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Nigeria: Presidential Election and the Supreme Court

Ahmed Musdafa

10 October 2008

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opinion

Abuja — As the nation awaits the October 23, 2008 hearing of the case contesting the verdict of the Presidential Election Tribunal, there is yet growing apprehension and, more manifestly, disturbing signals from certain vested interests to cajole the apex court into taking a decision to suit their whim.

Following the declaration of the Aril 2007 presidential election result by INEC, the two frontline opposition contestants, Muhammadu Buhari of the ANPP and Atiku Abubakar of the Action Congress (AC) headed to the tribunal to contest the result; but they failed.

After several months of judicial perusal and rumination over the matter, the tribunal dismissed their consolidated cases in February this year. This clearly angered the opposition that had expected an invalidation of the mandate handed down to President Yar'Adua by Nigerians. Yet, the judgment did not come from a vacuum. It was the result of judicial thoroughness and consideration. The tribunal justices said they were dismissing the case because the petitioners failed to adduce substantial evidence to buttress their claim that the election was gravely flawed and did not conform to the provisions of the Electoral Act 2006.

Section 146(1) of the Electoral Act states that: "An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or the court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election". The operative phrase is 'substantial compliance' or 'substantial non-compliance'. The Appeal Court did not say that the election was so perfect such that there were no traces of non-compliance. INEC did not say that the election was without administrative hitches. Both INEC's and President Yar'Adua's legal teams argued that whereas there were flaws in the course of the election, they were not enough to justify a nullification of the election. Under the nation's adversarial legal system, the onus of proof of non-compliance is on the petitioners. They could not do so. They could not adduce any shred of evidence to substantiate their claim of non-compliance.

Those who framed the Electoral Act knew that an election, any election for that matter, is subject to human errors. They could be errors of the head or of the heart. For any election to be nullified such errors must be of such magnitude as to affect the outcome of that election. This was not the case in the presidential election. The court noted that there were irregularities in four states. This could not have in any way affected the victory of the PDP candidate who was expected to win in two-thirds of 36 states. The petitioners could not prove that the irregularities circumscribed their chances at the poll. In law, eloquence and syntax of presentation of a petition may be an advantage but they cannot take the place of evidence. The sanctity of law is that it must be devoid of emotion, hot air and shenanigan. It must be based on facts not media spin. He who petitions or claims must prove beyond reasonable doubt the culpability of the defendant. In the instant case, the petitioners could not substantiate their claims that they were hard done by during the poll in a manner that jeopardized their chances.

It would therefore be both illogical and legally cynical to award the case in favour of the petitioners on mere hearsay or unbridled media hype. The justices of the Appeal Court were right to have upheld the election of Yar'Adua. The plain truth is that Nigerians voted for Yar'Adua/Jonathan ticket. This presupposes that the judgment was correct as it reflects the expectation of the people. The Peoples Democratic Party (PDP) though notorious in many ways clearly had a superior political structure to win the presidential poll. Besides, Yar'Adua as at the time of the election was perceived by Nigerians as someone they could trust, as someone not infested by the blight of corruption and as someone with a better democratic credential than the rest of the crowd of presidential contestants. The other two major contestants, Buhari and Atiku, had their credentials sullied either by their past or the circumstance of that moment. While Buhari was seen by many Nigerians as a tyrant who would easily turn the nation's young democracy to modern day fascism, Atiku's case was not helped by his squabble with ex-President Obasanjo. The latter succeeded in making Atiku look like a corrupt public officer who cannot be trusted. In the run-up to the election, the perception became so real, besides, his party, AC, could not build a national structure that would have helped his situation. Nigerians therefore could not have voted in any way contrary to the verdict.

In fairness to the Appeal Court justices, they did not engage in legal obscurantism. They treated the petitions and their prayers discretely, letter for letter and word for word. The judgement was thorough and without ambiguity. It would have amounted to injustice if the judgment had gone otherwise because that would have flown in the face of what transpired on April 21, 2007. Nigerians voted for Yar'Adua on that day. They have said so aforetime and they keep saying it. The tribunal also ruled so. That is justice. Anything contrary would have been injustice to the people of Nigeria .

Shortly before the ruling, there was a massive media campaign to ambush the tribunal and stampede it into going contrary to reason. But the tribunal was resolute in its determination to deliver nothing less than justice. The same group has stepped up the media yarn to bully the Supreme Court into reversing the judgment of the Appeal Court . Unfortunately for this small crowd of Nigerians the Supreme Court is not peopled by persons who would submit to intimidation on the pages of newspapers. They are persons of peerless pedigree and proven history of integrity. They are persons who know that the April poll was not perfect, no election in the world is, but they are well aware that such imperfections were not enough to vitiate the result as announced by the electoral umpire.

A very dangerous dimension was lately introduced into the game plan to bully the Supreme Court. It is the red herring on Yar'Adua's health. The promoters of the Yar'Adua-must-go movement are cajoling the apex court to annul the election as a way of guaranteeing a Northern hold to the Presidency. Their permutation, which in the realm of rationality is both devious and wicked, is that in the event of their perceived 'death' of Mr President, the vice president, Goodluck Jonathan would take over in accordance with the provision of the constitution. This in their opinion is unthinkable and therefore must not happen. To annex such situation, they are inveigling the Supreme Court to do what under normal circumstances the law would not permit it to do. This is nothing but intimidation. Yet they fail to realise that the longevity of any person including presidents and peasants is not determined by the permutations and wishes of men. Many men who manifested sickly tendencies had been known to outlive men who laid claim to physical fitness and wellness. This is the sense in which the resurgence in media spin to intimidate the Supreme Court should be viewed as an affront on the judiciary.

But should an election be annulled on the ground of sentiments and emotion? Does it not amount to deploying extra-judicial means to settle a simple, straight-forward legal matter? To do so would be taking the nation through an uncharted path with profoundly clear and present danger. It is following the same pattern with which the same group tried to malign the integrity of justices of the Appeal Court before and after the judgement last February. All manner of mudslinging, denigration and character assassination were thrown into the fray just to subdue the spirit of the Appeal Court justices. But the erudite men of the bench held their nerves and delivered justice based on the evidence before them.

Now, the hirelings have inclined themselves on yet another path of ignominy by throwing darts and dirt at the highly esteemed members of the Supreme Court. They lay claim to being democrats but they lack confidence in the judiciary considered all over the world as the pivot of democracy. They have a pre-meditated endpoint which they want a legal matter to go and each time they failed to get what they desired, usually borne out of selfish rather than national interest, they cry injustice.

Recently, presidential spokesman, Olusegun Adeniyi, was quoted as saying that Buhari's has a "weak case". This was construed by the opposition to be subjudice yet the same opposition turned the other way when Atiku recently proclaimed that heaven would not fall if the Supreme Court annuls the election, a very tendentious sentiment expressed by an interested party in the case. The sad part of this scheme is that a section of the media has bought into the sinister project.

When in 2000 the US Supreme Court ratified the election of George Bush against the backdrop of the 'mystery' vote count in Florida , the American people and the media particularly did not go about taunting Bush as benefactor of a fraudulent mandate. Neither did the opposition resort to media terrorism to jab at the Bush administration. Once the Supreme Court had ruled, the people took it as the decisive terminus of the democratic process. Nobody, not even the US media, till this day refers to Bush as product of a flawed process. This is the way democracies are built all over the world.

In the Nigerian case, we should allow the judiciary to do its work unencumbered, unmolested and unharassed. Any case that cannot be proved in a court of law cannot be proved on the pages of newspapers. This ought to guide the opposition in their misguided wheedling of the judiciary.

Musdafa wrote in from Abuja.

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