13 Dec 2008 |
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Yar'Adua, Buhari, Atiku And The Supreme Court By Reuben Abati President Umaru Musa Yar'Adua must have slept soundly on Friday, December 12, 2008. It was the day the Supreme Court of Nigeria in determining two petitions against his election in 2007 awarded him victory: 4-3 in the Buhari case, and 6-1 in the Atiku case. He appeared on television that evening to tell Nigerians, that the Presidential election of 2007 has now been concluded. This is something to worry about. That an election that took place in April 2007, is now only just being determined close to two years later further confirms the urgency of electoral reform. While President Yar'Adua served in that office in the last 19 months, a cloud of uncertainty hanged over his office. His lack of pace has been attributed to his alleged poor health, but more sympathetic analysts have spoken of the President being distracted by litigations. In February, the Court of Appeal had ruled in his favour, but the challengers, General Muhammadu Buhari of the All Nigeria Peoples Party (ANPP) and Alhaji Abubakar Atiku of the Action Congress (AC), resolved to take the fight all the way to the Supreme Court. Their faith in the rule of law is to be commended. At no point in the course of the process, did Buhari or Atiku elect to take the law into their hands. Increasing faith in the courts by the professional political elite in Nigeria is a good sign. Sustaining this however beyond the 2007 elections is important, as there appears to be growing impatience with the courts. What remains is for General Buhari and Alhaji Atiku to congratulate President Yar'Adua who has extended a hand of fellowship to them. If they have not congratulated him, they should do so quickly. Both men have so far said that they abide by the ruling of the Supreme Court. They really do not have an option, do they? Alhaji Atiku also told the BBC that because the Supreme Court had ruled in his favour in the past, he would not want to say anything against that Court. He says even if the court had ordered a re-run, the election would still have been organised by the same characters who bungled the 2007 elections. He wants the Nigerian people to reach their own conclusions. General Buhari says the Supreme Court has "let the judiciary down and disappointed the country." Whatever may be the two gentlemen's interpretation of the Supreme Court ruling, a moment such as this requires statesmanship. Long before the Supreme Court ruling, all kinds of attempts had been made to drag the Supreme Court into the political arena. Their Lordships were said to have been part of a conspiracy to get Yar'Adua out of office because of his ill-health, even when this was not the matter before the court of law. There were allegations also that the Supreme Court Justices had been compromised, and in many Nigerian internet sites, there were outright libellous publications against their Lordships and other state officials. The robustness of the ruling in the two cases would seem to have made a good case for the integrity of the court. The majority positions were just as engaging as the dissenting opinions in both cases. And the court wasted no time in defending its integrity. Speaking obiter in this respect, Justice Niki Tobi, presenting the lead judgment in the Buhari case had accussed Nigerian politicians of being bad losers. He is right. Every election case is taken to court, and yet when the case is decided, the loser bears animus against judges, whose commitment is to the law and not to public opinion. Niki Tobi's declaration is so pithy, it is worth quoting for the records: "The way politics in this country is played frightens me every dawning day, It is a fight to finish affair. Nobody accepts defeat at the polls. The judges must be the final bus stop. And when they come to the judges and the judges in their professional minds, give judgement, they call them all sorts of names, To the party who wins the case, the judiciary is the best place and real common hope of the common man. To the party who loses, the judiciary is bad. Even when a party loses a case because of serious blunder of counsel, it is the judge who is blamed. Why?" With their comments on the rulings, Buhari and Atiku would seem to have merely confirmed these statements. The press also did not escape his Lordship's hammer. The press is accussed of lending itself as a vehicle for the publication of derogatory material about judges. But Milord, it is the duty of the press to reflect all currents of thought in the public domain. What the court has to say on the materiality of the case before it, however, should provide food for thought for all the parties concerned. In the Buhari case, the majority had held that although there was substantial non-compliance with electoral laws in the Presidential election, Buhari's counsel could not prove that this affected the outcome of the election, or that it offered any special advantages to the PDP presidential candidate. The counsel was hanged on the cross of evidence, on the ground that out of the 19 witnesses that he called at the Appeal Court, only one witness was accepted as credible and even his evidence was not pleaded. But careful attention should be paid to the dissenting opinions where Justices George Oguntade, Walter Onnoghen and Alooma Mariam-Mukhtar argued that the fact of substantial non-compliance having been admitted, needs no further proof. And indeed, wouldn't simple proof have been adequate? In the 2007 elections, the rigging was so obvious in every election, the international community had to describe it as the worst election ever known to mankind. Simple proof would have been sufficient, and the non-serialisation of ballot papers is simple enough as the dissenting judgements would seem to indicate since the non-serialisation of ballot papers, is so central to the validity of the voting process. If Buhari's counsel had been more diligent, so would the outcome have been different? Niki Tobi, JSC in his lead judgement in the Buhari case, in fact accussed the appellant's counsel of messing up his client's case, in short, of incompetence. Hear him: "The appellant (Buhari) did not pretend that he knows the law and that was why he hired counsel to do the case, and rightly went to sleep, hoping that all will be done correctly. It is sad, very sad indeed that counsel, the expert of the law, did not consider Section 83 of the Evidence Act in this matter involving a very simple and elementary procedure. Rather than seeing any fault in the appellant (and I do not see any) I am in full sympathy with him because he was materially denied the opportunity to prove his case. It beats me hollow and hands down that counsel did not relate the procedure to section 83 of the Evidence Act." . Lack of diligent prosecution of cases by counsel is increasingly an issue in the courts, no doubt. There was a similar problem in the Osun and Ogun Gubernatorial election petitions, and indeed, the Nigerian Bar Association ought to be worried about the courts having to accuse lawyers of not knowing elementary law. We have also witnessed situations whereby Attorneys-General and Ministers of Justice in this country displayed complete ignorance of elementary law. If judges openly accuse lawyers of not knowing the law and this happens too often, the common man whose hope for justice the courts are meant to protect, may be increasingly tempted to resort to self-help. Justice Niki Tobi was practically ridiculing Buhari's counsel when he drew his attention to Section 83 of the Evidence Act, and expressed his sympathies for Buhari. These days, their Lordships tend to add a touch of the dramatic to their rulings. It is important that the courts do not become an arena for vendetta; counsel also must learn to conduct themselves like officers of the law, not thugs who want to dictate to the court. Buhari's counsel is on record as having insulted the courts after the Appeal Court ruling in February. In the Atiku case, which ended 6-1 in Yar'Adua's favour, the appellant had gone before the court on two grounds, his exclusion and irregularities during the election. The majority threw out his prayers on the technical ground that he cannot make two contrasting and alternative claims. In this regard, the Supreme Court must learn to be consistent with its own precedents in related cases, even if it has the power to reverse itself, but with good reason. It seems Oguntade, JSC's dissenting opinion is worth studying closely: his definition of exclusion, in a constructive not technical sense, and his emphasis on equal opportunity as being central to an election in which a candidate cannot be treated as a spectator is illuminating. All said and done, however, the majority have had their way, we now have a President, and the matter of legitimacy has been laid to rest by the Supreme Court. Can Nigeria begin to move forward? Now that President Yar'Adua's mandate has been affirmed by the courts, the Appeal Court and the Apex court, there is nothing again that stands in his way, all doubts about his mandate have been cleared, and the rule of law has been enforced. This must mark a new beginning. He or his aides can no longer give Nigerians excuses. The only way to justify this court victory is through renewed vigour and performance. There is a general perception among Nigerians and the international community, that this government is slow. President Yar'�dua announced a cabinet change and the restructuring of Ministries before Senator Barack Obama won the Presidential election in the United States. Obama has since announced a team, with individual portfolios properly stated. President Yar'�dua is yet to assign portfolios to his proposed new cabinet. Can he do that quickly please? Last year, about N400 billion was saved from Budget 2007, this year again, the government has saved hundreds of billions which it wants to use to finance Budget 2009 deficits? Budget performance in 2007 and 2008 is below 20% in a country where there is widespread poverty and collapsed social infrastructure! With the global credit crunch, the crash of oil price, the devaluation of the Naira, and a de-industrialised, import-dependent economy, the year 2009 is bound to be more challenging. Obama wants to create jobs. How does President Yar'Adua hope to put his seven-point agenda into operation in a proposed year of austerity? When is he going to declare the long-promised emergency in the power sector? When is he going to fix federal roads, federal hospitals and educational institutions? Soon, his spin-doctors will begin to talk about a second term project. At this rate, where would they find the moral authority to ask for a second term for this President? The last point to be taken away from the Supreme Court ruling on Friday, is the the obvious need for electoral reform and a re-orientation of Nigerian politics. Their Lordships in not so many words, dismissed the National Electoral Commission as an incompetent and irresponsible body. This is a fine counterpoise to the recent celebration of Professor Maurice Iwu, the INEC Chairman, by Vice President Jonathan Goodluck, Governor Babangida Aliyu of Niger State and others. In another country, this INEC would have been promptly disbanded. But don't be surprised if INEC officials were among the first set of Nigerians to congratulate the President, and claim that the court ruling amounts to a vindication of the electoral commission. The President should reject all offers of solidarity visits, congratulatory messages in the media and celebration parties. The Supreme Court verdict should not become an occasion for renewed sycophancy and the use of public funds to celebrate an election that took place almost two years ago. Government should devote its energy to the task of service delivery and electoral reform. The Electoral Reform Committtee that was set up by the President submitted its report on Thursday. Its recommendations should be carefully debated by the National Assembly and the process of reform must begin. In 2006, the National Assembly waited till the last minute before it passed the new electoral law. The Uwais committee has submitted draft bills that will lead to constitutional amendment. Time is of essence. I do not agree with the committee however that INEC should be unbundled into four different bureaucracies. The solution does not lie in additional bureaucracy, the problem is with all the other issues identified by the Committee, and with the men who run INEC and of course, Nigeria's political orientation.
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