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

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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