NIGERIA: BUHARI STILL HOPEFUL TRIBUNAL WILL

C O N F I D E N T I A L SECTION 01 OF 03 ABUJA 000255 SIPDIS C O R R E C T E D COPY - PARA 4, LAST 2 SENTENCES CHANGED NOFORN SIPDIS STATE FOR INR/AA, AF/W DOE FOR CGAY E.O. 12958: DECL: 02/01/2018 TAGS: PGOV PINR KDEM KJUS NI SUBJECT: NIGERIA: BUHARI STILL HOPEFUL TRIBUNAL WILL OVERTURN ELECTION REF: A. ABUJA 217 ¶B. ABUJA 183 ¶C. 07 ABUJA 2616 ¶D. 07 ABUJA 2229 ABUJA 00000255 001.2 OF 003 Classified By: Political Counselor Walter Pflaumer for Reasons 1.4 (b & d). ¶1. (C//NF) SUMMARY: Muhammadu Buhari, All Nigeria People's Party (ANPP) presidential aspirant challenging the election of President Yar'Adua (People's Democratic Party, PDP) at the Presidential Election Tribunal contended the justness of his petition against Yar,Adua should override considerations of political uncertainty if democracy is truly to instantiate itself in Nigeria. Although the ANPP has since "disavowed" him, Buhari asserted, in order to join a unity government with the PDP, Buhari appeared hopeful any or all of the other seven political parties which endorsed his candidacy last year would allow him to run on their platform in any re-run. Buhari said he had rejected entreaties from Yar'Adua to withdraw his petition, and continues to rebuff calls from northern political elites to step aside lest his actions imperil the North's current hold on the presidency. In the unprecedented event of a re-run election, Buhari expects the Supreme Court to interpret the Constitution to provide guidance on how and when the election would be organized and run, allowing time, inter alia, for the Independent National Electoral Commission (INEC) to be re-constituted. While we (and, we suspect, Buhari) see an annulment of the presidential election as at best an outside possibility, the odds appear rather shorter than they did several months ago. END SUMMARY. ¶2. (C) Muhammadu Buhari, ANPP presidential aspirant challenging the election of President Yar'Adua (PDP) at the Presidential Election Tribunal, met with PolCouns and PolOff February 6. Buhari discredited rumors he lacks financial or political resources to continue his case against Yar'Adua, and claimed his supporters deployed to several states immediately following the presidential elections to collect evidence of electoral malfeasance and other election-related irregularities. (Comment: Buhari's decision to consolidate his case with that of Action Congress candidate Atiku further strengthened the evidentiary base and resources they could jointly bring to bear. End Comment.) Buhari stated, "I am sorry to admit to you, but we have had to bribe in order to get the documents we need," and divulged that his legal team and cadre of supporters have been paying 10 naira per document to recover documents from INEC offices across the country (among other tactics). ¶3. (C) Buhari acknowledged an arrangement had been reached with Atiku should the elections be annulled and new elections ordered, but declined to elaborate. (Comment: Many questions, and considerable ambiguity, surround the contours of a possible Atiku-Buhari power share, as rumors continue Atiku may yet withdraw his petition to accept a position as Chair of the PDP Board of Trustees, to be reported septel. End Comment.) While Buhari believed the PDP would field its original candidate, he expects the ANPP would not allow him to stand as its candidate again; Buhari maintained that the ANPP "disavowed" him when the party chose to join Yar'Adua's national unity government and withdrew its joint petition with Buhari at the Presidential Election Tribunal last year. (Note: The ANPP formally withdrew its petition against Yar'Adua in September 2007, accepting two ministerial slots and four special adviser positions in return for joining the unity government. The ANPP continues to challenge the elections of several PDP senatorial and gubernatorial candidates, principal among them the election of Senate President David Mark. End Note.) Buhari, nonetheless, appeared hopeful one of the other seven political parties that endorsed his candidacy in April 2007 would allow him to run on their platform in any re-run election. Further, while acknowledging the uncertainty ahead should the elections be overturned, Buhari remarked he had not fleshed out a strategic plan for his own future government, referring PolCouns and PolOff instead to a vague manifesto he issued in June 2007. ABUJA 00000255 002.2 OF 003 ¶4. (C) If the courts decide to overturn Yar'Adua's election and call for fresh polls, Buhari said he expects the Supreme Court to interpret loosely the Constitution's guidance on conducting re-run elections, especially given that Nigeria has no precedent for the courts annulling and re-running presidential polls. In the event of a re-run, Buhari anticipates the courts will have to determine the timeline for a new election, the composition and executive powers of any interim government, and the nomination process (if any) for candidates. Buhari said he expects any re-run race to be delayed several months to allow for INEC (which conducts elections, and is widely blamed for last April's fiasco) to be re-constituted. (Note: The slim guidance offered by the Electoral Act with respect to re-run elections says the losing petitioner has 21 days to file an appeal and the courts have 3 months from the pronouncement of the Tribunal or Supreme Court's verdict to conduct elections. Moreover, if the Tribunal declares any of the respondents (i.e., INEC Chair Maurice Iwu) criminally responsible for actions which led to a flawed election, the Attorney General has the power to bring criminal charges against Iwu, which might further delay any re-run election. The Constitution stipulates, in the event the president and vice president must vacate office, the Senate President assumes the presidency for a period of not more than 3 months, during which time elections for a new president will be held. Current Senate President David Mark's election is pending a separate tribunal verdict, expected as early as this month. End Note.) ¶5. (C//NF) Buhari intimated, after the April elections, he refused to meet with Yar'Adua, and rejected appeals from Yar'Adua to withdraw his petition. Buhari met instead with former head of state Yakubu Gowon, whom he referred to as the President's "emissary." Despite Gowon's repeated entreaties during their two hour conversation, Buhari could not come to an agreement with him. Buhari said he continues to rebuff claims from northern political elites that, by pursuing his case, he is imperiling the North's stewardship of the presidency. Buhari said the northern political elite is wrong to prefer regional unity over moral rectitude and justice. (Note: In July 2007, several northern emirs and Islamic scholars including Izala leader Ahmad Gumi failed in efforts to pressure Buhari to withdraw his petition. Similarly, Gowon and former president Shehu Shagari, et al tried to convince Buhari in September 2007 to abandon his case, in the interest of northern unity. To be sure, the uncertainty of what a Buhari upset may portend vis-a-vis the North's ability to sustain the presidency makes several individuals, particularly from the northern political elite, very nervous (see Ref C). End Note.) ¶6. (C) Buhari contended the justness of his cause and the future of democracy in Nigeria remain at stake and painted a grim picture of Nigeria's democracy should the courts uphold the 2007 elections and not censure INEC and the PDP for perpetrating what he considers a gravely fraudulent election. Buhari argued that free and fair elections represent the sine qua non of democracy in any nation, and exhorted the USG to "step in and ensure elections are fair" before Nigerians revert to violence and recrimination to achieve their political objectives. ¶7. (C//NF) COMMENT: The Presidential Election Tribunal heard closing arguments February 5, and is likely to give a verdict by mid-March, if not sooner. Whatever its decision, an appeal to the Supreme Court would almost certainly follow, but this is unlikely to take long (Chief Justice Kutigi has reportedly said he is hoping to rule within one month). Given this timing, Buhari's failure to adumbrate any vision for what his government would do were he to take power may suggest that he is less sanguine about his chances than he puts on. While Buhari claims he can run as the nominee of any of the smaller suitcase political parties which originally endorsed him, and asserts he would stand a good chance of winning new elections (provided they were free and fair),without the financial backing and name-brand recognition of the ANPP, Buhari stands a very real chance of being marginalized. In addition, public opinion and momentum for Buhari have waned appreciably since Yar'Adua took power last May. ¶8. (C//NF) COMMENT CONT'D: Nonetheless, the odds that a court ABUJA 00000255 003.2 OF 003 ruling requiring new elections are shorter than they appeared six months ago, in part due to the comparatively swift pace of the tribunals this time around, the overturning of several elections, and key Supreme Court rulings (including the January 29 ruling against Obasanjo loyalist Andy Uba, see Ref A). As well, the February 6 Court of Appeals (e.g., the court of final instance for state election tribunals) ruling to uphold the annulment of the Kogi gubernatorial polls, and immediate swearing-in of the State Speaker of the House as acting governor, establishes legal precedent. In addition, perhaps it is because chances for a Buhari upset are better now than several months ago that rumors are circulating the ANPP is maneuvering to reconstitute the party, to open the possibility of Buhari running again on its platform. We share the view that the Supreme Court would take advantage of what most see as enormous latitude to determine whether a tribunal decision would stand, and consequently, the composition of an interim government; the eligibility of candidates; the timing of fresh elections; and, who would run them (INEC, a restructured INEC, or someone else). That said, should Buhari's wish come true, we would all be in a very new, as well as potentially more precarious and uncertain, political situation. END COMMENT. SANDERS