'Yar Adua vs. Buhari & Atiku...' By Ademola Adewale

THE PROFESSOR’S PODIUM
YARADUA VS. BUHARI & ATIKU:
THE JUDICIARY IN THE EYE OF THE STORM.

The Judiciary has been in the limelight in recent times, thankfully for all the right reasons, severally saving the nation from the brink of destruction and at other times checking the excesses of an imperial presidency, many times restoring the hope of the citizenry in an highly troubled nation.
Tuesday, the 26th February, 2008 aptly doubled Super Tuesday by the GUARDIAN in the manner of the American political Culture was one of those momentous occasions. The issue at hand was of course clear to all, the Legal validity of the electoral victory of President Umar Musa Yar’adua, generally believed to be the beneficiary of the most flawed elections in the nations political history. The build up to the day was most interesting; following from the highly controversial and most contentious 2007 General Elections, which were berated both locally and internationally as not meeting the most basic standards of participatory democracy; in fact several persons both in Nigeria and outside have wondered how the country has not experienced the worst type of post-election violence, Kenya-type, a feat many attribute to prayerful religious culture of Nigerians.
Several electoral Victories declared by the Independent Electoral Commission (INEC), had been nullified and set aside in the months and weeks after the April General Elections. The first casualty of this Judicial activism that followed upon the flawed elections was Andy Uba of Anambra state, whose election was declared a nullity as the court declared that there was no vacancy as at the time INEC conducted elections into the Anambra State Governor's office, so Governor Peter Obi, who took 3 years to retrieve his mandate stolen in 2003 elections was promptly returned to office. Then following in quick succession, perhaps not in any particular order, were the nullification of the election of Governor Ibrahim Idris of Kogi State, the nullification of the declared victory of Governor Celestine Omehia of Rivers State in favour of Rotimi Amaechi who won the Peoples Democratic Party, PDP primaries Governor Sullivan Chime of Enugu State also suffered the same fate, Governors Murtala Nyako of Adamawa and Saidu Usman Dankingari of Kebbi also tasted the bitter pill of election nullification. In the National Assembly, there was a long list of nullifications of electoral victories, the most celebrated being that of Senate President, David Mark almost at the Eve of the decision of the Presidential Election Tribunal and Senators George Akume of Benue North West and Ayogu Eze, Enugu North.
Almost all these election nullifications were against the ruling PDP, the self-styled biggest party in Africa. In the prevailing atmosphere of Judicial nullification, the prevalent opinion was that the presidential election was doomed for nullification and even highly respected legal scholar and otherwise objective jurist Prof Itse Sagay SAN permitted himself the rare indulgence of opining that the Presidential election will most likely be nullified.
The nullification of the Abia State Governor's election at the very eve of the judgment day merely reinforced this generally held opinion. As is usual in life, there were a few pockets of dissent like the lawyer quoted on Channels TV as saying that "Law is not mathematics and that none of the Parties can say categorically, that he will win and his opponent fail. That the end of the day anything can happen" I am also obliged to put on record the views of the Editor -in - Chief of the Squib Magazine, even though sharing the general sentiments of nullification in the early hours of judgment day cautioned that at the end of the day the outcome of the case may have nothing to do with the general sentiments but good old-fashioned advocacy at which the President's lead Counsel, Chief Wole Olanipekun SAN is a Master. How prophetic the minority have turned out to be. But as at the morning of verdict day, the few who gave the president any chance of success anchored their submission mainly on the nebulous ground of social stability peace and order that the Judiciary at the end of the day will not wish to give a verdict that might throw the whole nation into chaos and give fifth columnist opportunity to strike. A few people like this columnist who held this view, however did so, tongue - in - cheek; a weak rationalization for the improbable.
In the run-up to the Verdict even the Presidential Elections Tribunal Constituted by the Court of Appeal tacitly conceded the great Public interest in the matter by allowing public transmission Live of the tribunal's Judgment, so the stage was set for the nations, not just the president's Judgment
Then came the hour at 10:00am on Tuesday the 25th February 2008, in a judgment which took over 3 hours to deliver, the Justices of the Presidential Election Tribunal consisting of Justice Afolabi Fabiyi who delivered the lead judgment, Justices Raphael Chikwe Agbo, Abubakar Abdulkadir Jega, Umani Abaji and Justice James Ogenyi Ogebe recently elevated to the Supreme Court
The Tribunal looked at the various legal issues raised and held amongst other things that; -
i Substantial Non compliance was not proved by the petitioner. This has been a hard nut to crack since Awolowo V. Shagari (1979) 6-9. Sc, 37 Falae Vs. Obasanjo. (1999) NWLR (pt 606) Buhari V Obasanjo (2007) 7 Sc. (pt 1).
ii. Various allegations of malpractices were not proved Nwobodo Vs. Onoh (1984) SCNLR 1 Omoboriowo Vs. Ajasin (1984) SCNLR 108
iii. The Irregularities proved were not so substantial to affect the outcome of election.
iv. In the Case of Alhaji Abubakar Atiku; he could not combine his claim of exclusion with that of irregularity.
v. Several of the documents tendered by the petitioners were inadmissible under the Electoral Act, Practice Directions, even the Evidence Act.
In other words, it was a decision based squarely on law and procedure presumably also on good old fashioned lawyering (advocacy) as a few had suggested before the judgment. This "straight and narrow" approach surprised if not disappointed many who were expecting a judgment sensitive to public expectations: which expectations one may ask the victorious party or the petitioners?.
Naturally, there has been out pouring of emotions on both sides, the victorious party praising the judiciary and the judgment to high heavens, (the President though was magnanimous in victory) the opposition denouncing the judiciary in no uncertain terms. Even Very Senior Lawyers who ought normally to restrict themselves to their professional calling of preparing Appeal papers for their dissatisfied clients, found the emotionalism of the occasion irresistible to throw verbal jibes at the Justices of the Appeal Tribunal casting unbecoming aspersions at the judicial officers who by virtue of their office have no right of reply.
It appears that for some Counsel the constitutional right of appeal to the Supreme Court is not enough to ventilate their client grievances, which is quite unfortunate.
The better approach would have been to proceed promptly on appeal as instructed by their clients with all the legal weaponry at their disposal rather than instigate an unwary public against a decision of a competent court of records which is valid until set aside on appeal. This is the least expected of Ministers in the temple of justice.
Anyway, the battle has now rightly shifted to the final court in the land, where the human oracles of the law have the Olympian and unenviable task of deciding this most volatile and sensitive of cases. To their Lordships of the Supreme Court, we pray for the great wisdom of Solomon and Daniel combined as the whole nations waits on their lordships. In the mean time, while we wait for the appeal to run its normal course, can we all get along with the decision of the Court of Appeal Presidential Election Tribunal


Ademola A. Adewale Esq.