2007 Elections: The controversial Supreme Court Verdict

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DAILY TRUST

2007 Elections: The controversial Supreme Court Verdict

 

Written by Musa Simon Reef   
Sunday, 14 December 2008

It was a long awaited verdict and the political tension was almost threatening the pace of governance. When the Supreme Court finally resolved to deliver judgment on the disputed 2007 Presidential Elections last Friday, distinguished Nigerians from all walks of life trooped to the apex court to listen to the verdict of the court. In anticipation of the large turn out of people, security, in and around the capital city of Abuja, was beefed up to stave off any breakdown of law and order. By the time the justices were over, the election was upheld by four of the seven justices headed by Chief Justice of the Federation, Idris Kutigi.

If the verdict put to rest the contentious 2007 Presidential Election, the verdict was trailed with a cacophony of voices. While some Nigerians lauded the decision of the court, other Nigerians declared that the verdict was a veiled attempt at validating the illegality of the polls which opposition politicians alleged was marred by rigging.

Those who came hard on the judgment were the presidential candidate of the All Nigeria Peoples Party,(ANPP) in the disputed elections, General Muhammadu Buhari and the Action Congress, (AC) presidential candidate, former vice president Atiku Abubakar. Buhari said the verdict did not reflect the view of the Nigerian public, and  lamented that the apex court failed Nigerians by upholding the election. Atiku, on his part, said that the judiciary had lost another chance of salvaging democracy.

The dissenting judgments

In the lead judgment delivered by Justice Niki Tobi, the Supreme Court upheld Yar’adua’s election on the grounds that the petitioners failed to prove their cases against the President.

According to Tobi, “For the avoidance of doubt, I am not saying by this judgment that all was well with the conduct of the Presidential Election conducted in 2007. What I am saying is that there was no evidence before the Court of Appeal to dislodge section 146 (1) of the Electoral Act”.

 On the non-serialisation of the ballot papers which the petitioners declared worked against their chances in the election, Tobi, disagreed, insisting that the non-serialisation of the ballot did not substantially affect the outcome of the election result.

“There is yet another point. It is in the respect of the fact that non-serialisation, if it had benefits and advantages, was not exclusive to the respondents (Yar’adua and Jonathan). I do not see any proof by the appellant that the respondents had benefits or advantages over and above the appellant on the alleged non-serialization of the ballot papers. I do note that the non-serialization favoured the respondents and disfavoured the appellant (Buhari). Above all, the appellants did not tender even a copy of the unserialised ballot paper. Where is then the evidence in proof?

“Assuming that there was an admission, the appellant had a duty to prove that the non-compliance substantially affected the result of the election. I do not see any proof,” Tobi said.

Coming heavily on the Ahamba-led team for General Buhari, Tobi said the team failed to prove their case and decried a lack of evidence to support the allegation of rigging in the 2007 presidential elections.

“The appellant [Buhari] did not pretend that he knows the law and that was why he hired counsel to do the case; and rightly went to sleep, hoping that all will be done correctly. It is sad, very sad indeed that counsel, the expert of the law, did not consider Section 83 of the Evidence Act in this matter involving a very simple and elementary procedure. Rather than seeing any fault on the appellant (and I do not see any) I am in full sympathy with him because he was materially denied the opportunity to prove his case. It beats me hollow and hands down that counsel did not relate the procedure to section 83 of the Evidence Act. Courts of law do not give judgments according to public opinion or to reflect public opinion unless such opinion represents or presents the state of the law. This is because the Judge’s clientele is the law and the law only and alone.”

Though Tobi said that a case was not won by inviting a village or community to testify, the justice said that out of the 19 witnesses called by Ahamba, only one was allowed to testify before the Court of Appeal.

According to Tobi, “An agent is the representative of the candidate in the polling station. He sees all the activities. He hears every talk in the station. He also sees all actions and inactions in the station. Any evidence given by a person who was not present at the polling unit or polling booth like the appellant is certainly hearsay.

“In my view, agents are at the most vantage point to give evidence of wrong doing in a polling booth.”

“A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election.

Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities which affected substantially the result of the election.”

Justice Aloysius Iyorgyer Katsina Alu dismissed the claim by Atiku Abubakar that he was a excluded from participating in the 2007 elections. He maintained that going by the laid down principles, Atiku was validly nominated by the Action Congress and though the INEC disqualified him, the court was later to clear him on April 16, 2007.

Katsina-Alu also said that it was fact that the 2007 Presidential Election was conducted and a winner declared. The justice also maintained that throughout the processes leading to the 2007 Presidential Election, Atiku was fully involved and participated and therefore found it difficult to agree with the former vice president that he (Atiku) did not participate in the election.

“I think the position would have been different if the petitioners had pulled out of the contest in protest against the hurdles placed on their paths. They did not do so and the evidence placed before the Court of Appeal showed that the candidate and his party took part in the election as contestants for the office of the President. The 1st petitioner approbated and reprobated by his decision to challenge the election on the mutually exclusive grounds under section 145 (1)(a)(b) & (C) of the Act thereby impliedly acknowledging his participation in the lection where he came a distant 3rd with 2,637,848 votes,” Katsina-Alu said.

Justice Oguntade, in his judgment, carpeted the failure of INEC to use serialised ballot papers for the 2007 Presidential Election and further declared that the elections were not conducted substantially inline with the principles of the Electoral Act, 2006,

“The reasoning of the court below would appear to be curious. They proceeded on the basis that the elections conducted with ballot papers unauthorized by law was valid; and then turned round to ask the petitioners/appellants to proof that the same election was invalid for non-compliance. They unwittingly put the cart before the horse. That was a strange way to reason for a court,” Oguntade said.

 On the exclusion of Atiku from the 2007 Presidential Elections, Oguntade said, “I have no doubt in my mind that INEC willfully and recklessly excluded (Atiku Abubakar) from the April 21, 2007 elections. It persisted in the design to exclude the appellant even if it meant frittering away a lot of tax payers’ money. Even if at some stage, INEC had reason to want to exclude the appellant, it seems to me that commonsense should have guided INEC to include his name on the ballot and to announce to the electors that he was not running in the event the judgment of the Supreme Court went against him.

“Let me also observe that if I had to decide this case on the ground of non-compliance with Section 45(2) of the Electoral Act, 2006, I would make same order as I have made in Buhari’s appeal that the election be annulled. I would do so because there is abundant evidence including the sworn deposition filed by the Chairman of INEC in answer to interrogatories served on him that the ballot papers used for the elections were not serialized and bound in booklets as required under Section 45(2) of the Electoral Act, 2006.”

Lessons from the verdict

Following the victory of the Yar’adua Presidency through the Supreme Court verdict, the delay involved in the resolution of contentious elections has become a central issue in public discourse. Even President Yar’adua had, at the recently concluded Senate Retreat in Kano, said that the electoral tribunal was slowing the pace of governance. As it is done in other climes, Nigerians are calling for the amendment of the Electoral Act where all electoral matters are resolved before the swearing in of winners. Where supposed winners are engaged in legal battles to authenticate their electoral victory, the affairs of the state may be left to suffer irretrievably.

 The condemnation of Section 45 of the INEC Electoral Act,   by the Supreme Court reveals the inadequacies of INEC to conduct an election devoid of irregularities. Section 45 deals with structure, form and content of INEC’s electoral procedures and any flaw of this section may constitute a clog in the attempt to deliver transparent polls.

According to Section 45 of the Electoral Act, “The Commission shall prescribe the format of the ballot papers which shall include the symbol adopted by the political party of the candidate and such other information as it may require. The ballot papers shall be bound in booklets and numbered serially with differentiating colours for each office being contested.”

The non-compliance with the Section 45 of the Electoral Act by INEC is not only  a minus on the transparency of the polls but is a clear indictment on the incapacity of the electoral body to conduct elections.

The position of the Supreme Court on the incapacity of  the electoral commission to rise up to the occasion of conducting a transparent election has been the fears of many Nigerians, especially the opposition who have always seen an unseen hands in INEC’s manipulation of elections.

To curtail this, some Nigerians have called for the independence of INEC to enable it perform its duties without let or hindrance. Submitting its report last Thursday to President Yar’adua, the Justice Muhammadu Uwais-led Electoral Reform Committee made wide ranging recommendations, including the need to ensure the independence and overhauling of INEC, among others.

The panel also recommended for the setting up of Electoral Offences Commission (EOC) and the Political Parties Registration and Regulatory Commission (PPRRC). This, according to the panel, would go a long way in reducing apprehension among Nigerians who see INEC as an extension of the powers that be. According to the nation’s former Chief Justice, “INEC and SIECs lack the requisite independence” which the committee identified as “key deficiency of electoral process.”

 “The Committee,” according to Uwais, “has made appropriate recommendations to address the focal issues of their composition, administrative autonomy and funding. We have also made recommendations aimed at improving the performance of various institutions and stakeholders in the electoral process.

“The three arms of government, namely the executive, the judiciary and in addition, the political parties, security agencies, civil society organisations, the media and the general public … Mindsets are part of the elements that determine the success of election practices and the mindsets of Nigerians are not only generally negative but also irrational,” Uwais said.  

Against the backdrop of desperation by politicians to win elections at all cost, the strengthening of the electoral commission through ensuring its independence and the complete overhaul of the electoral process through removing hurdles that undermine the efficiency of the electoral umpire  could go a long way in reforming the electoral system.  

What future for Buhari and Atiku?

Speaking to Sunday Trust yesterday, spokesman for the Buhari Organisation, Alhaji Sule Hamma, said that the former military head of state, was consulting relevant persons to decide what to do.

“Having addressed the press after the court verdict, General Buhari is in the process of consulting with relevant political forces to decide on the next move. He will decide that and I can assure that it would be very soon.

“We align ourselves completely with the dissent judgments delivered by three out of the seven Supreme Court Justices and as democrats, who believe that in the rule of law, we are committed to following the rule of law and ensuring that matters are handled according to the dictates of the law,” Hamma said.

Asked if Buhari would join the Yar’adua government to move the country forward, Hamma said that someone like Buhari cannot be invited to assist the government through the media.

“If you want to invite someone like Buhari, I do not think it is appropriate to do such through the media. As a former head of state and an elder statesman, you can do that through a formal letter and perhaps, sending a delegation to discuss with him. You cannot just extend such an invitation through the media,” Hamma said.

When asked if Buhari may change his mind and participate in the Yar’adua government if invited formally, Buhari’s spokesman said, “we shall cross the bridge when we get there.”

On his part, Atiku Abubakar said that following the verdict of the apex court that granted victory to Yar’adua, he was involved in strategising for the 2011 elections. Speaking through his media consultant, Malam Garba Shehu, the former vice president noted that his active participation in the nation’s politics was not yet over.

“You may recall that the former vice president reacted to the verdict by the apex court which I am sure was sent to your newspaper. Let me assure you that the Turakin Adamawa is fully engaged in consultation and strategising for the 2011 elections. He is reaching out to politicians of like minds for the 2011 elections which he said he will contest,” said Shehu.

 On whether the former vice president might join Yar’adua to move the nation forward, Shehu said that Atiku had always declared that he was willing to contribute his quota to the development of the country.

“The former vice president has not grown weary in saying that he is ever ready to offer advice to move the nation. But this advice cannot be offered unsolicited. The former vice president believes in the destiny of this great nation and is willing to join hands with all patriotic Nigerians to move Nigeria forward,” declared the spokesman.

Challenges before Yar’adua

Celebrating the verdict of the Supreme Court that endorsed his election as President, Yar’adua called on Nigerians, especially members of the opposition, to join hands with him to move the country forward.  The president who said that the verdict had humbled and strengthened him to continue moving the country forward, called on governors and  members of the National Assembly led by Senate President David Mark to be prepared for  the task ahead.

Yar’adua re-affirmed his administration’s commitment to the reform of the electoral system and promised Nigerians that all efforts would be deployed to ensure that the country had a credible electoral process.

According to the President, “Today is a day that marked a significant event for this country: the judgment of the Supreme Court putting to rest any question about the legitimacy of this administration arising from the 2007 elections. It is indeed a great victory first for the people of this country, it is a victory for democracy, and it is a victory for the PDP.

“For me personally, Vice President Goodluck Jonathan and, indeed the Chairman and leader of the National Assembly, who also had to go through the same process. For all of us, what this victory means is that it further helps to humble the three of us.

“It makes clear to us the great burden of leadership that weights on us and it has made us to reflect and get even more determined to serve this nation and to serve this country as best as we can and in the most sincere and honest manner.

“So I want to assure all Nigerians that today’s judgment is a landmark event that indeed catapults us to provide greater service to this country. And I want to seize this opportunity to call on the appellants in the Supreme Court who lost, not to see today’s event as a process for winners and losers but to see it as a process where all of us, including them and the nation are all winners.

“Now that the Supreme Court has ruled, I will appeal to them to join hands with us in the service of this great nation. This nation is facing many great challenges in terms of the need for us to develop and transform our country in such a way that we will be able to provide for the basic needs of its people and all hands need to be on deck.

“Now that the election process is over, I am calling on all, to please put politics behind us and put national service in front of us. “

Thanking his political associates and other Nigerians for assisting in the discharge of the mandate bestowed on his administration, the President said, “Just yesterday, the National Electoral Reforms Committee which was set up in august 2007 to look into the process of elections in Nigeria and examine why there are always constraints and some shortcomings whenever elections take place in Nigeria, indeed since independence, they have submitted their report and this nation needs to seriously take the electoral process as a very important matter, and I call on all Nigerians of whatever persuasion, to join hands with the executive arm and the National Assembly to ensure that we effect corrections and take measures to evolve an acceptable and credible electoral process that will be the pride of Nigerians and that will be compared with anywhere in the world.”

There is no doubt that the apex court verdict has finally laid to rest several months of uncertainty on the legitimacy status of the Yar’adua administration. Having obtained a legal authentication for his mandate, can the  Yar’adua-led government rise to the challenge of delivering on its seven-point agenda and evolving a transparent electoral process within less than two-and -half years ahead of the next election?  Going by the performance profile of the administration in the last 18 months, not a few Nigerians are seeing the future devoid of herculean challenges for the PDP-led central government.

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