Dealing with Legal Technicalities before the Presidential Tribunal – Gabriel Uduafi
Events at the ongoing Presidential Election Petition Tribunal have again thrown up the foibles of Nigeria legal system. Like in many cases, where lawyers and their clients try to bore down the legal process, the legal team of the Peoples Democratic Party (PDP) and its candidate, Alhaji Atiku Abubakar, appear to have a trick up their sleeves. Having keenly watched the whole scenario from day one, I surmise that if some things are not quickly addressed, a blame game will soon surface that the Presidency or Buhari (as is usually the case these days with the opposition) is circumventing the process. I am not in the legal team of any of the parties to the presidential petition but I think posterity will not forgive me as a lawyer if I keep silent over the way lawyers on the Atiku side are working assiduously to slow down activities at the tribunal.
First, it was the request by the presidential candidate of the PDP and his party that the Independent National Electoral Commission (INEC), should make available the materials used for the presidential election held on February 23, 2019 for inspection. The request was contained in an application filed by Chief Chris Uche (SAN). Even when this was granted, the party’s propaganda machinery still flooded the media with the shout (on the roof top) that their request was not granted. By this time, days were counting and the clock was ticking, but everybody pretended as if everything was fine.
Fast forward to when the tribunal was inaugurated and Nigerians were expecting a smooth legal process, the party and its candidate again asked the President of the Court of Appeal, Justice Zainab Bulkachuwa to recuse herself from presiding or sitting as a member of the Presidential Election Tribunal.
The party premised its rejection of Justice Bulkachuwa’s membership of the tribunal on the ground that her husband is a Senator-elect from Bauchi State in on the platform of the All Progressives Congress (APC).
Even when many analysts had thought this would be a tall dream, it was shocking when a member of the Buhari legal team, Lateef Fagbemi (SAN), stood up at the sitting and urged the woman to consider the request in the interest of the eventful years she had put into her calling as a jurist. On Wednesday, May 22, 2019 and in what looked like the humblest manner ever by a judicial officer, the woman withdrew as a member of the tribunal. Despite the fact that the five-man panel of the tribunal, in a unanimous ruling, dismissed the application, Bulkachuwa said she was withdrawing for “personal reasons.” Case closed.
Again, when it seemed the coast was clear for the legal tangle to continue, the PDP and its candidate suddenly raised the issue of an “existing” INEC server. They argued that the original result of the presidential election existed in a certain ‘central server’. They alleged that the said server housed the results of the polls which, according to them, were electronically transmitted by INEC.
It is sad, if not ridiculous that the requests on the central server have been made twice to the same court, first via motion ex parte, then by a motion on notice, and the two applications were found to be unmeritorious and accordingly dismissed. For the records, making same or similar applications to the same court is not allowed or permissible in law.
As far as I am concerned, it is a fact known to all the parties that the issue of a “server” for purposes of proving or contesting the outcome of an election in Nigeria is a non-starter, as there is no provision of such in Electoral Act to that effect. Recall that President Buhari refused to assent to the amendment of the law to allow the usage of server by INEC due to the fact that the entire Nigeria is yet to be covered by “networks”. Till date, except we want to play God or create tension in the land, internet penetration has not reached many parts of Nigeria, despite our so-called digital revolution. With this, it will be an effort in futility to be talking about a “server” in a judicial contest as a Presidential Election Petition Tribunal when same is not provided for in our laws and even more when many parts of Nigeria have no access to internet.
At this point, one may be forced to believe a joke at the Tribunal from the petitioner’s lawyers that Atiku has been scammed by smart ‘yahoo yahoo boys’ who impressed it on the former Vice President that a central server actually existed.
Ask Mike Ozekhome, SAN (Atiku), Festus Keyamo, SAN (Buhari) & Kayode Ajulo (APC), who ought to traditionally speak out about this popular joke, but owning to the fact that they are all counsel to parties at the tribunal, these senior lawyers have decided to keep mute.
Much as I agree that the lawyers and their clients have the right to make request, I fear that introducing unnecessary legal technicalities or obstacles to slow down the judicial process at the Presidential Election Petition Tribunal will not only frustrate both parties but will cost them ample time to argue their cases.
Now, out of the 180 days expected to conclude the whole process, at least 107 days have been spent on mundane issues that can be done without. As at the time of writing this, we have just 73 days left of the constitutionally prescribed period for the petition to be heard and determined and out of which each party is expected to spend a maximum of five days to file written addresses and at least 40 days to call witnesses. That is why some lawyers have argued that the recent announcement by PDP that they would spend 10 days to call 400 witnesses is almost impossible.
The question is now that quality time has so far been wasted at the tribunal chasing shadows, when will the parties start addressing the main issues, when will the panel start to write the judgement? With the way things are going, I will not be surprised therefore if at the end of the day, the PDP and its candidate come out to tell the world that they have been frustrated or probably allege that Buhari, APC and the government manipulated the judiciary to their utmost detriment and to subvert justice. Then it would become a case of calling the dog a bad name in other to hang it.
With the way things are going, some of us who have labelled Atiku’s petition a ‘child’s play’ may be vindicated at the end. In my almost two decades of being a lawyer, out of which I have spent over 10 active years in the conduct of various election petitions at various levels of tribunals, I have come to realize that most petitions fail on technical grounds and not on the merits. As a result of this, it is easy for me, like some other experienced lawyers, to predict what would likely be the outcome of petitions the moment they are filed before the tribunals.
Since the first day I set my eyes on the details of the over 100-page petition filed by Alhaji Atiku, I have noticed some flaws, which I think pointing them out would help the petitioner and his team of lawyers as they move towards upturning the result of the election. One, the case presented appears too terse and the pleading too dry for a presidential election. In election petition, a petitioner doesn’t challenge in the blues or in the air but has to be specific. By this I mean there should be specific allegation that in unit A or B, there were these irregularities. Even at that, if a petitioner points out flaws in some units in Ekiti and Ebonyi States for instance, the discovery in those two states are not enough to cancel an election that took place in the 36 states of the federation, including the Federal Capital Territory.
I was privy to the petition filed by Prof. Olusola Eleka, the candidate of the PDP in the July 2018 gubernatorial election in Ekiti which produced the current Governor, Kayode Fayemi and in substance, any legal expert that knows his onions will know that it carried more weight than Atiku’s. Eleka’s petition, which was over 2000 pages, detailed what was believed to be abnormalities in the entire 16 local governments of Ekiti state. In Atiku’s case, we are talking of a presidential election that involved over 180 million people in population and is captured in just 100 pages. In this, how will the petitioner be able to bring out evidence that can appeal to discerning minds of the tribunal panel?
Coming to the issue of qualification of President Muhammadu Buhari, raised in the petition, which expectedly has generated so much furore in the public domain, I had argued few months ago that those who included it were either ignorant of the law or inserted it to please their clients because it is has no basis in Law. One, anything that has to do with qualification is supposed to be a pre-election issue and it must be raised at least 14 days after the Independent National Electoral Commission has published the lists of party candidates. This is in accordance with the amendment of the Nigerian Law and in addition, the Supreme Court positions in Taraba, Akwa Ibom, Zamfara and other areas that issue of non-qualification cannot be raised by an outsider who is not a party member.
Besides, if at all, this will be raised, it has to be raised by a member or members of the candidate’s party and not an outsider as in the case of Alhaji Atiku of the PDP. He has no business with that (locus standi) because that complaint can only come from a member of the All Progressives Congress (APC). It is party’s affair and not the business of members of other parties. For emphasis, it must be noted that what concerns an election petition tribunal is the election disputes and not pre-election imbalance.
Finally, while I do not advise Alhaji Atiku to discontinue his determination to follow his case to the logical conclusion, for public good I have to prepare his mind and those of his followers, as already done by respected legal practitioners, including Human rights lawyer, Femi Falana (SAN), who has rightly predicted that Atiku Abubakar will face “insurmountable legal obstacles” at the Presidential Election Petition’s Tribunal. “Regrettably, however, the failure of the PDP and APC-led Federal Government to reform the electoral process has created insurmountable legal obstacles for election petitioners,” Falana had said in a statement issued shortly after the election. He added that “the frustration of election petitioners has been compounded by several judicial authorities”, with some decisions holding that “an election cannot be questioned on grounds of corrupt practices. The senior lawyer went further by pointing out that a petitioner is required to prove that there is substantial non-compliance and that the non-compliance has substantially affected the results of the election.
However, my position may be different. Since the outcome of the 1979 election petition, which was ruled in favour of Alhaji Shehu Sagari, the winner of the election, I have come to realize that it is against public policy to nullify a presidential election. In the cycle of legal practitioners, it is being debated till date that the panel that sat on Chief Obafemi Awolowo petition against Shagari knew that the 12 was not the 2/3 of 19, but it was allowed to stand in the national interest. Knowing well that nullifying presidential result could lead to coup or breakdown of law and order, tribunals are always circumspect in taking decisions. Again, while I’m not saying this to talk Atiku out of his decision, I’m using my open appeal to prepare his mind against unfavourable outcome of his case and the need for him to calm the nerves of his followers in the interest of all. I have always maintained that the petition itself is a still-birth.
Gabriel Uduafi is a Lagos-based legal practitioner