Shi’ites’ proscription vs right to religious freedom

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In this report by RAMON OLADIMEJI, human rights lawyers examine the legality of the proscription of the Islamic Movement of Nigeria in some northern states

The Kaduna State Government on October 7, 2016 declared the Islamic Movement of Nigeria, popularly known as Shi’ite, an unlawful organisation and proscribed it.

The Governor of the state, Mallam Nasir El-Rufai, in a statement through his Special Assistant on Media and Publicity, Mr. Samuel Aruwan, said the sect was banned in order to preserve the peace and security of the state.

The decision to outlaw the Shi’ite sect, the statement said, was taken by the Kaduna State Executive Council at its meeting of October 6, 2016.

Section 45 of the 1999 Constitution and Section 97A of the Penal Code, Cap 110 Laws of Kaduna State, 1999 were cited as the laws which empowered the governor to outlaw any organisation that is considered a threat to the general peace and security of the state.

Among other grounds adduced for the proscription of the Shi’ite sect, the state said it was not a registered organisation under the Nigerian law.

It also cited the sect’s penchant for long processions in the metropolis, which usually cause gridlocks, sometimes degenerating into conflicts.

The religious sect was also said to allegedly have a paramilitary arm and it was considered a challenge to the sovereignty of the state’s authority.

A week after the proscription of the Shi’ite sect in Kaduna, the sect was also banned in Plateau State.

The Plateau State Governor, Mr. Simon Lalong, said the sect was banned in the interest of public peace and security, stressing that the activities of the sect could no longer be tolerated in the state.

The ban, announced in a statement on October 14 by the Secretary to the Plateau State Government, Mr. Rufus Bature, came two days after a bloody clash between youths and Shi’ite sect members in Jos, the Plateau State capital.

The youths and the Shi’ites had clashed in Angwan Rogo area of Jos North, while the Shi’ites were on a procession celebrating the annual Ashura festival, marking the death of a grandson of Prophet Mohammed.

The sect’s place of worship, Hussaniyya, was demolished.

It was in response to this mayhem that Plateau State, in the statement by Bature, banned the Shi’ite sect, “in order to sustain the prevailing peace in the state.”

Bature warned that the government would not hesitate to clamp down on any member of the organisation who violated the order.

On December 13, the Sokoto State Commissioner for Justice and Attorney General, Suleiman Usman, disclosed that the state was pushing for a national law to generally proscribe the Shi’ite sect in the country.

“We have observed that individual states cannot enact laws that would effectively tackle these threats, especially now that the threats have a national outlook.

“Kaduna has tried but the same people can move to other states. So, if there is a law at the national level, it would be seen to take effect in all states.

“There are reports that activities of some groups, especially the activities of the Islamic Movement of Nigeria are aimed to stain the security of the state,” Usman said.

The trouble with the Shi’ite sect in Kaduna State began on December 12, 2014 when the sect clashed with the convoy of the Chief of Army Staff, Lt. Col. Turkur Buratai, in the Zaria metropolis.

The spokesman for the Nigerian Army, Col. Sani Usman, said the army chief, with his convoy, was attacked by the Shi’ites while on his way to the palace of the  Emir of Zazzau, to pay homage to the monarch before attending the passing out parade of 73 regular recruits intake of Depot Nigerian Army, Zaria.

Usman said the sect members put a barricade on the path of the army chief’s convoy and defied all entreaties by the military to let the convoy pass.

The army, in response, unleashed its force on the sect, killing several.

The leader of the sect, Sheik Ibrahim El-Zakzaky, and his wife were arrested and locked away.

Their children were killed alongside several Shi’ite adherents.

Houses of the Shi’ites were also demolished.

The Secretary to the Kaduna State Government, Mallam  Balarabe Lawal, later told the Judicial Commission of Inquiry set up by state to probe the circumstances surrounding the bloody clash, that no fewer than 374 Shi’ites were killed in that clash and buried in a mass grave in a cemetery along Mando/ Zaria Road on December 14, 2015.

The killing of the Shi’ites members and the continued detention of El-Zakzaky and his wife has led to a continued agitation by the Shi’ites.

Despite being proscribed in Kaduna, the sect embarked on its religious procession on October 12 to mark its Ashura Day.

In the process, they had a confrontation with some youths in Zango, in the Tudun-Wada area of Kaduna South.

The clash between the sect and the youths resulted in the death of at least two Shi’ites.

On the same day, there was also a free-for-all at Funtua in Katsina State between Shi’ite members and other residents.

No fewer than 10 Shi’ites died in the clash.

Worried by increasing spate of violence involving the Shi’ite sect, the Borno Elders Forum on December 7, wrote an open letter to President Muhammadu Buhari, urging him to intervene before the crisis degenerates into another form of insurgency in the country.

The Chairman of BEF, Usman Galtimari, urged Buhari to note that the situation with the Shiites in Kaduna was similar to what happened in Borno in the early days of the Boko Haram sect activities.

The forum expressed the fear that if the situation was not carefully handled the country risked a repeat of what happened in the North-East with Boko Haram.

“For the records, Mr. President, the Borno Elders Forum has no interest whatsoever in the existence or otherwise of the Islamic Movement of Nigeria. However, we are deeply concerned that a dark history appears to be repeating itself and given our most horrifying experiences in the North-East, we, as elders, owe you and our country the shared responsibility of pointing at potential danger and advising on ways of averting it,” the forum said.

Three Lagos-based lawyers, Messrs Dele Adeogun, Ebun-Olu Adegboruwa and Jiti Ogunye, also expressed worry over the treatment being given by the state to the Shi’ites issue.

Adeogun, Adegboruwa and Ogunye were not only of the common view that the proscription of the sect was not the right approach to the Shi’ite crisis, the three of them also separately argued that proscription was not in the spirit of the 1999 Constitution of the Federal Republic of Nigeria, which guaranteed the right of every citizen to freedom of association and religion.

“The reported proscription of the Shi’ite movement in Kaduna State and the attempt to proscribe them in two other states is a violation of at least two constitutional rights of the members and adherents of the Islamic Movement of Nigeria. It violates their right to freedom of religion and worship and their right to freedom of association,” Ogunye declared.

He argued that proscription was not the solution to the uncoordinated procession of the Shi’ite sect, arguing that they should rather be guided into going about their activities within the ambit of the law rather than be banned.

Ogunye said, “The Shi’ite movement in this country has a long history. If the issue is about procession and behaving with decorum, behaving decently and tolerating the right of other people in Zaria and in Kaduna, the Shi’ites can be engaged, to tell them that this is what civility and decency is, live and let others live; to tell them that they are not a state unto themselves and I think that people can be restrained by force of law.

“The state government in Kaduna can go to court in the public interest, file an action to restrain them, so, it won’t be a case of the Shi’ites now getting a positive order against the government to defend their right. I’m a lawyer; that tells me that somebody is being repressed and he is using the instrumentality of the law to protect himself.

“The state has a lot of power, it can get an order to delegitimise this thing being complained about. It is not by way of proscription. This is a sectarian war. The government has the responsibility to govern Nigeria as a partisan state and not use state authorities to repress a religious minority. The state belongs to every Nigerian.”

Adegboruwa, toeing the same line of argument, explained that Section 10 of the 1999 Constitution which makes Nigeria a secular state, did not permit any state to adopt any religion as its official religion but to accommodate and tolerate all kinds of beliefs embraced by citizens.

Adegboruwa said, “You cannot brand adherents of a particular faith, whether Sunis, whether Shi’ites, whether Christians, whether orthodox, whether Pentecostal as illegal.

“Everybody under our law is entitled to practise a religion that is acceptable to him under Section 38 of the Constitution. Every citizen of this country is entitled to freedom of conscience, freedom of thought and freedom of religion and not only freedom of religion but to practise that religion in a way that is acceptable to him according to law.

“If members of the Shi’ite movement want to march from Sokoto to Kaduna, from Kaduna to Abuja every year, it is permissible under the Constitution for them to advance their faith in any way that is acceptable to them. So, proscribing them actually is not a solution.”

Adegboruwa argued that the only association that the state can proscribe is a secret society.

“Section 38 clearly says that whether alone or in community with others, in private or in public, they have a right to manifest and propagate their religion or belief or teaching or practice. And there is no right conferred by any other law which can proscribe an association that is not a secret society. The only association that can be proscribed is a secret society. That is one that is outlawed by the Constitution. If two lawyers gather together, they can become an association. They may not even register it; the law does not require them to register unless they want to canvass for election, like a political party. Nobody can proscribe you, it’s only when you want to contest an election that you are required to go and register with INEC for that purpose. They don’t have a right to proscribe or ban them.”

In his own view, Adeogun argued that even if the state has a genuine grievance against the conduct of Shi’ite, the group could not be proscribed by a fiat.

Adeogun said, “Honestly for me, the way the government is handling the issue of the Shi’ites, if we are not careful, we are going to have a major crisis on our hands. Number one, there is a constitutionally guaranteed freedom of association. That is the bedrock our constitutional democracy. It is not that the government cannot proscribe an organisation, but that proscription must be in accordance with the law.

“If the Federal or state government has an issue with an organisation, you don’t do it by fiat. If Kaduna State has an issue with the Shiites, the Attorney General of Kaduna can go to court and ask whether what the Shiites are doing is within the purview of the provision of Chapter 4 of the 1999 Constitution is in order.

“I agree that the freedom enshrined in Chapter 4 is not absolute, however, you can only curtail those freedoms within the framework of the proviso to the freedom of association. And honestly, nobody has come up to tell us that this is what is wrong with the Shiites. If it is the fact that they are obstructing the roads, there are laws to deal with that. The response is not to proscribe the group, because if that is the case, then there are many religious organisations that should be proscribed in Nigeria.

“If you find that these people have violated the law, then take them before the regular court. The ban of Shi’ites by the state government, I think is a violation of the Constitution. It amounts to a violation of the right of the Shi’ites to freedom of association, religion and conscience. The provision of the Constitution is to the effect that these are fundamental rights binding on the people and the government and Nigeria also subscribed to the African Charter which gives people a right to freedom of religion, conscience and association.”

Adegboruwa sounded a note of warning that the Shi’ite issue should be handled well for the country not to have a new wave of insurgency on its hands.

He said, “El-Zakzaky has been in Nigeria as a citizen for over three decades. It is the reaction of government that provokes organisations into insurgency and into rebellion. When you know the period of their activities, try to regulate them; ask policemen to go with them when they are going on their procession. It is the reaction of government that provokes organisations into struggle. Look at the Niger Delta struggle, Isaac Boro started by holding peaceful rallies all around the cities in Niger Delta, Ken Saro Wiwa started by making peaceful demonstrations, it was government’s reaction, until it gets to Tompolo and the rest of them that are now carrying guns. It is the reaction of government. So, I believe that the way to handle the Shiites is not to proscribe them. It is to guide them in such a way that their activities will go according to law.

“Until the December of 2015, we never heard about Shi’ites but the day the military went there and mow them down, demolished all their houses then everything became lawless and this was the way Boko Haram started. The way we killed Yusuff, tried to outlaw his family, it became a national crisis and now we are the one provoking the Shi’ites to become insurgents. The government should dialogue with them; recognise their leader so that they can hold them accountable whenever they want to go outside the law.

“But when you try to proscribe them, tell them they can’t hold their activities in the daytime, then they go into the prison, they go into the mosque, they go inciting people, it is not proper. And that is not the only problem we have the Shi’ites. If it is true that El-Zakzaky is alive, if it is true that he has not been shot, if it is true that he has not been blinded and his eyes were shot and he’s blinded and cannot see, if it is not true that he is being treated in a private hospital in France, and he’s on wheelchair, let the government release him for Nigerians to see him.”