Update on Kaduna State Government vs El-Zakzaky Trial
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:
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.
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.
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.
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.
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.
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.
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:
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.
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.
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.
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”.
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.
The Kaduna State Government accepted these findings of the Judicial Commission of Inquiry and commenced the processes for prosecuting Mr. El-Zakzaky.
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).
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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