Govt, El-Zakzaky, Shiites and the Law

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On July 25, the Federal Government got a court order proscribing the Islamic Movement in Nigeria (IMN), popularly known as Shiites. Some lawyers have urged the government to reverse the ban and obey the order releasing on bail IMN’s leader Sheikh Ibraheem El-Zakzaky and his wife Zeenat, who got yesterday a court’s permission to visit India on health grounds. Will the government let him go? 

THEIR deaths on July 22, came in the heat of the Shiites protest in Abuja over the continued detention of their leader Sheikh Ibraheem El-Zakzaky and his wife Zeenat.

Deputy Commissioner of Police, Usman Umar, and Precious Owolabi, the 21-year-old Owolabi, a National Youth Service Corps (NYSC) member serving with Channels Television were hit by bullets during a clash between police and the Islamic Movement of Nigeria (IMN) aka Shiites.

They were the latest victims in a long list of others – including IMN members – who have lost their lives since 2015 when the group began protesting El-Zakzaky’s detention.

The IMN absolved its members of the July 22 killings, claiming the deceased and 11 other protesters were victims of police shooting spree.

Nevertheless, the death of the DCP and the Corps member started an outpouring of grief on social media, which became the straw that broke the camel’s back.

On July 25, a day after Owolabi’s burial at Wusasa Cemetery in Zaria, Kaduna State, the Federal Government obtained a court order to proscribe the IMN.

Justice Nkeonye Maha of the Federal High Court in Abuja issued the order, following an ex parte application in the name of the Attorney-General of the Federation.

The judge upheld the government’s prayers and designated the activities of IMN in any part of the country “as acts of terrorism and illegality”.

The court restrained “any person or group of persons” from participating in any form of activities involving or concerning the IMN “under any name or platform” in Nigeria.

In compliance with the order and to complete the proscription process, the Federal Government published the order proscribing the IMN in the official gazette and national dailies on July 29.

El-Zakzaky and IMN

“On 20th August, 1980, El-Zakzaky was reported to be circulating in the Northern states, pamphlets captioned: ‘Fadakarwa ga Musulmin Nigeria’ (A call on Nigerian Muslims) in which he condemned the Nigerian Constitution for being anti-Islamic, called for Islamic revolution, and urged Islamic students to rise against the Federal Government. He also demanded the recognition of Shariah Law. El-Zakzaky is reported to have visited, on several occasions, and he recently returned from Iran where he was said to have received training in planning and executing students’ unrest.”

An excerpt from the Justice Anthony Aniagolu Tribunal Report on the Maitastine Crisis submitted on April 14, 1981 to the Alhaji Shehu Shagari led Federal Government of Nigeria.

The Islamic Movement of Nigeria is a Shia sect with close ties to Iran based in Zaria, Kaduna State. It began in the 1980s and is led by El-Zakzaky, a 66-year-old from Zaria, Kaduna State, who was inspired by Iran’s revolutionary movement.

Nigerian Muslims are historically Sunnis. The IMN is the country’s most visible Shiite Muslim movement and, although it claims to have two million members, the figure is unverified. Analysts believe the IMN is a minority of the country’s Muslim population.

According to Nnamdi Obasi, a Senior Analyst on Nigeria at the International Crisis Group (ICG), the IMN’s goals are two-fold: “to ensure more stringent application of Islamic legal and administrative systems…then ultimately to create an Islamic state in Nigeria”.

Allegations of violence

Just like the Justice Anthony Aniagolu Tribunal Report said, El-Zakzaky’s and IMN’s disagreements with sidents of cities where residents often accuse the group its members of obstructing traffic, threatening and intimidating road users, among other acts of violence.

The group, however, said it is peaceful. It describes itself on its official website as a “movement for the establishment of fairness and justice to all, irrespective of tribe, race, region or religion…through the practical implementation of the teachings of Islam, from the Shi’a school of thought, while seeking the pleasure of Almighty Allah…

“The movement is a non-violent and unarmed movement and it is on record that none of its followers has ever been convicted of any crime by a court of law in its 40 years of history.”

Notwithstanding IMN’s profession of peace, international rights watchdog Human Rights Watch have questioned the group’s claims.

“Although Zakzaky’s supporters claimed that he does not advocate or encourage violence, he has been involved in several previous clashes with security forces. In the mid-1980s to late 1990s, he was detained many times by successive military regimes for his anti-government rhetoric and for advocating an Iran-style Islamic revolutionary government in Nigeria. In a deadly September 2009 clash with police in Zaria, Zakzaky accused the government of intimidation and attempting to wipe out his movement,” Human Rights Watch stated in a December 22, 2015 report titled: “Nigeria: Army Attack on Shia Unjustified”.

The genesis of the protests

IMN’s members have, since 2016, been protesting their leader’s detention. This followed the army’s arrest of El-Zakzaky in 2015 after violence broke out on December 12, 2015 in Kaduna.

The army alleged that on December 12, El-Zakzaky led a mob that attacked and attempted to kill army officers while blocking a military convoy.

The officers, the army said, included Chief of Army Staff (COAS), Lieutenant General Tukur Buratai, who was to pay a courtesy visit on the Emir of Zazzau and attend the passing out parade of army recruits.

General Officer Commanding, 1 Mechanised Army Division, Kaduna, Adeniyi Oyebade, narrated the incident at a press conference with the then Kaduna State Commissioner of Police, Umar Shehu, on December 15.

He said: “He (COAS) was coming in from Dutse, because that same week, we held the COAS conference in Dutse, in Jigawa State. He got to Zaria at about 14.30 hours (2.30pm) and the advance security team had cleared the road up to and including the city centre. There was no problem. The same security team made a U-turn to now bring in the COAS’ convoy, which is our normal security routine whenever we are escorting our boss.

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“But shockingly enough, members of the Shi’ite sect, led by El-Zakzaky, blocked the Sokoto Road to be precise and we found that, that was unusual, but because we thought that they were being overzealous so two senior officers in the COAS’ convoy came down from their vehicles appealing to these hoodlums to please clear the road so that the COAS can go ahead with his scheduled programme.

“All entreaties, appeals to the Shi’ite sect members, in their hundreds, refused to budge. It got to the point that they started throwing dangerous missiles, stones, machete and all kinds of traditional or crude weapons I would say at the COAS convoy.

“It was at that point that it dawned on the security forces, especially the bodyguards of the Chief, including our quick response group stationed in Zaria, that this was not something that happened spontaneously. It was in our calculation premeditated and of course, whenever any VIP or any facility is under our charge, we must secure that person or the property, in this case, the COAS. And it came to the quick conclusion of the security forces that the life of the COAS was under threat and they had no other option than to force their way through the blockage, including the use of lethal weapons.

“As if that was not enough, as he was moving through, they were mobilising in their hundreds. Thankfully, the COAS was able to wade through these hoodlums.

“While this was going on…we got reports that the Shi’ite members where mobilising across Zaria in their various enclaves, shrines or what have you.

“As the GOC of 1 Division I take that very seriously that the life of the COAS is under threat and within the rules of engagement permissible by law, I had to bring the forces available to me to bring the situation under control and that was exactly what I did.

“As you all know, the Shi’ite members numbered in their thousands and they were mobilising and attacking security forces across Zaria.

“Again within the rules of engagement, we had to use the force available to bring it down and that was exactly what we did. And because of the report we had that they were mobilising at their three key strong points, including the big temple called the Hussaniyya, the area occupied by the sect leader in Gyelleus and another temple somewhere on Danbo Road, I decided that I had to bring the situation under control by securing those three sites.”

IMN disputes Army’s account

But IMN members have consistently disputed the security forces’ account of the incident. They view the murder charge against El-Zakzaky as fabricated. It said nearly 350 IMN members were unjustifiably killed in the army’s crackdown between December 12 and 14, 2015.

The IMN’s version of events is supported by the Amnesty International and Human Rights Watch.

“The killing of hundreds of Shia Muslim members of the Islamic Movement of Nigeria (IMN), by Nigerian Army soldiers from December 12 to 14, 2015, appears to have been wholly unjustified,” Human Rights Watch stated in the December 22, 2015 report.

Kaduna State bans IMN

The Kaduna State Government on October 7, 2016, issued an order declaring the IMN as an unlawful association.

The ban followed a Judicial Commission of Inquiry into the Zaria clashes of December 12, 2015, which indicted the movement as “an illegal organisation, operating an illegal paramilitary outfit and having total disregard to the laws of the country and constituted authorities that have the responsibility to secure and administer the country”.

The Declaration Order noted that since the clash between members of the movement and soldiers in Zaria, in which 347 persons were alleged to have been killed, the IMN “has overtly continued with unlawful processions, obstruction of public highways, unauthorised occupation of public facilities, including schools without regard to the rights of other citizens and the public peace and order of the state”.

The Order noted that “these acts, if allowed to go unchecked, would constitute danger to the peace, tranquillity, harmonious coexistence and good governance of Kaduna State”.

Federal High Court bail

On December 3, 2016, Justice Gabriel Kolawole of the Federal High Court, Abuja ordered El-Zakzaky’s immediate release and ordered the government to pay him N50 million damages.

The judge held that the Federal Government should release El-Zakzaky and his wife, Zeenat, from detention into an accommodation that must be provided for them within 45 days.

Justice Gabriel Kolawole rejected the submission of the counsel to the State Security Service, Tijjani Gazali, that El-Zakzaky was kept in protective custody of the SSS.

He said the decision to hold the Islamic cleric and his wife for their safety was not based on law.

“I have not been shown any incident report or any complaint lodged by residents around the neighbourhood that the applicant has become a nuisance to his neigbourhood,” said the judge.

Trial at Kaduna High Court

The Federal Government released El-Zakzaky, but to the Kaduna State Government, which filed separate charges against the cleric on May 15, 2018.

Timeline of El-Zakzaky’s trial at Kaduna

High Court

  • May 15 2018: El-Zakzaky and his wife Zeenat, were arraigned at Kaduna High Court, before Justice Gideon Kurada on charges of culpable homicide, unlawful assembly, and disruption of public peace, among other charges. Charges filed by the Kaduna State Government.
  • July 11, 2018: Court adjourned trial to August 2.
  • August 2 2018: Court adjourned El-Zakzaky’s bail application to October 4
  • October 4, 2018: Court adjourned ruling on El-Zakzaky’s bail application to November 17, 2018.
  • November 17, 2018: Court rejected El-Zakzaky’s bail application, ruling that there is no medical evidence from medical professionals to back up the application on medical grounds.
  • January 22, 2019: Justice Kurada ordered El Zakzaky and his wife Zinat to remain in the custody of the DSS, while being granted access to medical treatment in custody.
  • March 25 2019: Justice Kurada adjourned trial indefinitely as he is due to sit on the Presidential and National Assembly Elections Petitions Tribunal in Yobe.
  • Jun 29 2019: El Zakzaky and wife applied for permission to travel to Metanta Hospital, New Delhi, India for medical treatment, to return to Nigeria for the continuation of their trial once treatment is concluded.
  • July 18 2019: Justice Darius Khobo presided over the hearing and adjourned until July 29, 2019.
  • July 29, 2019: Justice Khobo adjourned till August 5, 2019
  • August 5, 2019: Court grants El-Zakzaky leave to seek medical treatment abroad.
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Does the Federal High Court bail still stand?

El-Zakzaky’s lawyer Mr Femi Falana (SAN) and several other commentators have urged the Federal Government to comply with the December 3, 2016 bail ruling and free El-Zakzaky.

The bail is also the basis of the protests by IMN members calling for their leader’s release.

But, does that bail still stand?

According to a lawyer, Femi Loy, the order for El-Zakzaky’s release has been spent and overtaken by his trial at a Kaduna High Court.

Loy, who goes by the moniker @femifrank2002 on Twitter, stated this in a tweet on July 23, 2019.

He said: “Nigerians calling for the release of Zakzaky and his wife should know that the duo are currently standing trial for murder and other offences before a Kaduna State High Court. Their Counsel, Femi Falana, SAN, has applied for bail at least twice for the duo.

“Bail, which is granted at the discretion of the judge, is usually (except in exceptional cases) not granted to persons standing trial for offences carrying death penalties, hence Zakzaky’s bail applications have been refused twice (November 7, 2018 and sometime early 2019).

“The charge sheet as it stands is between KDSG v. Elzakzaky & Zeena and not the Federal Government. They are being held in the custody of the DSS on the orders of the Kaduna High Court. The Court has also ordered accelerated hearing to speed up the hearing of the charge against them.

“All court orders asking the Federal Government to release Zakzaky and wife are pre-May 15, 2018 when the duo were arraigned, the orders have therefore been spent and overtaken by their arraignment. Hence, Zakzaky and wife are being kept lawfully, legally, and on the orders of a competent court.

“Protests (either peaceful or violent) by IMN members for the release of Zakzaky and wife are therefore illegal as they seek to subvert the administration of criminal justice system in Nigeria. Imagine if followers of Evans d kidnapper get on the streets every day to demand his release.”

Govt and El-Zakzaky protests

According to Loy, if Zakzaky and his wife are released based on protests, “Nigeria would have set an illegal and dangerous precedent for others to latch on to.

“I therefore call on Zakzaky and his wife’s counsel, Femi Falana SAN, to come out and condemn the protests by his clients’ followers, call them to order.

“Advise them to await the determination of guilt or otherwise of their leader by the court the same way followers of Rev Dr. King awaited theirs even through appeals to the Supreme Court without unnecessary protests.

“We should not stand by and watch people lose their lives for unnecessary and useless protests against the FGN or KDSG.”

The lawyer also noted that the orders of “Justice Kolawole of 2/12/2016 for the release of the duo are irrelevant to and not binding on the current trial/court. Whether or not the orders were obeyed by the FGN can only be addressed either during the appeal filed against Kolawole’s orders by the FGN or a contempt proceeding against the FGN, but definitely not by protesting against a perceived “continued detention despite order of release.

“They are being legally held under a different jurisdiction and lawful orders of a Court of coordinate jurisdiction as the Federal High Court.”

Is IMN’s ban lawful?

Leading rights activists Chief Mike Ozekhome and Falana, both Senior Advocates of Nigeria, on July 27 described the Federal Government’s proscription of the Islamic Movement of Nigeria (IMN) as illegal and immoral.

While Ozekhome said the proscription was “discriminatory”, Falana urged the Federal Government to withdraw the order.

Ozekhome said: “The proscription by the government of the Shiites religious group is highly discriminatory, unconstitutional, as was the case of the Indigenous Peoples of Biafra (IPOB).

“They (Shiite members) are demanding the release of their leader still kept in government dungeon in spite of several court orders. The Shiite group is a religious group, like the President’s Sunni group. It is not an association that could be banned.

“Section 10 of the 1999 Constitution makes Nigeria a secular state. You cannot ban religion, a people’s belief.

“There is also freedom of thought, conscience and religion in Section 38, while sections 40 and 41 allow for freedom of movement and association.

“The Constitution is ruthlessly being shredded by an intolerant and overbearing civilian dictatorship.”

For Falana, the proscription is immoral and illegal.

He noted that the IMN’s proscription by the Kaduna State government in 2016 was gazetted, yet IMN has continued to operate in defiance of the proscription.

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Similarly, he said IPOB’s proscription in 2017 by the Buhari regime via an ex parte order issued by the Federal High Court was also gazetted, but IPOB has continued to operate in spite of the proscription.

“However, in a desperate bid to prevent the Shiites from demanding for the release of their detained leader, Elzakzaky and his wife from the custody of the State Security Service, the Buhari administration has proscribed the IMN.

“Since there are millions of Shiites who belong to the IMN, the Federal Government will soon realise that it has merely driven the body underground,” Falana said.

The respected activist-lawyer recalled that in 2003, General Buhari and other members of the defunct All Nigeria Peoples Party (ANPP) held a rally in Kano to protest the rigging of the 2003 General Election.

The rally was violently attacked by the Police on the ground that the ANPP leaders did not obtain police permit.

“On the instructions of General Buhari and other the ANPP leaders, I challenged the disruption of the rally and the legal validity of police permit for rallies and political meetings at the Federal High Court. ANPP won the case.

“Apart from condemning the violent disruption of the rally by the Police, the court declared that police permit for rallies was illegal and unconstitutional. The appeal filed against the judgment by the Police was dismissed by the Court of Appeal.

“In fact, the Justices of the Court of Appeal unanimously held that the right of Nigerians to protest against the policies of the government is part of the freedom of expression guaranteed by the Constitution.

“Therefore, the proscription of the IMN for the demonstrations of the Shiites against the disobedience of court orders by the Buhari regime is immoral and illegal in every material particular,” he said.

‘Ban not against Shiite religion’

But the presidency on July 28 denied stopping peaceful and law abiding Shiites in the country from practising their religion,

Presidential spokesman, Malam Garba Shehu, explained that contrary to IMN’s claim, President Muhammadu Buhari did not ban Shiites from observing their five daily prayers and going to Mecca to perform the Holy pilgrimage.

“The IMN is deliberately changing the narrative in order to gain sympathy and divert the attention of the world from its terrorist activities, including attacking soldiers, killing policemen and a youth corps member, destroying government ambulances and public property, consistently defying authority of the state.”

Govt’s case for IMN’s ban

In its application for the proscription of the IMN, the Federal Government accused the group of carrying out coordinated violent protests in the country.

It alleged that the “aggressive activities” of members of the group had led to the loss of lives and destruction of private and public property in the Federal Capital Territory and other cities in northern Nigeria.

The Assistant Commissioner of Police in charge of Operations in the FCT Command, Nyinnaya Adiogu, who deposed to the affidavit filed in support of the application, also alleged that the Shiites engaged in series of illegal activities,  “which are inimical to the corporate interest of the Federal Republic of Nigeria.”

The group was also accused of “nefarious activities”, murder, attacks on security agents and provocative preaching and hate speeches while working towards an agenda of creating an Islamic State in Nigeria.

It noted that investment in and international tourism to Nigeria had suffered because of the July 22, 2019 “vicious cycle of violent protests” by the IMN around the Federal Secretariat (Abuja), “during which they set a sub-station/Ambulance Bay of the National Emergency Management Agency, containing a truck and an ambulance on fire.

“Both the US and UK governments have already issued travel warnings on Nigeria on account of these violent protests which are equally deleterious to foreign investments,” the government told the court.

The affidavit also stated the “nefarious activities” of the group, to include, “unauthorised blocking of public highway (especially the Zaria-Kano Highway during their processions), engagement in illegal road traffic functions, illegal roadblocks, imposition of illegal curfews and checkpoints, raids on police posts, prevention of arrest of their members, invasion of court premises to abort legal proceedings involving respondent members, refusal to submit to ordinary security checks, and attacks on security agents which led to the death of Corporal Dan Kaduna Yakubu;

“Setting up of a para-military guard known as ‘HURRAS’ through which the respondent has been terrorising local residents; respondent has also instituted unregistered security outfits and performed paramilitary ceremonies, hoisting of flag, combat exercises, parades and inspection by the respondent leader reminiscent of state authority.

“Provocative preaching and hate speeches aimed at inciting members against non-members while working towards its agenda of creating an Islamic State in Nigeria.”

What govt should do

A former senator in Kaduna State, Shehu Sani, advised the government to upturn the ban.

Sani said: “The court of law cannot address a problem of either insurgency or agitation or crushing this kind of idea. We have heard several laws on terrorism and it is 10 years today but we are still battling Boko Haram that is one.

“Secondly, which one do we prefer—the Islamic Movement that has a leader we can arrest, that has members we can see, that has an identity that we can prosecute or a group that can be forced to go underground and pose a serious security danger on the country, I think the option is ours.

“It is either we prefer an organisation like the Islamic Movement, that is the one we can see, or the one we cannot see.”

ROBERT EGBE 

The Nation

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