The Federal Government must release the leader of the Islamic Movement in Nigeria, also known as the Shi’ite sect, Sheikh Ibraheem El-Zakzaky, and his wife, Zeenat, from detention into an accommodation that must be provided for them within 45 days, a Federal High Court in Abuja ordered on Friday.
The sect leader and his wife arrested by the Army on December 14, 2015, have been in the custody of the Department of State Services since December 15, 2015.
Justice Gabriel Kolawole delivering a joint judgment in the two rights enforcement suits filed by the two applicants, awarded N25m each, totalling N50m, to the Shi’ite leader and his wife for the violation of their rights by being held in unlawful custody since December 14, 2015.
The judge ruled that the continued detention of the applicants violated their rights under section 35(1) of the Constitution and provisions of the African Charter on Human and Peoples Rights.
He ordered the Federal Government to provide a befitting accommodation for the applicants, their family members and followers who used to live with them before they were arrested, within the 45 days period. The judge ordered that the accommodation must be provided in Zaria, Kaduna State, or in other part of the state or alternatively in any other part of northern Nigeria.
The judge ordered that on the expiration of the 45 days period, the DSS should hand over El-Zakzaky and his wife to the Inspector-General of Police, who must delegate a subordinate not below the rank of an Assistant Inspector-General of Police to escort the applicants to their “new abode” to be provided for them by the Federal Government.
The judge also ordered that after conveying the applicants to the accommodation, the police must provide 24/7 protection for the applicants until the “unproved” security threats against the couple are removed or diminished.
The court warned that the police protection “shall not be used under any guise by the second respondent (the Inspector-General of Police) to place or confine the applicant and his wife in any form of restriction.”
It added that failure of the Federal Government to comply with its orders by releasing the applicants upon the expiration of the 45 days “shall crystalise” into a fresh course of action.
The Shi’ite leader and his wife were arrested following the violent encounter between members of his sect and soldiers in the convoy of the Chief of Army Staff, Lt.-Gen. Tukur Buratai, in Zaria, Kaduna State on December 14, 2015.
In the suit filed on their behalf by Mr. Femi Falana (SAN), the applicants alleged that they were brutally injured and their house destroyed by the Nigerian Army in Zaria after the incident.
The Army arrested the applicants on December 14, 2015 and later handed them over to the police, which further transferred them to the custody of the DSS on December 15, 2015.
The DSS, joined as the first respondent and Attorney-General of the Federation, as the third respondent to the suit, jointly argued through their counsel, Mr. Tijani Gazali, that the applicants were being held in protective custody due to alleged security threat against from their neighbourhood.
But upholding the counter-argument of Falana, whom the judge described as “an unwavering combatant” in human rights advocacy, Justice Kolawole held that no law, including the Constitution and the National Security Agencies Act, which established the DSS made provision for keeping a citizen in custody against his or her consent.
He ruled, “I have asked if the first and third respondents (DSS and AGF) have any law, whether by the provision of the National Security Agencies Act 2004 pursuant to which the first respondent (DSS) was established or the provisions of the Constitution, by which the applicant was authorised to be kept in protective custody against his wish.
“I have scrutinised the relevant provisions of the National Security Agencies Act and with microscopic judicial lens swept through the 1999 Constitution (as amended). I was unable to set my eyes on any provision. The first and second respondents’ counsel, Mr. T. A Gazali was unable to cite any to the court in order to justify the detention of the applicant since December 14, 2015 in the first respondent’s custody in what was described as protective custody.
“When I read the provision of section 45(1),(2) and (3) of the Constitution which is the provision that deals with both restriction on/and derogation from fundamental rights and which relates to the fundamental rights guaranteed by provision of sections 37, 38, 39, 40 and 41 of the Constitution, I was unable, even by the most liberal interpretation of the provisions to justify the detention of the applicant in the custody of the first respondent in accordance with the said sections 45(1), (2) and (3).”
The judge ruled that the alleged threat against the applicants’ life, on which the DSS premised their detention remained unproved.
He noted that there was not shown any security report brought to the knowledge of the couple or any complaint lodged with the police by the residents in their neighbourhood prior the December 14, 2015, to justify that the consent of the applicant was sought before their detention.
The judge ruled that the N5m which the DSS claimed to have incurred in treating the injury inflicted on the applicants was just to save the integrity of the government but did not remove its liability for violating the couple’s rights.
El-Zakzaky had sought N2bn as damages, but the judge said granting such huge amount to the applicant could portray the court as being “insensitive” to the recession in the country.
He added that more punitive damages could have been awarded against the Nigerian Army if it was joined as a party to the suit.
The Army was said to have been joined along with the AGF by El-Zakzaky and his wife in a related suit still pending before the Federal High Court in Kaduna.