This avoidable crisis, in our humble view, is a clear symbolism of the FG's highhandedness and despotism. It is in fact an aberration in a constitutional democracy.
"There is no justification for the existence of the judiciary except in its existence for the defence of the citizens, for the citizens to put his views across with all potency, for him to vent his feelings, and his success in the public, for him to feel and breathe the air of freedom around him" — Kayode Eso, JSC (as he then was) The Federal Government of Nigeria has proscribed the Islamic Movement in Nigeria (IMN), otherwise known as Shiites, through an order of the court. The court order was given following an ex-parte application brought by the Federal Government where Justice Nkeonye Maha ordered that “no person or groups of persons should henceforth associate with the Shiites for any reasons.”
First, it is illegal and unconstitutional to proscribe a religion, religious group or belief. By virtue of Section 38 of the 1999 Constitution of the Federal Republic of Nigeria, every person shall have the right to freedom of thought, conscience, and religion. The purport of the section is that the right to practice any religion or hold any religious view is guaranteed under our constitution.
Interestingly, Nigeria is a secular state as provided under Section 10 of the Constitution, the implication of which is that no religion or religious group can be banned or proscribed except in accordance with the Constitution. And the only derogation from that Constitutional stipulation is where the said religious organization is a secret society — and what constitutes a secret society can only be determined by the court. See Awoniyi v. Reg. Trustees of AMORC (1990) 6 NWLR Pt 154 p. 42 In this case, however, the Shiite group is not a secret society. Consequently, there is no constitutional basis for the proscription.
One suspects that the motive behind the Federal Government proscription of the movement was due to the constant protest by the members of Shiites demanding for the release of their leader, El-Zakzaky who has been kept in the dungeon of detention against court orders. Whereas, our courts have consistently held in a plethora of cases that citizens have the right to peaceful assembly, movement, and expression without hindrance. It is a constitutionally guaranteed right that cannot be arbitrarily deprived or taken away just because those exercising the right hold contrary view with the ruling powers. All Nigeria Peoples Party & Ors. v. Inspector-General of Police (2006) CHR 181
Thus, the proscription is only a show of tyrannical rule and lawlessness that have characterized the government of the day. It is on record that over 492 members of the IMN, have been killed extra-judicially by the Nigerian Army and the Police between 2014 and 2018. It is also on record that all protests staged by the Shiite group to demand the release of their leaders have led to a bloodbath. This avoidable crisis, in our humble view, is a clear symbolism of the FG's highhandedness and despotism. It is in fact an aberration in a constitutional democracy.
The court has since ordered that the IMN leader, El-Zakzaky be released on bail but the Federal Government has incorrigibly disobeyed for reasons best known to them. This is not just a disrespect to the fundamental principles of rule of law and constitutionalism that make a democracy, it is obviously an invitation to tyranny and a calculated attempt to drag Nigeria back to the state of anarchy. Disrespect to court orders is preposterous in a democracy. It is a serious contempt for the executive to flout the orders of the court. It amounts to executive recklessness and lawlessness.
One wonders if we are in a democracy with the way and manner President Buhari's Federal Government is handling the matter. One fears if the leadership of this country is truly and genuinely a converted democrat. If not, what does the FG has to gain with her persistent refusal to release El-Zakzaky? Why the 'genocide', attacks and cruelty — all against court orders?
With the rate of disrespect to court orders by the executive in this country, one may say without fear of contradiction that we are in a classified dictatorship run by a people clothed in the robe of democrats. This is regrettably worrisome.
It is very sad that the judiciary seems not helping the matter when granting ex-parte applications, in cases of public nature like this. Yes, the power to grant ex-parte order is at the discretion of the court. The power must, however, be exercised judicially and judiciously. The power to grant ex-parte order needs to be exercised not just in the interest of the government in power but in the interest of posterity and the general public. Commenting on this issue, former Chief Justice of Nigeria, Justice Dahiru Musdapher explains that "ex-parte injunction was designed with good and laudable intention as a vehicle for the carriage of instant justice in proper cases". Unfortunately, this purpose has been almost defeated, especially in political cases.
Judges now grant ex-parte injunctions out of fear or favour. For example, the 1993 presidential election was annulled by Gen. Ibrahim Babangida, on the ground, inter alia: that it was conducted in contravention of an ex-parte order made in the midnight (June 11) by a judge of the Abuja High Court! While election results were been announced, the then Chief Judge FCT High Court, Justice Saleh also granted an ex-parte order stopping the further announcement of the election results on June 12. Another ugly example is the ex-parte orders and counter-orders that trailed the 2016 PDP national convention.
One hopes that our judiciary will, one day, look for a beautiful means to put an end to the instability and tragedy ex-parte orders has caused in our polity by judiciously granting same.
In the final analysis, it must be noted that the Federal Government should have applied more wisdom and deployed more intelligence in handling this matter. A national issue like this cannot be solved by an illegal proscription, a style that characterized the reign of Adolf Hitler and King Nebuchadnezzar. The constitutional right of a people cannot be infringed upon by governmental machinery through a court order.
The proscription will not solve the crisis. It will not eliminate the (avoidable) violence, it will rather complicate and escalate it. The same way the proscription of IPOB has not changed the stance of those pushing for segregation. The simplest and easiest solution to the crisis is to respect the order of the court and release their leader. Painfully, ego, pride, lawlessness and corruption of power will not allow the Federal Government to take this humble step. I know for sure that all tyrannical rulership has expiry dates.
Festus Ogun is a human rights activist and convener of The Constitutional Nigeria. Reach him: [email protected] 09066324982