US embassy cable - 03ABUJA1707

C O N F I D E N T I A L SECTION 01 OF 02 ABUJA 001707 
 
SIPDIS 
 
 
E.O. 12958: DECL: 09/29/2013 
TAGS: PGOV, PREL, KDEM, NI 
SUBJECT: BUHARI GETS HIS (FIRST) DAY IN COURT 
 
 
Classified by Counselor James Maxstadt for Reasons 1.5 (B & 
D). 
 
 
1.  (C)  Summary: The first day of substantive arguments at 
the Federal Appeals Court in losing ANPP presidential 
candidate Buhari's suit against the April 19 elections did 
not go well for the President's and election commission's 
attorneys.  The Chairman of the tribunal explained away a 
visit of three of the justices to the President just before 
the court last adjourned, and offered to withdraw from the 
case.  Buhari's lawyer declined the offer and produced a 
witness, the ANPP Governor of Ogun State, who showed that the 
announced results in Ogun and the polling station tally 
sheets from which they should have been tabulated could not 
be reconciled.  The election commission INEC announced that 
it would need "a few more months" to produce documents from 
which the announced results in Ogun were produced, documents 
that had been subpoenaed in May, and the court adjourned 
until October 6 while admonishing INEC to provide the 
documents.  While few Nigerians believe that the court will 
ultimately base its decisions on the merits of the case, its 
professionalism at this first hearing restored some of the 
reputation lost by lower courts' handling of the election 
challenge to date.  End Summary. 
 
 
2.  (U)  Security was tight in Abuja on September 25 as the 
Federal Appeals Court opened the first day of substantive 
arguments in ANPP presidential candidate Buhari's electoral 
appeal against President Obasanjo's victory in the April 19 
elections.  Poloff who attended saw over 300 armed police, 
accompanied by armored personnel carriers, patrolling Abuja's 
central district.  At least 100 armed police were stationed 
on the approach to the temporary chambers of the Court.  A 
rally by several hundred motorcycle riders blocked traffic 
near the Hilton Hotel, where ANPP supporters (mistakenly) 
thought Buhari had spent the previous night.  En route to the 
court, dozens of would-be observers were turned away for no 
other reason than they "appeared to be" ANPP supporters. 
Still, several hundred managed to get through the security 
cordon to jam the courtroom and the grounds. 
 
 
3.  (U)  Inside the courtroom, which had earlier been 
refurbished and air-conditioned in anticipation that 
President Obasanjo might appear, the Chairman of the 
five-judge panel, Justice Umaru Abdullahi, opened by 
explaining the visit of himself and two other judges to the 
President on the evening after the last sitting of the court. 
 Abdullahi said the visit, widely criticized in the press, 
was merely to discuss issues relating to the construction of 
a permanent site for the Appeals court.  After giving his 
explanation, Justice Abdullahi offered on behalf of the 
tribunal to withdraw from the case. 
 
 
4.  (U)  Perhaps buoyed by several recent favorable decisions 
at the Supreme Court, ANPP lead counsel Mike Ahamba said that 
the incident did not "shake the confidence that Buhari and 
the ANPP have in the court."  Chief Afe Babalola, counsel for 
the President, then complained that the journalist who had 
reported the presidential meeting story in the press should 
be brought before the court to reveal the source.  If the 
story was true, he said, then the Justices involved should 
withdraw.  The attorney for Nigeria's "Independent National 
Election Commission" (INEC), also a respondent to Buhari's 
suit against its election results, seconded Babalola's 
request that the journalist be interrogated. 
 
 
5.  (U)  The first witness for the ANPP was its gubernatorial 
candidate from Ogun State, Bisi Lawal.  Starting slowly, 
Lawal presented a poor image and made little impression on 
the judges.  As he gathered confidence, however, Ahamba was 
able to lead him to the points the Buhari team wanted to 
introduce.  Lawal testified that the majority of the ANPP 
poll agents in Ogun state were denied access to the polling 
stations "by the security services, INEC poll officials and 
(ruling party) PDP agents."  Lawal claimed that out of 3410 
polling stations in Ogun state, ANPP agents were allowed into 
142, and he produced the polling station tally sheets for 
these sites.  Babalola objected that the tally sheets could 
not be evidence since "the INEC-announced figures were the 
only officially recognized results."  The tribunal ignored 
this, and Lawal showed that Buhari had received a total of 
1,547 votes from these sheets.  Lawal then noted that that 
total was more than twice the 680 votes announced by INEC for 
Buhari state-wide.  Lawal also contended that he has barred 
from the state collation center (i.e. INEC's Headquarters in 
Ogun state) during the count and that no announcement of 
results was issued in Ogun.  "I heard the results three days 
later from Abuja," he testified. 
 
 
6.  (U)  At this point Ahamba suggested that it was pointless 
to continue questioning Lawal since INEC had not produced 
election documents that had been subpoenaed at the 
preliminary hearings in May.   INEC attorney Joe Gadzama told 
the court that the documents request was onerous.  He 
suggested that INEC should be able to produce the documents 
supporting the elections results in "a few months," 
complaining that INEC had various logistical problems 
collecting the forms, including that INEC did not have the 
budget to rent the trucks necessary to transport the 
documents.  Buhari attorney Ahamba responded that the 
documents requested amounted to approximately 25 sheets of 
paper and asked why trucks would be necessary.  Justices 
Tambayi and Oguntade took exception to INEC's not producing 
the documents, and warned Gadzama to "be more responsive." 
Gadzama promised to discuss the issue with his client INEC, 
but added that he did not know if he was authorized to speak 
for INEC.  Justice Abdullahi asked him who might be 
authorized other than INEC's attorney of record.  Abdullahi 
then adjourned the court until October 6 and advised INEC to 
be prepared to produce the requested documents. 
 
 
7.  (C)  COMMENT:  The tone of the first substantive sitting 
of the Federal Court of Appeals was not very favorable to 
Obasanjo and the INEC that certified his victory.  The 
justices took exception to Obasanjo attorney Babalola's lack 
of professionalism and INEC attorney Gadzama's lack of 
responsiveness.  It appeared Babalola had not done his 
homework and was unprepared to argue the case on its merits. 
 The ANPP's team, on the other hand, were ready with 
citations of legal precedents and examples of alleged 
malfeasance in the election process.   They started slow with 
the first witness, but seemed to gain some measure of 
confidence as the day progressed.  Their tactic of not 
including Obasanjo's PDP party in the suit was intended to 
underscore their contention that the President, INEC and the 
security services -- not rough and tumble politics in a new 
democracy -- were responsible for the irregularities. 
Beginning their challenge with the election results from the 
President's home state was calculated to send the message 
that they viewed no area as out of bounds in their 
presentation.  The clear winner in this first sitting, 
however, was the Court, which conducted itself professionally 
and appeared to be intent on hearing substantive issues 
rather than engaging in diversionary debates. 
MEECE