THE IMPARTIAL OBSERVER
Matters of the Moment
Ogebe’s severe judicial reverse
Hank Eso
Saturday 8 March 2008
The increasing tendency by some partisans to call for public-cause litigants to
drop their cases, is indeed a reflection of our national antipathy to progress.
Such advocates shoot arrows at the heart of our evolving judicial process and independence.
Nigerians
have been let down many times. It happened yet again. Justice James Ogebe, the
Chairman of the Presidential Election Tribunal, joined the class of elite who
have failed the nation when he and members of his panel failed to administer the
much anticipated coup the graĉe by ambiguously ruling on 26 February 2008 that “The
petitioner has in this case established substantially the non-compliance with
the electoral act but has failed to establish the substantiality (effect) of the
non-compliance on the results.” Thankfully, the final say on this issue
does not rest with Ogebe and company.
Since the ruling, it has also emerged that Justice James Ogebe was a recent nominee for a position on the apex court. Such an unlikely coincidence has led some observers to equate that appointment with a political recompense. It will be up to Ogebe and those who did not see the lurking danger of making a judicial appointment at such a critical juncture to answer to the attending controversy and public outcry.
One must note, however, for the records, that the process of Ogebe’s nomination to the Supreme Court seemingly started in June 2007 and was to have concluded in September 2007. Nonetheless, the appointment being made public was unwise, untimely and impolitic, since it would be a hard sell to convince anyone that his new appointment was not influenced by his role at that tribunal and vice versa. If noting else, it was a sign of poor bureaucratic housekeeping by the Yar’Adua government.
Additionally, Ogebe did not help matters, by making himself noticeably unavailable during the reading of the judgment. Barring incapacitating illness, death in the family or threat to his physical wellbeing, no other excuse could have justified his absence on such a landmark judgment, which will forever carry his name.
Perhaps, the Ogebe-led presidential election petition tribunal saw it fit to act in the national interest instead of acting in accordance with the law. For the record, like many Nigerians, I do not agree with the panel’s ruling, but will respect it for now.
First, the panel reached consensus in determining implicitly, that the April 14 and 21 2007 general elections, supervised by Prof. Maurice Iwu and the Independent National Electoral Commission (INEC), were free and fair, contrary to popular belief including views to the contrary by President Yar’Adua, who on various instances publicly acknowledged the flaws in the elections.
Secondly, the Ogebe-led presidential election petition tribunal concluded that the appellants, General Muhammadu Buhari of the All Nigeria Peoples Party (ANPP) former vice-president Atiku Abubakar of the Action Congress (AC) failed intoto, in substantiating their collective and respective claims about the fraudulent nature of the electoral outcome that produced Umaru Musa Yar'Adua as Nigeria’s president in the aftermath of the 21 April 2007 elections.
Essentially, the Ogebe-led presidential election petition tribunal was of the view that the election passed the litmus test of being sufficiently transparent, logistically unflawed and therefore, fully in consonance with the Electoral Act of 2006.
Such a ruling boggles the mind, to say the least! Those who have called the judgment political, more than legal, surely have a point. The ruling also affirm the concerns, raised by veteran politician Alhaji Balarabe Musa, who hitherto warned the Nigerian electorate not to be overly jubilant about earlier electoral petition rulings by the judiciary and thus risk being hoodwinked, since such a euphoria could be consequently exploited, when negative and unjustifiable rulings are made later on. Surely, Alhaji Musa was most prescient. Now we know better.
Reading and re-reading the panel’s conclusions as delivered by esteemed Justice John Afolabi Fabiyi, this pundit wonders how the appellate panel arrived at their consensus and what drove them to err on the side of injustice and aim at defeating the desirable ends of true justice.
By its judgment, the panel on a singular ground indicted itself. It begs the question that the same panel, which excluded and put to an end the submission of a plethora of evidence, which the appellants wished to tender, would gratuitously rule, “this petition has been plagued by want of evidence in proof of virtually all the allegations contained therein.”
In an utter shown of frivolity and insouciance, Justice John Afolabi Fabiyi, speaking for himself and his colleagues added, “even if I were to accept all the excluded evidence proffered by the petitioner, which evidence relates only to four states of the federation, the petitioner would still have been unable to establish this petition...” This ruling is a severe reverse of the confidence that Nigerians and people outside Nigeria were beginning to invest in the judiciary. As a recent Nigerian newspaper editorial surmised, “The general outcry and public disquiet that have attended the tribunal's ruling are proof enough of how an uninspiring judgement from the Bench can erode confidence in the judicial system.” It is indeed piteous. The question now, is whether the Supreme Court would allow the ruling to stand as an exception or as a justifiable precedent. More importantly, are the courts by this ruling indicating willingness to condoned future electoral fraud and political impunity.
Yet, there is another side to this crass judicial-political development worth touching on.
BUHARI AS A PRAETOR
As a democrat, Gen. Buhari carries the burden and hubris from his past role as a Nigerian military leader. Yet, unforgiving as Nigerians may wish to be of his past role – some say draconian rule - he is presently playing a critical role in entrenching our nascent democracy and due process. He has done so admirably, with great style and equanimity and without rancor.
Strictly, as matter of procedural jurisprudence, the recent ruling by the Ogebe-led presidential election petition tribunal, which favored President Yar’Adua and the ruling PDP, is as it should be, if indeed, the outcome was truly, as the Court of Appeal interpreted the situation. However, all - the court, the appellants, defendants and the electorate - understand that the ruling could hardly be final or the last word. That task and burden of a final solution, thankfully, resides with the Nigerian Supreme Court.
It may well be that the Court of Appeal chose to shift the responsibility to the apex court. Surely, the numbing post electoral crises that rocked Kenya could have instructed such caution. In addition, this case is not the first instance in which an appeal tribunal shifted the responsibility. The Rivers State gubernatorial petition was a case in point. Similarly, as has been observed in some quarters, the appellate court may have in reaching their conclusion, also deferred to national interest imperatives, as well as the “doctrine of consequences”, which includes a determination ab initio, of clear and present danger that a particular ruling might trigger. Nevertheless, such a disposition does not translate to the appellants acquiescing or mortgaging their right to further appeals to the Supreme Court.
Consequently, those who in the aftermath of the ruling began calling on Gen. Buhari to stand down, to drop his case and forego due process, which would only be guaranteed by a further appeal and the defense of the ends of justice, miss the substance of points at stake by a wide margin.
For Nigeria, it is infinitely best and consequential that this electoral case runs its full course. We have precedents; the Awolowo v. Shagari case in 1979, the Peter Obi v. Chris Ngige case and most recently, Andy Uba, Ifeanyi Okonkwo et al v. Peter Obi case in Anambra State. Only when a case has exhausted it course through a Supreme Court pronouncement that all presumed or real stakeholders can rest. Hence, it is a disservice to Nigeria for some to ask that the judicial process be abridged at this critical juncture.
Substantively, it is only a conclusive outcome and judicial pronouncement by the Supreme Court that can set the required precedents for addressing similar cases in the future, of which certainly, there will be more.
Though such advocacy is part of ordered free speech and quest for amity, the increasing tendency by some partisans to call for public-cause litigants to drop their cases, is indeed a reflection of our national antipathy to progress. It also smacks of indiscipline and lack of perseverance. Such advocates shoot arrows at the heart of our evolving judicial process and independence.
As I see it, so long as the president’s statutory right to carry out his constitutional responsibilities is not obstructed pending a judicial outcome, there is no greater or worthier price to pay in sustaining our fledgling democracy, than to allow the Buhari-Atiku electoral petition to run its full course. In this context, I am glad that Gen. Buhari is relentlessly plodding on. Even if we fail to, certainly, history will in the fullness of time accord him his dues for his singular contribution to the codification and setting of judicial doctrines and precedents that are meant to guide the electoral process in our democratic nation in years still to be contemplated.
Reality check: Those who criticize Buhari’s praetor’s role in this regard, merely fall into the trap of criticizing a role, which is contrary to theirs, rather than evaluating the full significance and impact of his role – good or bad- on the nation. Not being a lawyer, I will not parse the ruling by the Ogebe panel, but merely observe here, that it seems amply evident, that there is bountiful leeway for a Supreme Court to rule either way on this matter, the national interest consequences notwithstanding.
For what it is worth, this matter is far from being over. Therefore, it will be folly for anyone to be so presumptuous to believe that President Yar’Adua and PDP are home free or that Gen. Buhari will eventually get his way. Certainly, we will not know, either way, until the fateful day when the wise men of the apex court led by Justice Idris Kutigi pronounce themselves on this critical national question. Until then, it will suffice to say that it is not over until it is over. Meanwhile, in the name of democracy, let us salute Gen. Buhari, our most unlikely hero, but one nevertheless.
With neither anger nor partiality, until next time, keep the law, stay impartial, and observe closely.
-------
Hank Eso is a columnist for Kwenu.com. His commentaries on Nigerian politics and global issues have variously appeared in The New Times (Lagos), African Profile International (New York), The Nigerian And Africa Abroad (New York), African Market News (New Jersey), Gamji.com and Nigeriavillagesquare.com
© Hank Eso, Saturday 8 March 2008.
Email: hankeso@aol.com