NIGERIAN PRESIDENTIAL ELECTION: SUPREME COURT MAY

C O N F I D E N T I A L ABUJA 000799

SIPDIS

SIPDIS
NOFORN

DEPT FOR AF/W, INR/AA
DOE FOR GPERSON

E.O. 12958: DECL: 04/29/2018
TAGS: PGOV PINR KDEM KJUS KCOR NI
SUBJECT: NIGERIAN PRESIDENTIAL ELECTION: SUPREME COURT MAY
RULE BY JULY

REF: A. ABUJA 343

B. 07 ABUJA 841

C. ABUJA 456

D. 07 LAGOS 457

E. ABUJA 779

Classified By: Pol/C Walter Pflaumer, reasons 1.4 (b & d).


1. (C//NF) SUMMARY: On April 29, the Supreme Court convened
its inaugural session in the appeals of presidential
candidates Muhammadu Buhari (All Nigeria People's Party,
ANPP) and Atiku Abubakar (Action Congress, AC) against
President Umaru Yar'Adua (People's Democratic Party, PDP).
Chief Justice Idris Kutigi suggested that the court may delay
its scheduled July-September summer break in order to wrap up
proceedings, and deliver a final verdict by July. Kutigi
also named the six justice-panel, which will join him in
hearing the appeals cases; Justice James Ogebe, who presided
over the Presidential Election Tribunal which upheld
President Yar'Adua's election, will not serve on the panel.
While we have reported that the Chief Justice has stated
privately an intention to overturn the President's election,
the tentative biases or intentions of the accompanying
justices of the panel remains unknown. However, recent
Supreme Court rulings, including those proffered by these
very justices who may annul the April 2007 presidential
polls, may provide insight into these justices' approaches to
the law. Two of the justices on the panel, Chief Justice
Kutigi and Justice James Oguntade had both voted to uphold
former President Obasanjo's 2003 elections, at the Supreme
Court and tribunal respectively. While the chances of the
Supreme Court ruling against Yar'Adua appear remote, the
court may take public interest, national stability, and
questions about the President's performance and health into
account. END SUMMARY.


2. (SBU) The Supreme Court, in its first sitting on the
appeals of ANPP candidate Muhammadu Buhari and AC candidate
Atiku Abubakar, addressed procedural matters, including
timelines for submission of briefs, responses, and rebuttals.
The court addressed procedural matters, including timelines
for submission of briefs, responses, and rebuttals. While
Atiku has announced he will file his appeal May 9, Buhari
filed April 28. The court declared that the cases cannot be
consolidated, unless both Buhari and Atiku's legal teams
agree to such an arrangement. Legal counsels representing
President Yar'Adua and the Independent National Electoral
Commission (INEC) signaled that they will file their
responses within 8 weeks of receipt of briefs ) the maximum
time allotted by the Constitution. Appellants will then have
4 weeks within which to rebut, before the Supreme Court
commences formal hearing. The Supreme Court is scheduled to
go on summer break July - September. If both the appellants
and the respondents use the maximum time allowed (e.g., 12
weeks) to remit responses and rebuttals, the court may not
render a verdict before September; the Constitution grants
the court up to three months to reach a decision. At the
same time, the Chief Justice suggested the court may seek to
delay its scheduled summer break to August, and rule in July.


3. (U) Supreme Court Chief Justice Idris Kutigi appointed the
following six justices to sit alongside him on the panel that
will hear the appeals: Aloysius Katsina-Alu, A.M. Mukhtar,
Dahiru Musdapher, George Oguntade, Niki Tobi, and W.S.N.
Onnoghen. (Sylvester Umaru Onu had earlier been appointed to
the panel, however was later substituted due to his
reportedly failing health.) Neither Justice James Ogebe, who
presided over the Presidential Election Tribunal that upheld
President Yar'Adua's election, nor Justice Saifullah
Coomasie, who had been elevated to the Supreme Court with
Ogebe March 11, will serve on the panel (Ref A). (The
Supreme Court panel is required to reach, at minimum, a
majority 4-3 verdict not an unanimous decision in the case.)


4. (C//NF) While Chief Justice Idris Kutigi (aged 69) has
been heralded an "honest, impartial" arbiter, who reportedly
turned down several bribe attempts (see Ref B) prior to the
April 2007 elections and who stated privately an intention to
overturn President Yar'Adua's election (see Ref C),the
potential biases or intentions of the other justices remain

unknown. Kutigi also served on the Chief Justice Muhammad
Uwais-led panel when the Supreme Court unanimously ruled to
uphold former President Obasanjo's 2003 election. (This
ruling had been sharply criticized for failing to recognize
any electoral irregularities in the 2003 elections.) The
following recent judgments by the panel's other justices, who
hail from across Nigeria's six geo-political zones, provide a
glimpse into these justices' experience and approaches to the
law:

-- Justice Aloysius Katsina-Alu (aged 67) was elevated to the
Supreme Court in 1998 and is the second-longest serving
justice on the court. Katsina-Alu delivered the June 14,
2007 judgment which overturned the gubernatorial election
results in Anambra state, censuring INEC for conducting
elections when incumbent governor Peter Obi's term was not
due to expire until March 2010. Katsina-Alu came out against
the use of former President Obasanjo's powers to manipulate
the electoral environment prior to the April 2007
presidential race, in two landmark decisions: (1) On March
29, 2007, Katsina-Alu struck out Obasanjo's case seeking Vice
President Atiku Abubakar's indictment for de-camping to the
AC; and, (2) On April 16, 2007, the Justice ruled against
INEC's disqualification of Atiku as the AC presidential
candidate, stating INEC did not have the power to disqualify
any candidate from contesting elections.

-- Justice George Oguntade (aged 68),who voted on the
Presidential Election Tribunal to uphold former President
Obasanjo's 2003 election, was appointed to the Supreme Court
in 2004. On January 28, 2008, Oguntade (along with two other
justices) struck out Obasanjo-loyalist Andy Uba's appeal in
the Anambra gubernatorial race.

-- Justice Niki Tobi (aged 68) ruled January 27, 2008 to
allow former Vice President Atiku to interrogate INEC Chair
Maurice Iwu over the printing and distribution of ballot
papers in Nigeria declaring it a "right" of all Nigerians to
"know the truth." In addition, Tobi delivered the
controversial April 10, 2007 ruling which faulted the PDP for
substituting Ifeanyi Ararume for Obasanjo favorite Charles
Ugwu in the Imo state gubernatorial election for reasons the
court said were not "cogent and verifiable." (The decision
set an important precedent, namely that the courts can
intervene for aggrieved candidates during party primaries.
Consequently, Ararume's name was placed on the ballot, though
the PDP ultimately lost to the People's Progressive Alliance
in the race.)

-- Justices Dahiru Musdapher (aged 66) and W.S.N. Onnoghen
(aged 58),who were elevated to the bench in 2003 and 2005
respectively, delivered (with Justice Oguntade presiding) the
controversial October 25, 2007 judgment replacing Celestine
Omehia (PDP) with Rotimi Amaechi (PDP) as governor of Rivers
state in the Niger Delta region. (Without calling for a
fresh election, the court ordered that Omehia had not been
elected the PDP's candidate during its primary. Amaechi's
assumption to office through the Supreme Court has been
excoriated as an imposition by judicial fiat. See Ref D.)

-- Justice A.M. Mukhtar (aged 64),who was appointed to the
Supreme Court in 2005, is also the first female justice on
the court. She has not presided over recent tribunal cases,
but as an appellate court justice in Jos in 2004, Mukhtar
upheld the deeply-flawed election of Borno governor Ali Modu
Sherriff (ANPP).


5. (C) Buhari's lead counsel Mike Ahamba told PolOff April 29
that he is "fairly pleased" with the composition of the
Supreme Court panel, though lambasted the counsels to the
President and INEC (respondents) for "delaying" proceedings
by asking for the full 8 weeks to file a response. (In an
April 29 conversation with Ambassador, former Vice President
Atiku echoed similar sentiments.) Ahamba informed PolOff
that he will file a motion for abridgement next week, which,
if granted, would effectively force the respondents to file
within a month. Ahamba also noted that the Supreme Court's
hearing of the appeals cases may last only a day, given that
the purpose of the hearing is to clarify matters already
expounded in the briefs provided by the appellants and

respondents. As with any Supreme Court case, Ahamba
explained, the appellants must appeal legal points of fact
delivered in the lower court's ruling, and not new evidence
or argumentation, before the court. For his part, Ahamba is
arguing that the Presidential Election Tribunal erred in its
judgment to jettison much of the evidence (i.e., improperly
marked voters registers, ballot papers, tabulation sheets,
and witness affidavits) remitted to the court, and in its
judgment that he failed to use "cogent" legal reasoning to
prove gross electoral malfeasance.


6. (C//NF) COMMENT: The Supreme Court is the nation's final
arbiter on the April 2007 presidential elections, and may
rule in favor of President Yar'Adua on the basis of public
interest and national stability (and, the fact that Yar'Adua
will already have been in office for several months). While
neither the Nigerian government nor the Nigerian polity
appears prepared for a re-run election, there is always the
remote possibility that the Supreme Court will rule to annul
the 2007 presidential poll. While the Supreme Court has
never overturned a presidential election, it has appeared
more robust in its rulings over the past year. However, its
recent judgments, including those by justices on the current
panel (as noted above),have not all been acceded to without
serious criticism. At the same time, questions about the
President's performance (Ref E) coupled with uncertainty
surrounding his health and his lingering political weakness
are areas that could be taken into account. While a
favorable verdict will confer greater legitimacy on the
President, it certainly would not necessarily translate into
greater political influence or, supplant or attenuate
criticism that the President's first year in office (he was
sworn-in on May 29, 2007) has not produced a lot of tangible
results. END COMMENT.
SANDERS