Identifier
Created
Classification
Origin
05ABUJA115
2005-01-26 16:08:00
CONFIDENTIAL//NOFORN
Embassy Abuja
Cable title:  

PRESIDENTIAL TRIBUNAL MOVES AHEAD

Tags:  PREL PGOV KJUS NI 
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This record is a partial extract of the original cable. The full text of the original cable is not available.

261608Z Jan 05
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).

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