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Kaduna State Gov­ern­ment State­ment on the El-Zakza­ky Tri­al

Malam Ibrahim El-Zakza­ky

Malam Ibrahim El-Zakza­ky is fac­ing crim­i­nal tri­al before the Kaduna High Court on charges filed in April 2018. The Kaduna State Gov­ern­ment is pros­e­cut­ing Malam Ibrahim El-Zakza­ky on an eight-count charge, includ­ing cul­pa­ble homi­cide pun­ish­able with death. He and his wife are the first and sec­ond defen­dants in The State ver­sus Malam Ibrahim El-Zakza­ky and Anoth­er (charge no. KDH/KAD/60c/2018), and his plea was tak­en on 2nd August 2018. His appli­ca­tion for bail was refused on 4th Octo­ber 2018, and he has since remained in the law­ful cus­tody of the state, and not in unlaw­ful deten­tion as being wrong­ly dis­sem­i­nat­ed.

On Mon­day, 5th August 2019, the Kaduna High Court grant­ed an appli­ca­tion for med­ical leave filed by Mr. El-Zakza­ky and his wife, Mrs. Zeenah Ibrahim. The court specif­i­cal­ly said it was grant­i­ng the two defen­dants “leave to trav­el out of Nige­ria for urgent med­ical treat­ment at Medan­ta Hos­pi­tal, India, under strict super­vi­sion of the Respon­dent and to return to Nige­ria (for con­tin­u­a­tion of tri­al) as soon as they are dis­charged from the hos­pi­tal”.

The Kaduna State Gov­ern­ment respects the right of any­one to seek treat­ment any­where in the world, even for malar­ia or com­mon cold, so long as they are pay­ing for it. But in the case of per­sons fac­ing tri­al for seri­ous offens­es, nec­es­sary safe­guards are required to ensure that such per­sons do not become fugi­tives from jus­tice or frus­trate tri­al by claim­ing asy­lum or the sta­tus of polit­i­cal pris­on­er in the host coun­try.

In com­pli­ance with the court rul­ing, the Kaduna State Gov­ern­ment has filed at the Kaduna High Court terms for strict super­vi­sion of the med­ical leave, as fol­lows:

1. The Min­istry of For­eign Affairs of the Fed­er­al Repub­lic of Nige­ria shall con­firm the appoint­ments of the defendants/applicants with the Medan­ta Hos­pi­tal, India, and under­take all nec­es­sary diplo­mat­ic arrange­ments and pro­to­cols to ensure com­pli­ance with the con­di­tions of the med­ical leave.

2. Each of the defendants/applicants shall under­take to return to Nige­ria to con­tin­ue their tri­al as soon as they are dis­charged from the hos­pi­tal, and shall also be respon­si­ble for the cost of their trav­el, treat­ment and liv­ing expens­es while on their med­ical leave.

3. Each of the defendants/applicants shall pro­duce two promi­nent and reli­able per­sons as sureties, one being a first class chief/emir of nation­al repute and the oth­er a promi­nent per­son with­in Kaduna State who shall under­take to pro­duce the defen­dants when­ev­er they are need­ed. The sureties must also pro­duce evi­dence of land­ed prop­er­ty with­in Kaduna State.

4. The Fed­er­al Gov­ern­ment of Nige­ria shall obtain from the Gov­ern­ment of India an irrev­o­ca­ble guar­an­tee that it will not enter­tain any appli­ca­tion by the defendants/applicants or any third par­ty seek­ing asy­lum under any guise or con­fer­ring the sta­tus of polit­i­cal pris­on­ers or any oth­er sta­tus aside from being med­ical patients on the defendants/applicants and shall also restrain the defendants/applicants from any act inim­i­cal to the cor­po­rate exis­tence of Nige­ria.

5. Each of the defendants/applicants shall under­take in writ­ing, endorsed by their Coun­sel, that while on med­ical treat­ment in India, they shall do noth­ing to jeop­ar­dize the ongo­ing tri­al, the peace and secu­ri­ty of Nige­ria and the laws of the Repub­lic of India in what­ev­er form.

6. Secu­ri­ty agents of the Fed­er­al Gov­ern­ment of Nige­ria shall escort the defendants/applicants and remain with them through­out the dura­tion of their treat­ment in India and there­after shall return with them after their dis­charge from the hos­pi­tal.

7. The Niger­ian High Com­mis­sion in India shall under­take pri­or vet­ting and grant con­sent before any vis­i­tor has access to the defendants/applicants while in the Repub­lic of India.

As is read­i­ly evi­dent from the above, many of these terms of super­vi­sion depend for their actu­al­iza­tion on actions by the Fed­er­al Gov­ern­ment of Nige­ria which is the sov­er­eign pow­er vest­ed with the con­sti­tu­tion­al respon­si­bil­i­ty for for­eign affairs.

While the Kaduna State Gov­ern­ment respects the court’s rul­ing on med­ical leave, it dis­agrees with the premis­es on which it is based. There­fore, an appeal will be lodged on the mat­ter, but a stay of exe­cu­tion will not be sought as the state gov­ern­ment believes that a per­son may choose to trav­el abroad for any med­ical con­di­tion at his own cost.

As stat­ed ear­li­er, El-Zakza­ky and his wife are defen­dants in a crim­i­nal case. Giv­en the pen­den­cy of this case, the prop­er thing is to await its con­clu­sion. How­ev­er, the Kaduna State Gov­ern­ment notes that per­cep­tions of this case are suf­fused in a ver­i­ta­ble avalanche of delib­er­ate false­hood, dis­in­for­ma­tion and revi­sion­ism, pow­ered by vest­ed inter­ests.

There­fore, this state­ment is issued to set the records straight, as fol­lows:

1. Between 12–14 Decem­ber 2015, there were clash­es in Zaria between the Niger­ian Army and the Islam­ic Move­ment in Nige­ria (IMN). The clash­es began when IMN blocked a pub­lic high­way and refused to lift the block­ade to enable pas­sage by the con­voy of the Chief of Army Staff. The clash­es result­ed in the loss of lives and the destruc­tion of prop­er­ty.

2. Fol­low­ing the clash­es, IMN leader Malam Ibrahim El-Zakza­ky and his wife, Zeenah Ibrahim, were arrest­ed by the Niger­ian Army and passed to the cus­tody of the fed­er­al author­i­ties.

3. On 29th Jan­u­ary 2016, the Kaduna State Gov­ern­ment con­sti­tut­ed a Judi­cial Com­mis­sion of Inquiry into the mat­ter. The 13-mem­ber com­mis­sion of inquiry was chaired by Jus­tice Mohammed Law­al Gar­ba of the Court of Appeal.

4. Among oth­er find­ings, the Judi­cial Com­mis­sion of Inquiry assigned respon­si­bil­i­ty for the Zaria clash­es to Malam Ibrahim El-Zakza­ky as leader of the IMN. The Judi­cial Com­mis­sion of Inquiry not­ed that “mem­bers of the IMN owe absolute loy­al­ty to Ibrahim El-Zakza­ky. He there­fore bears respon­si­bil­i­ty for all the acts of law­less­ness com­mit­ted by the orga­ni­za­tion and should there­fore be held respon­si­ble, ful­ly inves­ti­gat­ed and pros­e­cut­ed”.

5. The Judi­cial Com­mis­sion of Inquiry also rec­om­mend­ed the pro­scrip­tion of the IMN, not­ing its dis­re­gard for the Con­sti­tu­tion and the laws of the Niger­ian state.

6. The Kaduna State Gov­ern­ment accept­ed these find­ings of the Judi­cial Com­mis­sion of Inquiry and com­menced the process­es for pros­e­cut­ing Mr. El-Zakza­ky.

7. In Octo­ber 2016, the Kaduna State Gov­ern­ment declared the IMN an unlaw­ful soci­ety, draw­ing on pow­ers vest­ed by Sec­tion 45 (1) of the Con­sti­tu­tion and Sec­tion 97A of the Penal Code (Cap 110, Laws of Kaduna State, 1991).

8. While in the cus­tody of the Fed­er­al Gov­ern­ment, Mr. El-Zakzaky’s coun­sels filed a case against the Fed­er­al Gov­ern­ment for the enforce­ment of his fun­da­men­tal rights at the Fed­er­al High Court.

9. Nei­ther that court nor any oth­er court has made any order against the Kaduna State Gov­ern­ment for the release of Mr. El-Zakza­ky on bail. After the con­clu­sion of the Judi­cial Com­mis­sion of Inquiry process, the Kaduna State Gov­ern­ment request­ed the trans­fer of Mr. El-Zakza­ky to the state for the legal process­es to begin.

10. In 2018, the Fed­er­al Gov­ern­ment even­tu­al­ly acced­ed to the Kaduna State Government’s request for the trans­fer of Mr. and Mrs. El-Zakza­ky from its cus­tody to facil­i­tate their prop­er arraign­ment before the Kaduna State High Court.

11. On 19th April 2018, the Kaduna State Gov­ern­ment filed an eight-count charge against Malam Ibrahim El-Zakza­ky, Mal­la­ma Zeenah Ibrahim, Yakubu Yahaya Katsi­na and Sanusi Abdulka­dir Koki for the offens­es of:
a. Crim­i­nal Con­spir­a­cy
b. Cul­pa­ble Homi­cide pun­ish­able with death
c. Unlaw­ful Assem­bly
d. Wrong­ful restraint
e. Dis­tur­bance of pub­lic peace
f. Vol­un­tar­i­ly caus­ing griev­ous hurt
g. Incit­ing dis­tur­bance
h. Breach of Pub­lic Peace

12. The eight-count charge in The State ver­sus El-Zakza­ky (KDH/KAD/60c/2018) were filed under Sec­tions 59,47, 66, 77, 73, 222 and 78 of the Penal Code Law of Kaduna State.

13. On 2nd August 2018, the Kaduna High Court took the pleas of the first and sec­ond defen­dants, Malam Ibrahim El-Zakza­ky and Mrs. Zeenah Ibrahim. Also, on that same day, the court heard the defen­dants’ appli­ca­tion for bail which was refused in a rul­ing made on 4th Octo­ber 2018.

14. The court ordered that the defen­dants be kept in prison cus­tody and that the defen­dants be allowed access to their per­son­al physi­cians along­side physi­cians of the State. How­ev­er, at his request, Mr. Ibrahim El-Zakza­ky and his wife are being kept in SSS facil­i­ties which were deemed more com­fort­able than the Kaduna Prison.

15. The tri­al suf­fered ini­tial delays because the third and fourth defendants/applicants remain at large. That was the case when the mat­ter first came up in court on 15th May 2018. It was adjourned till 21st June 2018 because the charges had not been served on the third and fourth defen­dants. An acci­dent involv­ing the tri­al judge fur­ther delayed the hear­ing sched­uled for 21st June 2018. Sub­se­quent­ly, the arraign­ment of the first and sec­ond defen­dants was done on 2nd August 2018.

16. The sub­stan­tive charge was adjourned sine die with the agree­ment of all coun­sels rep­re­sent­ing the State and the defen­dants upon the assign­ment of the tri­al judge to duties at the Elec­tion Tri­bunal.

17. How­ev­er, the Kaduna High Court heard Malam El-Zakzaky’s appli­ca­tion for leave to seek med­ical atten­tion abroad on Mon­day, 29th July 2019. At the hear­ing, coun­sel to the Kaduna State Gov­ern­ment opposed the appli­ca­tion for med­ical leave large­ly because it was based on med­ical reports not issued by a gov­ern­ment med­ical facil­i­ty. The court grant­ed the appli­ca­tion on Mon­day, 5th August 2019.

18. Coun­sels rep­re­sent­ing the defendants/applicants in the case have been appear­ing before the Kaduna High Court. It is baf­fling that the same coun­sels to the defen­dants, led by a senior advo­cate, Femi Falana, are in their pub­lic com­ments, giv­ing the impres­sion that there is no tri­al ongo­ing at the Kaduna High Court, which denied bail to Mr. El-Zakza­ky and con­se­quent to which Mr. Ibrahim El-Zakza­ky remains in law­ful cus­tody.

19. It is the con­sid­ered con­tention of the Kaduna State Gov­ern­ment that decades of impuni­ty embold­ened the IMN to engage in var­i­ous unlaw­ful activ­i­ties cul­mi­nat­ing in the trag­ic events of Decem­ber 2015. In pros­e­cut­ing the case, the state gov­ern­ment is affirm­ing sim­ple canons of the rule of law, that no one is above its long arm and that all per­sons are equal in its eyes. Mob pres­sure, such as the car­nage vis­it­ed on the streets of Abu­ja to force Mr. El-Zakzaky’s release with­out due process, can­not be allowed to suc­ceed.

20. Mat­ters have been joined in court. The two defen­dants are rep­re­sent­ed by coun­sel of their choice and they have tak­en the pleas. It is left to the court to decide the case. The cam­paign of vio­lence, dis­in­for­ma­tion and mis­in­for­ma­tion on this mat­ter must now stop. Only a court of law can free Mr. El-Zakza­ky, and the court before which he is stand­ing tri­al is the High Court of Kaduna State.

21. It is ridicu­lous to feign respect for the rule of law while ignor­ing legal process­es ongo­ing before a state High Court. Cam­paigns of calum­ny, abuse, dis­in­for­ma­tion and dis­re­spect for law and order will not trump due process. Equal­i­ty before the law oblig­es every­one to respect the tri­al process before a court, not to irre­spon­si­bly tra­duce it.

Samuel Aruwan
Com­mis­sion­er, Inter­nal Secu­ri­ty and Home Affairs
Wednes­day, 7th August 2019

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