- Let it be clearly stated and for the avoidance of doubt that the protection which the 2nd Respondent shall accord to the Applicant and his wife shall not be used under any guise by the 2nd Respondent to place or confine the Applicant and his wife under any form of restriction which would invariably translate to the 2nd Respondent substituting its own ‘safety custody’ with the 1st Respondent’s ‘protective custody
by Tayo Soyemi
An Abuja Division of the Federal High Court ordered 24/7 police protection for the leader of the Shi’a Islamic Movement in Nigeria, Ibrahim El-Zakzaky, and his wife once they are released from custody.
It would be recalled that Mr. El-Zakzaky was arrested by the military on December 14, 2015, after a clash between the movement and officers of the Nigerian army. The army killed at least 347 members of the group.
Justice G.O. Kolawole of the Federal High Court Abuja ordered El-Zakzaky, and his wife to be released from unlawful detention following the lawsuit filed on their behalf by human rights lawyer Femi Falana, SAN.
The court in Suit Number FHC/ABJ/CS/281/2016 between Sheikh Ibraheem Elzakzaky and State Security Service; the Nigeria Police Force; and the Attorney General of the Federation ruled that, “The Respondents shall within 45 days of this Judgment make proper and decent arrangement of a residential abode for the Applicant and his family in Kaduna State or anywhere of their choice within the Northern Region, where the Applicant and his wife and their children can relocate when released upon the expiration of 45 days from today (that is, 2/12/2016).”
The judgment dated December 2 2016 reads in part: “Let me state clearly and for the avoidance of doubt that the failure by the government to effect the release of the Applicant and his wife from its custody or any illegal custody whatsoever, upon the expiration of the 45th day from 2/12/2016, such failure shall not only constitute a deliberate acts of disobedience of these orders, but it will crystallize into fresh cause of action of infraction of the Applicant’s rights and his wife to personal liberty guaranteed by the Constitution of Nigeria 1999, as amended.”
“The Inspector General of Police or any of its subordinate officers not below the rank of Assistant Inspector General when he received the Applicant and his wife as ordered, shall take immediate step within 24 hours of receiving the Applicant and his wife 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 2ndRespondent shall then provide the Applicant and his wife police protection which shall operate 24/7 until the alleged threats which were not provided by any admissible evidence but left in the realm of speculation are moved or significantly diminished.”
“Let it be clearly stated and for the avoidance of doubt that the protection which the 2nd Respondent shall accord to the Applicant and his wife shall not be used under any guise by the 2nd Respondent to place or confine the Applicant and his wife under any form of restriction which would invariably translate to the 2nd Respondent substituting its own ‘safety custody’ with the 1st Respondent’s ‘protective custody’.
“The essence of the order which I have made is to enable the Applicant and his wife to be able to live their normal lives whilst being under constant protective watch by the 2nd Respondent’s officers in their new place of abode. It is the primary responsibility of the 2nd Respondent to protect lives and properties of every Nigerian and even non-Nigerian within our country’s boundaries.”
“Applicant and his wife in the said sister suit have cumulative general damages which I have fixed at N50 million. The Applicant’s suit and the wife’s sister suit succeed on the basis of the reliefs which the Court has granted.”
“When I reflected on all the issues and questions which I had raised in the course of reviewing the processes filed and exchanged by both parties, not only was I unable to set my eyes on the provision of any law or the Constitution by which the Applicant’s detention, albeit in a ‘protective custody’ can be justified.”
“By my modest understanding of constitutional law, every act of detention is presumed to be unlawful and having to the omnibus provision of Section 35 of the Constitution of Nigeria 1999 as amended, to be unconstitutional. The evidential burden to prove that the detention of any citizen or non-citizen who resides within the boundaries of Nigeria in the context of the exceptions in Section 35(1)(a)-(f) invariably lay on the State or any of its agents or agencies as the jailer.”
“The Court has not been afforded any believable evidence (for instance, to produce the Applicant in court in order for him in the full glare of the public, to denounce the suit filed on his behalf by Femi Falana, and to state as a free citizen, that he had consented to his being held in the custody of the 1st Respondent’s custody for his own safety) to prove the alleged consent of the Applicant to be held in protective custody.”
“The issues which the instant suit has thrown up are in my view too serious and of fundamental importance to the health of our national psyche in a democratic setting that this Court will fail the legitimate and expressed expectations of the Rules to enforce the Applicant’s fundamental rights allegedly breached by the Respondent. If I leave to borrow a folklore saying in the Yoruba language, a more deleterious ailment of leprosy as it were, and begin to grapple with the lesser issue of ‘ringworms.’
“To do so by dancing to such niggling issues of technicality will be a disservice to the demands of justice, and the legitimate expectation of majority of Nigerian people who look up to the Judiciary as the only arm of government empowered by virtue of the provisions of Chapter IV of the Constitution to serve as the bulwark against possible violations of the Constitution and occasional mindless abuse of powers by any of the arms or agencies of government.”
“While both learned Counsel have been duly heard on their respective processes, in the course of adjourning the case for Judgment, I deliberately engaged both the Applicant’s lead Counsel Femi Falana, Esq. SAN, who over the years has remained unarguably one of Nigeria’s legal profession’s constant and unwavering ‘combatant’ in the field and on the frontline of human rights advocacy and the Respondents’ Counsel.”
“My judicial intervention in this regard was to protect our country from further needless global exposure which the instant case has occasioned, and to minimize whatever damage the incident may have caused to our national image with the international community amongst friendly democratic states.”