PRESIDENTIAL TRIBUNAL MOVES AHEAD

C O N F I D E N T I A L SECTION 01 OF 02 ABUJA 000115 SIPDIS NOFORN E.O. 12958: DECL: 01/11/2015 TAGS: PREL PGOV KJUS NI SUBJECT: PRESIDENTIAL TRIBUNAL MOVES AHEAD REF: A. A) 04 ABUJA 2104 AND PREVIOUS ¶B. B) 04 ABUJA 1939 Classified By: Ambassador John Campbell for Reasons 1.5 (B & D). ¶1. (C) SUMMARY: The Federal Court of Appeal's 3-1 decision in December favored Obasanjo on Buhari's challenge to the 2003 presidential election, but the four justices were unanimous that the "Independent National Electoral Commission" (INEC) failed during the election due to partisanship, bias, and refusal to comply with the law and court orders. The difference between the judges was on whether credible results were necessary to "duly elect" a candidate, with the majority saying no. Buhari's January 10 appeal to the Supreme Court contains 48 points that also focus on this question. The Chief Justice of the Supreme Court will now appoint a panel of judges to hear the appeal. He is concerned, however, about recent attempts to attack members of the court. Many sources claim Obasanjo plans to force some Supreme Court justices into early retirement to maintain control of the process. END SUMMARY. ¶2. (U) The Federal Court of Appeal, sitting as an Election Tribunal for the April 2003 Presidential election, published its decision on December 29, 2004 (Ref A). The majority decision in favor of Obasanjo ran to almost 400 pages total, with the dissent opinion coming in at 180 pages. While the 3-1 decision left Obasanjo in office, all four justices were strongly critical of INEC's performance in the election and during the tribunal. In his supporting statement for the majority, presiding justice Umaru Abdullahi said the INEC's refusal to produce the final results of the election (or even the National Voter Register) "derogates from its claim to independence, neutrality and impartiality." Speaking off the cuff to the courtroom, Abdullahi stated that INEC had acted in a "biased and partisan fashion" during the elections and the trial (Ref B),and its refusal to comply with a subpoena to produce the results in court was a "flagrant violation of the law" -- a "reckless attitude" that amounted to "total disregard to a court process." ¶3. (U) All four justices also cited the "unconstitutional" deployment of security services during the election. Justice Nsofor, the lone dissenting judge, said that the deployment itself was sufficient grounds for overturning the elections. "If the police and army were deployed for a legitimate security reason, then the conditions were not met for an election to hold; if there was no legitimate security reason, then the deployment was illegal," he explained. ¶4. (U) Distilling the 400 pages into its essence, the decision came down to one simple question. All four judges agreed that INEC's failure to produce valid returns flawed the elections. The three judges in the majority deemed that the results of the election, however, were not in question and it was unnecessary to "duly elect" a president. ¶5. (U) ANPP candidate Muhammadu Buhari's attorney Mike Ahamba filed the appeal on January 10. The appeal contains 48 points, but focuses on INEC and the centrality of results to an election. The failure of INEC to produce results, in their argument, means that no election could have taken place. In the appeal, Buhari's attorneys ask the court to find that INEC's refusal to comply damages any credibility of the electoral process. Further, they claim that an election cannot have taken place without "credible" results. In that case, the electoral process did not satisfy the constitutional requirement that a President must be "duly elected" and Obasanjo has "taken control of the Government of Nigeria" in a manner "not in accordance with the provisions of the Constitution." ¶6. (C) The timing of the final stage of the process is somewhat flexible, but Chief Justice of the Supreme Court Muhammadu Uwais can now panel a group of justices to hear the case. Factoring in the various deadlines for submissions and counterclaims, Uwais expects to wrap up the case around April. One concern that has been raised, however, is his ability to remain until the end of the process (septel). Rumors are circulating through Abuja that the Presidency is finalizing plans to purge the Supreme Court before the case sits, retiring several justices ahead of schedule in an attempt to influence or delay the outcome of the tribunal. ¶7. (C/NF) COMMENT: Many did not believe the case would last this long, and most did not believe that a decision from the courts could criticize the government. Wrong on both counts. While the Presidency took the legal challenge lightly in the beginning, its concerns have been growing as the case progressed. Now it seems the Presidency is defending the failures of the electoral process by claiming a priority for "stability." As Uwais has commented privately, this is a curious defense given the level of insecurity throughout Nigeria. CAMPBELL