NIGERIA: SUPREME COURT HEARD FINAL ARGUMENTS IN

C O N F I D E N T I A L SECTION 01 OF 02 ABUJA 002103

SIPDIS

STATE FOR AF/W, INR/AA
DOE FOR GEORGE PERSON

E.O. 12958: DECL: 10/23/2018
TAGS: PGOV NI
SUBJECT: NIGERIA: SUPREME COURT HEARD FINAL ARGUMENTS IN
BUHARI/ATIKU APPEAL - PART 2

REF: ABUJA 2091

Classified By: Political Counselor Walter Pflaumer for reasons 1.4. (b
& d).


1. (C) SUMMARY. Final arguments in the appeals of Mohammadu
Buhari (ANPP) and Atiku Abubakar against the Appeals Court
ruling to uphold the April 2007 election of President Umaru
Musa Yar'Adua concluded on October 23, with the Supreme Court
reserving judgment for a later (unannounced) date. Both
Buhari and Atiku's lead counsels laid out the basis for their
appeals, making cogent presentations citing documentary
evidence of foul play. Final arguments for the GON
respondents were fairly brief and included claims that no
election is perfect and no one was disenfranchised in the
2007 elections. This cable will outline some of the more
specific arguments made and the lines of questioning of the
Supreme Court justices. Reftel contains information on
atmospherics and tone of the proceedings. END SUMMARY.


2. (SBU) Poloffs and PolAssistant attended the October 23
Supreme Court hearing of the final arguments in former
General and head of state Mohammadu Buhari and former Vice
President Atiku Abubakar's appeal of the electoral tribunal
ruling upholding the April 2007 election of President Umaru
Musa Yar'Adua. The justices reserved judgment sine die
(i.e., said they would deliver their final ruling on a later,
unspecified, date) in both cases. The courtroom was
shoulder-to-shoulder with lawyers, supporters, onlookers and
press. Buhari was present, as was Atiku's Vice Presidential
running mate Senator Ben Obi, for the proceedings. Also
present were PDP Chairman Prince Ogbulafor, PDP Secretary
Abubakar Kwaru Baraje, former PDP Board of Trustees Chairman
Tony Anenih, Minister of Labor and Acting Minister of Health
Hassan Lawal, and a Minister of State for Communications.
Minister of Foreign Affairs Ojo Maduekwe arrived about 20
minutes late but left as there was no place for him to sit.
Poloffs and European Commission poloff were the only foreign
mission representatives in attendance.


3. (C) Interestingly, the INEC legal team was not present in
the courtroom. Kanu Agabi and Wole Olanipekun (both
attorney's on Yar'Adua and Jonathan's legal team) represented
INEC in the Buhari and Atiku cases, respectively. Buba
Galadima of The Buhari Organization told Poloff on October 24
that Yar'Adua was concerned the INEC legal team would not
make a strong presentation, so he assigned his own legal team
to make the closing arguments.

PRINCIPAL ARGUMENTS IN BUHARI'S APPEAL
--------------

4. (C) The chief lawyer on Buhari's legal team, Mike Ahamba,
made an approximately hour-long presentation, laying out
Buhari's appeal. Buhari's team submitted documentary
evidence challenging the reported results in about 80,000 of
the over 121,000 polling stations in the country. Ahamba
maintained results sheets submitted (and certified as
accurate by INEC) were inconsistent with the announced
results in 28 out of 36 states. The mood throughout the
presentation was relaxed and the rapport between Ahamba and
the justices congenial and good-natured.


5. (C) Kanu Agabi, chief lawyer for President Yar'Adua and
Vice President Jonathan, presented 15 minutes of closing
arguments in which he maintained witness testimony must
support documents in the court. Justice Niki Tobi called
Agabi to task on this statement, noting that "documents speak
for themselves under Nigerian law." Wole Olanipekun,
representing INEC, announced that there was "no evidence of a
single person who wanted to vote and was disenfranchised."
The justices challenged Olanipekun on the issue of serial
numbering of the ballots -- making him read to the court the
relevant section of the Appeals Court verdict. Olanipekun
argued that the numbering of the ballots was not substantial
to the case, but the justices pointed out that no
counter-appeal had been filed on this, and that new arguments
could not be made in closing remarks. The mood was
confrontational, with six of the seven justices grilling the

ABUJA 00002103 002 OF 002


lawyer on the issue of serial numbering.

PRINCIPAL ARGUMENTS IN ATIKU'S APPEAL
--------------

6. (C) Alfred Kasumu, chief counsel on Atiku's legal team,
presented the final arguments in Atiku's appeal case, which
centered on the exclusion of Atiku from the ballots and the
absence of serial numbers on ballots. The respondents in
Atiku's appeal chose not to repeat arguments made in Buhari's
case earlier in the day, and the afternoon's presentations
moved fairly quickly. An overall theme in the afternoon's
responses from Yar'Adua's lawyers was that non-compliance
with the Electoral Law is "presumed by law," and no election
is perfect.

COMMENT
--------------

7. (C) Although the tone of the justices' interaction with
the attorneys for the respondents was not as markedly
confrontational in the afternoon as it was in the morning
(reftel),it remained argumentative. The court is set to
notify the appellants shortly of the date on which a decision
can be expected. We will be watching closely and believe we
may see some stage-setting in the next few days to prepare
the Nigerian people for a possible verdict overturning the
elections. End Comment.


8. (U) This cable was coordinated with Consulate Lagos.
Sanders