A/HRC/WGAD/2018/81

GE.19-00363(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-third session, 19–23 November 2018

Opinion No. 81/2018 concerning Ibraheem El-Zakzaky and Zeenah

Ibraheem (Nigeria)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 33/30.

2.

In accordance with its methods of work (A/HRC/36/38), on 15 August 2018 the

Working Group transmitted to the Government of Nigeria a communication concerning

Ibraheem El-Zakzaky and his spouse, Zeenah Ibraheem. The Government has not replied to

the communication. The State has been a party to the International Covenant on Civil and

Political Rights since 29 July 1993.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the deprivation of

liberty (as when a person is kept in detention after the completion of his or her sentence or

despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or freedoms

guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human

Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and

27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to the

right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on the

grounds of discrimination based on birth, national, ethnic or social origin, language, religion,

economic condition, political or other opinion, gender, sexual orientation, disability, or any

other status, that aims towards or can result in ignoring the equality of human beings

(category V).

United Nations

A/HRC/WGAD/2018/81

General Assembly

Distr.: General

10 January 2019

Original: English

A/HRC/WGAD/2018/81

2

Submissions

Communication from the source

4.

Ibraheem El-Zakzaky is the leader of the Islamic Movement in Nigeria.

5.

Zeenah Ibraheem is the wife of Mr. Zakzaky.

6.

According to the source, Mr. Zakzaky has been a passionate advocate for justice and

equality in Nigeria and has used his influence to foster peace in the country for over 30 years.

During the last two years, even while in detention, Mr. Zakzaky has been a moderating voice,

calling for peace and persuading others that violence is not a solution.

Background

7.

The source alleges that between July 2014 and December 2015 the Nigerian army

committed crimes against the Islamic Movement in Nigeria in the northern region of Kaduna

State, Nigeria. The Islamic Movement in Nigeria is a mass organization based in Zaria, a

major city in Kaduna State. It was founded in the late 1970s as a student movement. Since

its establishment, it has grown into a social and religious movement with supporters and

members of all ages and from all religious affiliations. It is estimated that in 2016 it was

supported by between 10 and 15 million people across Nigeria, from both the Sunni and Shia

Islamic schools of thought, as well as by some Christians.

8.

According to the source, the Islamic Movement in Nigeria has been targeted several

times by indiscriminate attacks by both Boko Haram and the Nigerian army, especially on

specific occasions, such as al-Quds Day processions. The Nigerian security authorities have

regularly perpetrated bloody attacks on the Movement, in particular a clampdown on its

members and the destruction of its headquarters in Sokoto, Nigeria, in July 2007 and in Zaria,

Kaduna State, in 2009, 2014 and 2015.

9.

The source reports that the Nigerian army carried out attacks from 12 to 14 December

2015 in the following locations: the Hussainiyyah, an Islamic Movement in Nigeria religious

centre located at No. 1A, Sokoto Road, Zaria; the home of Mr. Zakzaky; the group’s cemetery

of Darur-Rahma in Dembo village on the outskirts of Zaria; and the home and burial place

of Mr. Zakzaky’s late mother in the Jushi neighbourhood of Zaria.

Attack, arrest and detention

10.

According to the source, attacks against the Islamic Movement in Nigeria occurred

between 12 and 14 December 2015. On 13 December 2015, at around 9 p.m., nine Nigerian

army trucks carrying heavy weapons and ammunition drove to the private residence of Mr.

Zakzaky. They started bombing a tea shop and setting surrounding shops on fire. Once they

had taken up position outside the walls of the Ahmadu Bello University, close to the house

of Mr. Zakzaky, soldiers opened fire indiscriminately on the people who had formed a human

shield around the house.1 As the shooting began, people around the house started throwing

stones at the soldiers. The attack reportedly lasted until 5.30 a.m., when another 20 trucks

carrying reinforcements arrived in support of the army and joined in the attack. The attack

lasted for another two hours, after which soldiers successfully reached the fence of the house.

It took them another two hours of shooting at the besieged civilians before they reached the

entrance to Mr. Zakzaky’s house.

11.

The source reports that Mr. Zakzaky, his wife and their six children remained confined

in the house. At least 700 supporters of the Islamic Movement of Nigeria were reportedly

killed while many others, who were injured and left outside the residence in urgent need of

medical assistance, were denied medical treatment until the following day. The source claims

that eyewitness reports and photographs show piles of bodies lying on the floor outside Mr.

Zakzaky’s house. Later the army threw explosives at sections of the house, setting it on fire.

1 According to the source, hundreds of members of the Islamic Movement of Nigeria who came for a

flag-hoisting ceremony but could not get to the Hussainiyyah, went to Gyellesu neighbourhood,

seeking refuge from the killing spree unfolding at the Hussainiyyah and to create a human shield

around the leader of their organization.

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Allegedly, some of those who were too badly injured to move, as well as some of the corpses,

were burnt in the fire. Eyewitnesses reported that soldiers were seen killing anyone who had

been injured during the attack and allowing groups of criminals to steal and loot the victims’

belongings from their corpses. Those inhuman acts of violence were carried out in the

presence and with the complicity of the soldiers. The eyewitnesses also reported that the

soldiers were celebrating and chanting slogans against the Islamic Movement in Nigeria, such

as “we have finished with the Shia and El-Zakzaky” and “no more Shia in Nigeria”.

12.

According to the source, the attack on Mr. Zakzaky’s residence ended on 14

December 2015 with the arrest of Mr. Zakzaky and his family. Three of his sons and his elder

sister were shot dead while Mr. Zakzaky and his wife were both shot and injured immediately

before their arrest. Hundreds of other people were also reportedly arrested that day.

Afterwards, evidence started circulating showing Mr. Zakzaky severely injured and bleeding

while in military custody, with six gunshot wounds to his face, right leg, hand, arm and chest.

Other photographic evidence showed him injured and being mistreated by Nigerian soldiers,

forced to sit on the ground, brutalized and possibly tortured. He was subsequently ferried in

a wheelbarrow to a waiting truck and taken to an unknown destination.

13.

The source specifies that on the same day, the Nigerian army confirmed the arrest of

Mr. Zakzaky and his detention at an army barracks.

14.

The source reports that also on 14 December 2015, Mr. Zakzaky was moved to a

military hospital in Kaduna. His wife was also moved to a military hospital.

15.

The source reports that on 15 December 2015, the house of Mr. Zakzaky was razed to

the ground by the army. On 23 December 2015, the grave of Mr. Zakzaky’s mother was also

destroyed by the army.

16.

The source states that it is not clear whether Mr. Zakzaky and his wife are in the

custody of the army or the police. No formal charges have been filed and initially the army

refused to allow anyone, including his family, doctors or lawyers, to see Mr. Zakzaky and

his wife. At that time, it was feared that he might have died in custody.

17.

The source reports that the army eventually allowed a delegation of the Muslim

Council to visit him on 14 January 2016, one month after his arrest. A member of the

delegation confirmed that he was alive but injured by multiple shots. No family member,

independent personal physician or lawyer has been allowed to see him so far.

18.

Furthermore, according to the source, on 2 December 2016, the High Court ordered

the Department of State Services to release Mr. Zakzaky and his wife within 45 days,

therefore at the latest by 15 January 2017, considering their incarceration illegal and

unconstitutional. They were, however, not released.

19.

The source reports that, on 26 April 2017, protesters in Nigeria marked the 500 days

of detention of Mr. Zakzaky and his wife with a peaceful demonstration in Abuja. Thousands

of demonstrators asked the Government to respect human rights, personal liberty and a fair

trial for every individual protected by the Nigerian Constitution. The source also reports other

demonstrators calling for the release of Mr. Zakzaky and his wife. They were allegedly

violently and fatally repressed. The source specifies that the demonstrations organized by the

supporters of the Movement have always been peaceful, not a single one having involved

violence. That has been the case because of Mr. Zakzaky’s long-standing commitment to

peace and non-violence and his ability to influence his supporters to follow those principles.

20.

The source also reports a rapid deterioration in Mr. Zakzaky’s health at the beginning

of 2018, his doctor suspecting a stroke. He has difficulty moving and can now only speak

while lying down. His condition is growing worse owing to the lack of treatment following

his suspected stroke.

21.

The source indicates that owing to the severity of his previous, untreated injuries, as

well as the complications created by a possible stroke, it is essential that Mr. Zakzaky

receives immediate medical treatment. As his condition is severe and complex, he may need

to seek specific medical treatment abroad.

22.

In addition, the source claims that on 22 January 2018, the Attorney General of

Nigeria filed an appeal to overthrow the order of the Federal High Court of 2 December 2016

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instructing that Mr. Zakzaky and his wife be released within 45 days. The court found that

the Government was in contempt of the court order and that Mr. Zakzaky and his wife should

have been released immediately after the decision of 2 December 2016 and should have been

free during the appeals process.

23.

According to the source, the failure to successfully prosecute Mr. Zakzaky for over

two years, as well as the pressure from the court order demanding his release immediately as

of December 2016, led the Nigerian authorities to charge him, his wife and two of their

associates with numerous fabricated charges (namely blocking roads, being responsible for

the death of a soldier and inciting violence). The source claims that the authorities have

decided to press various charges against the detainees, hoping to succeed. The fact that

countless eyewitnesses refute the Government’s account of events seems irrelevant to the

Office of the Prosecutor.

Response from the Government

24.

On 15 August 2018, the Working Group transmitted the allegations by the source to

the Government of Nigeria under its regular communication procedure. The Working Group

requested that the Government provide detailed information before 15 October 2018 about

the current situation of Mr. Zakzaky and Mrs. Ibraheem, as well as any comments that it

might have on the source’s allegations.

25.

On 2 October 2018, the Government requested an extension of deadline to respond.

The extension was granted with a new deadline of 15 November 2018. The Government did

not submit any information in response to the present communication.

Discussion

26.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

27.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations (see

A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge the

prima facie credible allegations made by the source.

28.

At the outset, the Working Group wishes to state that the events in question have been

widely reported and substantiated by a written submission made to the Prosecutor of the

International Criminal Court alleging that the incident amounts to a crime against humanity.2

In addition, a number of special procedures mandate holders have written to the Government

about the same set of facts but in vain.3 Given the wealth of information available to it, the

Working Group is comfortable considering the information provided by the source and will

now set out the legal implications.

29.

According to the source, Mr. Zakzaky and his spouse were arrested on 14 December

2015. The officers who executed the arrest neither provided an arrest warrant, nor any reasons

or legal basis for the deprivation of liberty of Mr. Zakzaky and his spouse. Neither of them

was informed of the reasons for their arrest and subsequent detention and no formal charges

were filed at that stage. Only recently, according to the source, have the Nigerian authorities

decided to prosecute Mr. Zakzaky, Mrs. Ibraheem and their associates on charges of blocking

roads, being responsible for the death of a soldier and inciting violence.

30.

The State has an obligation to present an arrest warrant whenever a person is arrested

and that obligation is enforced through the action of its agents who, in addition, must inform

a person under arrest of the reasons for the arrest and subsequent detention. That obligation

2 See International Criminal Court, Office of the Prosecutor, “Report on preliminary examination

activities 2017” (4 December 2017), para. 213.

3 See https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunication

File?gId=22978 and https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublic

CommunicationFile?gId=23063. See A/HRC/WGEID/112/1, para. 75.

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is established in article 9 of the Universal Declaration and in articles 9 (1) and (2) and 14 (3)

(a) of the International Covenant on Civil and Political Rights. The same is provided in article

6 of the African Charter on Human and Peoples’ Rights. It is clear that this obligation has

been violated in the present case.

31.

In addition, it is reported that Mr. Zakzaky and Mrs. Ibraheem were detained

incommunicado. A delegation of the Muslim Council was allowed to visit Mr. Zakzaky on

14 January 2016, one month after his arrest but no family member, independent personal

physician or lawyer has been allowed to see him so far. Furthermore, according to the source

Mr. Zakzaky was ferried in a wheelbarrow to a waiting truck and taken to an unknown

destination. Incommunicado detention prevents the detainee from challenging his detention,

in violation of article 9 (4) of the Covenant.

32.

The Working Group concludes that all the violations mentioned above render the

arrest and the detention arbitrary within category I.

33.

According to the source, on 2 December 2016 the Federal High Court considered the

incarceration of Mr. Zakzaky and his wife illegal and unconstitutional and subsequently

ordered the State to release them within 45 days, that is by 15 January 2017 at the latest. They

have, however, still not been released. Indeed, more than a year after the High Court order,

on 22 January 2018 the Attorney General of Nigeria filed an appeal to overrule the order.

The Working Group considers that when a State does not respect judicial orders from its own

courts, especially when the court has ordered the release of individuals, in this case Mr.

Zakzaky and Mrs. Ibraheem, continuous detention becomes without legal basis, falling again

within category I. The Working Group is particularly concerned by such abuse of the rule of

law, which profoundly jeopardizes human rights in the country. In addition, in view of the

context of armed conflict in part of Nigeria, the Working Group notes that the source has

emphasized that the Islamic Movement in Nigeria is a non-violent movement and cannot

therefore be associated with any armed group in Nigeria. The Working Group therefore

considers that Mr. Zakzaky and Mrs. Ibraheem, as civilians, cannot be considered as

members of armed groups and cannot, therefore, be detained on that basis. Furthermore, the

Working Group recalls that, in its general comment No. 31 (2004) on the nature of the general

legal obligation imposed on States parties to the Covenant, the Human Rights Committee

noted that “the Covenant applies also in situations of armed conflict to which the rules of

international humanitarian law are applicable”.

34.

The Working Group also recalls the statement by the source that the Islamic

Movement in Nigeria is a Shia group with close ties to Iran and based in Zaria, Kaduna State.

The Movement is led by Mr. Zakzaky and has an estimated 3 million followers spread across

Nigeria. There is nothing to suggest that the Movement is a terrorist organization such as

Boko Haram, the radical Islamic group also operating in northern Nigeria that the

international community has identified as a terrorist group of major concern. 4 However,

according to the source, the Islamic Movement in Nigeria has been regularly targeted over

recent years in indiscriminate attacks by the Nigerian army. Eyewitnesses have even reported

that the soldiers were celebrating and chanting slogans against the Movement during the

Zaria massacre. On the day of the arrests, over 300 people were peacefully protesting against

the presence of the army in a circle around Mr. Zakzaky’s house. That, however, did not stop

the army from targeting those civilians in a mass shooting, including an 18-month-old baby

and members of Mr. Zakzaky’s family, in order to gain access to the latter. According to the

source, such acts of violence are recurrent and part of a process intended to take down Mr.

Zakzaky.

35.

Mr. Zakzaky and Mrs. Ibraheem were arrested and detained for exercising their

freedom of opinion and expression and their right to peaceful assembly and freedom of

4 See, among others, S/PRST/2014/8. Following that statement by the President of the Security

Council, on 22 May 2014 the Security Council Committee pursuant to resolutions 1267 (1999), 1989

(2011) and 2253 (2015) concerning Islamic State in Iraq and the Levant (Da’esh), Al-Qaida and

associated individuals, groups, undertakings and entities approved the addition of Boko Haram to its

list of individuals and entities subject to the targeted financial sanctions and the arms embargo set out

in paragraph 1 of Security Council resolution 2083 (2012). See also Security Council resolution 2349

(2017).

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association. Those rights and freedoms are protected under articles 19 (2), 21 and 22 (1) of

the Covenant, articles 19 and 20 (1) of the Universal Declaration of Human Rights and

articles 9, 10 and 11 of the African Charter on Human and Peoples’ Rights, and can only be

restricted, when necessary, to respect the rights or reputations of others or to protect national

security, public order or public health or morals. The Working Group therefore concludes

that the detention of Mr. Zakzaky and Mrs. Ibraheem falls within category II.

36.

The Working Group also bears in mind that on 17 December 2015, the Governor of

Kaduna State announced the establishment of a state judicial commission of inquiry into the

incident at Zaria. In his news conference, the Governor listed a range of grievances against

the Shia group, including how road traffic had been disrupted during Shiite processions and

the group’s disregard for Government of Nigeria authorities. His statement shows a certain

bias of the Government against Mr. Zakzaky and his movement. However, according to the

source, Mr. Zakzaky has never advocated for armed struggle as a means of achieving the

establishment of Islamic rule in Nigeria, contrary to what Boko Haram advocates. In addition,

Mr. Zakzaky is known to be a voice for peace in the country.

37.

Given its finding that the deprivation of liberty of Mr. Zakzaky and Mrs. Ibraheem is

arbitrary within category II, the Working Group wishes to emphasize that no trial should take

place in the future. However, it appears likely from the information presented by the source

that proceedings against Mr. Zakzaky and Mrs. Ibraheem will continue to trial. The Working

Group will therefore assess the arguments in that regard.

38.

The Working Group notes that the legal counsel of Mr. Zakzaky and Mrs. Ibraheem

was not able to contact them between the time of their arrest and 1 April 2016, three and a

half months later, contravening article 14 (3) (d) of the Covenant, which guarantees legal

assistance in criminal proceedings, and principle 17.1 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment. As a result, the

Working Group is convinced that the right of Mr. Zakzaky and Mrs. Ibraheem to have

effective legal representation and adequate time and facilities for the preparation of a proper

defence has not been respected by the State.

39.

Moreover, as reported by the source earlier this year, Mr. Zakzaky’s health has

deteriorated and his condition is getting worse owing to his lack of treatment. The army has

refused to allow anyone, including his family or doctors, to see him. That set of facts supports

a violation of article 9 (3) and (4) of the Covenant, article 8 of the Universal Declaration of

Human Rights and principles 11, 15, 18 (1) and (2), 19, 32, 37 and 39 of the Body of

Principles. Moreover, in view of the context of the armed conflict in that part of Nigeria, the

Working Group recalls that common article 3 of the Geneva Conventions of 1949 provides

that: “Persons taking no active part in the hostilities … shall in all circumstances be treated

humanely, without any adverse distinction founded on race, colour, religion or faith, sex,

birth or wealth, or any other similar criteria.”

40.

The Working Group concludes that all the violations referred to are of such gravity as

to give the deprivation of liberty of the couple an arbitrary character, falling within category

III.

41.

The Working Group notes that a large number of individuals were arrested alongside

Mr. Zakzaky and his spouse and are still missing or detained. The Working Group wishes to

emphasize that it is concerned by the situation and urges the State to take action. In addition,

the Working Group calls on the Nigerian authorities to conduct an internal investigation and

for an international inquiry regarding the events of the attack on the Islamic Movement in

Nigeria in December 2015.

42.

Finally, the Working Group is concerned by the allegations of violation of articles 7,

10 (1) and 14 (3) (g) of the Covenant, articles 1 and 4 of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment, article 5 of the Universal

Declaration of Human Rights, article 5 of the African Charter on Human and Peoples’ Rights

and principles 6 and 21 (2) of the Body of Principles. More specifically, it is alleged that the

persons concerned have been tortured and ill-treated, deprived of the necessary medical care

and detained in harsh conditions. The Working Group also recalls the denial of medical care

which could amount to a violation of article 16 of the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment. In accordance with paragraph 33 (a)

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of its methods of work, the Working Group refers the case to the Special Rapporteur on

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Disposition

43.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Ibraheem El-Zakzaky and Zeenah Ibraheem, being in

contravention of article 8, 9, 19, and 20 (1) of the Universal Declaration of Human

Rights and articles 9, 14, 19, 21 and 22 of the International Covenant on Civil and

Political Rights, is arbitrary and falls within categories I, II and III.

44.

The Working Group requests the Government of Nigeria to take the steps necessary

to remedy the situation of Mr. Zakzaky and Mrs. Ibraheem without delay and bring it into

conformity with the relevant international norms, including those set out in the Universal

Declaration of Human Rights and the International Covenant on Civil and Political Rights.

45.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to immediately release Mr. Zakzaky and Mrs.

Ibraheem and accord each of them an enforceable right to compensation and other reparations,

in accordance with international law.

46.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Zakzaky and Mrs. Ibraheem and to take appropriate measures against those responsible for

the violation of their fundamental rights.

47.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment for appropriate action.

48.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

49.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Zakzaky and Mrs. Ibraheem have been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Zakzaky and Mrs.

Ibraheem;

(c)

Whether an investigation has been conducted into the violation of the rights of Mr.

Zakzaky and Mrs. Ibraheem and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Nigeria with its international obligations in line with the

present opinion, especially vis-à-vis the Islamic Movement of Nigeria;

(e)

Whether any other action has been taken to implement the present opinion.

50.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example, through a visit by the Working

Group.

51.

The Working Group requests the source and the Government to provide the above

information within six months of the date of the transmission of the present opinion. However,

the Working Group reserves the right to take its own action in follow-up to the opinion if

new concerns in relation to the case are brought to its attention. Such action would enable the

Working Group to inform the Human Rights Council of progress made in implementing its

recommendations, as well as any failure to take action.

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52.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and requested them to take account of its views and,

where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.5

[Adopted on 21 November 2018]

5 See Human Rights Council resolution 33/30, paras. 3 and 7.