Why Atiku lost the appeal

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*Atiku

Minabere Ibelema

It is with much trepidation that I am wading into the controversial decisions of the Election Tribunal and the Supreme Court regarding the last presidential election. Not being a lawyer of any kind, let alone a SAN, I hesitate to step on the path of the learned men and women.

Still, I plead as follows before the court of my readership: That I studied mass communication law at the undergraduate and post-graduate levels; that my doctoral dissertation was in communication polices, which considerably encompass law and judicial processes; and that in my tenure in the classroom, I taught mass communication law at two US universities for a combined period of 30 years.

It is on the basis of this background that I plead for permission to wade into this rarefied terrain.  And it is with the assumption that my plea is granted that I now proceed.

First some comments on reactions to the Supreme Court’s decision. Expectedly, the PDP and its candidate in the election, Atiku Abubakar, were displeased with the ruling. What is not necessarily expected is Atiku’s uncharacteristically unstatesmanlike attack of the judiciary.

“The Nigerian judiciary, just like every estate of our realm, has been sabotaged and undermined by an overreaching and dictatorial cabal, who have undone almost all the democratic progress the PDP and its administrations nurtured for 16 years, up until 2015,” he tweeted. “Today, the nail has been put on the coffin and the gains we collectively made since 1999 are evaporating, and a requiem is at hand.”

I was still pondering the harshness of this tweet, when I read a comment about the judiciary by  Opeyemi Bamidele, the Chairman, Senate Committee on Judiciary, Human Rights and Legal Matters.

“The problem at hand is that the judiciary is corrupt and it is time for Nigeria and Nigerians to rise up and rescue it with adequate funding,” the Guardian quoted Bamidele as saying. “As it is with the nation’s judiciary today, even if saints are appointed from heaven to serve as justices and judges, it is only strength of character that can prevent them from being corrupt and dispense justice as required.”

If Bamidele, an All Progressives Congress notable, would say this, Atiku certainly has to be excused.

And then there is this assertion in a statement by Garba Shehu, President Muhammadu Buhari’s Senior Special Assistant (Media & Publicity). “The government — and people of Nigeria — have been aware that the result of the February 23, 2019, presidential election has been settled for some eight months.”

Shehu seems to be saying, in effect, that the whole review process is a charade. That’s another slap on the face of the judiciary, an implicit support of Atiku’s castigation.

And then there is what is essentially a taunt of Atiku by Lagos State Governor Babajide Sanwo-Olu. “Why did they go to the court if they don’t believe in it?” the PUNCH quotes him as saying. “They went to court to file a case, why did they go there to file the case when they believe the courts don’t have what it takes to deliver justice.”

The answer, esteemed governor, is that the alternative is to do the same thing that set the Western Region literally on fire in 1965 and led to the civil war. That is, the same thing that more recently led to riots and bloodshed after then candidate Buhari lost the election of 2011.

Of molehills and mountains

Now to the case proper and why Atiku lost. Matter No. 1 is the approach taken by his legal team. But before I go further on this, I have to digress by a mile for reasons that will soon be obvious.

When Nancy Pelosi, the US Speaker of the House, announced that they would commence formal inquiry into possible impeachment of President Donald Trump, she also sternly urged her colleagues to focus on the phone call. She was referring, of course, to the call during which Trump told his Ukrainian counterpart to probe presidential candidate Joseph Biden and his son as a condition for military assistance.

Pelosi was insisting on that focus because she was well aware of the impulse to veer in the various other directions of potentially impeachable actions. The problem with that is that it might surround a strong case with strawmen.  And perceptually that could weaken the strong case.

Let’s say that the legal luminaries who drafted Atiku’s appeal weren’t guided by Pelosi’s wisdom. And that’s to be expected. The common strategy in law is to attack from as many fronts as possible. Lawyers count on the cumulative impact. Or they hope that if everything else fails, at least one of the issues will stick.

The police and prosecutors follow the same logic. That’s why a single offence shows up in court as multiple counts.

I humbly submit that this approach was a liability in Atiku’s case. It is obvious from what they submitted to the Supreme Court that they frontloaded the case with strawmen, what an APC partisan called molehills.

Take two of those matters: whether Buhari ever completed secondary school and whether he has ever gone by the name Muhammed Buhari as opposed to what we know him as, Muhammadu Buhari.

Such matters make great fodder on social media. But they are hardly worthy as the bases for overturning a presidential election. I can see the justices shaking their heads in dismay as they pored over the many pages dealing with these matters. As human beings, by the time they got to the substantive issues, they must have become too irritated.

Burden of proof

A second matter that worked against the appeal is the traditional assignment of burden of proof. Ordinarily, it is the plaintiff (in this case Atiku’s team) that bears the burden. However, there are situations where the plaintiffs are deemed to be “friends of the court.” That is, their interest is to ensure on behalf of society that justice is done. In such cases, courts may largely shift the burden of proof from the plaintiff to the respondent.

Given the importance of electoral probity to the wellbeing and stability of this country, appeals of election results would seem to qualify as such cases. This granted, the burden of proof may well be shifted to the Independent National Electoral Commission to convincingly demonstrate that what is being alleged is not true.

Take, for example, an argument by APC lawyer Lateef Fagbemi regarding Atiku’s team’s request for INEC’s server.  “INEC said they don’t have these documents. The petitioners must prove that they exist,” Fagbemi is quoted as saying. “Apart from the newspapers exhibited, there is no concrete evidence supplied by the petitioners as proof.”

This argument wouldn’t be tenable if the burden of proof were shifted to INEC.

Standard of proof

And then there is the matter of standard of proof. Generally speaking, there are three: preponderance of evidence, clear and convincing evidence, andevidence that is beyond reasonable doubt. They represent increasingly higher standards of proof.

I am not sure which standard the justices apply in reviewing presidential election petitions, but the pattern of verdicts suggests that it is prohibitively high.

Except for the election of 2015, the result of every presidential election has been appealed. In most of those cases, both domestic and international observers have pointed to egregious violations that compromised the outcome. Yet, not once has a presidential election been overturned. That suggests that the judicial review bar is set very high.

I am reminded of a case from the early years of TV broadcasting regulation in the USA station was shown to engage in racially discriminatory pattern of staffing and programming — in contravention of the terms of the licence. Yet, the Federal Communication Commission repeatedly renewed its licence despite consecutive rebukes by an appellate court.

When the case went to the DC appellate court a third time, it did what it normally doesn’t: it directly ordered that the licence be revoked. In explaining the decision, Justice Warren Burger chided the FCC for a “curious neutrality in favour of the licensee.”

Burger, by the way, was a conservative justice, who subsequently became the Chief Justice of the US Supreme Court.

Back to Nigeria and the Supreme Court’s dismissal of Atiku’s appeal, I am reluctant to accept Atiku’s explanation that it is due to political co-opting. I am inclined rather to believe that it is a case of “curious neutrality in favour” of the elected.

In dismissing Atiku’s appeal as lacking in merit, the justices couldn’t possibly be saying that they saw nothing materially wrong with the conduct of the election and the tribunal’s review. While we await the court’s full opinion, I like to think that their rationale is that a presidential election is so momentous it requires a lot more damning evidence to overturn.

In other words, if the justices were to talk to us in everyday language—perhaps on the street, in a lounge or a beauty parlour — they might explain their decisions by saying, “Dis na Nigeria. Make we just manage am.” Question is when and how will Nigeria become less of this Nigeria?

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