Law News
Agonies behind war against Boko Haram

These clearly are hard times.

Two weeks ago, in Abeokuta, the Ogun State capital, it was free flow of tears for the students, family and friends of an Islamic cleric, Abdul-Ganiy Ibrahim, who was freed by the Department of State Services 429 days after he was whisked away and detained on the suspicion of being affiliated to the Boko Haram fundamentalist sect.

The sad journey had begun at about 3am on July 5, 2014 when the peaceful sleep of the household was punctuated by violent bangs on the front door by security operatives. What attracted the midnight visit was a phone call, lasting barely a few seconds, which the cleric had made about four days before, on the prompting of his wife, Muinat.

As the cleric explained it, the phone used to be his, but he had since passed it on to his wife.

One day, while scrolling through the phone, the wife stumbled upon a number saved without a name. She decided that she wanted to delete it, but before then she asked her husband who the contact was. But Ibrahim said he could not recall. Next, husband and wife decided to dial the number to ascertain the owner. But little did they know that by dialing that number, they were stirring a hornets’ nest.

“When I dialed the number, it rang and it was picked. It turned out to be someone I met in passing long time ago.

“We spoke for barely 30 seconds before the line broke off as there was only little credit on the line,” Ibrahim, who looked gaunt and feeble after being confined for 14 months in the custody of the Department of State Services, narrated to our correspondent and his lawyers.

In a nearly wistful tone of voice, Ibrahim, who had once been to Maiduguri, said, “If I knew, I wouldn’t have dialed that number.

“These days one should be careful to call or receive calls from people living in the North-East, especially those that one has not seen in a long time.”

Earlier, while stepping out of the vehicle that brought him on the day of his release, one would have expected that his students and friends, who had come to receive him, would rush forward to embrace him; but instead, they recoiled and burst into a spontaneous cry upon sighting him.

They said he had become a shadow of himself, and they seemed not to be able to withstand this new reality. They wept uncontrollably for a while before they eventually braced themselves up and began to hug him in turn.

On the drive home to reunite with his children and aged mother, Ibrahim, who seemed to have a stubborn smile on his face, retorted, “For anyone to come out of DSS detention, he has seen the mercy of God. In fact, I had given up; all I was expecting, while in detention, was for the angel of death to come; to close my eyes and open them to see angels; that was all I was expecting.

“To the best of my knowledge, no one was freed during my stay and many had been there for long even before I got in. In fact, I didn’t even know that anyone was doing anything to secure my release.”

Looking out through the window of the car on the way home, Ibrahim continued, “I never believed that all these places still exist. It was only a couple of weeks ago that I knew that Buhari is now the President. I also learnt that a man called Osinbajo is the Vice President and that Ambode is now the Governor of Lagos State.

“In the DSS detention, every day was the same. Our legs were permanently in chains. There had been occasions when detainees attempted jailbreak, that was why our legs were always in chains. We slept on mats.”

But Ibrahim shocked his listeners when he said he was neither tortured nor maltreated. He had also described the DSS agents as very disciplined and people who could not be compromised in the line of duty.

He said, “There was no case of taking someone out to kill. The DSS doesn’t kill. In fact, they give quality medical attention to any detainee who falls sick. They have a standard clinic and the drugs are imported. They usually do not want a detainee to die.”

He, however, said that there are many people being held in the DSS for the purpose of investigation.

“Ah, there are many people in detention. Most of them are Hausa and are Muslims. There are just a few Yorubas. There are many Niger Deltans too.

“I was in a cell where we were five in number; and it was a room that could take only five persons and no one else. If an additional person was brought, there would be no space. Each of the cells has an air conditioner, and once you enter, you would just know that they have brought you there to keep.

“You cannot pass through the DSS detention without learning. In fact, there was an Igbo man in my cell, he would begin his day by singing praises and after he got tired, the next thing that would come out of his mouth was ‘Ah, this place is hell!’” Ibrahim recalled.

Unexpected journey to freedom

While he thought he had been forgotten and had given up the hope of ever being free again, Ibrahim’s journey to freedom started with a Saturday Punch report of October 25, 2014, to which the attention of a human rights lawyer, Ahmed Adetola-Kazeem, was called by friends.

“It had never happened to me before. Within a space of two hours I got about six calls, one from outside the country. People were asking me if I had seen the report and telling me that I must do something about it,” Adetola-Kazeem, who took up Ibrahim’s case on pro bono, said.

He had traced the family and subsequently headed for a Federal High Court in Abeokuta, where he filed a fundamental rights enforcement action, challenging the arrest and detention of Ibrahim without either allowing him access to a lawyer or charging him to a court of competent jurisdiction.

Adetola-Kazeem claimed that Ibrahim’s long detention without trial totally negated the provisions of Chapter IV of the 1999 Constitution.

The lawyer, who is also the Director of Prisoners’ Rights Advocacy Initiative, had contended that Ibrahim’s right to dignity of human persons, personal liberty and freedom of movement provided for under sections 34, 35 and 41 of the Constitution had been breached.

But it was not until eight months after that Justice F.O.G. Ogunbanjo upheld Adetola-Kazeem’s arguments and granted some of the prayers sought.

Apart from ordering the immediate release of Ibrahim, the judge held that the detained cleric was entitled to public apology from the DSS, in addition to compensation for his unlawful detention in the sum of N1m.

Others like Ibrahim

On July 6 this year, in the wake of being accused of extrajudicial killings and rights violations by the international human rights watchdog, Amnesty International, the Nigerian Army freed 280 citizens, who had been detained for months on the suspicion of belonging to the fundamentalist Boko Haram sect. According to a report credited to Associated Press, among those released were women carrying babies with toddlers clinging to their skirts. Among them were also those who said that they were arrested because their brothers were suspected to be members of the Boko Haram sect.

On September 9, 2015, another set of detainees, numbering 128, were again released by the army after ascertaining that they were not insurgents, though some had been detained for months.

The Borno State Governor, Alhaji Kashim Shettima, who received them from the Chief of Army Staff, Lt. Gen. Tukur Buratai, told the freed detainees to go and sin no more.

He said, “Through the magnanimity and professionalism of the Nigerian Army, you have been released and will be fully integrated into the society. You should abstain yourselves from criminal activities…”

Divided legal opinions

Some lawyers, who pointed out that fundamental human rights are not absolute, said drastic situations require drastic measures.

A Lagos-based lawyer and an expert in criminal defence, Mr. O. Ajanaku, said, “Fundamental rights are not absolute. We are talking of a situation where we have an insurgency. Yes, the Constitution says within 48 hours anyone arrested should be taken to the nearest court; but this is a peculiar situation and in peculiar situation there may be need to devise some other means of approaching it.”

This view was backed by another Lagos-based lawyer, Mr. Wahab Shittu, who argued that arrest of any citizen on reasonable suspicion coupled with long detention is permissible, where such a person is suspected of action capable of undermining national security.

He said, “There is no doubt that those detained on the suspicion of terrorism are citizens of Nigeria, who are entitled to fundamental rights under the law as preserved under the Constitution. But these fundamental rights are not absolute, especially on account of defence, safety and health of the nation.

“ If someone is being held on an allegation that relates to terrorism, which is threat to national security, under the Terrorism (Prevention) Act, that person can be so detained for the purpose investigation, in order to determine whether they are culpable or not.

“Though Nigerian Constitution says that long period of detention is a violation of a citizen’s fundamental right, but if such long detention is occasioned by threat to national security, it would be justified.”

But their views were vehemently opposed by another lawyer, Mr. Fred Agbaje, who argued that the Terrorism (Prevention) Act has not given the military the liberty to detain any citizen arrested on suspicion of terrorism for long periods.

“There is nothing in the Terrorism (Prevention) Act that can override the clear provisions of the Nigerian Constitution, particularly Chapter 4 of the 1999 Constitution dealing with fundamental human rights.

“The military may hide under the Terrorism (Prevention) Act, but they must be prepared at the end of the day to actually prove that those detained are indeed members of the Boko Haram sect. You cannot detain someone for one year and then asked him to go; mere reliance on the Terrorism (Prevention) Act does not exonerate the military from civil liability.

“The political objective of Nigeria under Section 17 of the Constitution is equality, freedom and justice. That is the ultimate goal towards which every government in Nigeria, from the local government to the federal level, must endeavour to reflect in terms of governance,” Agbaje argued.

Another criminal defence expert, Mr. Terry Badmus, argued also that any long detention beyond 48 hours that is not backed up by a court order or a remand warrant was a violation of the provisions of Chapter 4 of the Nigerian Constitution.

“If a person is being detained without a court order or warrant of court, it is a clear breach of the constitutional provision on human rights. The military are not above the law and they cannot keep any suspect eternally.

“If a person is being detained on the suspicion of terrorism, it must be on the order of the court, otherwise it will be unlawful. It is not to my knowledge that the law has been amended and we are not under Decree 2 whereby the military can detain someone eternally,” Badmus said.

His views tally with those of a former Vice Chairman of the Nigerian Bar Association, Ikeja Branch, Mr. Adesina Ogunlana, who argued that though theTerrorism (Prevention) Act gives wide powers to the Armed Forces, long detention without trial constituted an infringement on citizens’ rights.

“I know that the provisions of the Terrorism (Prevention) Act are generally stringent, though I have not taken time to look at its provisions as regards detention of suspects, but the first law of the country is the Constitution. Of course, everybody knows that whatever law you have derogates from the Constitution.

“In the old days like 1984 when we had Decree 2, certain officials of the state had powers to detain a person and render them incommunicado without bringing them to court for about six months but those had been abrogated a long time ago.

“As a lawyer, who is conscious of the right of the people, I can fairly say that even without knowing the full facts, it is unlawful for anyone to be detained for a year without being charged to court,” Ogunlana argued.

The reality

One may view the attacks by the Boko Haram insurgents as a calculated onslaught on the provisions of Chapter IV of the Nigerian 1999 Constitution. To thousands of citizens who have been killed, maimed, bereaved, deprived, displaced and rendered homeless; abducted and held in captivity; and others who have been arbitrary arrested, tortured and jailed, the letters of that chapter may seem to have become merely academic. To them, the promised entitlement to right to life; right to dignity of human persons; rights to private and family life, right to personal liberty; and right to freedom of movement, which the chapter provides, may have become a mirage.

With thousands already killed and about 2.4 million citizens rendered homeless, going by the latest statistics of the National Emergency Management Agency, the Nigerian Armed Forces, for now, are faced with the fundamental challenge of preserving what is left of these constitutional provisions, especially in the North-East. But this task may be particularly uphill for the Armed Forces, which are expected to steer clear of human rights violations while deploying all their might to crush the Boko Haram insurgency.

It is believed that the Nigerian Armed Forces have the required training to operate within the bounds of this obviously thin line.

About a week ago, at the passing out parade of some graduands of the Nigerian Defence Academy in Kaduna, President Muhammadu Buhari had vowed that his administration would not overlook any established cases of molestation or bullying of innocent citizens by the military, in the ongoing battle against the insurgents.

The President said, “In operational conduct, Nigerians expect our Armed Forces to keep law and order and not behave like bullies.”

Asked over the phone, on Saturday morning, what the military was doing to ensure adherence to the rule of law, especially on arrest and detention of suspected members of the terror group, the spokesperson for the Nigerian Army, Col. Sani Usman, said he needed to be sure that this correspondent was actually calling fromThe Punch Newspaper, adding that as his number was unknown, he would not be able to comment.

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