After Supreme Court's Verdict: What Options For Buhari?

culled from THISDAY, July 3, 2005

“Time is the greatest friend of truth. Nothing ever built on falsehood and deceit has endured and this one also shall follow the time-honoured pattern. Democracy is about the expression of peoples' will and since Obasanjo has not renewed his mandate for another term, his continued hold on power beyond May 29th (2003) runs against the grain of popular democracy and therefore illegal. His government as we have posited earlier is consequently illegitimate and shall continue to remain so as long as it is based on the April 19th contraption. Those who commit injustice bear the greatest burden. We are already in court and we will go the whole hog to get justice for the Nigerian people. Democracy shall yet come alive."
The foregoing was the meat of Gen. Muhammadu Buhari's statement, "Democracy Shall Yet Come Alive," ahead of the May 29, 2003 swearing-in of President Olusegun Obasanjo, re-iterating his earlier position that the election which gave the latter a second term was not fairly and freely secured and thus detracts from the known ethos of democratic rule. However deeply felt, this sentiment, widely expressed and pushed with an unrelenting, principled energy by Buhari, was nonetheless given short shrift by the highest court of the land last Thursday, when the Supreme Court upheld Obasanjo presidential victory. But first, the build-up, the Appeal Court scenario.

The Appeal Court Scenario...
The judicial battle that finally ended last Thursday started at the Court of Appeal, Abuja, where Buhari filed a 91-page petition with 274 respondents. Hours before the hearing, Buhari and other ANPP stalwarts were at the court to pay the N10,300.00, filing, and N100,000.00 security fees. They also presented about 274 copies of the petition to the court. Buhari joined Obasanjo, Vice President Abubakar Atiku, INEC, all resident electoral commissioners of 36 states of the Federation, all state returning officers at presidential elections of the 36 states of the Federation including the Federal Capital Territory, and nearly all the electoral officers of all local governments in Imo, Taraba and Adamawa.

The petition averred that INEC was "undemocratic, lacking in neutrality, unfair to all concerned save for the PDP and President Obasanjo in the conduct of the elections." The petition, which contained state by state analysis of irregularities alleged that PDP members were seen painting private vehicles in INEC colours in Ebonyi State. Among other things, Buhari said a statement credited to INEC chairman, Abel Guobadia, that he (Buhari) was a "frustrated man," indicates that INEC was already biased and had compromised its neutral position. He alleged that Guobadia was not fit to hold any public office as he was indicted by the Nigerian Universities Commission (NUC) for abuse of his office as Assistant Secretary.

"The figures ascribed to each of the candidates in the result above pleaded were the products of deliberate wrong entries made by the third respondent's (INEC) agents or representatives at the ward, local government areas and state collation centres. The elections sought to be nullified was conducted in substantial negation of the fundamental principles of the Electoral Act, which are the substance of democracy, neutrality in the conduct of the elections, fairness and allegiance to the Federal Republic of Nigeria.
While the Court of Appeal was hearing the case, both sides, particularly the opposition, sought to gain political capital out of it. Opportunities for this were not lacking. But eventually, the Court of Appeal in the leading judgement delivered on February 6 by the President of the Court, Justice Umaru Abdullahi, upheld Obasanjo's victory and dismissed Buhari's petition but cancelled the results of the presidential election in Ogun State.  But it condemned the INEC for its failure to present all the election results before it saying the commission could not be bigger than the nation.
However, it was in the dissenting judgement presented by Justice Nsofor that Buhari's appeal found merit. The minority judgement dealt a major blow to  the credibility of the election and made a strong case for the cancellation of the results.

The Final Judgement...
In delivering the 124-page lead judgment last Thursday, the Chief Justice of Nigeria, Justice Muhammed Uwais, held that there were not enough material evidence by Buhari to show that the April 2003 presidential election was rigged in favour of Obasanjo to warrant the vitiation of the election by the court, noting that election rigging is a criminal offence, and that going by the Evidence Act, such offence ought to be substantiated fully and not relied upon by mere hearsay.
Uwais further held that the election was conducted substantially in accordance with the 2002 Electoral Act. He said non-compliance with the Electoral Act as alleged by Buhari was not enough for the invalidation of the election. He cited Section 135(1) of the Electoral Act 2002, which provides that "an election shall not be invalidated by reason of non-compliance with the provisions of the Act if it appears that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election" to support his position.
Buhari's recourse to the Supreme Court which contained 42 grounds of appeal but were compressed into seven briefs included the following:

• To set aside the majority judgment of the Court of Appeal dismissing the petition 
• To uphold the dissenting judgment of Nsofor (JCA)
• To allow the petition on the grounds and consequentially disqualify the Ist and 2nd Respondents (Obasanjo and Atiku) under  section 129 of the Electoral Act 2002
• To order the 3rd Respondent (INEC) to conduct a fresh election within one month from the date of judgment in his appeal
• In the event of disqualifying the 1st and 2nd Respondents to order 3rd Respondent to conduct a fresh election between the remaining candidates in the election and  
• In the event that the appeal succeeds, with or without the disqualification of the 1st and 2nd Respondents, to order that President of the Senate acts as the President of the Federal Republic of Nigeria during the period between the judgment and the fresh election.

After going through all the issues painstakingly one by one, Uwais held that:
"The evidence adduced at the trial in the Court of Appeal by the 1st and 2nd Appellants (Buhari and ANPP) was not sufficient to enable the Court of Appeal hold that the election was not held substantially in accordance with the principles of the Electoral Act.
"This was so despite the Court of Appeal nullifying the elections in Ogun State. In this Court, we are satisfied that the testimony of Chief Bisi Lawal, PW1, which the Court of Appeal relied heavily upon  to nullify the election in Ogun State was based on hearsay, which is unreliable and by Evidence Act, inadmissible.
"The documents the witnesses tendered were not, in the absence of evidence of the makers, reliable. Again the failure of the Electoral Officers, Presiding Officers and Returning Officers to take oath of loyalty and neutrality is of no moment since the form of the oath is omitted in the Electoral Act and cannot be found in the Oaths Act.
"All these have further weakened the petitioner's case for non-compliance with the provisions of the Electoral Act.
"In sum, the case made by the 1st and 2nd Appellants/Cross Respondents before the Court of Appeal, which did not entitle them to the judgment of the Court in their favour is even weaker before this Court.
"I therefore come to the conclusion that the election was conducted substantially in accordance with the principles of the Electoral Act. I need not go further to consider the second limb of  Section 135(1), which is whether the non-compliance, so far proved, has affected substantially the result of the election, since as I hold, that on the evidence adduced before the Court of Appeal, the election was conducted substantially in conformity with the principles of the Electoral Act.
"Accordingly, the appeal fails and it is hereby dismissed with no order as to cost. Finally, I wish to commend the Honourable President and Honourable Justices of the Court of Appeal and the counsel for the parties before the Court of Appeal for their industry throughout the proceedings, which had lasted for 15 months, resulting in hearing a total of 355 witnesses called by all the parties in the petition."
Commenting on the Ogun State election, which was nullified by the Court of Appeal, Justice S. M. A. Belgore in his 52-page judgment noted that, "In view of the over one third of the state's local government results, it seems the Court of Appeal was in error on this point.
"The Court apparently failed to draw its attention to the cross examination of PW1, Lawal. It is for petitioners to prove their case and by objecting at earliest opportunity to have the result in court the appellants are not entitled to benefit of the result in 14 Local Government areas not in court.
"It simply means that they never intended the results to be seen by the court; that is what actually took place. The appellants also alleged manipulation of election results in the same 142 polling units from seven local government areas.
"Manipulation or alteration of election result is a criminal offence and the prove required is high, that is beyond reasonable doubt. The sin of parts of seven Local Government Areas in Ogun State in having some doubts on the returns should not have been visited on the other 13 local government areas. But that precisely is what the Court of Appeal did by relying heavily on the evidence of Chief Bisi Lawal which covers only seven local government areas.
"The failure to bring other results for the rest of the states was due entirely to the appellants who early in the trial objected to their being brought to court. Unfortunately, Chief Lawal as PW1 gave evidence of what he never saw but what he was told by polling agents. That is hearsay.
"I therefore agree with the lead judgment of the Honourable Chief Justice of Nigeria, which I had the privilege of reading in advance that the cross appeal has merit. I also allow it."

Buhari’s Reaction...

On the heels of the judgement, Buhari described the outcome as "political,"  holding that the "the decision flies in the face of facts." His reaction contained in a prepared text which he read to newsmen at the ANPP secretariat about two hours after the judgement, stated rhetorically that "we accept the decision of the Supreme Court, although we do not agree with it." He recalled that the ANPP and himself went to the Supreme Court in furtherance of the belief that institutions created by the constitution for the purpose of performing certain functions must be made to perform those functions."
According to the lanky Fulani prince, "Although, now thoroughly disappointed by the decision, yet, consequent upon our belief in, and commitment to the enthronement and sustenance of true democracy based on the rule of law, and the imperative of respecting the final pronouncement of the body charged with nurturing the supremacy of the rule of law, on our part, we accept this decision of the supreme court, although we do not agree with it".

ANPP National Chairman, Chief Don Etiebet, in accepting the decision of the Supreme Court said he was happy that the apex court raised questions about the short comings of INEC and "I pray that the commission will take immediate steps to correct itself for future elections so that there will be no need to go through two and half years of litigations on the electoral system.
"I only hope that INEC as a result of this judgement will sit up from now on to make arrangements for free, fair, acceptable and incontestable elections in the future that is what this country needs and that is the panacea for Nigeria's stability, for Nigeria's unity and for Nigeria's development,"  he said. Counsel to the NAP and Buhari, Chief Mike Ahamba (SAN) said the judgment will determine the future of subsequent elections since the apex court has raised some fundamental questions about the conduct of INEC on elections.

Judgment's Implications...

The apex court has given its final word on the April 19, 2003 election. The matter of proving electoral fraud is a serious one because it is a criminal matter and the onus of proof is on the petitioner to so do. Some may say that but some if not nearly all the observer groups that monitored the 2003 elections said that it was flawed or that some elections into the Senate and House of Representatives organised by the same INEC were fraught with irregularities allegedly like the last presidential election and had already been cancelled by election tribunals, all that will be hear say as the Supreme Court had said.  The Supreme Court's pronouncement can no longer be further challenged since that is the highest court in the land. Buhari's lead counsel Chief Mike Ahamba (SAN) succinctly captures this reality when he stated that there were limited options open to him but accepted the decision in good faith since it came from the apex court of the country.

Rightly, or wrongly there is a wide perception that the Supreme Court ruling in favour of Obasanjo, may have saved the country the grave possibility of yet another round of constitutional crisis. Had the Supreme Court canceled the poll and ordered fresh election, several analysts believe the nation may have been thrown into another enervating legal crisis. Why? The Independent Electoral Commission (INEC) would not have had any legal backing to fall back on to conduct a new presidential poll unless it is for a fresh term of four years.  The constitution and the electoral act empowers the INEC to conduct presidential election for only four years.
This scenario, some pundits say, may have informed the relaxed, cosy stance of many PDP supporters and Obasanjo loyalists. An apparent lacuna in the status book shores up this position. Section 135 of the 1999 constitution that deals with the tenure of the office of President clarifies that a person shall hold office of the president until:

(a) when his successor in office takes the oath of that office.
(b) he dies whilst holding such office or
(c) the date when his resignation from office takes effect;
(d) he otherwise ceases to hold office in accordance with the provisions of the constitution.

Further, section 135 sub-section 2 states that the president shall vacate his office at the expiration of a period of four years coming from the date when he took the oath of Allegiance and oath of office.
There is no provision in both the constitution and the electoral act to take care of the expected lacuna that cancellation of Obasanjo's election last Thursday would have created. A fresh election would just have given President Obasanjo additional two years as the two years he already spent would not have counted. The situation would have swiftly played into the waiting hands of some of Obasanjo men who have been jostling through the ongoing National Political Reforms Conference (NPRC) to get the constitution amended and enable the President to stay more than two years.
In all, the marathon quest for justice by Buhari, many belief, is a testimony to the character of the ANPP flag-bearer - tenacity, doggedness and personal belief in principles. As things stand now, any other justice to be done to Buhari, many believe, would have to be dispensed by an authority higher than man. Buhari realises this and has severally alluded to it in the penumbra of the historic judgment. So what are the options open to Buhari now.

Options Before Buhari...

The only option open to Buhari after accepting the verdict of the apex court is for him to now fully embrace democracy and partisan politics in all its ramifications if he wants to be politically relevant. He needs to wear the garb of a politician through and through and not take politics as a one-off thing as he seems to do. Politics is a serious business and if he really desires to change things in the country through the instrumentality of partisan politics, he must really be active in his party, the ANPP. He must do away with his seeming aloofness in party matters. He should not be like all those politicians that remember their party membership cards only at election time. He had indicated somewhere before that he would also be ready to contest the 2007 election. So, the option left for Buhari is to now build his democratic credentials. This, he appears to have started by reaching out to other like minds across the length and breath of the country, like his hobnobbing with some progressive elements in the South West like the Afenifere and some human rights activists. This will no doubt help to galvanise his democratic credentials.

As if in the realisation of this, indeed, last June 11, Buhari met with leaders of the pan-Yoruba socio-cultural organisation, Afenifere, in Lagos to signal the commencement of a new political realignment in the country. The meeting came ahead of the 12th anniversary of the annulled June 12 election at which Chief Anthony Enahoro, Prof. Wole Soyinka, Dim Odumegwu-Ojukwu, Buhari and others addressed a symposium along with the former military leader. Buhari and the Afenifere leaders at their meeting resolved to form a common front against the Peoples Democratic Party (PDP) administration of President Obasanjo. According to them, the people are tired of relishing in poverty despite the nation's resources. Speaking before a closed-door meeting with members of Afenifere, Buhari had said he chose to identify with the organisation because he is a believer in grassroots politics. Also speaking at that meeting, acting leader of Afenifere, Chief Reuben Fasoranti, said the Yoruba group was ready and willing to work with Buhari because his days as military head of state were characterised by discipline, transparency and accountability, saying that was the kind of government the Afenifere had been canvassing for. And at the rally in commemoration of the 12th anniversary of the annuled election in Lagos last June 12, Buhari described the annulment as a crime against Nigerians by the military administration of his successor, General Ibrahim Babangida. Buhari was the guest of the pro-democracy activists that organised rallies and lectures in Lagos, Ibadan, Kaduna and Abeokuta in commemoration of the anniversary of the election believed to have been won by late Concord Publisher, Bashorun M.K.O. Abiola. Buhari, who spoke as guest speaker at the Pro-National Conference (PRONACO) anniversary celebration, said the June 12, 1993 "annulment was a big crime against the people because their votes were ignored, cancelled and annulled." He noted that "the men, who perpetrated this crime were in fact telling the people of Nigeria that their views do not matter, elections do not matter: only the will of the government in power matter." According to him, "June 12 is remarkable, unique, a notable event for Nigeria starring a Southern presidential candidate running for the first time with a Muslim-Muslim ticket in a constitutionally secular country and winning the election."

But if the truth must be told, Buhari is a latter day democrat. As a matter of fact, the manner in which he emerged as the candidate of the ANPP for the 2003 presidential election belie the kind of agitation he engaged in with respect to Obasanjo's victory. Other presidential aspirants particularly the ones from the Southern part of the country were muscled out of the party's primaries in broad daylight to pave the way for Buhari's candidature. And rather than Buhari to appeal to the aspirants when he mounted the stage for his acceptance speech, he poured more salt on the injury of the aspirants by his declaration that the party could do without them.

Not only that, throughout his campaign for the presidency of this country in the build-up to the 2003 election Buhari never ventured to reach out to the South West. He alienated the group, which is reminiscent of the campaigns of some presidential aspirants in the First and Second republics.
Buhari, it would be recalled, was Nigeria's Head of State from December 31, 1983 to August 27, 1985. Together with the late Major General Tunde Idiagbon, they ran the country for about two years without enunciating an agenda for transition to civilian rule His government instilled discipline in the land and was purposeful and committed no doubt, but a nation that was taken aback with the seeming poverty of the NPN administration but yearned for a return to democracy could not stomach an administration with draconian policies and without a political programme. Indeed, Buhari's administration came up with draconian policies like Decree 4 under which prominent journalists like Nduka Irabor and Tunde Thompson were hauled into prison and capital punishment for drug pushers though some say the nation needed the iron hand of the Buhari/Idiagbon regime to bring her back on the part of rectitude.