THe matter was political ab-initio. A presidential election that was open to contest. The
law court was to merely adjudicate on it and deliver judgement based on the documentary evidence pleaded and admitted. The scenario of a lingering and tortuous judicial process was envisaged from the outset of packaging the Electoral Act. It was a political strategy that the President Olusegun Obasanjo"s government caused the crafters and drafters of the Act to include in the Act. The purpose is for self-preservation as has been seen from the Court of Appeal"s handling of the election petition filed by All Nigeria Peoples Party (ANPP) defeated presidential candidate, General Muhammadu Buhari, against President Obasanjo"s victory at the April 19, 2003 presidential polls.
Concerns had been raised before now that the Act does not place a time bar within which a petition must be disposed off. It is left open to drag on ad-infinitum. This can only be in the favour of the incumbent or the party that has been declared winner. This is the point at which politics becomes the more defining tool in the legal contest.
Since election petition trial is not time barred, the Court or Tribunal will only relax as counsel to the parties engage in legal gymnastics with politics as the springboard. It suits the defendants well. If, for instance, a maximum of one month had been enshrined in the law books as the maximum time for adjudication, the landmark judgement by the Court of Appeal in the Buhari Vs Obasanjo case would have greatly heightened anxieties within the polity. Gravitation in the direction of upstage of the presidential apple cart could become a possibility to the extent that, within great speed, confirmed electoral fraud could be remedied through the normal process of fresh election. And where the otherwise is the case, the politically vanquished would simply withdraw into his shell to lick his wounds.
But these have not been so in this instant case: Buhari Vs Obasanjo case as the politics appears to have just begun after about two years have been consumed in the matter with about the same period of time likely to be consumed again at the Supreme Court where Buhari is headed.
This is the bludgeoning politics that has defined the presidential litigation. Indeed, beyond the legalism and all that, the politics that has underscored the matter has profoundly defined the excitement in the camp of Obasanjo while it has dimmed the optimism in the Buhari camp. Questions had been raised before the Court of Appeal delivered its judgement last week: Would the Court consider it political wise to void the presidential election and cause disquiet in a fragile federal polity that is still struggling to consolidate?
Nascent democracy
Would the court not consider national
peace and unity as well as political harmony in delivering the judgement that would have serious implications, whether positive or negative, for the nation"s nascent democracy? The Justices were believed to have been properly guided and swayed by political consideration rather legality or constitutionality in the delivery of judgement. If this had not been so, the judgments by the four Justices would have possibly gone along the same path with the minority judgement of Justice S.A. Nsofor.
The battle is still on nevertheless. But for what purpose if not political? Sunday Vanguard sought out the views of the Special Adviser to President Obasanjo on Legal and Constitutional Matters, Chief Ojo Maduekwe, on the political implication of the judgment. In his characteristic fecundity, he extrapolated the issue beyond the legal to the political, saying, "As the counsel for both sides brilliantly and aptly stated after the judgement, the election petition trial itself is part of the process of democracy. It shows that the system is working.
A very sound judgement of the court revalidated the election; it is in itself a victory for democracy. The dissenting judgment is also in the spirit of democracy; and, quoting more directly Mike Ahamba, learned counsel for the ANPP presidential candidate, the important thing about democracy, especially within the context of the contest for power, is that there is a platform for seeking redress: redress for either perceived or real injustice.
The counsel for the President, Chief Afe Babalola, was also right on target when he said that it was a victory for democracy and that even though, the dissenting judgement was against us, that was one against three; and democracy is about minority having its say and the majority having its way. The views of the majority prevail at the Tribunal. But beyond that, one has to ask oneself: What is the aim of the opposition? What is the aim of the opposition in pressing on for an election trial that has, at the court of instance, consumed a half of the tenure of the second term of the president? What was the aim of the opposition when it lined up almost 300 witnesses, volumes of evidence, which the court later on pronounced to be very irrelevant to the trial?
Counsel for the ANPP, Ahamba, is very brilliant, very painstaking. I am convinced that he knew, because he is a politician himself, may pretend to forget that he was ANPP governorship candidate in Imo State. So, he is a politician. His interest in this matter goes beyond that of professional commitment. In fact, he is not capable of having a detachment in this case, which is expected normally in advocacy. He is involved; he is partisan. I do not begrudge him. There is nothing he has done, which is unprofessional. I am partisan myself because I am the Legal Adviser to Mr. President.
"But my point here is that counsel for the ANPP is smart enough to know that they did not have any serious case worth the efforts put in by bringing 300 witnesses, to bring in so much materials that were adjudged by the court as irrelevant. He knew that the court would take that position. So this is the judicial equivalent of filibustering. What is the aim of this filibustering? The aim of this filibustering is not so much to settle the legal and constitutional questions as to whether the President was duly elected or not. They know the answer is that he was duly elected. The purpose of the legal filibustering here is to create a legitimacy hemorrhage. It is to keep challenging the issue of legitimacy for the entire tenure of the President. If that was not the case, having regard to the thorough, painstaking attention to details, to evidence reached, the court went through for two years; and, having regard to overwhelming majority of three in favour of President Obasanjo as against one, the petitioner would have rested his fight at that point and said:
I have made my point: I was wrongly denied of victory and I went to court and this is not just an ordinary court; it is the Court of Appeal sitting as per the laws of the country as a court of first instance. This is a court, which ordinarily has the experience, has the skill to look at issues at the appellate level. But now, they had to look at this election petition as a court of first instance because that is what the constitution says; and so, they were thorough and detailed. The ANPP, if really what it was keen on was the settlement of the issue of legality, that finding of the Court of Appeal is as good as any".
This is the political bent to it that Maduekwe contended the opposition was unnecessary pushing. His words: "But they want to proceed to the Supreme Court, knowing that in the Supreme Court, this matter again, thanks to their own style and approach, could drag on and who knows, maybe to the end of the term. The end therefore can only be not to get victory because they know they cannot get victory because the laws are againstâ-oeâ-oebut to use the court as a theatre for engaging the Presidency on legitimacy issue and use unproven allegations in court or as has occurred in the ruling: the dissenting judgement. You can see, they are going to make so much noise about this dissenting judgement as if the dissenting judgement of one person has greater validity than the judgement of three".
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
To him, the conclusion is simple: "They want to make use of all that as a way of rubbishing the President, rubbishing the PDP and eroding the place of the President in history, eroding the instrumentality of the PDP as a party that can deliver on democracy and hopefully use all these materials to position themselves for 2007. I think this is purely a 2007 game that is playing out and the court is the theatre chosen by the opposition to stake their claims for 2007; it is not about declaring President Obasanjo as unlawfully elected; it is for 2007. One could say, well it is politics,; one could say, well, what is wrong with the opposition using any advantage. My only comment on that is that: as much as possible, the courts should be insulated from politics.
As much as possible, the sanctity of the court system should be such that matters should not be taken to court that do not have the strong likelihood of succeeding. Having said all that, beyond politics, beyond partisanship, beyond even my own interest as Legal Adviser to the President and as a PDP member, as a Nigerian who is concerned for the success of democracy in this country and national stability and political harmony, I think we should all look into a situation that allows a process for a sitting governor, a sitting president to have to be subjected to two years of trial in court as to whether he was duly elected in court or not, is not healthy, is not good for the nation.
If not that Obasanjo is a very focused person and a man of history who is determined to turn things round, the distraction of being in court could have done quite a lot of havoc on his capacity to provide leadership, but thank God, that has not been the case. We have a situation whereby the courts and tribunals have the legal authority and duty to conclude election trials before inauguration of elected officials whether governors or president. In the Committee I am sitting in, we have already taken that position and I am sure it will go through". There could, perhaps, not have been a better way of contextualising the politics of Obasanjo"s victory than this. Or could there be?
