Sunday Musings:  The Ogebe Ruling, the Measure of (Substantial) Non-Compliance – and a Missed Opportunity

By Mobolaji Aluko

alukome@gmail.com

Burtonsville, MD, USA

March 2 , 2008

INTRODUCTION

Despite Presidential Petition Tribunal Chairman Ogenyi Ogebe's absence from the bench on Judgment Day February 26, 2008, this ruling shall be referred to as the Ogebe Ruling for eternity.  It is the worst election-related ruling in Nigeria's history,  and has the singular dishonor of accompanying the worst set of elections ever in Nigeria's history - those superintended in April 2007  by Dr. Maurice Iwu.  It trumps the "12  is 2.3^rd of  19" debacle of 1979,  ascribed more to the NPN lawyer Richard Akinjide who proffered that disingenuous argument to the Justice Kazeem and his Petition Tribunal team.

The extreme partisan, on reading my characterization of the Ogebe Ruling as worst-ever will probably cry "Foul!", stating that it was because the ruling did not go my way, that is why I decry it.  Absolutely not. Rather, it is the abysmal lack of remorse which the ruling showed despite a welter of flaws recorded by international and domestic observers and admitted even by Umar Musa Yar'Adua himself;  the mocking levity  and lack of majesty with which it was delivered;  and the implications of the ruling for the remaining petition tribunals for the current election cycle;  and most importantly the implication  for future elections in Nigeria, eg 2011,  that give one palpitations out of fear for the future of democracy in our dear country.

THE BASIS OFOUR ANGST – "MINIATURE COMPLAINTS"

Let us provide three examples which the Ruling characterized as violations and/or "miniature complaints." of the petitioners.

First, to wipe out 95% of petitioner General Muhammadu Buhari's witnesses because of a procedural violation (swearing on oath over depositions before a lawful Notary Public who was in the employment of petitioner), while minimizing the non-swearing of oath of possibly tens of thousands of electoral officers is unconscionable.  From twenty-one witnesses, Buhari was left with just two witnesses, both of which were deemed by the court to have inconsequential evidence to offer.. Secondly, to admit there was indeed "substantial violation of the Electoral Act" due to non-serialization and perforation of the tens of millions of ballot papers, and yet to minimize the possible effect of this illegal omission on the election results is patently absurd.  Thirdly – and finally -  what about Atiku Abubakar's technical exclusion from the elections, being forced on the ballot only five days before the Presidential Election of April 21 by a Supreme Court injunction?  Or his being disallowed from public campaigning following an Inspector General of Police' banning of rallies?  Or this:  Prior to that forced inclusion, the party logos, names and faces of presidential candidates were announced to be included in the ballot, and sample ballots loudly displayed.  After the Supreme Court ruling requiring Atiku's inclusion, the names and faces were dropped.

The Ogebe Ruling observed that there was indeed evidence of "an attempt to set up barriers to Atiku's candidacy between the nomination date and April 16….which should not be". The ruling also kept mute over the clear violation of the Electoral Act which requires a minimum of thirty days and a maximum of one-hundred-and-twenty days for a candidate to be published PRIOR to the Election Day.  How then could the Panel Judges   proceed to jokingly dismiss all of these observation as  "miniature complaints"?

THE NEBULOUS NOTION OF SUBSTANTIAL NON-COMPLIANCE

The legal basis for all of these dismissals was that there was no evidence that these "miniature complaints" amounted on aggregate to "substantial non-compliance"  But of what?  It could not be of the Electoral Act, since the Judges themselves had admitted clear violations, at least with respect of the non-serialization and bias shown in "attempting" to exclude Atiku.

More importantly, what really then is the STANDARD or MEASURE of this non-compliance?  What makes a particular non-compliance SUBSTANTIAL and another NON-SUBSTANTIAL?  Are we talking of a binary digital measure here – 0 or 1 – or a continuous measure – 0% to 100%?

For it to be binary, it could ONLY be if the substantial non-compliance is with respect to some predetermined election outcome, absent these complaints.  That is:  we expected Yar'Adua to win. He won.  So what is the problem?  This of course is the Party line of the PDP, and of those who argue without proof that Buhari and Atiku could not have beaten Yar'Adua in the April 2007 elections  – as if they were diviners.  If that were the case, why then did we need to waste time and money and effort going through the motion of elections?  Why don't we just poll the diviners and decide the winner from their majority?

Or is it a continuous measure?

If it is, then the only criteria that I see are two:

-        Measure 1: the number of polling stations in the country was purportedly 120,000.  If you have provable evidence of rigging in no polling station at all, you score 0%, if in all, you score 100%.  In between, you get a score accordingly, by dividing by 1200..

-        Measure 2: the number of ballot papers used in the country was purportedly 65 million (total ballots) or 36 million (ballots cast)..  If you have no provable evidence of rigging in any of the ballot papers, you score 0%; if in all you score 100%.  In between, you get a score, by dividing by 650,000 or 360,000 as the case may be..

Similar measures might be concocted for legislative and state elections, depending on jurisdiction.

So as far as the Justices are concerned, if a continuous measure is to be used,  what are the  grades for A, B, C, D and F here? 90 and above,  80, 70, 60, 50 and below respectively?  And is C and below in ANY ONE of the measures  what they term substantial non-compliance – or is it  in BOTH measures above?

Inquiring minds want to know.  The Justices need to let the Nigerian people know, otherwise this nebulous concept of substantial non-compliance is subject to gratuitous and egregious capriciousness in all rulings, and is capable of destroying Nigeria's electoral democracy for ever.   Never mind the notion that a particular ruling can be REVERSED in higher court, yet such reversal in itself can equally be egregious capricious in the absence of objective standards and measures.

IMPLICATIONS FOR FUTURE ELECTIONS

I submit that a careful reading of the Ogebe Ruling is an open manual for those who would rig elections in the future even more than what we had in 2007 – as if that were possible. Ayo Obe has recently rightly called it "A Charter for Dishonest Elections." http://www.nigerianmuse.com /nigeriawatch/2007/A_Charter _for_Dishonest_Elections_Essay _by_Ayo_Obe

Take the issue of non-swearing by INEC officials.  If ANY refusal to swear by an INEC official has no consequences, why does ANY INEC official have to swear at all?  Suppose ALL 500,000 of them refuse to swear, then what?  Why do we have that requirement in the Electoral Act at all if its violation can be so easily dismissed by the wave of a hand?

Or take the issue of non-serialization of ballot papers.  In short, these ballot papers were ILLEGAL, period, no question about it, as what constitutes a ballot paper is CLEARLY spelt out in the Electoral Act 2006.. This time around, the Atiku exclusion episode was the reason for the emergency, but what prevents a deliberate delay of funds to be the reason for the next cycle?  Taking it further:  What then prevents a local Electoral Commissioner, arguing from expediency – eg that the official ballots did not arrive on time from Abuja – from contacting a local printer in Ado-Ekiti to print any set of ballot papers and then proceeding to administer the same in the Ekiti portion of the elections?

[I read an essayist Michael Egbejumi-David recently ask pointedly whether the lack of serial numbers on our currency can now be used to discredit him when he decides to spend some of it..  Go figure. http://www.nigerianmuse.com /nigeriawatch/2007/Are_We_Ever _Going_to_Get_It_Right_Michael _Egbejumi_David ]

Finally, what about the exclusion of Atiku?  Curiously, the Electoral Act allows the CONSIDERATION of postponement of elections in the event that a candidate dies within a stipulated time – apparently a device to dissuade deliberate assassination of co-candidates by others.  However, suppose we have a situation  in which a candidate is KIDNAPPED and held INCOMMUNICADO from the day of his nomination to just four to five days to the election, only to be released then.  Would that not be a serious violation of the Electoral Law - an exclusion as it were?

It is for the above reasons, and more, that I consider this Ogebe Ruling a legal howler, which must be tested – and hopefully upturned – at the Supreme Court, otherwise we are in serious trouble as a country.

A MISSED OPPORTUNITY

All that could go wrong in any election went wrong: unlawful exclusion of candidates; wrong or missing names, logos and pictures on ballots; delayed ballot arrival; no ballot arrivals at all and hence no voting; thuggery; use of army and police in thumb-printing and beating up of opponents; ballot stuffing; missing or altered election result sheets; corrupt announcement of wrong results; etc., etc. Just think of it, name it, and all went wrong as observed by international and domestic monitors.

Consequently, uneasiness with the seriously flawed elections which brought Yar'Adua was profound among many Nigerians.

Nevertheless, speaking with hundreds of Nigerians since the April 2007 elections, I have been impressed with the happiness that has attended the disappearance of the fractious years of  Obasanjo administration, years of haranguing the nation and a boorish approach to governance populated by presidential-aides-as-loudmouth s who would abuse anybody at the behest of President Obasanjo.  That regime has been replaced with a more genteel – albeit too slow – administration of Umar Musa Yar'Adua.  Nigerians were further pleased by the fact that Yar'Adua himself has admitted the deep flaws countless of times.

Thus many Nigerians that I have spoken to would actually want Yar'Adua to continue in office, but would not admit it openly out of a fear of accusation of "anti-party activities." Nevertheless, they had hoped that the Ogebe Ruling would SOMEHOW be far more balanced than it was – and not as UNHINGED as it really is – and somehow graciously give Yar'Adua more conciliatory wiggle-room among the opposition to maneouver himself into their hearts.

All the above makes the Ogebe Ruling more jarring.  This is because the notion now fostered by the ruling is that those elections were near perfect, and that it is only a lazy opposition and its allegedly incompetent counsels that could not prove its case.  What does that conclusion then make of the much-touted Electoral Reforms which Yar'Adua is attempting to foist on the nation?  Are those now not superfluous, and should his Electoral Reforms Committee not be disbanded?

The opportunity to give Yar'Adua more wiggle-room has now been lost, because of the simple arrogance and in-your-face judgment which has been simply atrocious.   The impunity is galling.  Events leading up to the judgment, particularly the elevation of Justice Ogenyi Ogebe to the Supreme Court,  also simply exposed Yar'Adua as just another political operative who would do anything necessary – you remember the do-or-die mentality -  to remain in power.  Before all of these happenings, that was NOT the Yar'Adua that many knew. After these happenings, his virgin innocence has now disappeared.

Only the Supreme Court can sew it back.

Finally, it is clear that Raila Odinga's party's refusal to go to court after the daylight election robbery in Kenya was wise, for it has now forced a major rapprochement between the Mwai Kibaki and Raila Odinga in a new power-sharing agreement negotiated under the watchful eyes of Kofi Annan..  Our own Election Petition Tribunal ruling indicates that when it matters most, fair judgment may not be expected, and if care is not taken, people may in future take matters in their hands in a manner reminiscent of Kenya's post-election killing fields.

We pray not.

Bibliography

http://www.nigerianmuse.com /nigeriawatch/2007/THURSDAY _ESSAY_Now_That_I_am_Fairly _Recovered_from_the_Presidentia l_Petition_Tribunal_Ruling_of _February_26

THURSDAY ESSAY: - Now That I am Fairly Recovered from the Presidential Petition Tribunal Ruling of February 26......, By Bolaji Aluko

http://www.nigerianmuse.com /essays/SATURDAY_ESSAY_Why _Nigeria_s_2007_Presidential _Election_will_be_Canceled_on _Super_Tuesday_Or_Should_Be

SATURDAY ESSAY - Why Nigeria's 2007 Presidential Election will be Canceled on Super-Tuesday – Or Should Be, by Bolaji Aluko

http://www.nigerianmuse.com /essays/TUESDAY_ESSAY_On_Today _s_Prononuncement_of_the _Presidential_Petition_Panel _For_Yar_Adua_Jonathan_and _Against_Buhari_Atiku_Some _Quick_First_Impressions

TUESDAY ESSAY - On Today's Prononuncement of the Presidential Petition Panel For Yar'Adua/Jonathan and Against Buhari/Atiku - Some Quick First Impressions, by Bolaji Aluko

Robot  Villager

# 1 Despite Presidential Petition Tribunal Chairman Ogenyi Ogebe's absence from the bench on Judgment Da...Read the full article. Posted by Robot| 02.03.2008 23:56

ikechukwu  Villager

# 2 In a sane country non serialization of any important document is enough to declare such document invalid. But our appeal court judges said it does not matter. So by extension this money I got from a 'money changer' without serial numbers would be spent because it is legal and until upturned by the supreme court it remains so. Sadly that is te kind of judgement we got from our 'deligent' appeal court judges. COUUUURRRT! Posted by ikechukwu| 03.03.2008 08:20

ikechukwu  Villager

# 3 In a sane country non serialization of any important document(whether ballot papers,money,receipt,vouchers,etc) is enough to declare such document invalid. But our appeal court judges said it does not matter. So by extension this money I got from a 'money changer' without serial numbers would be spent because it is legal and until upturned by the supreme court it remains so. Sadly that is te kind of judgement we got from our 'deligent' appeal court judges. COUUUURRRT! Posted by ikechukwu| 03.03.2008 08:22

olootu  Villager

# 4 It was ( the so called judgement) *******isation of justice in all ramification. I listened to the BBC world service that day and you know what, the service quickly made away with that news immediately that st...d 'judgement' was passed. What on earth are those 'learned' judges thinking with their heads. This fight is beyond Atiku/Buhari. It's about the foundation, about our children and our/their future. The mess created by that defence (Akinjide's) that you referenced above is still trailing us till today. It is still part of the problem today- People turning justice upside down. How long more do we have to wait for JUSTICE??? I have suspected some foul plays all along. The way the judges at the Tribunal were pushing the petitioners from wall to wall. You could see/feel it coming. I do SINCERELY hope that the SC will give us a reprieve. The future of our democracy is at stake here! Posted by olootu| 03.03.2008 12:13

Agidimolaja  Villager

# 5 Bolaji, Pls count me as one of those who cried foul upon reading your last submission that the last general elections was the worst -ever. And you got it quite right, that the reason for this your second crowings at the rooftop was because the ruling did not go your way. You reasoned within yourself and preached it to your readers that Yar'Adua's election was going to be annulled by the tribunal.Your armchair analysis gave fake excitement to many in uninformed circles that truely the end of Yar'Adua as President is at sight. With due respect to your celebrated intellectualism, it is a pity that neither you nor professional mischief mongers who were given to this position had priviledged information on the issue at stake.All of you were merely persuaded by wishful thinking,sentiments and gossips.This was one of the reasons why I said it the other time that the circumstances in this case have fatally misled you. Kindly take a second look at the petitions piled up by Atiku and Buhari.Then take another look at how Iwu demolished the interrogatories.It is then you would see it yourself that it was evident, that the two petitioners merely entertained the public, especially the Appeal court with hollow issue that had no material bearing in law. Mishief mongers were not ready to listen to INEC's point of view whereas,those who cunducted the elections know more about the election than the rest of us,but thank God, the Court of appeal do know better and their knowledge was the basis for the ruling. Instead for people to look at INEC's case from a critical and political point of view, they however allowed emotions and sympathies and hatred and sentiments and propaganda etc to take the better of them. Posted by Agidimolaja| 05.03.2008 02:52

Mikky jaga  Villager

# 6 The Ogebe ruling is a straight step in the wrong direction in as far as electoral process in Nigeria is concerned. If a law court can put a stamp of approval on the sham that was the April 2007 elections, then, let no one bother himself about free and fair elctions again in Nigeria. The fact that OBJ and IWU saw the verdict as a vindication of their stand that the elections were free and fair is enough to cancel the elections. Yar'Adua, by rejoicing at such a terrible verdict that ran against his earlier admission that the elections was not perfect, shows he is no better than his do-or-die predecessor. One hopes the Supreme court will rise above expediency and call a spade a spade. If this election is allowed to stand, it only tells us that no matter how flawed, a presidential election cannot be reversed in Nigeria. Next elections will not be do-or-die by only one party, but by all the parties since they know, no court can reverse the result of such elections. Posted by Mikky jaga| 05.03.2008 12:54

Exxcuzme  Villager

# 7 =Agidimolaja;4294993693>Bolaji, Kindly take a second look at the petitions piled up by Atiku and Buhari.Then take another look at how Iwu demolished the interrogatories.It is then you would see it yourself that it was evident, that the two petitioners merely entertained the public, especially the Appeal court with hollow issue that had no material bearing in law. Mishief mongers were not ready to listen to INEC's point of view whereas,those who cunducted the elections know more about the election than the rest of us,but thank God, the Court of appeal do know better and their knowledge was the basis for the ruling. Instead for people to look at INEC's case from a critical and political point of view, they however allowed emotions and sympathies and hatred and sentiments and propaganda etc to take the better of them. Baba Agidi, Can you expanciate on how Iwu demolished Buhari and Athiefku I also want your view on what the law says and tell us how Iwu's INEC did not contravene the law. I will really appreciate your critical and political point of view in relation to the las election. Thanks Posted by Exxcuzme| 05.03.2008 13:23

Agidimolaja  Villager

# 8 Exxcuzme, Time and space will not permit me to do such and exhaustive job you asked me to do because of other more pressing issues. The glaring evidences are however there for you to behold.I sincerely implored you also, as I did Bolaji to go back and take a second look at what Iwu put up as defences against Atiku's 27 interrogatories.Then you can see it yourself(if you do not allow sentiments etc to blindfold you) how he demolished those interrogatories by punching a big hole on the allegations,thus weakened considerably what Atiku and his mate had piled up. Be aware of the fact that this is purely political issues.It is therefore not unusual if technicalities are employed which may be the reason for some people's uneasiness and crowings. Sentiments and propaganda apart, lets open up our mind and spirit while trying to make judgements.And whenever we judge,lets see to it that we judge with fairness. Now,the lead songs are election irregularities,rigging,flawness and the bunch of make beliefs.The question is;are all of the above limited to PDP and INEC alone? Did AC and others also not engage in various malpractices?Was it not the same court that cleared Atiku to contest the election when he should not have been allowed to contest because he was under indictment? Was it not the same court that allowed him to remain as the VP when he decamped from the political party that gave him the office of VP while the constitution says the President and VP must be member of same political party?Remember,(as I do) the technicalities that were employed then; that they must be of same political party while coming into office but they are not necessarily reqired to continue to remain together afterwards.FRAUD! Where else in democratic communities have you heard or witnessed such except in our Nigeria. When it happened,all mischief mongers roled out the drums and took to the streets to celebrate and hailed the court and her judgement. But here we are again today.Another brand of technicality is employed but this time it is unfavourable to Atiku; heaven is therefore required to fall down upon us all, including Atiku's one time best friend - the court. God,where art thou? Posted by Agidimolaja| 06.03.2008 08:55

Mikky jaga  Villager

# 9 Agidimolaja, I had wanted to refrain from engaging posters on this thread, but had to change my stance on reading your last post up there. From your writing, it appears you were only interested in seeing that Atiku was defeated at the courts. The larger picture on how the judgement will affect the electoral process does not interest you. Well, some of us that were disgusted with the judgement did not do so because of Atiku, but because we could not stomach the clean bill given the April elections. It portends grave dangers for our electoral process. The answers given by Iwu should have shown any honest judge that Iwu was not an honest person, that he could tell such barefaced lies under oath showed he had a lot to hide. But those justices were not interested in that, they were only interested in returning Yar'Adua willy nilly. I believe the Supreme Court will rise above such pettiness and call Iwu the right name he ought to be called. Posted by Mikky jaga| 06.03.2008 11:46

Agidimolaja  Villager

# 10 Mikky Jaga, No, I was not bent on seeing Atiku defeated as you speculated in your recent posting. Just like you,my concern is about how bad events would continue to affect our electoral processes as it is the case since over 47yrs. What we witnessed in 2007 was fraud and big shame. But,did you see the parts that our courts played therein too?I said it already that Atiku should not have contested the election but the court cleared him anyway.The court also allowed him to decamp from his political party and yet retained his office as the VP in the face of what the constitution says. How do you think events like those are not going to have bad effects on our electoral processes in the very near future? I will not lose sleep if the Supreme court ruled differently and I will not be surprised also. Was it not our Supreme court that cleared an indicted person to contest election? Was it not our courts that have been issuing all kinds of injunctions just to enable indicted or wanted crooks to be let off the hook and be roaming around freely? What is new about our Supreme Court?Since independence,how well has Supreme Court performed?Check their records. Our electoral processes are already in shambles as well as our military imposed constitution.For our electoral processes to stand the test of time,our constitution must be duely amended.Without that,we are only on a merry-go-round. Posted by Agidimolaja| 07.03.2008 00:11

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