Mubarak, today is your birthday but I cannot talk to you. I don’t even know where you are and nor does your wife or your children or any of the people who love you and respect you. But we are thinking about you. We think about you every day and every hour.
If you feel very alone on your special day, you shouldn’t. You should know that tens of thousands of people know you were arrested on April 28 in Kaduna and delivered to the Kano State police the next day. We know you were not charged or released within 48 hours as the law requires. We know you were not permitted your fundamental right to legal representation and you are being detained illegally.
You should know that governments, human rights bodies and organizations of all kinds from across the world have petitioned the Kano Police Command, the Inspector General of the Nigerian Police, and Nigerian government ministers up to Muhammadu Buhari on your behalf.
The Kano police tell us they are holding you in protective custody, so they cannot reveal your whereabouts. But that does not explain why they refuse to allow your lawyers to visit you (or even to telephone you), nor does it explain why they refuse to allow you to communicate with your wife. Instead, they leave her afraid for your safety and wondering when she will next enjoy a full night’s sleep.
The Nigerian judicial system can salvage no glory from this. They have behaved in a sordid, conspiratorial manner that would embarrass an ambitious Mafia boss. On May 8, your lawyers lodged a petition at the Federal High Court in Abuja showing that your fundamental human rights have been denied and demanding your release. On the facts, there really is no legal defense against this. But there is a simple procedural defense—the defense of prevarication. You won’t find this in any law book but it’s alive and well in Nigeria. Look at the timeline:
The fundamental human rights case
1st hearing: May 25: Void because it was a bank holiday.
2nd hearing: June 18: Void, the judge did not show up.
3rd hearing: July 9: Void, counsel for the state did not show up.
4th hearing: Fixed for the 3rd week of July.
It is worth mentioning that fundamental human rights cases should be given the highest priority—they normally take days to be heard. It is now more than two months and your case has still not gone before a judge.
The legal case against you
This is the case against you for the offense of inciting public disturbances through posts made on Facebook contrary to Sections 210 and 114 of the Penal Code and the offense of posting racist and xenophobic material online contrary to Section 26(1)(c) of the Cybercrimes Act 2015.
I don’t imagine you have lost much sleep worrying about such charges. The Federal Constitution grants you freedom of expression and is a superior law to the Penal Code. Prosecuting you for exercising your constitutionally guaranteed right of self-expression is nothing short of hand-waving. The charge under the Cybercrimes Act is equally frivolous—I would love to see the state’s barrister trying to explain how anything you have ever written can be construed as racist or xenophobic. I would pay to see such an act of syllogistic contortionism!
More seriously, we have to wonder what motivated Messrs S.S Umar & Co to make a complaint about your harmless writings whilst ignoring the many overt death threats made against you by Nigerian Muslims, a behavior that is explicitly outlawed by Section 24 of the Cybercrimes Act. Umar & Co state in their complaint, that they are lawyers “whose first and foremost duty and responsibility is to, among other things, uphold and observe the rule of law, promote and foster the cause of justice…” No attempt can be found here to uphold the rule of law, but religious bigotry is readily apparent.
Here is the timeline of the case against you:
Pre-trial hearing: June 3: Void, neither the judge nor the prosecuting counsel turned up. No charges were listed. Your lawyers were provided with the handwritten copy of the complaint made against you but no formal charges were produced.
Pre-trial hearing: June 8: Void: The judge did not show up.
Pre-trial hearing: June 10: Judge was present but your lawyers said a condition for holding the pre-trial session was to be granted access to you. The Judge telephoned the police to see if they would allow it! Yes, you read that right.
There is no further progress on the case against you, as it requires your lawyer to gain access to you and this has not yet been achieved.
The petition for lawyer’s access
On June 17, your lawyers filed a petition at a court in Kano asking for an order to allow them to see you. Again, there are no reasonable grounds for denying lawyers access to their client but this has not gone well either, and for similar reasons.
1st Hearing date: June 22: Void because the magistrate did not show up. Your lawyers were asked to return the next day.
2nd Hearing date: June 25: Hooray! The magistrate granted the order that your lawyers be permitted to see you! Now the order has to be enrolled (typed and sealed) and it can be served on the Police Commissioner. This usually takes 24 hours or so.
June 26 onwards: Daily calls from your lawyers chasing the completed Court Order.
July 11: Today the order is still waiting to be enrolled. What can we do when court clerks refuse to do their jobs? Get a Court Order against them? But who will enroll it?
I’m so sorry, you are going through this Mubarak. You have done no wrong but there is wrongdoing aplenty in this story. Fundamentally, the police have held you without charge and without access to your family and lawyers. This is illegal.
Next, the courts have failed in their duty to protect you. They have dragged their feet and put hurdles in your way when they should be striving to protect you and defend your constitutional rights. Any honest and responsible judicial system would have freed you unconditionally many weeks ago.
Messrs S.S. Umar must take responsibility for bringing an entirely frivolous lawsuit that they knew full well would put you in harm’s way. And they should be ashamed they have made no complaints against the criminals who have openly threatened to kill you.
But be sure, this story is not all villains. The good guys are those who respect human rights and demand that the law be applied to everyone equally, no matter what their religious preferences. Many of these people have worked tirelessly to defend you and will continue to do so.
Chin up, my brother. We love you, we stand with you and we are not going away. Happy birthday!
