Waiting for Judgment of the Presidential Election Petition Tribunal

1
Buhari Vs Atiku

Alex Enumah writes that all eyes are on the Presidential Election Petition Tribunal as it delivers Judgment this week

Any moment from now the Presidential Election Petition Tribunal would deliver its verdict in the petition filed by candidate of the Peoples Democratic Party (PDP), in the 2019 presidential election, Alhaji Atiku Abubakar, against the return of General Muhammadu Buhari (rtd) as president.

This is so because the 180 days provided by law within which an election petition must be heard and judgment delivered will expire on September 15, 2019. As such any decision taken outside Sunday, September 15, becomes null and void, a mere academic exercise and disadvantageous to the petitioners.

Therefore, the import of the tribunal’s decision if one may borrow the words of a senior lawyer in the matter, “Is one that would define the jurisprudence of electoral matters and democracy in the country.”

Following the declaration of Buhari as winner of the February 23 presidential election by the Independent National Electoral Commission (INEC), Atiku and his party, approached the court to challenge the victory.

In their joint petition filed on March 18, 2019, they insisted that they and not Buhari and APC won the presidential election of February 23, 2019.

According to them INEC had connived with Buhari, APC and agents of the Federal Government including the military to rig the election in favour of Buhari.

They therefore urged the tribunal to nullify the victory of Buhari and declare them winner of the February 23 presidential election.

Equally, the petitioners asked the tribunal to nullify Buhari’s participation in the election on grounds that he did not possess the necessary academic qualification for the office of President and that President Buhari submitted false information to the Independent National Electoral Commission (INEC) to aid his qualification for the said election.

Though the petitioners had planned to call about 400 witnesses within the 10 days allotted to them to substantiate their claims, they were, however, able to call 62 witnesses and tendered over 50, 000 documents to prove their case of alleged rigging, over voting, non compliance with the electoral guidelines in 10 states of the federation.

Among the 62 witnesses they called are a foreign Information Communication and Technology ICT) expert from Kenya, David Nyango, and a local data analyst, Joseph Gbenga who buttressed testimonies of petitioners’ agents at the unit, wards, local government and state levels of the alleged abnormalities during the conduct of the presidential poll, which according to the petitioners’ last witness, Osita Chidoka is the costliest election ever conducted by Nigeria.

The foreign ICT expert in his evidence alleged INEC has four websites from which he was able to generate information used in his analysis in his report for the petitioners.

He listed www.factsdontlie.com, whoistool as some of the website he said, though does not belong to INEC, but the information therein were uploaded by an INEC official who is anonymous.

The witness said that the information contained in the report of his analysis were extracts from three of the four websites.

On his part, Joseph Gbenga, the local data analyst said that he analysed forms EC8A, EC8B and EC8C in 11 focal states of the federation on the instruction of the petitioners through which he was able to detect various abnormalities such as wrongful collation of results.

Also testifying, Chidoka, who was the National Collation agent for the petitioners and Head of the PDP situation room told the tribunal that he refused to sign the result of the presidential election because of wrong entries through the manual system.

He insisted that results were transmitted into INEC server and that INEC chairman, Prof Mahmoud Yakubu confirmed the existence of a central server in a conversation with the national agents.

However, in his defense, Buhari called seven witnesses, who testified that the election was not only free and fair but that Buhari was constitutionally qualified to participate in the poll.
Among the witnesses called by Buhari were Major General Paul Tafa (rtd), Sule Mai’Adua, Abba Kyari, Henry Adewunmi, a WAEC official, Mohammed Abba amongst others.

In their various testimony, they confirmed that Buhari was educated up to secondary school level.

Major General Paul Tafa, (rtd) who claimed to have been enlisted in the Nigerian Army with President Buhari on April 16, 1962, listed some of their colleagues to include; Brigadier Ola Oni, Major General Duro Ajayi, Major General Shehu Yar’ Adua, Brigadier General Abudullahi Saleh all retired amongst others.

However, under cross examination, General Tafa, told the tribunal that the Nigerian Army never asked Buhari and others, including himself to surrender their certificates to the army in 1962 for whatever reason.

Current Chief of Staff to President Buhari, Alhaji Abba Kyari, who claimed to have known Buhari for nearly 40 years, told the tribunal that Buhari has credit in five subjects including English Language in his West African School Certificate (WASC) examination conducted by Cambridge University.

But under cross examination by petitioners’ lawyer, Dr. Levy Uzoukwu SAN, Kyari told the tribunal that he personally received and signed for Buhari’s Cambridge University WASC Certificate on July 18, 2019.

The witness further admitted that Buhari in his Curriculum Vitae listed the schools he attended but did not list any of the certificates obtained.

He also admitted not being Buhari’s classmate at any time and never a member of the army, adding that he was not in possession of any of Buhari’s certificates.

Further cross examined by Atiku’s counsel, Kyari admitted that the Diploma Certificate in Strategic Studies he claimed Buhari possessed in his witness statement was not listed in Buhari’s CV.

In his own evidence, Henry Adewunmi, told the tribunal that the Cambridge University International Assessment Education Result said to have been awarded to President Muhammadu Buhari is not the same as a certificate.

Led in evidence by Buhari’s lawyer, Chief Wole Olanipekun SAN, the witness told the tribunal that 18 candidates sat for the 1961 WAEC exam and that President Buhari was inclusive and indeed number two on the candidates’ list.

The witness further stated that President Buhari sat for eight subjects and had credits in five subjects which comprised; Oral English C5, History A3, Geography C6, Hausa Language C5 and Health Sciences C6.

Adewunmi confirmed that Buhari was educated up to Secondary School level and was awarded Aggregate 32 and Grade 2 for his performance.

However, under cross examination by Atiku and PDP’s counsel, the witness admitted that the assessment result issued to Buhari is not equal to a certificate.

Besides, the witness said that the assessment report of President Buhari is not a document from WAEC because it is bearing Cambridge University Assessment International Education.

He added that the attestation letter issued to Buhari on November 2, 2018 was not a certificate and it can be issued under various conditions.

However, in their final address, Atiku and PDP, argued that the respondents instead of defending the claim by the petitioners that Buhari failed to provide proof of any of the three certificates he claimed to possess, dwelled on the issue of whether the President can speak the English language or not.

The senior lawyer stressed that since they have led evidence to show that Buhari lied on oath in his form CF001 submitted to INEC for clearance to contest the February 23 presidential election, the tribunal should uphold the petition and grant the reliefs contained therein.

The petitioners drew the attention of the court to a portion of his INEC form where he claimed to have three different certificates; comprising Primary School leaving certificate, WAEC certificate and Officers Cadet certificate.

The petitioners said it was shocking and surprising that, “No Provisional certificate, no certified true copy of the certificates, no photocopy of certificates and infact no electronic version of any of the certificates was presented by Buhari throughout the hearing of the petition to dispute the claim of the petitioners.

“More worrisome is the fact that Buhari’s own witness Major General Paul Tafa, who joined the Nigerian Army with him in 1962 told the tribunal that they were never asked to submit their certificates to the Nigerian Army Board as claimed by Buhari in his form CF001.”

The PDP presidential candidate also faulted the claim of INEC that it has no central server, adding that server is a storage facility which include computer, database of registered voters, number of permanent voter card and election results amongst others are stored for references.

He said the claim by INEC that it has no device like server to store information, “is laughable, tragic and a story for the dogs.”

He therefore urged the tribunal to uphold the petition and nullify the participation of Buhari in the election on the grounds that he was not qualified to have stood for the election, in addition to malpractices that prompted his declaration as winner of the election.

However, INEC represented by Yunus Usman SAN, urged the tribunal to dismiss the petition with substantial cost because the electoral body conducted the election in total compliance with the Nigerian constitution and Electoral Act 2010.

Usman insisted that INEC did not transmit election results electronically because doing so is prohibited by law and that the commission did not call any witness because there was no need to do so.

In his defence, President Muhammadu Buhari through his counsel Chief Wole Olanipekun SAN, argued that Atiku’s petition was liable to be dismissed because it is lacking in evidence, merit and substance and that the petition was ill advised and signified nothing.

Olanipekun cited Section 131 of the Constitution which stipulated a minimum of secondary school attendance to qualify for election in Nigeria, adding that Buhari cannot go beyond that and that he does not need to tender or attach certificates before he can get qualification for any election.

He averred that there was nothing in law to persuade the tribunal to nullify the February 23 presidential election as pleaded by Atiku and urged the tribunal to dismiss the petition with substantial cost.

The APC represented by Prince Lateef Fagbemi SAN, in his own submission said the petition lacked quality evidence that could warrant the nullification of the election as pleaded by the petitioners and urged the tribunal to throw out the petition as long as its hand can do with huge cost.

Fagbemi told the tribunal that the petitioners called 62 witnesses only in a failed attempt to prove their allegations concerning 119,793 pulling units, 8, 809 wards and 774 local government areas and local area councils being challenged by the petitioners.

Fagbemi contended that the failure to call witnesses across the states of the federation by the petitioners to establish their allegations as envisaged by law is fatal to the petition and made it liable for dismissal by the tribunal.

However the Tribunal Chairman after taking submissions from all parties announced that judgment in the petition has been reserved and that the date for its delivery would be communicated to parties.

As the nation awaits the judgment of the five member panel, the Peoples Democratic Party has however urged the panel not just to deliver its judgment but to ensure justice is done in the matter.

The PDP in a statement signed by its Publicity Secretary, Kola Ologbodiyan, said, “As a party, we have made a solid case before the panel. Our candidate, Alhaji Atiku Abubakar, had also presented his case supported by credible evidence. We had presented incontrovertible evidence to show that our Presidential mandate was stolen. Every Nigerian now looks on to the judicial officers for justice.

“Nigerians are waiting and hoping that the judiciary will have the courage to do justice in the presidential election petition.

“In the face of the anguish, pains, calamitous events, bloodletting, strong division, resentment, insecurity, acute hunger and starvation crippling our country, Nigerians’ only hope is now in the judiciary to save our nation by addressing the substance of the petition by Atiku and the PDP”

The party while urging Nigerians not to lose hope in the nation, expressed confidence that the judiciary will consider the substance of the matter and the evidence before it.

It would be recalled that a formost constitutional lawyer and erudite Professor of Law, Ben Nwabueze, had at the commencement of trial on July 4, admonished the panel to ensure justice is done in the matter in the interest of the nation.

Nwabueze, who had attended the proceedings on a wheelchair had announced appearance as lead counsel for the petitioners.

“The determination of the petition will certainly impact on future elections and constitutionalism in the country”, he said.

“Notwithstanding of my age 87 and attendant health challenges, I attended this proceedings to underscore the importance of the case”, he added.

The law professor noted that the February/March 2019 General Election may have come and gone, but the generality of Nigerians seem agreed that something was wrong with them, particularly the February Presidential Election.

“They suspect that the later was manipulated or, in more familiar language, rigged.

“What is not known is how or by whom the rigging was done”, part of his two page statement submitted with the court registrar read.

The senior lawyer stressed that it now rest on the tribunal to unravel the truth about what happened.

“The task before it is made intractable by what Justice Kishna Iyer of the Indian Supreme Court referred to as “the tyranny of procedure, the horror of the doctrine of precedent, with its stifling and deadening insistence on uniformity, and the booby traps of pleadings.”

Prof. Nwabueze reminded the tribunal that it owes the country the duty of discovering the truth which he said will help to set the country free from the scourge of electoral malpractices.

“An election petition is not such ordinary case; it is sui generis, to which the technicalities of the law of pleadings and evidence may not be appropriate”, he stressed.