Illegal detention: No respite for El-Zakzaky, Dasuki yet

Even with several court orders releasing leader of the Islamic Movement of Nigeria, Ibrahim El-Zakzaky, and a former National Security Adviser to former President Goodluck Jonathan, Col. Sambo Dasuki (retd.), the road to respite appears to be very long for them, GBENRO ADEOYE writes

On Friday, December 2, 2016, when Justice Gabriel Kolawole of the Federal High Court, Abuja, ordered the unconditional release of the leader of Nigeria’s Shiite sect, Ibrahim El-Zakzaky, and his wife, Malama Zeatudden, from detention within 45 days, his words were unambiguous.

The court was also clear enough when it ordered that the police shall within 24 hours after their release; take them to a safe place under the security of an escort. The Federal Government was also directed to provide a new accommodation for El-Zakzaky and his family in Zaria, Kaduna State or in any other northern town of his choice and awarded the sect leader and his wife N25m each as damages.

El-Zakzaky and his wife have been in detention since December 2015 without any charge following a clash between members of his group, Islamic Movement of Nigeria, and the military in Kaduna State, which reportedly led to the killing of more than 350 of the sect members.

On January 16, 2017, when the court deadline for El-Zakzaky and his wife’s release expired, Amnesty International, a human rights advocacy organisation, had noted that failure to release the detainees would amount to contempt for the rule of law.

“The 45-day deadline given for their release expires today. If the government deliberately disregards the orders of its own courts, it will demonstrate a flagrant – and dangerous – contempt for the rule of law,” Interim Director of Amnesty International Nigeria, Makmid Kamara, had said.

The 45 days passed and still El-Zakzaky remained in detention even though the court order was clear and unambiguous.

Although, the Attorney General of the Federation, Abubakar Malami, had on January 19 filed an eight-ground notice of appeal against the court’s judgment.

El-Zakzaky’s counsel, Femi Falana (SAN), had however, noted that the appeal had no effect on the enforcement of the court’s judgment.

In his argument, Falana had said that the government did not file a motion for stay of the execution of the judgment of the Federal High Court, noting that even if it did, it would not have mattered.

“Even if they filed, one it will be an exercise in futility as it has been held that the liberty of a citizen cannot be stayed. Even under a military dictatorship, the Court of Appeal held in Nigerian Army vs Mowarin that once the release of anyone has been ordered, a motion for stay of execution cannot be granted to prolong an illegal detention.

“That law has not changed. I want to believe that that is why the Federal Ministry of Justice did not file any motion for stay of execution,” Falana had noted.

Counting from the time of the court’s judgment, El-Zakzaky and Malama should have regained their freedom over four months ago, but since that has not been done, it will be safe to assume they have neither been provided accommodation nor paid damages as ordered by the court.

So basically, none of the court orders has been obeyed by the President Muhammadu Buhari-led government.

Analysts have described the situation as a sad reminder of the country’s flawed democracy and that Buhari, a retired general and now a civilian leader, had clung to his feudal military ways.

But El-Zakzaky and his wife can take consolation in the fact that they are not alone.

A former security adviser to former President Goodluck Jonathan, Col. Sambo Dasuki (retd.), has also been languishing in detention since December 2015 despite being granted bail by three different courts.

The former national security adviser is facing trial for alleged unlawful possession of arms and money laundering charges brought against him by the Federal Government. Dasuki had allegedly diverted and shared to politicians and cronies, about $2.1bn meant for arms procurement to fight Boko Haram terrorists.

However, Dasuki had in 2015 been admitted to bail by Justice Adeniyi Ademola, but the bail order was disobeyed by the Federal Government and the DSS. Other bails granted to Dasuki by Justices Peter Affen and Husseini Baba-Yusuf of the FCT High Court were also ignored by the government.

Clearly frustrated by the Federal Government’s disobedience to bail orders granted by local courts, Dasuki approached the Community Court of the Economic Community of West African States, which had on Tuesday, October 4, 2016, declared his arrest and detention as unlawful and arbitrary.

The court had also held that the further arrest of the former NSA by government on November 4, 2015, after he was granted bail by a court of law, amounted to a mockery of democracy and the rule of law.

It had therefore ordered the Federal Government to immediately release Dasuki from detention and pay him N15m damages.

Again, the order was ignored.

Before its arguments were dismissed in the ECOWAS court, the DSS had highlighted two reasons why Dasuki was still being kept in custody.

“One, for his own interest; for his own personal protection because some of the politicians implicated in the arms deal from the intelligence available to us.

“Two, there is intelligence indicating that he can get out of this country thereby evading justice. These are the two main reasons,” a DSS operative, Williams Obiora, had told the court.

Obiora had noted that Dasuki did not need to make a request before being given protection if his life was in danger, adding “and we owe him a responsibility to ensure he suffers no harm.”

Strangely, the Presidency had recently defended the continued detention of El-Zakzaky and Dasuki, saying it was being done in the public interest.

“On the issue of El-Zakzaky, the information we have is that he is being kept more for his own safety than the offences he committed.

“If you set him free today, what do you think will likely be the reactions out there on the streets of Kaduna or in Zazzau where he comes from,” Mallam Garba Shehu, Senior Special Assistant to the President on Media and Publicity, had said while defending Buhari’s human rights record.

Shehu said Dasuki was being held because he had other criminal cases to answer and that his release might affect the ongoing investigation of cases against him.

“The ex-NSA’s problem is not with President Buhari, who I must say has the highest regard for the rule of law. If five courts of the land are trying different cases in which a man is involved and one or two of those courts let the accused persons go home on bail, what happens with the other three cases?

“It is a common thing in all nations of the world that there are matters of public safety. The Attorney General of the Federation and Minister of Justice, I think, has made his points here in the State House, against individuals’ interest.  And in all cases, public good should override individual interest,’’ he had said.

However, human rights lawyer, Mr. Liborous Oshoma, dismissed Shehu’s statement, saying there is no justification in law for the executive to disobey court orders as the powers of the judiciary are enshrined in the Nigerian Constitution.

He said, “There is no condition that can make anyone disobey the order of the court. Once it has been given, you must obey because it is an institution that is statutorily empowered to determine such matters.

“When you disobey such court orders, no matter how genuine your reasons are, the impression you give is that such institution cannot be respected. If you refuse to obey orders from an institution, how do you want people to take you or the institution seriously?”

Meanwhile, there have been public sentiments that civil society organisations, other relevant groups and individuals have not been doing enough to get the government to obey court orders and the rule of law. But while such sentiments are in order, it will be unfair not to note that there have been few things that have attracted criticisms to the Buhari-led government as much as its willful disobedience of court orders.

For instance, the Nigerian Bar Association had this week demanded the release of El-Zakzaky and Dasuki and described their continued detention after being granted bail by courts as against principles of the rule of law.

Speaking on the occasion of the country’s Democracy Day at a world press conference in Abuja, NBA’s National President, Abubakar Mahmoud, said the body was “appalled at the continued detention of certain individuals in blatant disobedience of court orders.”

“Amongst these individuals are Sheik Ibrahim El-Zakzaky and his wife and also Col. Sambo Dasuki, the former national security adviser. Whilst we recognise the serious charges on which these individuals are held, we nevertheless view their continued detention as unjustified and contrary to the express court orders.

“We call on the government to without further delay respect these orders,” he said.

Access to Justice, a justice advocacy group aimed at defending human rights, had also decried the continuous detention of the duo.

A recent statement by its Deputy Director, Adenike Aiyedun, said the Federal Government lacked the powers to subvert the judgments of competent courts, faulting Shehu for his recent comments that El-Zakzaky was being held in ‘protective custody’, while Dasuki was still being investigated ‘for other criminal offences.’

“Where government arrogates to itself a general right to sit as a court of appeal over judgments and orders of constitutionally established courts, it clearly makes the courts of law irrelevant in protecting the rights of citizens and indirectly usurps the powers and functions of the judicial branch of government.

“This sabotages the whole idea of a constitutional democracy and the rule of law since it denies the courts their legitimate role as protectors of the citizens’ rights.

“We find the defence by the Federal Government to be completely self-serving, disingenuous and audacious,” it said.

Interestingly, even the Chairman, Presidential Advisory Committee Against Corruption, Prof. Itse Sagay (SAN), urged the Federal Government to obey court orders regarding the detention of the embattled duo.

Sagay had said of government’s obstinacy over the matter: “The court orders should be obeyed and I don’t know what reason the government has for not releasing them. If they have good reasons, they should canvass the reasons before the court and leave the court to decide.”

Similarly, Executive Director, International Centre for Peace Charities and Human Development, Clement Iornongu, described disobedience to court orders as tantamount to calling for anarchy.

He said, “A country that is not governed by the rule of law is a country that is calling for anarchy. If a court gives an order, it is incumbent upon that order to be obeyed by government or whosoever is affected by it. The court belongs to the judiciary, which is a third arm of government and constitutionally, each of the three arms of government has their various powers spelt out in the constitution.

“The purpose is for good governance and check and balances so that one arm will not exert undue power over the others.The executive failing to obey the orders of the court is tantamount to a quest for total anarchy.”

Describing the situation as a violation of the rights of the affected detainees, Iornongu noted that their fundamental rights are guaranteed by Chapter 4 of the Constitution.

“One question we should be asking is: since Dasuki was charged to court, has any progress been made in his trial? No! Yet, the Administration of Criminal Justice Act is clear; it wants speedy dispensation of justice in whatever form. So if they are not being tried, there is no justification to give a lame excuse that government is trying to protect them,” he said.

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