…Want court to set aside ex parte order
…Say ban violates rights to worship, association
The members of the Islamic Movement of Nigeria (IMN) have taken the Federal Government to court over the proscription of their group, saying the action is a violation of their constitutional rights to worship and freedom of association.The decision came on the heels of a Kaduna High Court ruling, which on Monday granted leave to IMN Leader Sheikh Ibrahim El-Zakzaky and his wife, Zeenah, to travel to India for medical treatment.
The duo has been in the custody of the Department of State Services since 2015, following a clash in Zaria, Kaduna State, between the sect and the Nigerian Army.In a motion on notice filed by the group at the Abuja Federal High Court, the applicant wants an order setting aside, discharging or vacating the ex parte order of the court made on July 26, 2019, which gave the government power to proscribe the sect.
In the case (No: FHC/ABJ/CS/876/2019) between IMN and the Attorney General of the Federation (AGF) as respondent, the Islamic group sought to quash the order “of this honorable court restraining any person or group of persons from participating in any manner whatsoever in any form of activities involving or concerning the prosecution of the collective intention or otherwise of the respondent/applicant under any other name or platform howsoever called or described in any part of Nigeria.”
The Shiites group contended that the order was made without jurisdiction and also made against a non-juristic body. It pointed out that the court, pursuant to an ex parte application brought by the applicant/respondent, made an order, inter alia, “proscribing the existence and activities of the respondent/applicant in any part of Nigeria under whatever form, either in groups or as individuals by whatever names they are called or referred to without affording the respondent/applicant the right of fair hearing.”
The lead counsel to El-Zakzaky and a Senior Advocate of Nigeria (SAN), Femi Falana, noted: “The said order of the honorable court breached the fundamental right of all members of the respondent/applicant to fair hearing guaranteed by Section 36 of the 1999 Constitution (as amended) and Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Laws of the Federation, 2004, in that no fair hearing was granted the applicant/respondent before the order was made.
“The order ex parte granted by this honourable court has violated the fundamental right of members of the respondent to freedom of thought, conscience and religion guaranteed by Section 38 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).“The order ex parte granted by this honourable court has breached the fundamental right of the members of the respondent to freedom of assembly and association guaranteed by Section of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).”
According to him, “The court did not grant the declaration that the activities of the respondent in any part of Nigeria amount to acts of terrorism and illegality. There was no urgency warranting the granting of the order ex parte. No motion on notice was filed together with the motion ex parte. The ex parte order made by the honorable court has determined the fundamental right of the respondent/applicant without affording it fair hearing.
“No undertaking was made as to damages. The order ex parte was anchored on misrepresentation of material facts and based on suppression of material facts. The order ex parte constitutes a gross abuse of the process of this honorable court.”
A supporting affidavit disposed to by one Haruna Garba Magashi, said: “I am a legal practitioner and a Shiite practising Muslim in Nigeria under the leadership and guidance of Sheikh Ibrahim El-Zakzaky. The respondent/applicant was never afforded the opportunity to defend the allegation made against it by the applicant/respondent before the ex parte order was made, contrary to the provision of Section 36 of the 1999 Constitution (as amended) and Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Laws of the Federation, 2004.”
Magashi pointed out that “the activities of the members of the respondent are non-violent but peaceful and they have been in existence since the 1970s in Nigeria as a Muslim body.” He said: “Contrary to the depositions of the applicant/respondent in their affidavit in support of the motion ex parte, it is the Federal Government of Nigeria and its security agencies that have at all times provoked the respondent/applicant, violently attacking them and destroying their properties and killing innocent members across the states in Nigeria.
“This unwarranted attack was taken to a new height in December 2015 while the members were celebrating the beginning of Maulud, which is the birthday anniversary of the Holy Prophet Muhammad, when the Nigerian Army led by its Chief of Army Staff, Lt. General Tukur Buratai, launched a vicious attack on peaceful worshippers of our members gathered at Husainiyya Baquiyyatullah, our worship centre at No 1A Sokoto Road, Zaria, Kaduna State.
“In the said attack, properties worth millions of naira were destroyed and several armless and defenseless worshippers numbering over 1,000 including men, women and children, the aged and people with disabilities were killed.”
Describing Shiites as peaceful and non-violent, Magashi said: “Members of the respondent/applicant are very peaceful and law-abiding citizens of Nigeria who have at all times resorted to the practical application of the rule of law to challenge the atrocities of security agencies against members of the respondent/applicant and have won several court cases against the applicant/respondent as against their deposition in the affidavit in support of their ex parte application which they relied on to mislead this honourable court into granting the said ex parte order.”
He added: “The members are a set of religious worshippers whose right to worship has been violated by the order of court herein. The members of the respondent/applicant are Nigerian citizens whose fundamental right to peaceful assembly, religious worship and right to peaceful procession is guaranteed under the 1999 Constitution of Nigeria and under the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 2004.
“Unless the order by this honourable court made on the 26th of July 2019 proscribing the activities of the respondent/applicant is set aside or discharged in its entirety, the respondent/applicant members’ rights to freedom of worship, procession and peaceful assembly, as Shiite Muslim practitioners in Nigeria, will be completely eroded.“The applicant/respondent will not be prejudiced in any way should this honourable court grant this application seeking to set aside the orders made on the 26th of July 2019 against the respondent/applicant.”