US embassy cable - 04ABUJA2105

C O N F I D E N T I A L SECTION 01 OF 02 ABUJA 002105 
 
SIPDIS 
 
E.O. 12958: DECL: 12/20/2014 
TAGS: PREL, PGOV, NI, KDEM 
SUBJECT: CORRECTED COPY:  PRESIDENTIAL TRIBUNAL:  PARTIAL 
VICTORY AND POETIC JUSTICE FOR BUHARI 
 
REF: ABUJA 1939 AND PREVIOUS 
 
Classified By: Charge d'Affaires Thomas P. Furey.  Reasons 1.5 (B & D). 
 
CORRECTED COPY:  REFTEL ADDED 
 
1.  (C)  SUMMARY: The longest case in Nigerian legal history 
closed with a three to one split decision on the 2003 
Presidential elections.  While the court declined to throw 
out the results nation-wide, elements of the decision were as 
good as the Buhari legal team expected.  The dissenting 
justice said that the entire election should be overturned 
because of severe deficiencies in the electoral process. 
While the judgement is not yet published, the two sides will 
have 24 days to file appeals to the Supreme Court, which 
could decide the outcome by June 2005.  END SUMMARY. 
 
THE COURTROOM 
------------- 
 
2.  (U)  The longest case in Nigerian legal history closed 
its first phase December 20 with a three to one split 
decision on the Presidential election case brought by ANPP 
candidate Muhammadu Buhari against President Obasanjo, Vice 
President Atiku Abubakar, and the Independent National 
Election Commission (INEC).  A five-block area around the 
Federal Appeals Court was closed off by 600 policemen and 
security was tight in the area.  About 1,000 onlookers 
gathered at the cordon to wait for the Tribunal's decision. 
Inside the courtroom, about 200 people squeezed into a space 
designed for 100 to await the decision scheduled for 9 AM. 
Efforts to control access to the court were hampered by the 
number of high level personages hoping to look on, including 
ANPP Chairman Don Etiebet, his challenger and former Minister 
of the Federal Capital Territory Jeremiah Useni, Former PDP 
Speaker of the House Ghali Na'abba and Buhari. 
 
3.  (C)  As the appointed hour passed, nervous court 
personnel appeared from time to time to assess the crowd and 
the attorneys for both the Petitioner (Buhari) and the 
Respondents (INEC and Obasanjo) periodically left the 
courtroom to consult.  One court staffer told Poloff that the 
four-member judicial panel was not ready to deliver its 
judgement because of the dissenting judge.  According to the 
staffer, the other three judges were trying to convince the 
lone dissenter, Justice Sylvester Nsofor (the second ranking 
member of the panel), to either agree or to refrain from 
reading the dissent in the courtroom.  "A lot of 
table-pounding is going on," the staffer said. 
 
4.  (C)  When the judges entered the courtroom, Nsofor 
appeared angry and sat silently shuffling papers while the 
majority opinion was read.  Justice Francis Tabai, who read 
the majority decision, appeared nervous and, with shaking 
hands, had difficulty reading from the decision. 
 
THE DECISION 
------------ 
 
5.  (C)  Tabai stated that the decision of the court, driven 
by the court's "fear of crisis," was to dismiss the reliefs 
asked for by the petitioner except in limited areas, 
providing only a partial victory for Buhari.  Providing a bit 
of poetic justice, he said that the election in Ogun state 
(Obasanjo's home state) was overturned in its entirety and 
stated that "other Local Government Areas, wards and polling 
stations" were also overturned, but did not offer a list of 
the affected areas.  He went on to criticize INEC for its 
failures and said that the Nigerian Police Force had acted in 
a "biased manner" in the conduct of elections.  Tabai also 
criticized the National Assembly for the "faulty" Electoral 
Act of 2002.  All four justices agreed that the burden of 
proof in an election tribunal should be on the petitioner 
where elections took place but results were disputed, but 
that the burden of proof should be on the respondent where 
the question was whether elections took place at all. 
 
6.  (C) Presideing Justice Umaru Abdullahi affirmed his 
agreement with the majority decision, but added his own 
emphasis to the sections of the decision read by Tabai. 
After agreeing with the decision to overturn Ogun State and 
other elections, Abdullahi emphasized that the returns 
announced by INEC were "unimaginable" and that INEC had 
proven itself "partisan and refused to provide results of the 
election as required by law."  Without the official documents 
from INEC, Abdullahi continued, it was impossible to prove 
that "elections had taken place."  He also commented that the 
respondents had made no effort to prove that elections had 
taken place in the "14 states plagued by violence and 
questionable activities" by government officials. 
 
7.  (C)  Given his chance to speak, Nsofor criticized the 
elections and his colleagues on the bench, citing several 
"grave errors in law" committed by the other judges.  He 
dissected the majority opinion, itemizing the areas where the 
majority had erred.  According to Nsofor, the first error was 
in the pleadings.  He said that in Nigerian jurisprudence, 
any fact plead by the petitioner that was not disputed by the 
respondent should be accepted as stipulated.  In fact, he 
said, the other three justices did the opposite.  His second 
complaint was that INEC's refusal to respond was material and 
that the petitioner could not be expected to present proof of 
his claims if "no official record of the election exists." 
He continued that in any area where the security agencies had 
been shown to interfere in a biased fashion, that an "open 
election" could not be deemed to have taken place.  Before he 
wrapped up his dissent, Abdullahi told him that his time was 
up and tried to adjourn the court.  Nsofor responded, "I will 
finish my presentation regardless." 
THE REACTION 
------------ 
8.  (C)  Buhari and several other politicians were not happy. 
 One of them commented to poloff, "God help my country." 
Even so, Mike Ahamba, Buhari's lead attorney was satisfied. 
He told the press outside the courtroom that the court had 
confirmed the basic complaints of his case: INEC and the 
security agencies had been partisan and irregularities were 
widespread.  Ahamba was also pleased that the court had given 
him the grounds for appeal and, by the dissent, had laid out 
the strategy he should use for the next round.  "If INEC 
would not produce the results, how could the elections 
stand?" he asked rhetorically. 
 
9.  (C)  While the national media coverage claimed that the 
election petition had been "thrown out" by the court, it is 
hard to imagine the President being pleased with the 
judgement.  While the decision left him in place, the 
embarrasment of cancelling the elections in his home state 
and the criticism of INEC and the police do not help his 
self-assumed image. 
 
THE FUTURE 
---------- 
 
10.  (C)  The majority decision was not ready for publication 
at the time of the hearing although the dissenting view was 
completed.  Each side has 24 days from the time the written 
decision is made available to file an appeal to the Supreme 
Court.  It is almost certain that Ahamba will appeal the 
decision by mid-January, basing his appeal on the partisan 
nature of INEC and the errors in law cited in the dissenting 
opinion.  While Obasanjo retains his seat, it is possible 
that an appeal will be filed on his behalf simply to overturn 
the embarrassment of his home state's deficiencies.  In 
either case, the clock will begin ticking again and the 
Supreme Court could finally dispose of this issue before 
June, 2005. 
FUREY