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Judgment day for the Bench

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[FILES] Candidate of the opposition Peoples Democratic Party (PDP) Atiku Abubakar. Pius Utomi EKPEI / AFP


The bedrock of democracy is the Rule of Law and that means we have to have an independent judiciary, judges who can make decisions independently of the political winds that are blowing.” – Caroline Kennedy. “They interpret the law, assess the evidence presented…. and most importantly, judges are impartial decision makers in the pursuit of justice.” Real men and women stand up for the truth. They stand up for what is right. They stand up for justice. They stand up for their country especially at the most critical juncture of its life, when it’s challenged on all fronts.

They put their country first before any other interest- personal, group or whatever else is playing on their minds. Now it is judgment day. Not on the petitions of the People’s Democratic Party, PDP, and its presidential candidate, Vice President Atiku Abubakar. It’s judgment day for the men and women of the bench. A day they will show whether they believe in the nobility of their calling. Whether they have fidelity to the oath they took to always deliver justice without fear of and favour to anyone, no matter the person’s status. And whether the survival and sustenance of our endangered democracy is paramount to them or not important.

They have no place to hide. And they can’t dodge the enormous responsibility to do what is right for Nigeria. They must either stand up to be counted on the side of what is right, or be damned forever. Without a doubt, they’re on trial in the public court, that is, the people’s tribunal. This is the historical challenge that the five judges of the Court of Appeal’s Presidential Election Petition Tribunal face as they prepare to give their verdict on PDP’s and Atiku’s petitions against the 2019 presidential election outcome this week. If the judges are in any way conflated about their fundamental obligation to do justice for the Nigerian people, who are crying out for it, they should remember the admonition of Ben Nwabueze.

The eminent professor of constitutional law and senior advocate of Nigeria, SAN, had, at one of the sittings of the tribunal, told the judges that their adjudication of the petitions before them called for courage and resistance to the temptation to hide behind tedious judicial procedures and obfuscating legal technicalities. He said they should focus on the merit of the petitions and strictly apply the laws as they relate to them. He reminded them of their sacred duty to give their loyalty to the country, pointing out that their verdict would not only define the extant state of the judiciary but also the future and destiny of the country.

If Professor Nwabueze’s timely advice is not enough to sway them to remember the oath they swore to, then they’re obliged to carefully consider the tremendous courage that Kenya’s Supreme Court justices brought to bear on the truly historic and progressive verdict they gave on the country’s 2017 highly contentious presidential election. The opposition candidate had challenged the declaration of the incumbent president, Uhuru Kenyatta, as the winner, citing inf ractions of the electoral laws and compromised electoral process by the Independent Election and Boundary Commission.

The Supreme Court upheld the grounds of the petition and declared the election null and void, ordering a re-run. President Kenyatta and his party complained about the verdict but accepted it. In doing so, they recognized the independence of the judiciary as crucial to the enhancement of their democracy, and that the integrity of the electoral processes were the anchor of the legitimacy of any government that emanates from the outcome of an election. Kenyatta duly won the re-run and the opposition moved on, waiting for the next election to try again. If, again, the tribunal judges are not minded to learn any lesson from the courageous, impartial disposition of Kenya’s Supreme Court justices, then they could be inspired by what is happening in Britain over the endlessly controversial Brezit political war. Many longstanding Conservative members of the Parliament have sacrificed their careers to defend their country against what they consider as reckless, Prime Minister Boris Johnson’s plan to take Britain out of the European Union on October 31st without a deal. They believe an exit without a deal with the EU about future political and trading relationships would do enormous damage to Britain’s economy.

The rebel Conservatives have aligned with the opposition parties to thwart the prime minister’s plan. But they have paid the price of being denied the opportunity to run in the coming parliamentary elections. Meaning they have effectively been expelled from the Conservative Party. Among them is the grandson of Winston Churchill, Britain’s Second World War prime minister and hero. For the rebels, their country first before their personal interests and comfort. That is the true definition of patriotism; the courage and sacrifice of people who recognize when their country and people are in grave danger from the vaulting ambition and reckless agenda of political demagogues. And they chose to stand up for Britain.

It is beyond any legal engineering and breathless polemical disputes that the 2019 general elections were a total sham. Particularly embarrassing is the magic that the Independent National Electoral Commission, INEC, in shameless complicity with the All Progressives Congress, APC, and the presidency, enacted to ‘re-elect’ Mohammadu Buhari as president. The results announced for the presidential election were mostly voodoo numbers, as in many instances in most of the states, if not all, the figures just don’t add up.

The glaring fact that the elections were rigged with brazen impunity has been universally confirmed by all reputable election monitoring teams, local and foreign. Worst still is the damning conclusion by all of them that, the INEC flagrantly upended its own rules and operational guidelines for the elections. And it lied with a straight face about the existence and operation of its central computer server for storing data, including registered voters and election results electronically transmitted by its field officers who were trained specifically for that task.

And when it was time for the commission to defend its serial lies about the central server at the tribunal, it opted to not enter any defense of its controversial conduct of the elections and the voodoo results it used to declare Buhari the winner. The petitioners’ legal team conclusively proved the existence of the server, validating their claim that Atiku Abubakar won the presidential election by a 1.6 million-votes margin. If the commission was sure of the results it declared, the most effective way to discredit the petitioners’ claim was simply to open the server for scrutiny. If, indeed, there were no results there, or they could no longer be traced, that would have damaged the petitioners’ case beyond repair. That it failed to do the needful to, at least, burnish its dodgy reputation and restore the public thrust in it, is thoroughly self-indicting and speaks eloquently to its mendacity and gross incompetence.

When the commission severally assured the public before the elections, that rigging would be minimised, if not completely eliminated, because the results would be transmitted electronically to its central server as an insurance against fraudulent manual collation of the figures, it ignored one reality. In the computer age, digital footprints are hard to erase. So even if the server were opened and found to have been emptied of some of the contents, these can easily be traced and retrieved. That was what INEC and its bumbling managers were mortally afraid of. Hence they have stuck to the silliness of denying the existence of the server and the electronic transmission of the results. They have tried miserably to hide behind the lame excuse of the lack of an enabling law for the deployment of the technology to enhance the integrity of the electoral processes and credibility of the results. They are talking of an enabling law after the fact of their conduct of, very arguably, the worst elections ever in Nigeria. So are they going to account for the tens of billions they claimed to have invested in the technology? These irrefutable facts about the commission’s misconduct and mismanagement of the elections cannot simply be ignored by the tribunal judges in reaching their verdict. Just as Buhari’s serial perjury over his ‘ghost’ WAEC certificate is central to the critical question of his eligibility to contest the presidential election. And that question must be resolved without equivocation and resort to legal gobbledygook by the judges.

Lying under oath is a criminal offense, and Buhari did just that, not once but twice – in 2015 and 2019. His claim that his certificate was with the Army Council was decisively debunked by his own witness at the tribunal. Major General Paul Tarfa (rtd.), under cross-examination by INEC’s counsel, Yunus Usman, SAN, dismissed Buhari’s claim.  Asked whether they submitted their certificates to the army when they were recruited, he said: “There was nothing like that.” And that completely collapsed Buhari’s case over his yet-to-be-found certificate. He and Tarfa joined the army same day. And Tarfa was his witness and, therefore, couldn’t have mis-spoken or lied about it. The narrative is being pushed that the constitution doesn’t make WAEC certificate mandatory for qualification to contest any election. All that is required is proof that you attended secondary school up to class five, as in Buhari’s case. While this may be true, the argument is disingenuous. There would have been no problem if he had rested his eligibility on that score. But since he chose to willfully lie about his certificate by swearing to an affidavit to validate his claim, he loses his entitlement to that constitutional cover.

And let the judges be clear about this like the rest of us: While Buhari is the country’s chief security and law-enforcement officer, that doesn’t make him to be above the constitution he swore to uphold and defend. As a matter of fact, that obliges him not to commit any infraction against the constitution and break any law. If an ordinary Nigerian lied about his certificates, he would either be expelled from school, sacked from work or prosecuted and jailed if found culpable of perjury. And they ought to know that the judiciary, already decapitated by the orchestrated removal of Chief Justice Walter Onnoghen by Buhari and the executive’s disdain for it by illegally disobeying court orders and judgments, is actually on trial in this presidential election matter.

Kenya’s Supreme Court justices blazed the trail of asserting their independence and impartiality. And they made their country proud and respected, changing the unsavoury narrative about Africa’s judicial systems being slavish appendages of often repressive governments of strong men. Our judges can do the same for Nigeria. Otherwise, they would be confirming the uncomfortable reality that Buhari and his enforcers have conquered the judiciary. And that would be the sad end of our fledgling democracy.
Noga is a public affairs analyst and wrote from Lagos.


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