari, has pressed on with the draconian declaration of a religious body – Shiites Islamic Movement of Nigeria as a terrorist group, through an ex- parte order from a Federal High Court, and his officials are issuing threats to the Shiites members, just as this should be a moment of introspection to remind the Nigerian President that no law allows his administration to kill civilian protesters under whatever guise.
This reminder is a response to the blanket statement by the President and the Inspector General of Police, Mohammed Adamu, that the members of the outlawed IMN, having been so declared a terrorist group, “can be dealt with anyhow the armed security forces so wishes”.
The statement from the duo is irrational and unconstitutional, and the Federal Government is warned not to turn Nigeria into a Banana Republic.
This is because political leaders of Nigeria at all times, and heads of security forces are bound by international human right laws, and must comply with the rules of engagement, because extra-legal execution of totally unarmed civilian protesters amounts to grave crimes against humanity, for which perpetrators would sooner or later, face global crimes court for these atrocities.
The way it is in international law, even the use and application of torture by security forces, is absolutely prohibited under municipal and global human right laws, just as the group insists that the Nigerian Government has a duty to also ensure that right to human dignity is extended to all citizens, including even those in conflict with the laws. Section 31(1) of the CFRN guarantees right to life, and only allows competent courts of law to determine offences that are under capital sanctions of the law, and not brute force.
As this writer watched the officials from the office of the President and the IGP making threats against the members of IMN, it is relevant to reiterate my absolute condemnation of the discriminatory ban of the constitutionally guaranteed right to freedom of movement, association and peaceful assembly of those Nigerian citizens loyal to the Islamic cleric, Sheikh Ibraheem El Zakzaky, over his prolonged illegal detention, stating that it is a misconception for the President and the Security Chiefs to think they can hide under the excuse that Shiites Islamic movement is classified as a terror group, to open fire with lethal weapons on protesting civilians who are unarmed. “Any violator of the right to life, will pay for the crime”.
“May I caution President Buhari, not to think that his friend who is the President of an International Criminal Court in The Hague, Netherlands can shield him from facing international justice, should the widespread killings by police/soldiers of unarmed Shiite demonstrators, continue. Both himself and all the Security Chiefs could be made to face international justice.” Reminders This writer wishes to remind Government that, under military laws, the Nigerian Armed Forces when deployed for either internal or external operations, are bound by the laws of war and international law, in the conduct of the operations.
Also, an aspect that should be reminded and brought to the knowledge of Government, is that the laws regulate and limit the conduct of operations by acting as checks against arbitrary use of force, just as the human rights threshold demands that Government must abide by the global best practices.
“This writer wishes to remind Government that, from the available legal body of knowledge, these human right laws are intended to minimise unnecessary suffering by combatants and non-combatants during war. The laws of war and international law, are therefore, sources of military law in Nigeria, and include the following: The four Geneva Conventions of 1949; the two Additional Protocols of 1977 to the Geneva Conventions of 1949. Multilateral and bilateral agreements to which Nigeria is a signatory, and have bearing on military service or operations. The decisions of ICC.”
"The four Geneva Conventions of 12 August, 1949 for the protection of war victims are as follows:
a. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
b. Geneva Convention for the Amelioration of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
c. Geneva Convention Relative to the Treatment of Prisoners of war.
d. Geneva Convention Relative to the Protection of Civilian Persons in Time of War.”
“The two Additional Protocols of 1977 to the Geneva Conventions of 1949, are to supplement the 1949 Geneva Conventions and modernise the laws of war. Protocol I deals with the laws of war in international armed conflicts, while Protocol 2 addresses the laws of war applicable in internal armed conflicts.”
The Muhammadu Buhari-led government, should know that, even military law scholars have voiced the law-based opinion, that it is noteworthy that the four Geneva Conventions and the two additional Protocols of 1977, have been formally given effect in Nigeria by the enactment of the Geneva Conventions Act Cap G3 Laws of the Federation of Nigeria 2004.
In sum, the Conventions and Protocols which are now an Act of the National Assembly, elaborately spell out the laws of armed conflicts on the use of force, and the legal implication of disregarding rules regulating the means and methods of warfare, among other things. Specifically, Section 3 of the Act provides for trial and punishment for breach of the Geneva Conventions as follows; a. In case of grave breach involving wilful killing of a person protected by the Convention, sentence of death. b. In any other such grave breach, imprisonment for 14 years.
Constructively, both local and international human rights groups, are keenly watching and taking records of the ongoing military atrocities targeting civilian protesters, including members of Shiites and the Indigenous People of Biafra (IPOB). The Muhammadu Buhari-led Government, must not create another spectacular terrorist group, through her coordinated acts of cruelty and illegality against the Shiites Islamic Movement.
Government must release the illegally detained Sheikh Ibraheem El Zakzaky (and his wife), now.