El-Zakzaky: Kaduna Govt Should Have Appealed Ruling, Not Set New Conditions — Falana

Kaduna State government has given new conditions the leader of Islamic Movement in Nigeria, IMN, Sheikh Ibraheem El-Zakzaky, and his wife, Zeenat, must meet to travel to India for treatment.
But some senior lawyers, including Mr. Lawal Pedro, SAN; Mike Ozekhome, SAN; and former Vice President of Nigerian Bar Association, NBA, Mr. Monday Ubani, said the request of Kaduna State government was strange.
El-Zakzaky’s lawyer, Mr. Femi Falana, SAN, said last night that Kaduna State government should have appealed the court ruling, which granted his client leave to travel to India for treatment, instead of setting new conditions for him to travel.
However, in a statement in Kaduna, yesterday, the state Commissioner for Internal Security and Home Affairs, Samuel Aruwan, said though the state government will appeal the ruling of Kaduna High Court, which allowed El-Zakzaky and his wife to travel to India for treatment, it would not seek a stay of execution because it believes people should have access to treatment.
Kaduna State government is prosecuting El-Zakzaky and his wife on an eight-count charge, including culpable homicide punishable by death.
He was granted leave earlier in the week by the state high court to travel to India for treatment. But in a statement in Kaduna, yesterday, the statement government set new conditions to be met by El-Zakzaky and his wife before they would be allowed to travel out of the country.
Some of the conditions set out by the government include confirmation of his appointment with the hospital by the Ministry of Foreign Affairs; an undertaking by the defendants to produce two prominent and reliable persons as sureties, one of whom must be a first class chief/emir of national repute, while the other must be a prominent person within Kaduna State, who shall undertake to produce the defendants whenever they were needed.
The statement read:  “Malam Ibrahim El-Zakzaky is facing criminal trial before the Kaduna High Court on charges filed in April 2018. The government is prosecuting Malam Ibrahim El-Zakzaky on an eight-count charge, including culpable homicide punishable by 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 August 2, 2018. His application for bail was refused on October 4, 2018, and he has since remained in the lawful custody of the state, and not in unlawful detention as being wrongly disseminated.
‘’On Monday, August 5, 2019, 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.’
“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 offences, 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.
Strict supervision of the medical leave
“In compliance with the court ruling, 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 jeopardise 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, 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.
Kaduna govt to appeal ruling
‘’While 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.’’
Kaduna govt should have appealed ruling, not set new conditions—Falana
Reacting, El-Zakzaky’s lawyer, Mr Femi Falana, SAN, said:  “I thought that the Kaduna State government had planned to appeal against the order of Honourable Darius Khobo granting leave to El-Zakzakys to travel to India for urgent medical treatment under the supervision of the government.
‘’I hope that the plan to pursue an appeal in the case has been shelved as the Court of Appeal has ruled that you cannot stay the execution of orders of this nature.”
That remains the position of the law as espoused in the case of Mowarin v Nigerian Army which was decided under a military dictatorship in the country.
‘’The so called agreement is totally alien to the penal code and the administration of criminal justice law of Kaduna State, hence the agreement is not brought under any substantive or adjectival law.
‘’My colleagues in the Ministry of Justice are not unaware of the  position of the law that an agreement cannot vary or modify the order of a competent  court.     It is unfortunate that some highly placed public officers are so hell bent on abrogating the fundamental rights which have been fought for and   won by Nigerians, even under the British colonial regime.
‘’For instance,  the Prison Ordinance was amended in 1917 to allow the family members or friends of prison inmate  to remove them from prison and take them out for medical treatment if the prison facilities could not cater for any terminal illness.
‘’That provision has been incorporated in Regulation 12 made pursuant to the Prisons Act. In this instant case, the court did not release El-zakzakys to their family members but that they should be treated in a foreign hospital under the supervision of the government.
‘Kaduna State government has no power to direct me to endorse any undertaking.  So, I am not going to be a party to any extrajudicial endorsement. Neither will my clients comply with orders not covered by the order of the Kaduna state high court.”
We’ll disregard KDSG’s conditions— IMN
Reacting, proscribed Islamic Movement in Nigeria, IMN, said it will disregard the fresh  conditions set by Kaduna State government for  El-Zakzaky’s treatment abroad.
According to the Muslim group, Governor Nasir el-Rufai’s administration cannot arbitrarily introduce any extraneous conditions to a court ruling.
Describing the conditions by KSDG as part of moves made out of desperation, the Chairman of Free El-Zakzaky Campaign Committee of IMN, Abdulrahman Abubakar, said in a chat with Vanguard: “We already knew the Kaduna State would create some hurdles in the move to have Sheikh El-Zakzaky and his wife flown abroad for medical attention. It is not surprising.”
Lawyers react
On his part, Mike Ozekhome, SAN, said:  ‘’I have never heard of this strange procedure at all, that a party after arguing an application and court grants leave, would return to the same court again with the request to make terms of the leave harder.
Also,  Monday Ubani, former 2nd Vice President, NBA, said:  “The new application filed by Kaduna State government is entirely wrong. That procedure is wrong. The issues they are raising now should have been raised during argument on the substantive application.
If he is allowed to go to India, we cann’t prevent him from travelling to Iran  – Junaid Muhammed
Second Republic lawmaker, Junaid Mohammed, in his reaction, maintained that the media and the Lagos lawyers cannot love him more than Kaduna people.
He said:  “El-Zakzaky has dual citizenship with Nigeria and Iran. Even if he chooses not to seek asylum in India and Iran decides that he should be brought to them, what would Nigeria do?
‘’While he is here, we can handle him but if he is allowed to go to India, we cannot prevent him from traveling to Iran”.
Govt should respect court order—Shehu Sani
Senator Shehu Sani in his reaction, called on the Federal Government to respect the order of the court to allow  El-Zakzaky and his wife to travel to India for medical attention.
Speaking with Vanguard yesterday, Senator Sani said allowing El-Zakzaky to travel and treat himself was paramount, irrespective of other conditions that might come after that.
Afenifere, Ohanaeze react
Also flaying the request of Kaduna State government, the pan-Yoruba socio-political orgnisation, Afenifere, warned that no court should grant such request.
Afenifere’s National Publicity Secretary, Mr. Yinka Odumakin said: “When people were running around for CHANGE in 2015, they never knew change can be positive and negative.
“We have now descended to the abyss that government will be reviewing court judgement and giving conditions to obey court rulings.”
Reacting through its spokesman, Chuks Ibegbu, Ohanaeze Ndigbo said: “Government should avoid turning the Shi’ites into another Boko Haram, if a court of competent jurisdiction has granted El-Zakzaky bail for treatment.
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