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Nigeria: Supreme Court Decides On Presidential Poll

Ahmed Musdafa

23 October 2008

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opinion

Today marks the beginning of the long knives at the Supreme Court as the nation's apex court begins hearing in the case brought before it by Muhammadu Buhari of the ANPP and Atiku Abubakar of the Action Congress (AC).

Following the ruling of the Presidential Election Tribunal last February, Atiku and Buhari headed to the Supreme Court asking the apex court to set aside the ruling of the tribunal, nullify the election and order fresh election.

At the tribunal, Atiku had argued among others that he was wrongfully excluded while Buhari's battle cry was irregularities in the course of the election. They both lost at the tribunal. The tribunal judges said Atiku did not only participate in the election but did so actively. A case of irregularities, according to the tribunal was noticeable in four states but this was not enough to invalidate the result of the election. Other prayers of the petitioners were treated discretely by the tribunal and subsequently dismissed for lack of evidence. In the words of the tribunal, the petitioners could not adduce any shred of evidence to prove their case. In its ruling, the Justice Ogebe tribunal said in law eloquence and good presentation may be critical in a case but they cannot take the place of evidence.

Expectedly, mixed reactions greeted the February 26 ruling but most lawyers were of the opinion that the tribunal was right. They argued that no reasonable court or tribunal would premise its judgement on emotion, rumour or hearsay. Nigeria operates the adversarial legal system where onus of proof is on the petitioner. In the instant case, the tribunal averred that Buhari and Atiku could not adduce the requisite evidence to prove their case. The ruling of the tribunal was in tandem with the verdict of the electoral umpire, INEC, which has maintained that the outcome of the election reflects the wishes and aspirations of Nigerians.

Without doubt, the 2007 election was gravely threatened on all fronts to the extent that at a time it appeared practically impossible for INEC to conduct the poll. But the electoral umpire braved the odds against the tide of fracture in the presidency, unwillingness on the part of the then incumbent president to quit office and a well scripted plot to undermine the election and install an unconstitutional interim government. It was therefore a miracle that Nigeria pulled through the election to break a 47-year-old civilian -to-civilian transition jinx. Those who appreciate the undercurrents that presaged the election do not fail to give kudos to Professor Maurice Iwu and INEC for daring the garrisons mounted at strategic points to scuttle the poll. In the main, the success of the election came down to the insistence and persistence of Iwu and INEC that the poll must hold as scheduled.

In its official report on the election, INEC acknowledged that "there were logistics problems, sundry operational difficulties and lapses here and there in the conduct of the elections across the states", adding that most of the problems were beyond the control of the commission. Nonetheless, INEC said, "the election was successful by any sober analysis and its outcome reflects the intent of the Nigerian electorate". This has been the view of INEC which was validated by the tribunal. Yet, the duo of Buhari and Atiku won't take it. They dashed to the Supreme Court seeking an invalidation of the judgement of the lower court. Many people including this writer have commended them and in fact any other electoral petitioner for going to court rather than hiring thugs to cause mayhem on the streets. It shows they have faith in the judiciary. But our faith in the judiciary must not end at petitioning it must reflect in our ability to abide by the ruling of the judiciary even when it hurts us.

Since the Justice Katsina-Alu of the Supreme Court announced the readiness of the apex court to commence hearing today, the media had been awash with frightening tales of bribery and underhand deals by some persons in concert with the Supreme Court. It was the same tactic adopted by this clan of political jobbers and their media recruits in the run up to the tribunal ruling in February. 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 onslaught to bully the Supreme Court into reversing the judgment of the Appeal Court . Unfortunately for this little minded crowd of Nigerians the Supreme Court justices are highly rated justices who would not succumb 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.

Critics of the 2007 election based their assumption on the fact that President Yar'Adua set up the Presidential Election Committee. This, they say, is an indication that all was not well with the 2007 election. Wrong. While setting up the committee, the president did not single out the 2007 election. He said specifically that all elections in the country since 1959 had been subjects of litigation and that there was the need to tackle the problem of electoral integrity headlong. It is the whole process of elections since 1959 that is being reworked not the 2007 election. It is proper that Nigerians understand this as they await the verdict of the Supreme Court.

This has been the sentiments expressed by some people. Yet, judgement is not a function of sentiment, neither is it a product of emotion. In the case at hand, the Supreme Court would look at the strands of argument canvassed in the lower court. It would be guided by the constitution, the 2006 Electoral Act and any other legal instrument that may be relevant to the matter.

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 key phrase is 'substantial compliance' or 'substantial non-compliance'. The Appeal Court did not rule that the election was so perfect such that there were no traces of non-compliance. INEC did not claim 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 warrant 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. The sanctity of law is that it must be devoid of emotion and hot air. It must be based on facts not media hysteria. 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. This should guide the Supreme Court, to wit, the sanctity of the law, not the misguided and orchestrated attempt to malign it and consequently intimidate it. The challenge is for the petitioners to prove at the Supreme Court what they could not prove at the tribunal. And that proof must be based on evidence, nothing more. Above all, if we must have the willingness to approach the Supreme Court, we must also have the willingness to accept its verdict, good or bad. That makes us true democrats.

Musdafa writes from Abuja

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