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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

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,

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

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.

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