NIGERIA: SUPREME COURT HEARS FINAL ARGUMENTS IN

C O N F I D E N T I A L SECTION 01 OF 02 ABUJA 002091 SIPDIS STATE FOR AF/W, INR/AA DOE FOR GEORGE PERSON E.O. 12958: DECL: 10/22/2018 TAGS: PGOV KDEM PINR NI SUBJECT: NIGERIA: SUPREME COURT HEARS FINAL ARGUMENTS IN BUHARI/ATIKU APPEAL - PART 1 Classified By: Political Counselor Walter Pflaumer for reasons 1.4. (b & d). ¶1. (C) SUMMARY: On October 23, The Supreme Court heard final arguments in the appeal of presidential candidates Mohammadu Buhari (ANPP) and Atiku Abubakar (AC) against the ruling of the Electoral Tribual (a panel of Appeals Court Judges) upholding the April 2007 election of President Umaru Musa Yar'Adua. Attorney General Michael Aondoakaa reported to Poloff and PolAssistant that President Yar'Adua has told him that he will abide by whatever judgment the Supreme Court delivers "immediately," without waiting for a written judgment. Following the presentation of the final arguments from all sides on Buhari's appeal, Joi Nunieh (strictly protect),a member of Buhari's legal team, told Poloff and PolAssistant she is "very happy with the morning's proceedings." Mike Ahamba, Buhari's lawyer, also said he was pleased with the proceedings. The Supreme Court justices reserved judgment on both cases (final arguments in Atiku's case were just concluded at the time of transmission). While the decision thus remains outstanding, the tenor of the Justices' questions was clearly far more critical toward the lawyers representing Yar'Adua and the Independent National Election Commission (INEC - the entity which conducted the polls). The Justices plan to notify the lawyers shortly as to when they will deliver their final verdict. This cable highlights the atmospherics and tone of the arguments in the Buhari case and specific discussions with Aondoakaa, Nunieh and Ahamba. More detailed information on the day's proceedings will follow septel. END SUMMARY. ¶2. (C) Poloff and PolAssistant attended the October 23 final arguments at the Supreme Court in the former General and Head of State Mohammadu Buhari's appeal of the decision of the Appeals Court to uphold the April 2007 election of President Umaru Musa Yar'Adua. As Mike Ahamba, Chief of Buhari's legal team, presented Buhari's closing arguments, the mood was relaxed. The justices and those in the courtroom chuckled as Ahamba listed out some of the more egregious acts of electoral fraud. The justices asked clarifying questions, but were never confrontational. The mood changed, however, once the attorneys for the respondents began their closing arguments. The justices directly challenged Kanu Agabi, Chief Attorney for Yar'Adua and Vice President Goodluck Jonathan, on a number of issues including his interpretation of Nigerian law. ¶3. (C) By the time the attorney for the Independent National Electoral Commission (INEC) began his presentation, the justices, particularly Justice Niki Tobi, seemed confrontational and directly challenged the attorneys to point to the location of their arguments in specific paragraphs of their briefs. The justices latched onto the fact that the original tribunal found that the election ballots were not serially numbered and they confronted INEC's attorney with the fact that no counter appeal had ever been registered. (COMMENT: This argument may be key to the final ruling. The ballots were clearly not serially numbered, as was noted by the original tribunal and not disputed by INEC with a counter appeal, and the Electoral Law clearly calls for serially numbered ballots. END COMMENT.) ¶4. (C) The Court has just concluded hearing final arguments in Atiku's case. According to PolOff and PolAssistant, the tenor of the Justices' questions was again far harsher toward Yar'Adua's lawyers, and especially toward INEC's advocates. More detailed information on the full day's proceedings will be reported septel. ¶5. (C) During a break between arguments, Attorney General and Minister of Justice Michael Aondoakaa made a brief appearance, though he left before the session resumed. Poloff and PolAssistant spoke to Aondoakaa outside the courtroom. Aondoakaa said he believes the GON has a strong case, though he acknowledged that the appellants also have a strong case. He went on to assert that, no matter what happened, Nigeria has a constitutional system in place that can respond to the challenge, adding that Senate President ABUJA 00002091 002 OF 002 David Mark will take over as acting President (for three months) if the elections are overturned. Aondoakaa volunteered that he had spoken with Yar'Adua, who told him that he would honor whatever decision the Supreme Court made "immediately," without waiting for a written decision. Aondoakaa said he did not expect the Supreme Court to issue a verdict today, but rather that they would try to make it through all the final arguments and then adjourn to make a decision. ¶6. (C) Immediately following the conclusion of final arguments in Buhari's case, the Justices announced that they were reserving their judgment until a later date, and proceeded to begin hearing the final arguments in Atiku's case. Poloff and PolAssistant spoke to Joi Nunieh (strictly protect),a member of Buhari's legal team, on her way out of the Supreme Court. Nunieh said she was "extremely happy" with the day's proceedings. She told Poloff and PolAssistant "the Justices are very intelligent people. They are very smart and you can tell what they are thinking and what decision they will make based on their body language and questions. I'm very happy with today." In addition, Buhari's lawyer, Mike Ahamba told Poloff and Pol Assistant that he was happy with the proceedings. The mood among Buhari's team upon departure bordered on jubilant. ¶7. (C) COMMENT: The change in atmospherics and mood within in the courtroom from the presentation by Buhari's lawyer Mike Ahamba to the presentation by the lawyers for Yar'Adua and INEC was clear, and was a topic of conversation among those reporters and observers gathered in the holding room to listen to the proceedings. Given the atmospherics, Aondoakaa's specifically bringing up the scenario of David Mark assuming power, Ahamba and Nunieh's confidence leaving the courtroom, and what we know of Yar'Adua's health, post believes there is a strong likelihood that the decision will be to nullify the election. END COMMENT. Sanders