Balancing human rights and national security (2)

*REFLECTIONS:* *#FreeZakzaky Campaign Committee will today bring to you the second of a series of four articles that will thoroughly analyze the judgement of the Federal High Court, Abuja ordering the release of Sheikh Zakzaky and the incoherent contemptuous reaction of Buhari’s government through his aides. Analysis was by Festus Okoye, one of the lawyers standing for Sheikh Zakzaky and the Islamic Movement in Nigeria. Happy reading* 👇🏼

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*Balancing human rights and national security (2)*

_by FESTUS OKOYE_

Before dealing with some of the weighty issues relating to the continued detention of Sheikh Ibraheem Zakzaky and his wife, Zeenat, on ground of “balancing” human rights and national security, it is important to clear some preliminary issues.

There is a rebuttable presumption that the Minister of Information and Culture, Alhaji Lai Mohammed, has read the judgement of the Federal High Court, Abuja delivered on the 2nd day of December 2016 by the Hon. Justice Gabriel Kolawole relating to the detention of Zakzaky and his wife. I say this because I presume that the Hon. Minister must have perused the said judgement before propounding the “balancing theory of human rights and national security”.

I am fortified in my assumption because it will be unfortunate if the Hon. Minister made the comments that he made without the benefit of reading the judgement delivered by a Judge of the Federal High Court.

There is also a rebuttable presumption that the Hon. Minister of Information and Culture has read and is abreast of the Supreme Court judgement in the case of Gov.; of Lagos State v. Ojukwu (1986)1 NWLR (Part 18)621. If he has read the said judgement delivered in 1986 at the height of military rule in Nigeria and still maintains the position that in a democratic Nigeria, the Executive has the right to edit, abridge, violate and or treat the orders of a properly constituted courts of law with impunity then, we have not learnt the correct lessons from our recent past.

I will as much as possible detach myself from the findings, conclusions and orders of the Hon. Justice Kolawole relating to the detention of Zakzaky and his wife and allow my Lord the Hon. Justice Kolawole to respond to the issues raised by my friend the Senior Special Assistant to the President on Media and Publicity, Garba Shehu, and as amplified by the Hon. Minister of Information and Culture, Mohammed. The suit filed by Zakzaky and his wife had three respondents.

The 1st respondent was the State Security Service, the second respondent was the Nigeria Police Force and the third respondent was the Attorney General of the Federation. In his judgement of the 2nd day of December 2016, Justice Kolawole first reflected on the constitutional and legal prognosis of keeping a Nigerian citizen in “protective custody”.

“Let me pause here and state that when I reflected on the submissions of the 1st and 3rd respondents’ counsel, I also contemporaneously pondered on the submissions of the applicant’s counsel, and out of sheer judicial curiosity, I asked myself these questions: To hold or detain the applicant and his wife in a “protective custody” for their own safety was a power exercised based on what provisions of the Constitution?

This is because, the thrust of the applicant’s counsel’s submissions, was that the concept of “protective custody” for an adult citizen, is unknown to any law in Nigeria. Secondly, has the 1st and 3rd respondents produced evidence of any security reports on the basis of which the applicant and his wife were held, based on the depositions in the applicant’s “Further and Better Affidavit” against their wish?

Thirdly, I have not been shown any police “incident report” of any complaint lodged by any member of the public who lives within the neighbourhood of the applicant’s residence which indicate that the applicant has become a “public nuisance” to the neighbourhood. Fourthly, prior to the events of 12th/14th December, 2015, does it not appear, that it was the alleged act of soldiers, ostensibly of the Nigerian Army that may have precipitated the unrest within the applicant’s neighbourhood because, by the deposition of Ayodeji Ibitoye in paragraph 9 of the 1st and 3rd Respondents’ “Counter-Affidavit”, the “Boko Haram” group “had operated quietly just like the Islamic Movement of Nigeria members”.

These are issues which the 1st and 3rd respondents’ counsel needs to address in order to overcome the burden of proof which the applicant’s suit has shifted on the respondents.

These are some of the thorny issues which must be effectively interrogated vis-à-vis the disposition documentary exhibits produced to prove and to disprove the allegations which formed the kernel of the applicant’s cause of action as it’s depicted in the “affidavit in support of the Originating Motion on Notice.”

On the consequences of the continued detention of Zakzaky and his wife “in protective custody”, Justice Kolawole responded thus in response to the arguments of the counsel to the State Security Service and the Attorney General of the Federation.

“The 1st and 3rd respondents counsel submitted that the applicant “is in a protective custody to save his life and the lives of a good number of Nigerians in case the applicant should die”.

Again, when I read this submission, my thought goes to the fact as deposed in paragraph 9 of the 1st and 3rd respondents’ “Counter-Affidavit”, that the death of the former leader of “Boko Haram”, Mohammed Yusuf ignited the gory and horrendous campaign of violence which the said group had unleashed on Nigeria since 2011 because, he reportedly died whilst in the custody of the Nigeria Police Force.

The same repercussion, I dare say, may only occur by my assessment of the facts in the instant case, if the applicant (I pray that this never occurred to him) were to die, either when his residence was allegedly invaded by soldiers with sporadic shootings in which three of his sons were allegedly killed, or if he had died whilst in transit between the Nigerian Army who captured him after the invasion of his residence and of his being handed over to the 1st respondent, or whilst in the custody of the 1st respondent.The prognosis of the likely incidents of his being held in a “protective custody” since 15/12/15 may not occur, if the applicant, for instance, dies from natural causes or due to old age, or in circumstances which could never have been attributable to the state or any of its agents.

So, in my view, greater risk is run and undertaken by the 1st and 3rd respondents in keeping the applicant in a “protective custody” when there is no evidence of a request which he himself has made to that effect to the 2nd respondent as the umbrella body that has primary responsibility under the Police Act, Cap. P.19, LFN 2004 to protect lives and properties of every Nigerian and to maintain law and order. Where the applicant on his own, or convinced by such security reports (none of which was produced to this court to see, even if in camera in the context of the provision of Section 36(4) (b) of the CFRN, 1999 As Amended) produced by the 1st respondent that his life is in danger, may apply to the 2nd respondent for “police protection” from such threats, and not to be confined with his wife in a “protective custody” as was being argued by the 1st and 3rd respondents’ counsel”.

On the issue of whether a Nigerian citizen can be held in protective custody against his wish, Justice Kolawole surmised thus: “The primary question which the 1st and 3rd respondents’ counsel is yet to answer and perhaps, overcome as a legal hurdle, is to cite the law, whether by the 1st respondent’s enabling Act, i.e. the National Security Agencies Act, supra or the provisions of the Constitution, by which a citizen can be held, against his wish in a “protective custody” when, prior to the incident of 12th/14th December 2015, there had been no report of any threat to his life brought to his attention, nor of any compliant or report lodged with the Police Force Division in his neighbourhood of plans by his “disaffected” neighbours to want to attack and kill him.

It really does not matter in my view, the quality of welfare attention which the applicant may be enjoying in the custody of the 1st respondent, the question is: Is there any evidence, based on the ‘Affidavit” and “Counter- Affidavit” filed by both parties to prove that the applicant consents to his being held ostensibly for his own interests?

When I read the depositions in the “Further and Better Affidavit” deposed to by Abubakar Marshall, I am unable to accept the view, that the applicant consents to his being detained in the custody of the 1st respondent.” Having cleared the constitutional and legal hurdle of “protective custody Justice Kolawole proceeded to show that he understands the intersection between human rights and national security. What orders did the Judge make and what are the implications of the continued detention of Sheikh Zakzaky and his wife, Zeenat?

*_to be continued_*

This discourse was published in:
*New Telegraph Newspaper*
_Sanctity of Truth_

 

*Brought to you by #FreeZakzaky Campaign Committee, June 2017.*

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