What Options For
Louis Achi and Oke
culled from THISDAY,
July 3, 2005
“Time is the
greatest friend of truth. Nothing ever built on falsehood and deceit has endured
and this one also shall follow the time-honoured pattern. Democracy is about the
expression of peoples' will and since Obasanjo has not renewed his mandate for
another term, his continued hold on power beyond May 29th (2003) runs against
the grain of popular democracy and therefore illegal. His government as we have
posited earlier is consequently illegitimate and shall continue to remain so as
long as it is based on the April 19th contraption. Those who commit injustice
bear the greatest burden. We are already in court and we will go the whole hog
to get justice for the Nigerian people. Democracy shall yet come alive."
The foregoing was the meat of Gen. Muhammadu Buhari's statement,
"Democracy Shall Yet Come Alive," ahead of the May 29, 2003 swearing-in
of President Olusegun Obasanjo, re-iterating his earlier position that the
election which gave the latter a second term was not fairly and freely secured
and thus detracts from the known ethos of democratic rule. However deeply felt,
this sentiment, widely expressed and pushed with an unrelenting, principled
energy by Buhari, was nonetheless given short shrift by the highest court of the
land last Thursday, when the Supreme Court upheld Obasanjo presidential victory.
But first, the build-up, the Appeal Court scenario.
The judicial battle that finally ended last Thursday started at the Court of
Appeal, Abuja, where Buhari filed a 91-page petition with 274 respondents. Hours
before the hearing, Buhari and other ANPP stalwarts were at the court to pay the
N10,300.00, filing, and N100,000.00 security fees. They also presented about 274
copies of the petition to the court. Buhari joined Obasanjo, Vice President
Abubakar Atiku, INEC, all resident electoral commissioners of 36 states of the
Federation, all state returning officers at presidential elections of the 36
states of the Federation including the Federal Capital Territory, and nearly all
the electoral officers of all local governments in Imo, Taraba and Adamawa.
The petition averred that INEC was "undemocratic, lacking in neutrality, unfair
to all concerned save for the PDP and President Obasanjo in the conduct of the
elections." The petition, which contained state by state analysis of
irregularities alleged that PDP members were seen painting private vehicles in
INEC colours in Ebonyi State. Among other things, Buhari said a statement
credited to INEC chairman, Abel Guobadia, that he (Buhari) was a "frustrated
man," indicates that INEC was already biased and had compromised its neutral
position. He alleged that Guobadia was not fit to hold any public office as he
was indicted by the Nigerian Universities Commission (NUC) for abuse of his
office as Assistant Secretary.
"The figures ascribed to each of the candidates in the result above pleaded were
the products of deliberate wrong entries made by the third respondent's (INEC)
agents or representatives at the ward, local government areas and state
collation centres. The elections sought to be nullified was conducted in
substantial negation of the fundamental principles of the Electoral Act, which
are the substance of democracy, neutrality in the conduct of the elections,
fairness and allegiance to the Federal Republic of Nigeria.
While the Court of Appeal was hearing the case, both sides, particularly the
opposition, sought to gain political capital out of it. Opportunities for this
were not lacking. But eventually, the Court of Appeal in the leading judgement
delivered on February 6 by the President of the Court, Justice Umaru Abdullahi,
upheld Obasanjo's victory and dismissed Buhari's petition but cancelled the
results of the presidential election in Ogun State. But it condemned the INEC
for its failure to present all the election results before it saying the
commission could not be bigger than the nation.
However, it was in the dissenting judgement presented by Justice Nsofor that
Buhari's appeal found merit. The minority judgement dealt a major blow to the
credibility of the election and made a strong case for the cancellation of the
In delivering the 124-page lead judgment last Thursday, the Chief Justice of
Nigeria, Justice Muhammed Uwais, held that there were not enough material
evidence by Buhari to show that the April 2003 presidential election was rigged
in favour of Obasanjo to warrant the vitiation of the election by the court,
noting that election rigging is a criminal offence, and that going by the
Evidence Act, such offence ought to be substantiated fully and not relied upon
by mere hearsay.
Uwais further held that the election was conducted substantially in accordance
with the 2002 Electoral Act. He said non-compliance with the Electoral Act as
alleged by Buhari was not enough for the invalidation of the election. He cited
Section 135(1) of the Electoral Act 2002, which provides that "an election shall
not be invalidated by reason of non-compliance with the provisions of the Act if
it appears that the election was conducted substantially in accordance with the
principles of the Act and that the non-compliance did not affect substantially
the result of the election" to support his position.
Buhari's recourse to the Supreme Court which contained 42 grounds of appeal but
were compressed into seven briefs included the following:
• To set aside the majority judgment of the Court of Appeal dismissing the
• To uphold the dissenting judgment of Nsofor (JCA)
• To allow the petition on the grounds and consequentially disqualify the Ist
and 2nd Respondents (Obasanjo and Atiku) under section 129 of the
Electoral Act 2002
• To order the 3rd Respondent (INEC) to conduct a fresh election within one
month from the date of judgment in his appeal
• In the event of disqualifying the 1st and 2nd Respondents to order 3rd
Respondent to conduct a fresh election between the remaining candidates in the
• In the event that the appeal succeeds, with or without the disqualification of
the 1st and 2nd Respondents, to order that President of the Senate acts as the
President of the Federal Republic of Nigeria during the period between the
judgment and the fresh election.
After going through all the issues painstakingly one by one, Uwais held that:
"The evidence adduced at the trial in the Court of Appeal by the 1st and 2nd
Appellants (Buhari and ANPP) was not sufficient to enable the Court of Appeal
hold that the election was not held substantially in accordance with the
principles of the Electoral Act.
"This was so despite the Court of Appeal nullifying the elections in Ogun State.
In this Court, we are satisfied that the testimony of Chief Bisi Lawal, PW1,
which the Court of Appeal relied heavily upon to nullify the election in Ogun
State was based on hearsay, which is unreliable and by Evidence Act,
"The documents the witnesses tendered were not, in the absence of evidence of
the makers, reliable. Again the failure of the Electoral Officers, Presiding
Officers and Returning Officers to take oath of loyalty and neutrality is of no
moment since the form of the oath is omitted in the Electoral Act and cannot be
found in the Oaths Act.
"All these have further weakened the petitioner's case for non-compliance with
the provisions of the Electoral Act.
"In sum, the case made by the 1st and 2nd Appellants/Cross Respondents before
the Court of Appeal, which did not entitle them to the judgment of the Court in
their favour is even weaker before this Court.
"I therefore come to the conclusion that the election was conducted
substantially in accordance with the principles of the Electoral Act. I need not
go further to consider the second limb of Section 135(1), which is whether the
non-compliance, so far proved, has affected substantially the result of the
election, since as I hold, that on the evidence adduced before the Court of
Appeal, the election was conducted substantially in conformity with the
principles of the Electoral Act.
"Accordingly, the appeal fails and it is hereby dismissed with no order as to
cost. Finally, I wish to commend the Honourable President and Honourable
Justices of the Court of Appeal and the counsel for the parties before the Court
of Appeal for their industry throughout the proceedings, which had lasted for 15
months, resulting in hearing a total of 355 witnesses called by all the parties
in the petition."
Commenting on the Ogun State election, which was nullified by the Court of
Appeal, Justice S. M. A. Belgore in his 52-page judgment noted that, "In view of
the over one third of the state's local government results, it seems the Court
of Appeal was in error on this point.
"The Court apparently failed to draw its attention to the cross examination of
PW1, Lawal. It is for petitioners to prove their case and by objecting at
earliest opportunity to have the result in court the appellants are not entitled
to benefit of the result in 14 Local Government areas not in court.
"It simply means that they never intended the results to be seen by the court;
that is what actually took place. The appellants also alleged manipulation of
election results in the same 142 polling units from seven local government
"Manipulation or alteration of election result is a criminal offence and the
prove required is high, that is beyond reasonable doubt. The sin of parts of
seven Local Government Areas in Ogun State in having some doubts on the returns
should not have been visited on the other 13 local government areas. But that
precisely is what the Court of Appeal did by relying heavily on the evidence of
Chief Bisi Lawal which covers only seven local government areas.
"The failure to bring other results for the rest of the states was due entirely
to the appellants who early in the trial objected to their being brought to
court. Unfortunately, Chief Lawal as PW1 gave evidence of what he never saw but
what he was told by polling agents. That is hearsay.
"I therefore agree with the lead judgment of the Honourable Chief Justice of
Nigeria, which I had the privilege of reading in advance that the cross appeal
has merit. I also allow it."
On the heels of the judgement, Buhari described the outcome as "political,"
holding that the "the decision flies in the face of facts." His reaction
contained in a prepared text which he read to newsmen at the ANPP secretariat
about two hours after the judgement, stated rhetorically that "we accept the
decision of the Supreme Court, although we do not agree with it." He recalled
that the ANPP and himself went to the Supreme Court in furtherance of the belief
that institutions created by the constitution for the purpose of performing
certain functions must be made to perform those functions."
According to the lanky Fulani prince, "Although, now thoroughly disappointed by
the decision, yet, consequent upon our belief in, and commitment to the
enthronement and sustenance of true democracy based on the rule of law, and the
imperative of respecting the final pronouncement of the body charged with
nurturing the supremacy of the rule of law, on our part, we accept this decision
of the supreme court, although we do not agree with it".
ANPP National Chairman, Chief Don Etiebet, in accepting the decision of the
Supreme Court said he was happy that the apex court raised questions about the
short comings of INEC and "I pray that the commission will take immediate steps
to correct itself for future elections so that there will be no need to go
through two and half years of litigations on the electoral system.
"I only hope that INEC as a result of this judgement will sit up from now on to
make arrangements for free, fair, acceptable and incontestable elections in the
future that is what this country needs and that is the panacea for Nigeria's
stability, for Nigeria's unity and for Nigeria's development," he said. Counsel
to the NAP and Buhari, Chief Mike Ahamba (SAN) said the judgment will determine
the future of subsequent elections since the apex court has raised some
fundamental questions about the conduct of INEC on elections.
The apex court has given its final word on the April 19, 2003 election. The
matter of proving electoral fraud is a serious one because it is a criminal
matter and the onus of proof is on the petitioner to so do. Some may say that
but some if not nearly all the observer groups that monitored the 2003 elections
said that it was flawed or that some elections into the Senate and House of
Representatives organised by the same INEC were fraught with irregularities
allegedly like the last presidential election and had already been cancelled by
election tribunals, all that will be hear say as the Supreme Court had said.
The Supreme Court's pronouncement can no longer be further challenged since that
is the highest court in the land. Buhari's lead counsel Chief Mike Ahamba (SAN)
succinctly captures this reality when he stated that there were limited options
open to him but accepted the decision in good faith since it came from the apex
court of the country.
Rightly, or wrongly there is a wide perception that the Supreme Court ruling in
favour of Obasanjo, may have saved the country the grave possibility of yet
another round of constitutional crisis. Had the Supreme Court canceled the poll
and ordered fresh election, several analysts believe the nation may have been
thrown into another enervating legal crisis. Why? The Independent Electoral
Commission (INEC) would not have had any legal backing to fall back on to
conduct a new presidential poll unless it is for a fresh term of four years.
The constitution and the electoral act empowers the INEC to conduct presidential
election for only four years.
This scenario, some pundits say, may have informed the relaxed, cosy stance of
many PDP supporters and Obasanjo loyalists. An apparent lacuna in the status
book shores up this position. Section 135 of the 1999 constitution that deals
with the tenure of the office of President clarifies that a person shall hold
office of the president until:
(a) when his successor in office takes the oath of that office.
(b) he dies whilst holding such office or
(c) the date when his resignation from office takes effect;
(d) he otherwise ceases to hold office in accordance with the provisions of the
Further, section 135 sub-section 2 states that the president shall vacate his
office at the expiration of a period of four years coming from the date, when he
took the oath of Allegiance and oath of office.
There is no provision in both the constitution and the electoral act to take
care of the expected lacuna which a cancellation of Obasanjo's election last
Thursday would have created. A fresh election would just have given President
Obasanjo additional two years as the two years he already spent would not have
counted. The situation would have swiftly played into the waiting hands of some
of Obasanjo men who have been jostling through the on-going National Political
Reforms Conference (NPRC) to get the constitution amended and enable the
President stay more two years.
In all, the marathon quest for justice by Buhari, many believe, is a testimony
to the character of the ANPP flag-bearer - tenacity, doggedness and personal
belief in principles. As things stand now, any other justice to be done to
Buhari, many believe, would have to be dispensed by an authority higher than
man's. Buhari realises this and have severally alluded to it in the penumbra of
the historic judgment. So what are the options open to Buhari now.
The only option open to Buhari after accepting the verdict of the apex court is
for him to now fully embrace democracy and partisan politics in all its
ramifications if he wants to be politically relevant. He needs to wear the garb
of a politician through and through and not take politics as a one-off thing as
he seems to do. Politics is a serious business and if he really desires to
change things in the country through the instrumentality of partisan politics,
he must really be active in his party, the ANPP. He must do away with his
seeming aloofness in party matters. He should not be like all those politicians
that remember their party membership cards only at election time. He had
indicated some where before that he would also be ready to contest the 2007
election. So, the option left for Buhari is to now build his democratic
credentials. This, he appears to have started by reaching out to other like
minds across the length and breath of the country, like his hobnobbing with some
progressive elements in the South West like the Afenifere and some human rights
activists. This will no doubt help to galvanise his democratic credentials.
As if in realisation of this, indeed, last June 11, Buhari met with leaders of
the pan-Yoruba socio-cultural organisation, Afenifere, in Lagos to signal the
commencement of a new political realignment in the country. The meeting came
ahead of the 12th anniversary of the annulled June 12 election at which Chief
Anthony Enahoro, Prof. Wole Soyinka, Dim Odumegwu-Ojukwu, Buhari and others
addressed a symposium along with the former military leader. Buhari and the
Afenifere leaders at their meeting resolved to form a common front against the
Peoples Democratic Party (PDP) administration of President Obasanjo. According
to them, the people are tired of relishing in poverty despite the nation's
resources. Speaking before a closed-door meeting with members of Afenifere,
Buhari had said he chose to identify with the organisation because he is a
believer in grassroots politics. Also speaking at that meeting, acting leader of
Afenifere, Chief Reuben Fasoranti, said the Yoruba group was ready and willing
to work with Buhari because his days as military head of state were
characterised by discipline, transparency and accountability, saying that was
the kind of government the Afenifere had been canvassing for. And at the rally
in commemoration of the 12th anniversary of the annuled election in Lagos last
June 12, Buhari described the annulment as a crime against Nigerians by the
military administration of his successor, General Ibrahim Babangida. Buhari was
the guest of the pro-democracy activists that organised rallies and lectures in
Lagos, Ibadan, Kaduna and Abeokuta in commemoration of the anniversary of the
election believed to have been won by late Concord Publisher, Bashorun M.K.O.
Abiola. Buhari, who spoke as guest speaker at the Pro-National Conference (PRONACO)
anniversary celebration, said the June 12, 1993 "annulment was a big crime
against the people because their votes were ignored, cancelled and annulled." He
noted that "the men, who perpetrated this crime were in fact telling the people
of Nigeria that their views do not matter, elections do not matter: only the
will of the government in power matter." According to him, "June 12 is
remarkable, unique, a notable event for Nigeria starring a Southern presidential
candidate running for the first time with a Muslim-Muslim ticket in a
constitutionally secular country and winning the election."
But if the truth must be told, Buhari is a latter day democrat. As a matter of
fact, the manner in which he emerged as the candidate of the ANPP for the 2003
presidential election belie the kind of agitation he engaged in with respect to
Obasanjo's victory. Other presidential aspirants particularly the ones from the
Southern part of the country were muscled out of the party's primaries in broad
daylight to pave the way for Buhari's candidature. And rather than Buhari to
appeal to the aspirants when he mounted the stage for his acceptance speech, he
poured more salt on the injury of the aspirants by his declaration that the
party could do without them.
Not only that, throughout his campaign for the presidency of this country in the
build-up to the 2003 election Buhari never ventured to reach out to the South
West. He alienated the group, which is reminiscent of the campaigns of some
presidential aspirants in the First and Second republics.
Buhari, it would be recalled, was Nigeria's Head of State from December 31, 1983
to August 27, 1985. Together with the late Major General Tunde Idiagbon, they
ran the country for about two years without enunciating an agenda for transition
to civilian rule His government instilled discipline in the land and was
purposeful and committed no doubt, but a nation that was taken aback with the
seeming poverty of the NPN administration but yearned for a return to democracy
could not stomach an administration with draconian policies and without a
political programme. Indeed, Buhari's administration came up with draconian
policies like Decree 4 under which prominent journalists like Nduka Irabor and
Tunde Thompson were hauled into prison and capital punishment for drug pushers
though some say the nation needed the iron hand of the Buhari/Idiagbon regime to
bring her back on the part of rectitude.