---

---

Daily Independent (Lagos)

Nigeria: Buhari's Allegation And Yar'Adua's Diminished Authority

Soyombo Opeyemi

8 January 2009

---

'The Supreme Court judgment is not consistent with evidence and face of justice. It has turned court decisions into a game of chances and riddles and this is not consistent with a credible judiciary.'- Alhaji Balarabe Musa, Chairman, Conference of Nigeria Political Parties (CNPP) (12/12/08)

A visibly enraged Chief Mike Ahamba (SAN), lead counsel to the All Nigerian People's Party (ANPP) at the 2007 Presidential Election Petitions Tribunal, emerged from the Court of Appeal complex, Abuja on Tuesday, February 26th, 2008, shortly after the petitions of ANPP were dismissed by the court in a unanimous decision, and thundered before pressmen: 'This is judicial ambush!' The court, according to Ahamba, had said that depositions would suffice for the trial only to turn round in her judgment that allegations of corrupt practices against the 2007 presidential poll were not backed up by testimony of witnesses.

At a press conference on Friday, December 12th, 2008, after the Supreme Court, in a split verdict of 4-3, threw out the petitions of ANPP on the 2007 presidential election, an apparently crestfallen Gen. Muhammadu Buhari fulminated: 'This judgment is overtly perverse in the sense that it was agreed by all parties in chambers in the lower court that depositions would be accepted without oral testimony. For the courts to now turn around and conclude that there was no evidence is squalid in the extreme.'

I hold the strong view that this allegation of 'judicial ambush' is of such weight as cannot be swept under the carpet. Was there a pre-trial agreement by the court which she breached, thereby undermining the petitioner - ANPP? It is instructive that Chief Wole Olanipekun (SAN), lead counsel to PDP has not made any public comment to the contrary on the said agreement. Rather, while adopting his briefs before the apex court on October 23rd, he had harped on the 'failure' of the petitioner to back the documentary evidence she produced with testimony of witnesses. But was there an agreement by all parties before Justice Ogebe-led tribunal that oral testimony would not be needed?

The National Judicial Council must investigate this case. Of course, members of the Presidential Election Petitions Courts who are members of the National Judicial Council will technically stand disqualified from being part of this all-important investigation. The NJC needs not embark on any voyage of discovery to establish this allegation. Chief Mike Ahamba had said that on two occasions he sought to bring oral testimony of witnesses to the court but the Ogebe-led tribunal ruled that documentary evidence would suffice, upon which he insisted that the court's positions be recorded, and they were indeed recorded. Therefore, all that the NJC needs to do is to call for the record of proceedings. If a prima facie case is established, then such a conduct will constitute a serious indictment of the Justice Ogebe-led 5-man panel; an equivalent of judicial corruption.

But much more than this. The judgment procured by the PDP and INEC at the Court of Appeal on Tuesday, February 26th, 2008 and subsequent victory at the apex court on Friday, December 12th, 2008 would be completely questionable and therefore demands judicial review. If it is established that the Court of Appeal did undermine the ANPP case, a proved material fact which was not known to the apex court as at the time she made her judgment based on the same verdict of the lower court (although Chief Ahamba said he complained to the apex court), then she is bound, upon application, to review the same judgment - for you cannot build something on nothing. A judgment that is given or obtained by fraud cannot and must not stand. Beside the review of the verdict of the apex court of December 12th, 2008, Justice Ogebe and co should not only be dismissed unceremoniously from the bench but in addition face criminal prosecution for act of judicial corruption.

As a concerned citizen of this nation - who shares both her triumphs and failures - I employ this medium to call on the National Judicial Council (NJC) to investigate - with deliberate speed - the public allegation of 'judicial ambush' levelled against the Ogebe-led Court of Appeal on presidential election 2007 by Chief Mike Ahamba and Gen. Muhammadu Buhari.

Let me say - in parenthesis - clearly and for the avoidance of any trace of doubt that, by virtue of the majority judgment of the Supreme Court (except and until it is reviewed), Yar'Adua remains legally the President of the Federal Republic of Nigeria. We may not agree with the position of the lead judgment but we are bound by law to abide by it. That is the protocol we have subscribed to as a political community.

The dissenting verdicts of the learned Justices George Adesola Oguntade, Aloma Mariam Mukthar and Walter Samuel Onnoghen were such forceful, illuminating and convincing as to cast reflection upon the majority decisions of learned Justices Idris Legbo Kutigi (CJN), Iyorgyer Katsina-Alu, Niki Tobi and Dahiru Musdapher. In fact, the minority decisions put the shine off the majority verdicts in so much that the PDP government functionaries who were in the courtroom were, for the very first time, sobered.

Were Nigeria a parliamentary democracy of the Westminster mould, the dissenting judgment, couched such forcefully, as witnessed on Friday, December 12th, 2008 would have constituted a vote of no confidence on the Government. The Opposition would have harped on it until the Head of Government dissolves Parliament and appeal to the country (in order to confirm if the majority really voted for it in the very first instance). Unfortunately and regrettably, our presidential system forecloses this thereby denying Yar'Adua to truly test his popularity. His government for the rest of the term will remain legal but not necessarily legitimate. (I know legitimacy can be obtained through welfarist policies).

'Lagos lawyer and human rights activist, Chief Gani Fawehinmi (SAN) described the judgment as a depiction of moral bankruptcy and the lack of freewill to deliver the country by the justices of the Supreme Court. He described the judgment as the most controversial in the history of Nigeria whereby four justices of the Supreme Court upheld the election of Yar'Adua against three that nullified it and ordered for a fresh election. Therefore, even though the sitting President has been given legal power to govern Nigeria, he has a diminished moral authority to do so in view of indictments contained in the judgment of the three justices of the Supreme Court.' (Guardian 13/12/08)

Given that President Umaru Yar'Adua will overcome his health problems as quickly as possible, I believe he can discharge this burden of illegitimacy or diminished moral authority to govern by pushing for radical electoral-cum-constitutional amendments. Convocation of a national conference will be the ideal path to take.

Finally, let me use this medium to congratulate Chief Mike Ahamba on his 'minority judgment victory' at the apex court. In contrast to February 26th, 2008, Ahamba looked rather satisfied (if not upbeat) at the end of proceedings on December 12th, 2008. Ahamba, unlike many other counsels, is a chieftain of ANPP and therefore threw his whole being into the case. The ideal situation is for all political parties to have their own lawyers who would have run the whole gamut of the entire electoral system as participants rather than relying on hiring 'professional/ non-party' lawyers to do the magic of locking the stable door after the horse has bolted. Of course, they may succeed to a large extent in a bankrupt society but in a sane and corrupt-free society, their chances of success are slim.

Be the first to Write a Comment!

---