Ahmed Tukur
28 February 2008
column
Lagos — On Wednesday President Umaru Musa Yar'Adua communicated the nomination of two judges of the Court of Appeal, Justices James Ogebe and Muktar Coomasie, as justices of the Supreme Court to the Senate for confirmation. The nomination made in compliance with Section 231(2) of the 1999 Constitution immediately became a ready tool for mischief by political rabble rousers who are struggling to stay afloat of a flood that threatens to drawn their waning influence in the polity. Why?
They made to capitalize on the current status of learned Justice Ogebe as the chairman of the Presidential Election Petition Tribunal to actuate their mischief. They claim that his elevation to the nation's apex court is an attempt by the President to influence him to render a favourable decision in the petition filed by the Action Congress presidential candidate, Alhaji Atiku Abubakar, and his All Nigeria Peoples Party counterpart, Maj-Gen Muhammadu Buhari, against his election at the April 2007 poll.
The mischief is quite evident in their deliberate misconception and misrepresentation of the procedure for appointment of judges, not just to the apex court but also to the entire Nigerian Bench. Every student of Constitutional Law and Legal System knows that appointment to the Bench is the initiative of the National Judicial Council (at the Federal level) and State Judicial Council (at the state level). All the President or a governor does is to agree with the nomination and present it to the appropriate approving authority (in this case, the Senate, and in the states, House of Assembly) for confirmation.
In the instant case, the mischief-makers odiously economised the truth by shielding basic facts from the public: that Justice Ogebe's nomination had been pending; that he is third in the hierarchy of the appellate court and the most senior from the zone whose quota is being filled. They shielded his anti-establishment judicial credential that has for long deprived him of elevation. More importantly, they conceal the elementary fact that the President is merely performing a mandatory constitutional role of perfecting the judicial council's function of appointing justices to the apex court.
But discerning Nigerians understand the basis and source of this mischief at least the newspapers were replete with reactions from some failed politicians, including one of the lawyers to Gen. Buhari who expressed fears about the implication of the appointment for the outcome of the petition due in a few days. This is, however, unfortunate as it aims at preempting the decision of the tribunal. Their familiar strategy is to seek to undermine public confidence in Mr. President's certain victory. They did it during the pre-election electioneering, and they are at it again. And just as they lost out then, they are set to labour in vain again. This is because they know as most lawyers do that their petitions are all hype without substance.
In the two consolidated petitions by Alhaji Abubakar and Gen Buhari, for which parties exchanged pleadings and witness depositions, there is no iota of proof whatsoever to entitle them to succeed.
For instance, in the Buhari petition, he pleaded several criminal allegations, ballot stuffing, ballot hijacking and other criminal allegations but at the address stage he told the court that he wanted to withdraw those allegations, obviously because it became clear to him that he did not lead any evidence on those allegations. According to him, he was now resting his case on non-compliance with the Electoral Act, 2006.
That is the end of his case. The case is dead and buried on this singular admission because the contents of the petition is full of criminal allegations, which he cannot run away from. Even on the so called non-compliance, he still cannot win because there is no evidence on record before the court to prove non-compliance.
Nineteen witnesses had witness depositions before the court out of which Buhari and one Umar Abdul Dangana made allegations in Katsina State , one witness gave evidence in respect of Plateau State and one from Rivers State . The remaining witnesses are from Imo State who gave evidence in their witnesses' depositions only on the events that happened in Imo State . How on earth can the petitioner expect this weak evidence in respect of the four states (Imo, Katsina, Plateau and Rivers States ) to cover the 36 States and Federal Capital Territory of the Federal Republic of Nigeria?
What is more, the so called exhibits tendered had no bearing with the pleadings neither do they have any oral evidence in the witnesses depositions. The petition deserves to die like a still born child.
On Atiku's petition, which is most inconsistent, illogical and unreasonable, he was claiming in one breath that he was excluded from the election and in another breath that assuming he was not excluded, that the election was characterised by electoral malpractice.
In law, a person cannot claim to be excluded and at the same time claim that the election in which he did not participate was fraught with electoral malpractice. It is like a defence of alibi in a criminal case where an accused person will say he was not at the scene of crime only to turn round to say what happened at the scene of the crime. That is Atiku's petition for you.
Even if those criminal allegations he alleged were to be proved before the tribunal, the criminal allegations, which they based on electoral malpractices were not proved before the court nor was any witness depositions to that effect.
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