US embassy cable - 05ABUJA115

C O N F I D E N T I A L SECTION 01 OF 02 ABUJA 000115 
 
SIPDIS 
 
NOFORN 
 
E.O. 12958: DECL: 01/11/2015 
TAGS: PREL, PGOV, KJUS, NI 
SUBJECT: PRESIDENTIAL TRIBUNAL MOVES AHEAD 
 
REF: A. A) 04 ABUJA 2104 AND PREVIOUS 
 
     B. B) 04 ABUJA 1939 
 
Classified By: Ambassador John Campbell for Reasons 1.5 (B & D). 
 
1.  (C)  SUMMARY:  The Federal Court of Appeal's 3-1 decision 
in December favored Obasanjo on Buhari's challenge to the 
2003 presidential election, but the four justices were 
unanimous that the "Independent National Electoral 
Commission" (INEC) failed during the election due to 
partisanship, bias, and refusal to comply with the law and 
court orders.  The difference between the judges was on 
whether credible results were necessary to "duly elect" a 
candidate, with the majority saying no.  Buhari's January 10 
appeal to the Supreme Court contains 48 points that also 
focus on this question.  The Chief Justice of the Supreme 
Court will now appoint a panel of judges to hear the appeal. 
He is concerned, however, about recent attempts to attack 
members of the court.  Many sources claim Obasanjo plans to 
force some Supreme Court justices into early retirement to 
maintain control of the process.  END SUMMARY. 
 
2.  (U)  The Federal Court of Appeal, sitting as an Election 
Tribunal for the April 2003 Presidential election, published 
its decision on December 29, 2004 (Ref A).  The majority 
decision in favor of Obasanjo ran to almost 400 pages total, 
with the dissent opinion coming in at 180 pages.  While the 
3-1 decision left Obasanjo in office, all four justices were 
strongly critical of INEC's performance in the election and 
during the tribunal.  In his supporting statement for the 
majority, presiding justice Umaru Abdullahi said the INEC's 
refusal to produce the final results of the election (or even 
the National Voter Register) "derogates from its claim to 
independence, neutrality and impartiality."  Speaking off the 
cuff to the courtroom, Abdullahi stated that INEC had acted 
in a "biased and partisan fashion" during the elections and 
the trial (Ref B), and its refusal to comply with a subpoena 
to produce the results in court was a "flagrant violation of 
the law" -- a "reckless attitude" that amounted to "total 
disregard to a court process." 
 
3.  (U)  All four justices also cited the "unconstitutional" 
deployment of security services during the election.  Justice 
Nsofor, the lone dissenting judge, said that the deployment 
itself was sufficient grounds for overturning the elections. 
"If the police and army were deployed for a legitimate 
security reason, then the conditions were not met for an 
election to hold; if there was no legitimate security reason, 
then the deployment was illegal," he explained. 
 
4.  (U)  Distilling the 400 pages into its essence, the 
decision came down to one simple question.  All four judges 
agreed that INEC's failure to produce valid returns flawed 
the elections.  The three judges in the majority deemed that 
the results of the election, however, were not in question 
and it was unnecessary to "duly elect" a president. 
 
5.  (U)  ANPP candidate Muhammadu Buhari's attorney Mike 
Ahamba filed the appeal on January 10.  The appeal contains 
48 points, but focuses on INEC and the centrality of results 
to an election.  The failure of INEC to produce results, in 
their argument, means that no election could have taken 
place.  In the appeal, Buhari's attorneys ask the court to 
find that INEC's refusal to comply damages any credibility of 
the electoral process.  Further, they claim that an election 
cannot have taken place without "credible" results.  In that 
case, the electoral process did not satisfy the 
constitutional requirement that a President must be "duly 
elected" and Obasanjo has "taken control of the Government of 
Nigeria" in a manner "not in accordance with the provisions 
of the Constitution." 
 
6.  (C)  The timing of the final stage of the process is 
somewhat flexible, but Chief Justice of the Supreme Court 
Muhammadu Uwais can now panel a group of justices to hear the 
case.  Factoring in the various deadlines for submissions and 
counterclaims, Uwais expects to wrap up the case around 
April.  One concern that has been raised, however, is his 
ability to remain until the end of the process (septel). 
Rumors are circulating through Abuja that the Presidency is 
finalizing plans to purge the Supreme Court before the case 
sits, retiring several justices ahead of schedule in an 
attempt to influence or delay the outcome of the tribunal. 
 
7.  (C/NF)  COMMENT:  Many did not believe the case would 
last this long, and most did not believe that a decision from 
the courts could criticize the government.  Wrong on both 
counts.  While the Presidency took the legal challenge 
lightly in the beginning, its concerns have been growing as 
the case progressed.  Now it seems the Presidency is 
defending the failures of the electoral process by claiming a 
priority for "stability."  As Uwais has commented privately, 
this is a curious defense given the level of insecurity 
throughout Nigeria. 
CAMPBELL