Balancing human rights and national security (3) by FESTUS OKOYE

*REFLECTIONS:* *#FreeZakzaky Campaign Committee will today bring to you the third 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 (3)*

_by FESTUS OKOYE_

Sometimes, in their attempt to justify acting unconstitutionally some persons in government wrongly assume that they are the repository, custodians and interpreters of Nigeria’s national interest. Sometimes “the people in government” forget that “government” is encompassing and includes those in the Army, the Police, the Customs, the Civil Defense Corp, the Immigration Service and other military and paramilitary outfits. Sometimes “those in government” or those that assume that they are in government or in power forget that the Attorney General of the Federation is the Chief Law Officer of the Federation and the person constitutionally mandated to state and articulate the position of the government in matters relating to the law and the constitution.
My assumption is that when a citizen of the Federal Republic of Nigeria approaches the court for rights enforcement, it is the office of the Attorney General of the Federation or of the State that processes information from the “rights violator” and files papers in court to justify the rights violation on grounds of national security interests or as falling within the ambit of the derogatory exceptions in the constitution. Does it then mean that the Attorney General of the Federation or of the State is not part of those in government and cannot be trusted with security related information? Does it mean that members of the bench are no longer exercising the “powers of the Federal Republic of Nigeria”: as enunciated in part 11 of the Constitution of the Federal Republic of Nigeria, 1999(as amended)? So when it is said that the courts do not have all the information relating to why a Nigerian citizen is detained the implication is that such information has been kept away from the courts and from the Chief Law Officer of the Federation. But the Nigerian people know and “those in government” know that in appropriate situations, persons in the security service have been allowed by the courts to testify in camera. “Those in government” also know that some information bothering on national security and given in evidence before the courts have been kept away from the public and from the media. But it is the courts that make the determination on whether the evidence in question affects national security or national security interests. This is because for some people in government “everything” that affects the regime in power or anything that affects their continued stay in power “bothers on national security” and persons, groups or organisations that through their actions and utterances pock on such interests must be dealt with.
In the case of Sheikh Ibraheem Zakzaky and his wife, Zeenat, there has been tons of misinformation and misrepresentation relating to the exact orders and directions of the Federal High Court, Abuja and this has given the impression that the trial Judge treated the issue of national security with levity. In my opinion, the Hon. Justice Gabriel Kolawole had a good appreciation and understanding of the intersection between human rights and national security and this showed vividly in his ruling of the 2nd day of December 2016. Based on his understanding of the political, ideological and religious sensitivity of the suit, he advised that the suit should be settled out of court and he explained why. In his own words: “I hold the view, that courts are ill equipped with the necessary “political tools” to reach and resolve all the contending issues which pertain to this suit because, at the bottom of the crisis beginning from 12th December, 2015, was the very sensitive issue of religion and of the Islamic faith. The applicant as the leader of the Islamic Movement of Nigeria – which I understand, belongs to the “Shiite School of Islamic Thought”, and this court, without being equipped with any reliable demographic data, it seems that the greater majority of Nigerian Muslims belong to the “Sunni School of Islamic Thought”. The escalation of this crisis, I want to hazard a guess by way of obiter remarks, may have been the result of invidious, perhaps unobtrusive acts of intolerance by the greater majority of Muslims who recognise, practice, observe and belong to the “Sunni Islamic School of Thought.” But the important and fundamental issue which needs to be emphasized, is that by the provisions of Section 38(1) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended), the said Constitution by virtue of the provision of its Section 1(1) being the “grundnorm” to borrow this term or classification from Hans Kelsen (1881 – 1973) in his “Pure Theory of Law”, on which the State, which Section 2(1) of the same Constitution states that “Nigeria is one indivisible and indissoluble sovereign State to be known by the name of the Federal Republic of Nigeria” is one that recognizes and guarantees “Right to Freedom of Thought, Conscience and Religion” which right also carries with it, a concomitant right in every citizen, not only to differ when it comes to issues of faith and religion, but it includes the “right to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance”. It is in this regard, that I was of the view that this case is better settled “politically” rather than through the judicial process which by its nature, has limited capacities in being able to address fundamental issues of faith based on religion. Whilst I readily acknowledge the fact, that it is important that the State frontally and decisively addresses any issue which not only challenge its sovereign authority to maintain law, order and to promote good governance, I am of the view that the applicant’s Islamic Movement of Nigeria needs not be demonized in order to beat its leaders and numerous followers to the path where they should recognise, not only the pre-eminent status of the State in its primary obligation to maintain law and order, but for them to recognise and accept by the sheer force of the constitution, that their rights to practice whatever version of the Islamic faith they choose, ends where the rights of other millions of Nigerians, whether Sunnis, Christians and even atheists to practice and exercise their faiths begin. It is in realisation of the sensitive nature of this issue, that informed my passionate judicial plea to both the applicant’s and the 1st and 3rd respondents’ counsel to the end of the proceedings on 5/10/16, to put heads together with a view to having this case amicably settled. My invitation to both parties for settlement was not borne out of fear of being able to determine this dispute, which I can only do within the ambits of the provisions of the Constitution and extant judicial authorities, but I also recognize the fact, that the issues disclosed as facts in the processes filed and exchanged, are much more delicate, sensitive and perhaps, judicially speaking, slippery in nature”.
The State rejected the offer made by Justice Kolawole and submitted to the suzerainty of the court to determine the issues involved in the applications and the court did just that. In his ruling, the Judge never lost sight of the “sensitivity” of the matter. Rather than order the immediate release of Sheikh Ibraheem Zakzaky and his wife, Zeenat, he ordered that “The applicant and his wife shall be released within 45 days from today from the 1st respondent’s custody and shall be handed over to the 2nd respondents who shall in turn, take the applicant and his wife to the accommodation which the 3rd respondent is directed to provide pending when the applicant is able to sort himself out with the case I was told, that he filed in the High Court of Kaduna State against the Nigerian Army, whose soldiers allegedly destroyed his residence in the manner after the version of what happened some 39 years ago, against the family of the late Mr. Fela Anikulapo-Kuti in Lagos State.”. The Judge also ordered that “the 1st and 3rd respondents shall in execution of the said order, release the applicant and his wife to the 2nd respondent, the Inspector-General of Police. The Inspector-General of Police or any of its subordinate officers not below the rank of Assistant Inspector General (AIG) when he receives the applicant and his wife as ordered herein, shall take immediate step within 24 hours of receiving the applicant and his wife, from the 1st and 3rd respondents, convey the applicant and his wife under necessary security escort to their place of abode as would have been provided by the 1st respondent working in conjunction with the 3rd respondent. The 2nd respondents shall then provide the applicant and his wife, adequate Police protection which shall operate 24/7 until the alleged threats which were not proved by any admissible evidence, but left in the realm of speculation, are removed or significantly diminished.

*_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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