Why Atiku couldn’t come

Prince L.O. Fagbemi, SAN at the inaugural session of the Presidential Election Petition Court said, “The court is where we fish (as lawyers), and we will try to keep the waters clean.”
At this critical time it is our duty as lawyers to educate the people on the reasons behind the judgment of the court and not to leave my lords and indeed, the entire judiciary at the mercy of paid internet trolls or minions who will not only desecrate the bench, but will by extension ridicule and disrespect the entire legal profession.

Our office, Dikko and Mahmoud, Solicitors and Advocates, led by its Managing Partner, AB Mahmoud, SAN were part of the lawyers representing President Muhammadu Buhari in the case and I was privileged to be among the junior counsel who were in our office’s team for the election petition.
In the course of such duties I had the opportunity of reading and researching on the entire petition of Atiku/PDP and the depositions of all their witnesses.
We worked to perfect our contributions to the team to a point that we sometimes spent the night in office. In addition, I attended at least 95% or even 98% of the court’s sittings.
I made the above background solely to show that I’m conversant with the entire process of the petition and am in the right position to make this short analysis. I also chose the above topic to befit the popular hashtag of #AtikuIsComing.

The petitioners (Atiku and PDP) filed their petition on five grounds which they also submitted as their issues for determination before the tribunal (preferably referred to as “the court”), with necessary modifications.
The issues are in summary and clear words as follows:
1- whether Buhari was qualified to contest the election at the time of the election; 2-whether Buhari submitted to INEC affidavit containing false information of fundamental Nature; 3-whether Buhari was elected by the majority number of lawful votes cast at the election; 4-whether the election of Buhari was invalid by reason of corrupt practices; 5- whether the election of Buhari was invalid by reason of non-compliance with the Electoral Act and the Electoral Guidelines and Manuals.

The duty of the court was to decide all the above questions for or against either of the parties in its judgment delivered on September 11, 2019. While doing so, the 1st and 2nd issues were taken together to determine whether Buhari was qualified or he lied on oath. First, the court made an extensive review of the facts of the case and the evidence provided by all the parties on these two issues. Atiku and PDP (the petitioners) tendered documents including: a recorded 2015 video of Brig Gen. Olajide Laleye declaring that the Nigerian Army has no copy of Buhari’s certificate with some newspaper reports of same; a purported report from the national Archive that the school Buhari Claimed to have attended was not in existence as at the time he claimed to have attended it; and a copy of Buhari’s INEC form CF001 in which they claimed he lied on oath.

Buhari in his defense presented the copy of a Cambridge Certificate; his picture with his classmates and some higher qualifications he obtained in the course of his military career, both documentary and through oral evidence from his own witnesses and the witnesses of the petitioners. In deciding the petition, the court is bound by the relevant laws in place and the doctrine of “stare decisis”, which simply means that a court of law is bound to apply the judgement of a superior court of record when it is faced with a case of a similar facts and it should also generally apply its own previous judgment when a case with similar facts or situation is brought to it.

Therefore, while deciding this case, the tribunal answered the first two issues raised by the petitioners as follows: Section 131 of the Constitution of the Federal Republic of NigeriaProvides “A person shall be qualified for election to the office of President if – (d) he has been educated up to at least School Certificate levelor its equivalent.” 

On issue 3 which contains the allegation that it was Atiku, not Buhari, that has the majority number of votes in the election. The only evidence presented by the petitioners to prove this issue was the alleged result collated electronically on the INEC server. Unfortunately, the person that was scheduled to present the document in the court was Mr Njoga from Kenya. The pleadings in support of the deposition of Njonga was contained in the petitioners reply to INEC’s reply to the petition and it violated rule 16 of the 1st schedule to the Electoral Act which prohibits bringing new issues in a reply. Consequently, the court stroke out all the paragraphs of the reply filed by the petitioners in the ruling delivered before the judgment even though the court was generous enough to evaluate the evidence of Njoga in the judgement. In addition, Mr. Njoga admitted under cross examination that the website of INEC can be hacked to plant information. Also, the witnesses who were led to testify on the fact that they transmitted results to INEC server were all assistant presiding officers on the election day and the Manual for Election Technologies read by them under cross examination by AB Mahmoud, SAN categorically stated that the persons who had power and authority to transmit results are the presiding officers only. More significantly, section 52 (2) of the Electoral Act categorical forbids the use of electronic voting thus: “the use of electronic voting machine for the time being is prohibited”. The person presented as a statistician also stated under cross examination that he was actually, a graduate of industrial chemistry and he was certified as a statistician by no authority. Therefore, the court was left with no option than to decide this issue against the petitioners and discountenance the server results submitted by the petitioners.

The court merged issues 4 and 5 which invited it to determine whether the election was marred by irregularities; corrupt practices and noncompliance with the Electoral Act. The witnesses presented by the petitioners to prove this claim mainly alleged falsification of results; harassment of voters by security agents; vote buying and illegal nullifications of results among other infractions. The court has earlier stroke out the pleadings of the petitioners which made some criminal allegations against some named security agents on the day of the election without making the security agents parties to the petition. This is a tip of an iceberg of all that was wrong with the case presented to the presidential election petition tribunal by Atiku and PDP. Unfortunately, it was not the same case presented to the mainstream and social media which is why the propaganda shared has subjected the court to ridicule. It should be noted, however, that this writer does not aim at predicting the outcome of any possible appeal in the case.

Hussaini, a legal practitioner based in Abuja, writes via [email protected]

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