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Nigerian Court Fails to Deliver Mubarak Bala Judgment

Mubarak Bala

The Pride of Nigeria

There are two things Nigerians should be deeply proud of. The Federal Constitution, echoing the inspiring words found in the Universal Declaration of Human Rights, defines and guarantees a list of freedoms and rights that any modern democracy would be honored to call their own. These include the rights to life, dignity, personal liberty, a fair trial, and to be presumed innocent until proven guilty. It adds an array of freedoms, including freedom of thought, conscience, religion, and expression, and this latter freedom is spelled out, “freedom to hold opinions and to receive and impart ideas and information without interference.”

Which brings us to the second point of pride. These fundamental rights are considered so important that the Nigerian legislature passed a bill, known as Fundamental Rights (Enforcement Procedure) Rules 2009, to protect Nigerian citizens’ rights from would-be tyrants. These powerful rules were drafted so beautifully that they are as much poetry as law. I have read them more than 20 times and still they bring tears to my eyes.

Methodically, step-by-step, the Enforcement Rules (as I will call them), strip away all the barriers that could prevent citizens from claiming their rights. The author, Chief Justice Idris Legbo Kutigi Gcon, shrewdly made the Enforcement Rules a part of the Federal Constitution itself—the Supreme Law of Nigeria, so no State or upstart politician could pass a law to diminish any Nigerian’s access to fundamental rights.

And its Shame

So, are fundamental rights alive and well in Nigeria? Far from it. The ruling elite in Kano State has cynically shredded the Enforcement Rules and stomped all over the Constitution’s bill of rights. I could give chapter and verse of three recent cases that illustrate this point but today, for a special reason, I will focus on the case of Mubarak Bala.

Mubarak was arrested on April 28, 2020, following a complaint that a Facebook post he made insulted Prophet Muhammad and could incite a public disturbance. After his arrest, Mubarak was held incommunicado, without being charged and without access to his lawyers, friends, or family. Since these restrictions violated Mubarak’s Constitutional rights, his lawyers petitioned the Abuja High Court on May 8, asking the court to enforce Mubarak’s fundamental rights.

The Enforcement Rules wisely say time is of the essence when a person has been denied their fundamental rights. ORDER IV (1) states:

“1. The application shall be fixed for hearing within 7 days from the day the application was filed.”

A hearing was set for June 18, 41 days later but was abandoned because the Judge did not show up. A further date was set for July 9, 62 days later. On this occasion, counsel for the State did not show up and the case was adjourned. By this time Mubarak had been incarcerated without charge and without access to his lawyers for 72 days. What do the Enforcement Rules say about such a situation?

ORDER IV (3) states:

“3. The Court may, if satisfied that exceptional hardship may be caused to the Applicant before the service of the application especially when the life or liberty of the applicant is involved, hear the applicant ex parte upon such interim reliefs as the justice of the application may demand.”

Mubarak had been deprived of his liberty, not for the 7 days allowed, but for 72 days. This case was a perfect candidate for adopting the ex parte rule (hearing the case without the defense counsel being present), but the Judge did not hear the case and it was adjourned and Mubarak remained incarcerated without charge or trial.

A string of further hearing dates followed but each one was abortive, despite Mubarak’s lawyers always being present and correct. Inexplicably, no ex parte hearing was granted.

Mubarak’s Case is Heard

Finally, on October 19, Mubarak’s Fundamental Rights Enforcement case was heard. It was heard ex parte as counsel for the defense did not show up yet again. This hearing took place 164 days after the petition was lodged.

On hearing a Fundamental Rights case the Judge has important powers under the Enforcement Rules. These include the power to grant bail, the power to release the prisoner, and the power to grant an order restraining the State from re-arresting him. Mubarak’s lawyers presented compelling evidence of multiple and protracted violations of his fundamental rights and Kano State presented no counter-evidence and no contrary arguments.

Furthermore, Mubarak had not been charged but any possible charges that could arise from the original complaint would be minor which would entitle him to bail at the very least.

But the Judge, Justice Inyang Ekpo, did not grant bail. To a shocked court, he announced that he would deliver his judgment on December 10—giving himself over seven weeks to deliberate on this uncontested Fundamental Rights case!

This brings me to the point of this article. After a shameful litany of inexcusable delays, we were today informed that the judgment would not be delivered tomorrow, as Judge Ekpo promised on October 19, but on December 21.

Human rights are dead in Kano State. This is not because Nigeria’s laws are inadequate—they are not, they are precise and inspiring. But because the Kano ruling elite see this as a religious battle and they put their religion, Islam, above the supreme, secular laws of their country. Kano State is the shame of Nigeria.

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