NIGERIA: ELECTION TRIBUNALS (PART III) -

C O N F I D E N T I A L SECTION 01 OF 04 ABUJA 001467 SIPDIS SIPDIS DOE FOR CAROLYN GAY E.O. 12958: DECL: 07/11/2017 TAGS: PGOV KJUS KDEM NI ELECTIONS SUBJECT: NIGERIA: ELECTION TRIBUNALS (PART III) - PRESIDENTIAL CHALLENGES REF: A. ABUJA 1440 ¶B. ABUJA 1397 ¶C. ABUJA 922 ABUJA 00001467 001.2 OF 004 Classified By: Acting Political Counselor Heather Merritt for reasons 1 .4 (b & d). ¶1. (C) SUMMARY: PolOff met with a legal advisor to Buhari and Atiku, former Kaduna High Court Justice Usman Mohammed (strictly protect) who provided insight into the legal strategies Buhari and Atiku's counsels are employing as they head to the Presidential Election Tribunal, currently underway in Abuja. Buhari and Atiku's petitions are presently held up by procedural minutiae, which may result from the judiciary's inefficiency or possible machincations of the court, fueling fears that Buhari may well be in for another protracted tribunal process like in 2003. Justice Mohammed believes that the tribunals may well be programmed for failure, as the standard of evidentiary proof petitioners must meet is difficult, if not impossible. Both the Independent Electoral Commission (INEC) and its Chairman Maurice Iwu have hitherto been "uncooperative" and unwilling to honor petitioners' request to review relevant INEC documents. Justice Mohammed intimates that while Buhari seeks the nullification of the April 2007 presidential election results and an agreement to conduct fresh elections, Atiku contends that Buhari in fact received the highest number of lawful votes cast and therefore, should be declared the victor. While the Justice contends that Atiku has the stronger case and stronger evidence than Buhari, he also believes that Atiku lacks credibility. In the end, though not likely, Mohammed believes that Buhari and Atiku would benefit from partnering to strengthen their individual petitions. END SUMMARY. -------------- -------------- BUHARI AND ATIKU PETITIONS HELD UP BY PROCEDURAL MINUTIAE -------------- -------------- ¶2. (C) PolOff met with legal advisor to Buhari and Atiku, former Kaduna High Court Justice Usman Mohammed (strictly protect) who provided insight into the legal strategies Buhari and Atiku's counsels are employing as they head to the Presidential Election Tribunal, currently underway in Abuja. Respondents in the petitions filed by Buhari and Atiku include President Yar'Adua, Vice President Goodluck Jonathan, the Independent Electoral Commission (INEC),and INEC Chairman Maurice Iwu. According to the 2006 Electoral Act and the Nigerian Constitution (Ref C),petitions must meet stringent evidentiary requirements before tribunal panels agree to allow cases to proceed to trial. That petitioners have adequately met these requirements by providing, among other evidence they intend to present at trial, affidavits of witnesses and INEC documentation yet remain hamstrung by the tribunals' ostensible "disinclination to advance past procedural minutiae," contends Justice Mohammed, is one of the most telling signs of not only an inefficient judiciary, but also possible machinations of the court. ¶3. (C) Petitioners are presently in the "pre-hearing" phase of the tribunals, an innovation introduced by President of the Federal Court of Appeal Justice Abdullahi Umaru in order for plaintiffs and respondents to resolve outstanding issues before the main trial. The problem with the "pre-hearing" phase, however, Justice Mohammed observes is that it frequently is "misused and abused". The "pre-hearing" phase intends to resolve outstanding preliminary issues, which are non-substantive and procedural in nature. Yet, it is issues of procedure that "permit a miscarriage of justice" as courts become arenas wherein politicking and trivial matters take center stage. While this may appear a hallmark of the Nigerian judiciary, Justice Mohammed contends, it nevertheless represents a "coordinated attempt by the respondents to delay and ultimately deny justice from being served." ¶4. (SBU) Petitions to the Presidential Election Tribunal were filed by Buhari and Atiku by the May 14 deadline. However, by July 11 neither candidate's trial has substantively begun. INEC's refusal to surrender ABUJA 00001467 002.2 OF 004 elections-related materials to the tribunals is largely responsible for the delays. While attempts by Buhari and Atiku's teams to assemble the INEC documents is one outstanding obstacle, the other major one is the unsuccessful subpoenaing of INEC Chairman Maurice Iwu. On June 12, Buhari's lead counsel Mike Ahamba applied for a bench warrant against Iwu for his failure to appear before the tribunal. On June 21, the Presidential Election Tribunal presided over by Justice John Fabiyi struck out Iwu's contempt of court charge on technical grounds, announcing that Iwu had not been "properly served" the warrant. Buhari and Atiku faced similar court challenges as they attempted to subpoena respondents President Yar'Adua and Vice President Goodluck Jonathan. On June 22, Justice Fabiyi granted Buhari's request for substituted service on Yar'Adua and Jonathan; another Tribunal had granted earlier a similar request to Atiku. Although both Buhari and Atiku's teams claim that they served the petition by substituted means to designate PDP National Secretary Ojo Maduekwe, Court of Appeal President Justice Umaru on July 9 stated that such service was not "properly" conducted. Without access to INEC documents or officials and other respondents in their petitions, neither Buhari nor Atiku can judiciously proceed with their cases. Where access to INEC documents or officials is obstructed or motions to subpoena witnesses suppressed by the court - as is the case presently - petitioners cannot enjoy a reasonable opportunity to substantiate their claims, regardless of "how talented or resourceful" their legal counsels may be, Justice Mohammed opines. -------------- TRIBUNALS: PROGRAMMED FOR FAILURE? -------------- ¶5. (C) Mohammed explained that the tribunal process may very well be "programmed for failure" as the standard of proof plaintiffs must meet is "very difficult, if not impossible." He added that in the elections tribunal, plaintiffs must affect "beyond reasonable doubt" that infractions or breaches of the Electoral Act were committed. The major loophole, Mohammed maintains, is the interpretive latitude bestowed on justices to determine whether the elections were conducted "substantially in compliance with the law." Moreover, petitioners must act shrewdly when deciding which battles to fight so as not to lose the war. Buhari's counsel may endeavor to challenge the court's June 21 ruling that threw out the contempt of court charge against INEC Chairman Iwu, however doing so would "gravely imperil" his substantive petition. ¶6. (C) Justice Mohammed admits that he is dismayed that the tribunals "refused to compel" INEC and Iwu, instead "condoning Iwu's disobedience" to produce the relevant INEC documents for examination by petitioners. However, Buhari and Atiku may still be able to use INEC documents to prove their cases, even if they cannot obtain them physically. According to the Evidence Act, Justice Mohammed clarifies, parties to a suit that have solicited the production of documents for examination may use oral evidence en lieu of the physical documents themselves. Whereas physical documents, including ballot papers, tally and result sheets, and voter registers constitute primary evidence, secondary evidence in the form of photocopies of these documents or oral testimony in respect of the contents of these documents, obtained through subpoena of the requisite INEC resident electoral commissioner or ad-hoc staff member for instance, may be viewed as equally acceptable. -------------- BUHARI AND ATIKU "PRAYING" FOR VICTORY -------------- ¶7. (C) According to Section 145 of the Electoral Act, petitions may be filed on several grounds. Both Buhari and Atiku's petitions state "that the election was invalid by reason of corrupt practices or non-compliance with the Electoral Act" and "that the announced winner of the election was not duly elected by a majority of lawful votes cast at the election." Petitions must conclude with a "prayer or ABUJA 00001467 003.2 OF 004 prayers" in which petitioners affirm clearly their desired outcome. According to Justice Mohammed, while Buhari seeks the nullification and voidance of the April 2007 presidential election results and an agreement to conduct fresh elections, Atiku also seeks a nullification of results but contends that Buhari in fact received the highest number of lawful votes cast and therefore, should be declared the victor. (Note: Media reports however indicate that Atiku and Buhari are both seeking the same relief, namely a nullification of the election results and a call for new elections. If Atiku, in fact, is seeking to prove that the elections should be cancelled on account of Buhari receiving the highest vote count and not solely on account of widespread rigging and intimidation - which is more difficult to prove - he may have a case less vulnerable to interpretive manipulation. End Note.) ¶8. (C) While Justice Mohammed estimates that Atiku has the stronger case and evidence, he also believes that Atiku lacks credibility. Buhari, on the other hand, has emerged "ever more credible" since the elections which may, in fact, strengthen his case. He added that Buhari's unwillingness to recognize the Yar'Adua government by participating in a proposed "government of national unity" has garnered him significant standing. Notwithstanding the many political differences between Atiku and Buhari, Justice Mohammed believes that in order for them to strengthen their individual petitions, they should resolve to work together as partners. A consolidation of petitions, either by court directive or of their own volition, would fortify their legal position. In the interest of political expediency, Mohammed avers, Buhari and Atiku may well benefit from consolidation. -------------- 2003: BUHARI SPENDS THIRTY MONTHS IN COURT -------------- ¶9. (SBU) Buhari may well be in for another protracted electoral legal battle, similar to the one he fought in 2003. Nearly three months after the April elections, Buhari's electoral petition (Ref A) has yet to move past the "pre-hearing" phase despite assurances of an "accelerated" election tribunal process by the Nigerian judiciary. Although encouraged by a seemingly independent, impartial Supreme Court, Buhari and his legal team remain cautiously sanguine that the election tribunals will deliver justice expeditiously and fairly. The spectre of Buhari's failed 2003 attempt to challenge Obsanjo's victory, however, remains ever-present, buttressed by fears that ANPP leadership and financiers - enticed by President Yar'Adua's call for a "government of national unity" - may well again abandon their much needed support. ¶10. (U) Pursuant to the April 19, 2003 presidential elections, in which Obasanjo and Vice President Atiku were declared winners, Buhari and his running mate, late Dr. Chuba Okadigbo filed a petition at the Federal Court of Appeal on May 20, 2003 challenging the election results. A second petition sought to halt the inauguration of Obasanjo and his deputy. Though the suit to stop the inauguration was dismissed by the Federal Court of Appeal on May 27, 2003, the Court agreed to hear the substantive suit challenging the results of the elections. Buhari brought 139 witnesses from throughout Nigeria to furnish testimony of violence and intimidation allegedly perpetrated by the security services and PDP agents and various forms of electoral fraud during the April 19 elections. ¶11. (U) The Federal Court of Appeal on December 20, 2003 dismissed Buhari's petition challenging Obasanjo's victory at the polls in a 3 to 1 verdict. At the same time, the Court unanimously declared null and void the results announced in Ogun State (Obasanjo's home) on grounds of violence, multiple fingerprinting of ballot papers, official intimidation of voters and opposition figures, bias, and falsification of results. Nigeria's Supreme Court on July 1, 2005 upheld the ruling of the Presidential Election Tribunal that dismissed Buhari's petition against Obasanjo's victory, thereby ending Buhari's thirty month legal challenge. The then-Chief ABUJA 00001467 004.2 OF 004 Justice Muhammadu Uwais stated that the elections did not warrant nullification since they were "conducted substantially" in compliance with the provisions of the Electoral Act, admitting all the while that "there had been irregularities in some states." ¶12. (C) According to former Justice Mohammed, the Chief Justice's unwillingness to re-examine Buhari's petition, instead upholding the lower court's pronouncement, and exploiting the interpretive latitude inherent in the 2002 Electoral Act confirmed fears that the Nigerian judiciary at that time was thoroughly compromised. Justice Mohammed, a close associate of Chief Justice Uwais, confided that Uwais indeed accepted exorbitant bribes, which Mohammed claims exceed 250 million USD, to dismiss Buhari's case. Mohammed further asserted that since the leadership of the judiciary, namely Chief Justice Uwais, was "corrupt" the entire judicial edifice was corruptible. While Justice Mohammed remains optimistic that the current Chief Justice "cannot be bought" and will ensure a "fair trial," he bemoans the sluggish pace of current electoral tribunal proceedings as "more of the same" as 2003. -------------- COMMENT: JUSTICE DELAYED IS JUSTICE DENIED -------------- ¶13. (C) The adage "justice delayed is justice denied" may well encapsulate the prevailing sentiment towards the sluggish pace of the presidential election tribunal process in Nigeria. A tribunal process, which our contacts fear may be mired in corruption and political intrigue, is further hampered by inefficiency and incompetence. In the end, Buhari fears another prolonged trial like 2003, where he spent months wrangling over exceedingly procedural matters at the expense of more substantive issues. The standard of proof, moreover, that both Buhari and Atiku must affect may be too great for either legal team to accomplish. And while some may assert that Buhari and Atiku's best bet is to consolidate their cases, it is dubious that either views this as beneficial for their personal interests. After all, Atiku helped finance Obasanjo's rise to power and his tribunal petition is prompted by vastly dissimilar motivations than Buhari. Moreover, Buhari may be viewed as credible and honest on the Nigerian street, but he lacks political savoir-faire and a party leadership to back him, as the ANPP was a marriage of convenience and Buhari a symbol. His lack of financial and other resources, in stark contrast to Atiku, may further imperil his chances for success at the tribunals. END COMMENT. CAMPBELL