Shaikh Zakzaky and DSS Suit: Justice Kolawole advises out of court settlement

The Federal High Court 6 sitting in Abuja and presided by Justice Gabriel Kolawole has advised that the fundamental Human Rights case brought by the leader of the Islamic Movement in Nigeria, Sheikh Ibraheem Zakzaky, is better settled amiably out of court. He made the advice after taking oral presentations from counsels to the parties to the case.

Justice Kolawole maintained that the case has remained an embarrassment to the country since it is said to be a democracy. He observed that the case is a political one and protests about the matter have become regular occurrence and wondered why the matter can not be settled out of court. He however said that he will give a ruling on the issues before him at the next sitting of the court without prejudice to wether or not the matter is settled before the 25th November, 2016.

Sheikh Zakzaky had instituted the case against the Department of State Security (DSS), Attoney-General of the Federation (AGF), Chief of Army Staff (COAS) and the Inspector-General of Police (IGP) challenging his detention for the past nine months without charges. In his submission, Counsel to the Sheikh, Mr. Femi Falana SAN, prayed that the court should declare the continued detention of his client as illegal, unconstitutional and severely tramples on his fundamental human rights as enshrined in the constitution of the Federal Republic of Nigeria as amended and the provisions of the African charter on human rights. He also wants the court to order for his client’s immediate release and be paid N2b damage. 

He told the court the circumstances under which the Sheikh was attacked in his residence by heavily armed soldiers, who also killed his 3 children, shot and fatally wounded him and his wife (also still being detained). He revealed that the Sheikh lost an eye in the process and is at risk of losing the other eye if he is not allowed to seek immediate medical care. He expressed disapproval at how the DSS continued to say that the Sheikh was being held in protective custody and with his consent, stating that this is “unknown to law”. He argued that an adult can only be forcibly held in “protective custody” in the event of a highly contagious disease, when he will be quarantined for his treatment and to protect its spread to the community.

In his own submission, counsel to all the respondents, Mr. Gazali Esq informed the court that it was their duty to protect Nigerians from harm and that the life of the Sheikh is as important to them as it is to the members of the Islamic Movement. He said that only God knows what would have happened had they allowed the Sheikh to be killed. He said that Sheikh was not being detained in a cell but in a comfortable location, and that they are feeding him well and also taking care of his medical expenses, which he said amounted to more than N5m as at last count. He asked the court to therefore dismiss the case and refuse payment of the compensation.

Twice in the course of his presentation, Mr. Gazali was made to retract his statements. The first was when he appeared to suggest that it was pointless talking about ordering a release when even if granted may not be complied with. The court did not take that kindly and he was made to retract that. 

The second was when he mentioned that Femi Falana SAN didn’t have the brief of Sheikh Zakzaky to institute the case. According to him, the learned SAN was only instructed to stand for the Sheikh before the Kaduna state Judicial Commission of Inquiry. The presiding judge asked him what his reaction would be if he orders that the Sheikh be physically brought before the court to ascertain whether or not he instructed Falana SAN to institute the case, and whether or not he is being held in protective custody with his consent? His answer was that the court may have to go to where the Sheikh is being held and that it had to be with the permission of his superiors. Justice Kolawole said he had the powers to summon anybody to court, and that it will greatly further the course of justice if Sheikh Zakzaky is brought to clarify these issues. However, Mr. Gazali reneged and asked the court to disregard his earlier position and strike it off record.

While fixing November 25 for judgement in the case, Justice Kolawole said he would give his judgement based on what was presented before him irrespective of what happens in the out of court negotiations he earlier advised.

The twin case seeking to enforce the fundamental rights of Malama Zeenatudeen Ibrahim, wife to the Sheikh, before Justice Kolawole of the FHC Abuja was similarly handled and also adjourned to the same date for ruling.

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