The eight months old legal battle over the validity of the April 21, 2007 presidential polls, which saw the emergence of Alhaji Umaru Musa Yar'Adua and Dr. Goodluck Jonathan as President and Vice President, was yesterday laid to rest as the presidential election petition tribunal upheld their victory. And as soon as the verdict came, it was victory song at Aso Rock, seat of the Presidency.
"I praise God, the most gracious, the most merciful, the owner of praises…", Yar'Adua declared.
But presidential candidate of the All Nigeria Peoples Party (ANPP) and former head of state, Gen. Muhammadu Buhari, has described it as a "travesty of justice," stating that he was going to challenge the verdict at the Supreme Court.
Yesterday's judgment has been roundly condemned by the Action Congress (AC) presidential candidate, Alhaji Atiku Abubakar.
According to him, it was a travesty of justice.
Surrounded by his political associates who thronged yesterday, the grounds of his Oba Akenzua Street residence in the Asokoro District, Abubakar rejected the unanimous judgment of the tribunal, and declared that he was heading for the Supreme Court to seek justice.
Maintaining his position that the April 2007 presidential election was fraught with massive fraud, Atiku said the alleged perpetrators were wrong to think that once they were firmly entrenched, they could silence the voices of Nigerians.
Also, Buhari's lawyer, Chief Mike Ahamba (SAN), reminded all and sundry that "conscience is like a hat and bag which everyone carries." He later explained the puzzling proverb in a chat with reporters outside the courtroom, when he accused the Justices of the tribunal of aiding and abetting the Independent National Electoral Commission (INEC), Yar'Adua and Jonathan.
"When we wanted during the proceedings to lead evidence, they said no. We insisted, but the tribunal ruled that in view of the Practice Direction 2007, we should file our evidence and pleadings. We complained of ambush, the tribunal said there was nothing like that. Now they are saying that we did not lead evidence to prove our claims. How can the same tribunal that ruled against us leading evidence, dismiss our petition on that basis? They have only succeeded in aiding and abetting the respondents. This is bad. And I am saying that besides filing an appeal at the Supreme Court, I will take up these errant Justices at appropriate place as they have breached their own oath of office. I will take them up even if that is the last thing I do as a lawyer," he said.
In a unanimous verdict of the tribunal on the separate but consolidated petitions, it held that the Buhari and his counterpart from the Action Congress (AC), former Vice President Atiku Abubakar, had failed woefully to prove their claim that the election was flawed since INEC did not conduct it in compliance with the Electoral Act 2006.
The tribunal held that the provisions of Section 146 (1) of the Electoral Act had predicated the conduct of the elections on substantial compliance to the said Electoral Act and not a total compliance to it.
In the lead judgment delivered by Justice Afolabi Fabiyi on the petition filed by Buhari, he expressed the view that assuming that it was persuaded by claims of the petitioner that the electoral body conducted the presidential election in substantial breach of the said Act, the petitioners would still be required to show the (Tribunal) how the breach substantially affected the result of the said election.
"Even if the petitioner was able to prove that the Electoral Act was not substantially complied with by the 1st and 2nd respondents (INEC and Prof. Maurice Iwu), the petitioner will have to prove that the said non-compliance has substantially affected the result of the presidential election. See the case of Buhari Vs Obasanjo (2003). It is my view that the petitioner has failed to lead evidence to prove this claim. Therefore, the issue of non-compliance to the Act is of no moment and it is accordingly resolved against the petitioner." Justice Fabiyi held.
According to Fabiyi, the petitioner failed to lead direct evidence to prove his claim as only direct evidence by witnesses who observed the non-compliance would have helped his claim. He referred parties to the case of Haruna Vs Moddibo to support this claim, where the appellate court held that "where a petitioner makes the issue of non-compliance to the Electoral Act as the basis of his petition, he must lead evidence to show that."
The tribunal held that the claims that the election was fraught with irregularities amounted to no issue as evidence to that effect were led by fact which were not pleaded before the tribunal.
"There is no shred of evidence to prove that elections held at different times, and even if there was, he has not shown how that conferred undue advantage to the 5th and 6th respondents Yar'Adua and Jonathan) to warrant the tribunal to nullify their election," he further held.
On Buhari's contention that Yar'Adua's election should be voided as he was ineligible or incompetent to have contested the said poll in view of the white paper, which indicted them issued by an Administrative Panel of Inquiry set up by the then Governor of Abia State, the tribunal held that it was of no consequence to the validity of the poll.
The tribunal rejected arguments of Yar'Adua and Jonathan's legal team that the whitepaper of the Abia State Administrative Panel of Inquiry, which indicted the duo, was invalid and should be discountenanced.
According to the tribunal, it was valid and therefore acceptable to it in evidence. But pointed out that beyond the admissibility of the tribunal, the question that naturally arises is on how much premium or value it should place on the said white paper, he said the value of the said white paper was diminished by its failure to state in clear terms the reason or basis for the purported indictment of the President and Vice President by the panel.
"Was it stated in the white paper that the 5th and 6th respondents were indicted for fraud as contemplated by Section 137 (1) of the 1999 Constitution? The white paper simply reads that the following persons were found to have done their jobs contrary to their oath of office. Even if the 5th and 6th respondents were indicted for fraud, the Supreme Court has resolved the issue in Amaechi Vs Omehia, whereof Oguntade, Jsc. held that "it is inadmissible to find a person guilty without first making a recourse to a court of law. This issue is therefore of no moment and is accordingly resolved in favour of the 5th and 6th respondents.
According to him, Since Section 137 (1) of the 1999 Constitution had clearly provided that an indictment on the ground of fraud was a compelling point to disallow a candidate from an election, the white paper would have been on a stronger wicket if it had contained that clear ground.
In spite of that position, Fabiyi insisted that even if that was done in the white paper, a plethora of authorities have made it imperative that the indictment would be pronounced on by a court of law before it can act as a bar against Yar'Adua and Jonathan.
On the failure of the INEC to administer the oath of neutrality to the electoral officers, who conducted the elections across the country, he held that the petitioner failed to lead evidence to that effect.
Beyond that, he cited Buhari Vs Obasanjo (2003), where the apex court held that the failure to administer the oath of neutrality was not enough to void the election of Yar'Adua and Jonathan since they could not be the once to blame for that lapse.
Earlier, the tribunal had dismissed the objection raised by Ahamba challenging the authority of the President of the Court of Appeal, Justice Umaru Abdullahi, to issue the Practice Direction 2007, to regulate the filing and prosecution of petitions arising from the elections.
According to the tribunal, Section 239 of the 1999 Constitution confers powers on the Court's President on original jurisdiction as well as appellate jurisdiction to issue the said Practice Direction.
The tribunal had also dismissed the evidence and pleadings of a counsel in Buhari's legal team, Valentine Ikeonu, on the premise that they breached Section 83 of the Evidence Act as well as Section 19 of the Notary Public Act.
While that provision of the Evidence Act prohibits that an affidavit be sworn to before a counsel with interest in a matter, the Notary Public Act forbids any notary to take depositions on a matter.
"Where a court erroneously admits a document, the court upon that realisation has powers to throw it out. Accordingly, the affidavits sworn to by Valentine Ikeonu are hereby struck out", Justice Fabiyi ruled.
"In conclusion, this petition has been plagued with lack of evidence to back up the claims. Accordingly, the petition is hereby dismissed", he ruled.
In the tribunal's verdict on the former Vice President's petition, Justice Fabiyi held that the position of the law was clear that where a petitioner raises a ground of unlawful exclusion, he automatically strips himself of a right to raise other grounds.
"Section 145 of the Electoral Act precludes any other ground once the ground of exclusion as been raised by a petitioner.
The ground of exclusion is mutually exclusive to other grounds", he held.
Reviewing the arguments of the petitioner on the claim of unlawful exclusion, he held that he (Atiku) was approbating and reprobating by claiming in one breath that he was excluded, whereas in another breath, he led witnesses to prove the contrary.
The tribunal wondered how he would admit the presence of his party agents at various polling centres, and yet claim that he was excluded since party agents were allowed only because their parties and candidates where in the race for elective seats.
He therefore held although INEC tried to exclude the petitioner, following the April 16, 2007 ruling of the Supreme Court, INEC published his name".
"The claim of unlawful exclusion canvassed by Atiku hereby fails and is accordingly dismissed."
But the dismissal was however not before the tribunal admitted that based on the legal battles Atiku mounted to ensure that he was allowed to run the Presidential race, his momentum at the campaigns was slowed down.
Fabiyi observed that although Section 145 of the Electoral Act gave the tribunal power to dismiss the petition without looking at any other ground since the ground of "unlawful exclusion" had failed, it (tribunal) would err on the side of caution by examining and resolving other issues.
On the issue of varying time for voting at various centres, he held that "it is immaterial that voting was shifted from 8am to 10am as the seven hours stipulated for the exercise were observed in spite of the shift in time. Besides, the shifting affected all the candidates.
"The petitioner has not shown how the shift in time of the election conferred an undue advantage to Yar'adua and Jonathan to his own detriment", he held.
He said Atiku's complaint that only his parties name was on some ballot papers, he held that it was of no consequence since, according to him, the Supreme Court has held in the Amaechi Versus Omehia case that "votes cast is for the sponsoring political party."
On the controversial results sheets, which included pre-dated, post dated and unsigned result sheets in electronic and manual forms, the jurist held that he would rely on the manually collated sheets, which was unchallenged by any party.
"The result of the manual collation has not been rebutted and it is before the Tribunal and I cannot close my eyes to it", he held.
He cited the case of Al Gore Vs George Bush, which he described as being "persuasive authority" on the question as to whether the counting of the votes in Florida in 2000 should be manually or electronically done.
"The petition fails and is hereby dismissed. In view of the importance of these cases to the evolving democracy in Nigeria.
"I make no order as to cost", he concluded.
Other panelists including the Chairman of the tribunal, Justice James Ogenyi Ogebe, who has been elevated to the Bench of the apex court agreed with the lead judgment. Ogebe was however not present in court. Other panelists, are Justices Raphael Chikwe Agbo, Abubakar Abdulkadir Jega and Umani Abaji.
In his reaction, Yar'Adua described the verdict as victory for all Nigerians, democracy and the rule of law.
The President told the audience of supporters including Speaker of the House of Representatives, Dimeji Bankole, Governors (former and serving), Ministers, top party officials and Presidential aides at the Council Chambers of the Presidential Villa Abuja that the judgment offers him the opportunity to re-commit himself to greater service to Nigeria.
At an "informal ceremony", the President extended his hand of fellowship to former Head of State, Maj.-Gen. Muhammadu Buhari (rtd) and former Vice President, Alhaji Atiku Abubakar, asking them to join him in the task of giving diligent service to Nigeria.
His brief response at the ceremony reads: "I will like, first of all, to praise God the most gracious, the most merciful, the owner of praise, the owner of the day of judgment. After praising God, I will like on behalf of myself and Vice President Goodluck Jonathan to thank all of you for your support, and all Nigerians, for their support. You are here today as brothers and sisters to celebrate and for us to celebrate the victory of democracy. Today's event is a victory for Nigeria 's democracy and for the rule of law. On such occasion one must fell greatly humbled and also feel a great desire to recommit to the service of this great country.
"I want to once again express my thanks to all of you and to all Nigerians and also to congratulate the petitioners for contributing to ensure that the part of democratic development for this country is firmly on course. I believe all of us as leaders have a duty to put our heads together, cooperate and unite to face great challenges of transforming our country from an underdeveloped nation to a modern developed, industrialised nation that will be capable of meeting the development and needs of all its people. I am sure and confident that following this judgement, we will all join hands.
"And I again extend my hand of fellowship, friendship and brotherhood to my brothers who are the petitioners in the case, to join hands with me and the Vice President to continue to do what we know best to serve the people of this country selflessly and diligently. I want to thank you all and may God continue to bless Nigeria ."
On his part, the Special Adviser to the President (Communications), Mr. Olusegun Adeniyi, a few minutes after the tribunal verdict was given said: "President Umaru Musa Yar'Adua welcomes with humility and gratitude to God Almighty from Whom all power and authority come, today's affirmation by the Presidential Elections Tribunal that he was duly elected President of the Federal Republic of Nigeria by the majority of votes lawfully cast in the presidential elections of April 21, 2007.
"The President is gratified that the Tribunal unanimously confirmed his often stated belief that the acknowledged imperfections notwithstanding, he was the clear winner of the presidential elections which were conducted in substantial compliance with all relevant laws.
He continued: "President Yar'Adua seizes this opportunity to, once again, thank all Nigerians who have remained steadfast in their support for his Administration as it strives to fulfill its mandate for positive and significant changes in the living conditions of all citizens.
"The President urges his two valiant opponents in the elections who petitioned against its outcome to accept the verdict of the tribunal in good faith. His invitation for them to cooperate with him in moving Nigeria forward remains and he calls on them to accept it now in the greater interest of the country.
"He reaffirms his total commitment to serving Nigeria to the best of his abilities and running a purposeful and result-oriented Administration that will yield tangible and visible benefits for all Nigerians.
"The President also reaffirms his commitment to working with all stakeholders to fully address the problems associated with past elections in the country and achieve a positive reformation of Nigeria 's electoral system that will ensure that the problems do not recur in future.
Senior Special Assistant to the Vice President (Media and Communications), Ima Niboro also issued a statement thus: "Vice President Goodluck Ebele Jonathan today described the Court of Appeal judgement upholding the Presidential Elections as a clear victory for not only the Federal Government and the PDP, but for the mass of the Nigerian people.
"The Vice President expressed satisfaction with the tribunal's judgement, and called on all political parties in the country to join hands with the administration to fashion out a path of mutual trust and unity of purpose."
Chairman of the Governors Forum and Governor of Kwara State, Dr. Bukola Saraki, at the "informal celebration ceremony" with the President said; among other things: "I think the events that have followed the last elections in our country in the last one year, has put our young democracy through major tests and today we give glory to God that our country has emerged through these various challenges that has made the democracy stronger, better and well tested. Without doubt the greatest challenge of all is what we have surmounted today. This verdict of this afternoon of the President election tribunal, which upheld the elections of President of Umaru Musa Yar'Adua, is indeed a major triumph for Nigerians and the Federal Republic of Nigeria.
"On behalf of State Governors in Nigeria, I wish to congratulate President Yar'Adua and Vice President Goodluck Jonathan for this legal victory. I congratulate the petitioners who have fought gallantly to test our democracy and in the process made in stronger and more credible. I congratulate the tribunal who has upheld the confidence of our process and all Nigerians.
Governor of Edo State, Prof. Oserheimen Osunbor, at the Presidential Villa, Abuja, said: "The judgment is a welcome development in the political environment. The verdict followed due process and strictly the rule of law. The judgment has calmed frayed nerves because those who were aggrieved have had the opportunity to seek redress in the law court. This is a happy moment for all of us in the Peoples Democratic Party and Nigeria and I am confident that this victory serve as a further stimulus for this administration to work harder to meet the yearnings of Nigerians.
Secretary to the Government of the Federation, Ambassador Baba Gana Kingibe at the "informal celebration ceremony at the Council Chambers, Presidential Villa Abuja, also said: "In this hallowed Council Chambers are the leadership of our great party, the PDP. Various officials elected into various positions on the platform of our party, the Speaker of the Federal House of Representatives, Governors, those privileged to be graciously invited by Your Excellency to assist you in governance as Ministers, Head of the Civil Service of the Federation, Chief of Staff, National Security Adviser, Special Advisers, Special Assistants, Personal Assistants and many other officials and well-wishers too numerous to mention. We are all here to express our collective joy and satisfaction at the just pronounced judicial confirmation of what we always knew and believed to be the truth, the whole truth and nothing but the truth. That is that Your Excellency and your able vice president were overwhelmingly, lawfully and unambiguously elected by the Nigerian voters in the April elections of 2007.
"At your inauguration you urged all who felt aggrieved by the outcome of the elections to have recourse to the courts of law. This they did and they have had their day in court. They should therefore legitimately claim that today is their day too." Your Excellency in the nine months that the burden of leadership has been thrust upon you by the Nigerian electorate, you have demonstrated by words and by deed that you have merited their mandate and that you have earned their confidence and trust. Those of us privileged to work with you have constantly been inspired and challenged by your leadership, by your commitment and by your personal example. We have and we shall continue to strive to meet all your expectations of all of us in every respect – loyalty, dedication and service.
In his reaction to the judgment, Yar'Adua's lead counsel, Chief Wole Olanipekun with whom was Dr. Alex Izinyon and Damien Dodo, all Senior Advocates, described the judgment as a "watershed" in the nation's democratic growth.
"My lords, this well considered Judgment is a watershed in the evolution of the nation's democracy. I must commend my lordship for a very sound judgment, which has addressed all the issue begging for resolution. The nation has been on its toes. The nation and its people can now rest as this decision has put to rest all the issues," Olanipekun stated.
In a chat with The Guardian, Izinyon described the judgment as "one adorned with sound legal reasoning premised on a broad legal compass and standing on a firm wicket on both facts and law, devoid of sentiments and rumour mongering."
In a short statement titled "Justice has not been done: We will appeal to the Supreme Court," which he read to journalists yesterday, Atiku said: " In April of last year, Nigerians were buoyed with the prospects of going to the polls to choose, of their free will, a new set of leaders, including a new president, to pilot their affairs for another 4 (four) years. In April of last year, that promise of hope and restoration was broken.
"In an atmosphere fraught with fraud, intimidation and outright illegality, a series of events were foisted upon us culminating in the charade called "elections" on the 14th and 21st of April 2007, respectively. These so called "elections" have been adjudged by all, far and near, local or foreign, to be the worst elections ever conducted on the face of planet Earth. The elections were so incurably bad that even those "selected" under this subversive fraud have freely admitted on record that the process was hopelessly flawed.
"Those who orchestrated and perpetrated this fraud on the Nigerian people did so with the belief that, once firmly entrenched in their illegally acquired offices, they could foist upon us all a fait accompli and silence our collective voices. But they were wrong!
"All my adult life, I have always believed and held sacred the principle that there is no alternative to democracy: the enthronement of the will of the people as freely expressed in periodically conducted free and fair elections. But democracy is not about elections alone. There is none more important than the role of the judiciary and the rule of law.
"We have seen how election disputes have degenerated into anarchy and near civil war in several countries in Africa . We have seen how denying people the right to freely choose their own leaders has resulted in the explosion of pent up frustrations and anger and, sometimes violence, leading to the senseless loss of lives and destruction of property.
"As a law abiding, people-first committed democrat, the standard bearer of an equally democratic, people oriented and law abiding political party and having faith in the strength, courage and ability of the Nigerian judiciary to dispense justice fairly and without bias, we have taken the one and only route we have always taken in the face of manifest illegality, injustice and subversion of the will of the people: we have gone to court.
"Today, in an epochal and far reaching judgment, the Presidential Elections Petitions Tribunal has, in its own wisdom, decided that the charade called "elections" held in April of last year was a fair representation of the free will of the Nigerian people.
"Today's judgment is not a decision against Atiku Abubakar or the Action Congress. No! It is the peace-loving people of Nigeria who have lost today. In my own humble opinion, the people of Nigeria have had their voices silenced again. Justice has not been done and the rape of our young democracy has been sustained. The future of constitutional democracy and free and fair elections in Nigeria , nay, Africa , remains imperilled and we must redouble our efforts at vigilance.
"Yet, the rule of law must prevail. Right will, one day, prevail over wrong. I remain unshaken and steadfast in my long held belief that there is no alternative to this our democracy. In fact, today's judgment revalidated this and I am confident still that, even though it may sometimes appear to be a long and tortuous path, there is no alternative to recourse to our courts to seek redress for electoral fraud. Consequently, I have instructed my team of lawyers to compile the records of today's proceedings and to, immediately, file an appeal at the Supreme Court of Nigeria to overturn this judgment.
He continued: "I must thank a dynamic, courageous and free and vibrant press for its steadfastness and never-shaking commitment to Project Nigeria. You must redouble your efforts at vigilance. Most importantly, however, I must thank the long-suffering ordinary people of our dear country who have remained patient, enduring and peace-loving even in the face of the subversion of their free will and the deprivation of their God-ordained rights. Your day of vindication will yet come.
In conclusion, he said: "Today, the battle is lost, but the war remains. There is still a long winding road ahead of us in the long journey to rebuild Nigeria. There are many more tribulations awaiting us down the road. But go down this road, we must. We must rebuild our politics, our economy and our society. We must redefine what it means to be a Nigerian. Every Nigerian of voting age must have his voice heard and his vote counted, because, as I have said before, there is no alternative to democracy.
"God bless all and may God continue to bless our dear country, Nigeria."
From Madu Onuorah, Alifa Daniel and Lemmy Ughegbe, Abuja
The Guardian
Wednesday, February 27, 2008
