Talking El-Zakzaky Out Of Controversy, By Ade Ilemobade
I am not a Jurist and I do not claim to have professional competence on legal matters. However, nothing prevents me from poking my philosophical proboscis into the analysis of fundamental issues within the purview of human rights architecture as regards preventive detention in Nigeria and El-Zakyzaky’s case is instructive as a starting point to flesh out this contentious, controversial methodology of protecting and preserving public interest or national security.
My intention here is to avoid unnecessary legal terminologies or cumbersome definitions in other to present a vivid clarification of my position to support preventive detention specifically in the case of El-Zakyzaky to forstall the disintergration of public order given the antecedents of IMN leadership and the delicate intra-religious hegemonic warfare between Shiites and Sunnis in Northern Nigeria not forgetting the unfortunate incident in Kaduna leading to death and wanton destruction of properties.
To preventively detain an individual is to take away his/her freedom and liberty using executive administrative order where and when circumstances come up needing such action either with the aim of protecting national security and public order or protecting the individual in question from harm. It is important to note here that no requirement of previous conviction is a precondition neither is it a necessary condition that the individual being preventively detained has committed any offence at the moment of detention rather certain antecedents of such person not necessarily legal conviction might be enough justification for such detention without trial because of the potentiality of such individual constituting national security threat.
I want to emphasize again that the most important element of justification in respect of preventive detention can be suspicion or reasonable probability. Therefore, the necessariness of previous criminal conviction based on legal evidence is of no significance. The need here is to pre-emptively stop the perpetration of action and event that can be injurious to public security and the release of El-Zakyzaky from detention in my view can probably lead to event that is injurious to public safety and a threat to national security given the state of health or medical condition of the Man since the Kaduna Shiites versus Nigerian Army confrontation.
You may disagree with me given the above explanation but the information available to me suggests that the Man El-Zakyzaky is better protected in government custody and really preventive detention is not explicitly rejected in the Nigerian constitution because there are situations wherein an individual can be detained for up to three months pending arraignment before a competent court but that is when there is a criminal charge(s) against such individual. However, in El-Zakyzaky’s case there are no charges and the constitution is silent on that because it is a matter that concerns national security beyond the purview of what the drafters of the constitution anticipated as regards the jurisdiction of the court in such cases wherein executive administrative orders predominate.
The interpretation of the Nigerian constitution in its ordinariness without imputing any externalities beyond what it means under the rubric fundamental rights has some similarities and same scenario just like what is observable in international human rights law in practice. This is so because the standard practice locally and internationally has being to use national security or public interest arguments to justify preventive detention and the international community has been finding it difficult to condemn the practice. Guantanamo, Abu Ghraib anti terrorism practices of the United State of America is instructive here.
Those chanting that preventive detention is anti-democratic must do a rethink in the light of the above because it does not matter anymore whether the institutions or governments enforcing such detention are democratic or dictatorial neither is the rule of law a panacea to stopping the application of preventive mechanism of detention in so far as there are provisions or lacks in their legal statute that allowed or not explicitly disallowed preventive detention so any attempt to hide under any claim that a democratic country cannot and should not preventively detained people is Ignoratio elenchi.
The issue here is whether there is a threat to national security and public order and if/when the answer is in the affirmative which I believe it is coupled with the awareness that Nigerian government entered reservation to most articles in international human rights treaty that have the effect of infringing on its interpretation of cetain provisions of state laws in national interest then the lawfulness of preventatively detaining El-Zakyzaky in the interest of national security cannot be challenged legally sucessfully.
Public interest is a higher goal of any statehood an important base of our social contract, any Nigerian can be detained using public interest as justification there are no legal requirements in contradistinction to Art 36 (5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; which is about criminal offence, presumption of innocence and the prove of guilt but this is not the case with El-Zakyzaky he was taken into preventive detention which in my opinion has no explicit regulation in our constitution and the reasonableness of time for adjudication by a competent court does not apply in this case because there are no charges it is therefore mere academic going to court seeking relief.
El-Zakyzaky’s release may cause great public disorder Nigerian government has taken the right decision that is proportional to the end game of preventing public disintergration, disorder and threat to national security given the circumstances of the case under review.