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

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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.

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BUHARI AND ATIKU PETITIONS HELD UP BY PROCEDURAL MINUTIAE
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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

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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.

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TRIBUNALS: PROGRAMMED FOR FAILURE?
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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.

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BUHARI AND ATIKU "PRAYING" FOR VICTORY
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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

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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.


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2003: BUHARI SPENDS THIRTY MONTHS IN COURT
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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

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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.

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COMMENT: JUSTICE DELAYED IS JUSTICE DENIED
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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