Alex Enumah in Abuja
The federal government on Tuesday denied the claim of unlawful detention of the leader of the Shi’ite Islamic sect, Sheikh Ibraheem Zakzaky, claiming that El-Zakzaky is a vulnerable person and as such was being held under protective custody.
Counsel to the federal government, Tijani Gazali, stated this to journalists yesterday shortly after the matter was adjourned by the trial judge, Justice Gabriel Kolawole of a Federal High Court, Abuja.
The Shi’ite leader had filed a N2billion suit against the federal government over his unlawful detention and breach of his fundamental human right.
Justice Gabriel Kolawole okayed the matter for hearing after he ordered service of the relevant court processes on the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN).
Aside the AGF, other respondents in the suit are the Department of State Services, DSS, and the Nigerian Police Force.
At the resumed hearing, counsel, to the applicant, Festus Okoye, of the Femi Falana Chambers, told the court that all the respondents had been duly served with the processes in relation to the matter, including hearing notice of the day’s sitting.
He said while the first and third respondents in the suit had replied the second respondent was yet to reply.
Counsel to the first and third respondents however told the court that a motion seeking an extension of time dated June 8 was filed on June 9, along with their counter affidavit and written addresses.
Responding, Okoye while stating that they are not in objection to the request of time, however told the court that there are issues contained in the counter affidavit that needed clarification. He subsequently sought for an adjournment.
In a brief ruling, Justice Kolawole granted the motion as prayed by the applicant and adjourned the matter till 13 July for hearing of the applicant suit.
However briefing journalists outside the courtroom, counsel to El-Zakzaky disclosed that one of the issue they needed time to resolve is the claim by the Department of State Services (DSS) that their client was being held in custody willingly.
“We have filed our application asking for the release of our client who is being held by the DSS. As at the last adjournment, none of the respondents filed any process, but yesterday the DSS and AGF responded and in their counter affidavit, they claimed to be holding our client in protective custody for his own benefit.
These are some of the things we want to find out because at our last meeting, he never said he was being held in protective custody for his own benefit,” Okoye said.
Responding to question on whether El-Zakzaky consented to his being held in protective custody having asked the court for his release, Gazali maintained that one does not need to ask for such protection, adding that it is the duty of the state to protect.
“Once you are vulnerable the state would protect you. El-Zakzaky is not in detention. He is under protective custody and is well taken care of where he is,” Gazali said.
Specifically, the Shi’ite leader who has been in detention since December 14, 2015, applied for the enforcement of his fundamental rights to life, personal liberty, dignity of human person, right to private and family life and private property.
The suit marked FHC/CS/128/2016, was predicated on sections 33, 34, 35, 36, 37, 40, 41 and 46 (1) & (2) of the 1999 Constitution, as amended, as well as on Articles 4, 5, 6, 11 and 12(1) of the African Charter on Human & Peoples Rights (Ratification and Enforcement) Act, LFN, 2010.
The court is among other things, prayed to declare that “the detention of the applicant at Abuja by the respondents since December 14, 2015, is illegal and unconstitutional as it violates his fundamental rights to personal liberty as enshrined in section 35 of the Constitution of the Federal Republic of Nigeria, as amended, and Article 6 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP A10), Laws of the Federation of Nigeria, 2004”.
Falana is contending that the continued detention of his client without being charged before a competent court is in violation of his right to fair hearing as enshrined in section 36 of the 1999 Constitution, as amended.
He said his client had since lost one of his eye owing to the treatment meted out to him by security agents acting on behalf of the federal government, adding that the detained Sh’iite leader was denied access to his medical doctors, family members and relatives.
Insisting that his client’s rights to health and association as enshrined in Article 16 of the African Charter on Human and Peoples Rights was violated, Falana wants the court to declare that detention of the applicant “without access to his family and friends was not only illegal but in violation of his rights to freedom of association as enshrined in section 40 of the Constitution”.
Likewise, he is praying the court for, “An order directing the immediate and unconditional release of the applicant from the custody of the 1st and 2nd respondents.
“An order restraining the respondents from further violating the applicants fundamental rights in any manner whatsoever and howsoever without lawful justification.
“An order compelling the respondents, jointly and severally to pay the applicant the sum of N2billion as general and aggravated damages for the illegal violation of his fundamental rights to personal liberty, dignity of person, fair hearing, health, freedom of movement an freedom of association.”
Zakzaky’s arrest and detention followed a violent clash that occurred at Zaria in Kaduna State on December 14, 2015, between his followers and a detachment of soldiers accompanying the Chief of Army Staff, Lieutenant General TY Buratai.
The clash had resulted in the loss of lives of members of the Shi’ite sect, among whom included the applicant’s wife and son.