As we commemorate the 2nd Anniversary of the remarkable judgment delivered on 2nd December, 2016, it is pertinent to clear some misconceptions about the historic Judgment given in favour of the oppressed Sheikh Zakzaky and his wife by the Federal High Court, Abuja presided over by Hon. Justice Gabriel O. Kolawole on 2nd December, 2016 due to the fact that most people, including journalists, public affairs commentators, writers and even some of the members of the Islamic Movement sometimes get confused about the actual orders given by the Court on whether it was an unconditional release order or a bail granted.
Another thing that adds to the confusion is the recent or subsequent trumped up charges filed against the Sheikh, his wife and 2 others before Kaduna State High Court by KDSG. Mostly, people get confused between the two cases, perhaps, because they are not very conversant with judicial procedures, legal jargons and terminologies thereby making it very difficult to differentiate between unconditional release and bail in a court of law.
However, you may also find some media practitioners and writers that deliberately use the word ‘bail’ in place of ‘unconditional release’ for some malicious intent. Sometimes, people do compare Sheikh Zakzaky’s case with that of the former NSA, Col. Sambo Dasuki (Rtd). It is true that the two cases have similarities in a way but they are entirely different in substance.
In this piece, I will attempt to point out differences between BAIL and UNCONDITIONAL RELEASE by a court of law and also outline the differences and similarities between the case of Sheikh Ibraheem El-Zakzaky and that of former NSA, Col. Sambo Dasuki (Rtd).
Finally, I will highlight what has transpired in the FHC, Abuja Division and what is currently going on before the Kaduna State High Court to have a better understanding of the travails of the revered Sheikh in the hands of the despotic rulers of Nigeria!
In a legal parlance, whenever we mention bail in a court, it means there was a person or a group of persons who was/were arrested, arraigned and charged before that court on a criminal offence(s) allegedly committed by that person or group of persons. In criminal procedure, bail is classified into 3, viz: 1. Bail pending investigation (police bail), 2. Bail pending trial before a court and 3. Bail pending determination of an appeal by a convicted person.
Here, we discuss about the second type i. e. Bail pending trial which, if granted by the court, means that the matter is not yet disposed of but the accused person is only released temporarily pending the full determination of the case at the end of the trial where he may be convicted or discharged and acquitted.
Though bail is a constitutional right of an accused person under the Right to Fair Hearing, Sec. 35 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) but it has conditions in law, and it’s also at the discretion of the court to grant or refuse based on the circumstances and peculiar nature of each case before it. It can also withdraw the bail at anytime and order for the re-arrest and detention of the person if any of the conditions upon which the bail was granted is breached. Furthermore, it is important to note that some offences are bailable while some are not defending on the circumstances and peculiarities of each case.
Unconditional release, on the other hand, amounts to acquittal in criminal trial. As the name implies, no conditions are attached to the release of a person who was unconditionally released by a court of competent jurisdiction. Therefore, the phrase ‘unconditional release’ is self explanatory, no need to waste time explaining it.
Mostly, unconditional release order is given in a case of unlawful and illegal detention of a person by law enforcement agencies upon his application to court for redress under the Fundamental Rights Enforcement Procedures. A similar term for unconditional release in a criminal trial is ‘discharged and acquitted’. Based on the foregoing, one may get it very easy to distinguish between the two legal terminologies.
The second area of confusion to most people is the frequent comparison made between the cases of Sheikh Zakzaky (H) and Rtd Col. Dasuki. Both cases were commenced in the same year immediately after the coming of Buhari’s government. While I admit that the duo have shared a thing in common, which is flagrant abuse of power by the government and contemptuous disobedience of court orders which also led to gross disregard to Rule of Law under supposed democratic dispensation by the government in power!
In my humble view that is the only thing the cases share in common but in substance and mode they are conspicuously different. While Dasuki was arrested, arraigned and charged before the court without delay on sundry of offences allegedly committed by him when he was the National Security Adviser in Jonathan’s regime, Sheikh Zakzaky was attacked at night in his residence by soldiers of the Nigerian Army following an altercation that ensued between his followers and soldiers over an alleged road blockade and shootings several kilometers away from his home earlier in the day on 12th December, 2015.
The soldiers arrived at his Gyallesu residence in Zaria at night and forthwith started shooting everyone at sight without provocation and warning! Followers of the Sheikh who were around resisted them and blocked all roads leading to the Sheikh’s house to prevent them from reaching the Sheikh as their intention manifestly was to kill him.
The assaulting soldiers continued for 3 days, from 12th-15th December, 2015 with their killing spree nonstop while the Sheikh and his followers remained inside the house. On the 3rd day, 15th December, 2015, the soldiers forced their way inside the house where the Sheikh and other people were hiding by using sophisticated and dangerous weapons like RPG, bombs and anything at their disposal.
They killed everyone else there except the Sheikh, his wife and a handful of people who survived with several gunshot wounds and different degrees of life threatening injuries. The soldiers set the house ablaze, burnt the remaining people alive and took away the Sheikh and his wife with the belief that they were dead but it was later discovered they are alive. That was very miraculous.
As if it was not enough, the whereabouts of the couple remained unknown to the public for several weeks until when they were visited by a delegation of some professors and Islamic scholars under the banner of Nigeria Supreme Council of Islamic Affairs in February, 2016. Thereafter, they continued to remain in DSS detention incommunicado for a long time without or limited access to their family members and lawyers.
During that period, their family engaged the services of the foremost Human Rights lawyers, Mr Femi Falana, SAN and Festus Okoye, Esq. and filed a suit to enforce their fundamental rights before Federal High Court, Abuja. During the proceedings at the court, when the court queried the government as to why they are detaining the couple, their response was that the Sheikh and his wife were not in detention, per se, but in a ‘protective custody’ as their lives are in danger.
They further affirmed that they have no criminal charges against them because they have not committed any offense to warrant their arraignment before a court for trial. The government lawyers failed to justify their so-called ‘protective custody’ under any Nigerian law and thus, the court debunked them and finally ordered the unconditional release of Sheikh Zakzaky and wife in 45 days period to enable the government find him a suitable and befitting accommodation before the expiration of 45 days, declared the detention as unconstitutional, unlawful and illegal and also ordered the Federal Government via DSS to pay him and wife a sum of #50,000,000 (Fifty Million Naira) as damages for unlawful detention from 15th December 2015 –2nd December, 2016.
The court further reprimanded the respondents that failure to release them after a period of 45 days not only constitute a deliberate disobedience of the court’s orders but will also crystallize into fresh cause of action of infraction of the Applicant’s fundamental rights to liberty under the 1999 Nigerian Constitution. Unfortunately, the Buhari-led FG contemptuously disobeyed the court orders in shameless disregard of the Rule of Law as one of democratic principles.
Now, the differences between Dasuki’s and Zakzaky’s cases are: Dasuki’s case is criminal in nature but Zakzaky’s case is civil in nature (Fundamental Rights enforcement suit) under the Fundamental Rights (Enforcement Procedure) Rules, 2009 pursuant to 1999 CFRN (as amended) and African Charter for Human and People’s Rights (ACHPR) Act domesticated in Nigeria. While Sheikh Zakzaky sued the government for violation of his rights, Dasuki was arraigned in a court by government on criminal charges bordering on alleged corruption-related crimes. He was granted bail several times in different courts including West African Court but the Government in power disobeyed in contempt of court!
Recently, Sambo Dasuki wrote a letter to the court hearing his case that he has no point to continue to appear before the court because it was alleged that the Attorney General of the Federation, Abubakar Malami publicly and shamelessly asserted that Buhari government will not release him no matter what, which means he must be convicted of the alleged offences at all costs! In other words, the prosecution turned themselves into “persecutors”!
Lastly, after all efforts to effect the court orders in respect of Sheikh Zakzaky proved abortive, it continued with the illegal detention for more than a year and as what can be best described as an afterthought, the federal government under the supervision of President Buhari connived with its long time accomplice in the brutal mass murder and persecution of the Shia Muslims under the leadership of Sheikh Zakzaky, transferred the Sheikh to a DSS detention facility in Kaduna from Abuja and filed trumped up charges of incitement, unlawful assembly and culpable homicide of one soldier, allegedly by members of the Islamic Movement, which was also the same charges being faced by close to 200 members of the Islamic Movement in the same court and it recently discharged and acquitted almost a hundred of them. The lawyers representing the Sheikh applied for his bail but surprisingly, the court refused after many adjournments!
It is unfortunate and heartbreaking to note that the detention of the Sheikh does not serve any purpose or public interest and it can never be justified under any law, though they now hide under the refusal of bail by Kaduna High Court, to continue detaining him unjustly while he is in dire need of urgent medical attention for the wounds inflicted on him during the attack on his house in Zaria.
It is equally disheartening to discover that the Buhari government is just playing the script of foreign countries like Wahhabi Sunni Saudi Arabia in its supremacy fight with Shia Iran in Muslim world to maltreat and oppress its own patriotic and innocent citizen! Perhaps, the government wants to continue to detain the Sheikh in perpetuity till the expiration of its tenure in office to satisfy their savage and barbaric Saudi Government and justify the alleged dollars being paid in executing the project to wipe out Shia Muslims from Nigeria, their country of origin, if possible. That plot would surely fail because it is contrary to natural justice, equity and good conscience and it is in direct conflict with public policy and interest being protected by the laws of the land.
In conclusion, all eyes of the world are on Nigeria to see how it will bring an end to this matter judiciously. I hope, by the foregoing, I have succeeded in clearing the misconceptions by some people about Sheikh Zakzaky’s perversion of justice trial.
Aliyu, Esq. is a legal practitioner based in Kano and can be reached through firstname.lastname@example.org