Posted by By CHIDI NNADI & PETRUS OBI, Enugu on
Mike Ahamba, SAN is the lead counsel to Gen. Muhammadu Buhari, the All Nigeria Peoples Party (ANPP) presidential candidate in the 2007 general election. On Tuesday, February 26, 2008, the Presidential Election Petition Tribunal, dismissed his petition challenging the validity of the election of President Umaru Yar'Adua.
Mike Ahamba, SAN is the lead counsel to Gen. Muhammadu Buhari, the All Nigeria Peoples Party (ANPP) presidential candidate in the 2007 general election. On Tuesday, February 26, 2008, the Presidential Election Petition Tribunal, dismissed his petition challenging the validity of the election of President Umaru Yar'Adua.
But Ahamba, in this exclusive interview with AUGUSTINE AVWODE, reviews the verdict and submits that the Tribunal left the substance of the case and addressed mundane things, adding that with the verdict, darkness would soon envelop Nigeria's democracy, if allowed to stand.
You are the lead counsel to Gen. Buhari in the Presidential Election Petition. What do you make of the verdict of the Court of Appeal?
The Tuesday judgment by the Presidential Election Petition Tribunal was a super disappointment. As far as we are concerned, that judgment did not relate to what we presented to the court.
The court appeared to have decided to adopt the addresses of respondents' counsels instead of looking at materials presented before it. Our main case was that the final result was arbitrary, and it did not emanate from the states and I believe that we adduced more than enough evidence to establish that.
The results we have before the court show that some of them were written after April 23, when the results had been purportedly announced. Some were also written before the election was conducted and if all these things are seen as components of the result announced on April 23, how else does one prove arbitrariness in the results as announced by the Independent National Electoral Commission (INEC)? So for them not to have considered a situation where results were written on the 24, 25, 26 and even 30 of April was a big shock to me. These were evidences in documents, admitted by the court as relevant documents yet the court decided to look the other way instead of considering what have been admitted as ‘relevant documents' in deciding the case.
They were before the court as evidence and the court has a duty to evaluate them but the court did not. I believe that they wrote this judgment because they felt like writing it that way. And that is why we are determined to go to the Supreme Court and present these facts before the Supreme Court and we believe that they are in a better position to assess the facts as before the court.
Some commentators have said it is judgment and not justice. Do you whole hearted agree with that position?
Absolutely, I agree with that position. There was no justice to my client and no justice to me as a lawyer. They wrote that judgment giving the impression that I did nothing as a lawyer. That is what the judgment has sold out to the ignorant outsiders and I think it was deliberate. To give the impression that oh, he did not do anything. The impression is that we have to dismiss this petition because Buhari's lawyer did nothing. That was not true. And I think that it was very deliberate. I remember that we had to fight some battles before certain things were done.
I brought a motion to file additional witness depositions, it was refused on the ground that I had not exhausted the 150 I had listed I would call but that anytime I exhausted them, I could apply for additional witness. I did not talk about additional witnesses; I talked about additional witness depositions. So for them to come later and block me to say I filed only 19 witness depositions was most unfair to me. But they could have allowed me to file additional depositions just as they allowed INEC in Atiku's case.
INEC came, more than two months late, to ask for leave to file additional depositions. They were allowed on the ground that it would be a breach of the rule of natural justice to shut them out. But to them it does not amount to a breach of natural justice to shut a petitioner out under similar circumstances. That is one.
Secondly, having disallowed me from filling for more depositions, I opted to call witnesses and we went into Chamber Conference on it and I insisted that I would call all my 150 witnesses, and they said ok you go and file the depositions of your inspection witnesses, that much we would take, may be that would satisfy you, I said ok. We went back to court and the court adjourned for me to file those witness depositions. When I filed them and served, the same court said it never gave me order to file anything. I told him that my lord you gave me order to file this, he looked at his records and said he did not.
I was then forced to file a motion to regularize what I have put before the court; but they refused the depositions, now I have the records that the adjournment was specifically made to enable me file my own additional depositions and the others were given right in the same ruling to file additional depositions. But they disallowed it.
Then I insisted on calling witnesses, but my learned friend, Olanipekun objected that we had agreed that there shall be no witnesses. I was over ruled. And the court said all my witness depositions are hereby adopted without cross examination. In the judgment, they said it was conditional that anybody could comment on it later, there was no such condition.
You said you were ambushed; how do you mean?
Yes, I said I was being ambushed and I will not walk into an ambush that I had already seen. It was at that stage that the presiding judge, Justice James Ogebe said ‘Chief Ahamba, you seem not to trust me, I am a gentleman. You will realize that I am a gentleman'. I said my lord, I am not doubting it, but a man who has been bitten by a snake jumps when he sees a harmless millipede or earthworm".
The whole court roared into laughter. Then he said don't worry yourself. I said put it down my lord that my depositions have been adopted. These are the same depositions they struck out at the final judgment after disallowing me file new ones.
I felt that to me as a lawyer, it was most unfair to present to the world a scenario that was totally inconsistent with what happened in court. And to my client, documents that are before the court, admitted and officially certified do not require any oral backup.
They are evidence before the court and can be used. Apart from that, the Supreme Court has ruled that where parties have agreed that documents be admitted, that are to be addressed on, you don't need oral evidence any more. This is the position of the law but in this particular case it appeared something else happened.
So I will pack all these things to the Supreme Court and say see what I have seen in the court below, is it right? if it is right well, but if not then, please, correct it because if this stays then that would be what the court want elections to be. A situation where electoral frauds are perpetrated, only for judicial stamp of approval to be given to it, is like saying that electoral bodies should do whatever they like and the court will stamp it. All along INEC has been very recalcitrant on making available to us documents that we needed. It was when I threatened to commit Iwu that INEC grudgingly made them available.
The court's order was made on May14, we had no access to those documents until September. If a court has made an order for a party to go and obtain something, for the same court to refuse the party to use that thing is strange. I consider this very injudicious.
What is the implication of this on the polity or the nation's democracy?
The implication is that darkness is about to fall on the nation's democracy. It has not fallen and only the Supreme Court can stop it from falling. But if this judgment is upheld, I am sorry for the next election; in fact people should be advised to forget the tribunals and do the petition on the ground.
Could you expatiate?
What I mean is that if a party which is given responsibility to conduct an election is excised from any forms of responsibility in the conduct of that election, it means a blank cheque has been given to it to do anything it likes. The judgment of Tuesday puts no single responsibility on INEC. And if they have no responsibility, it means they could do whatever they like and this thing is starting from the Court of Appeal. We are unwittingly telling people to consider the other remedy, the self-help remedy, which some of us are fighting to ensure that does not happen because if it does, Kenya would be a child's play.
Do you consider it ironic that while Yar'Adua admitted that the elections were flawed in his inaugural speech, the court declared them free and fair?
That is for God and Man to now judge, that the tribunal did not find anything wrong with the election when the beneficiary has admitted that some part of it were wrong which is honest enough, the court has gone ahead to say you shouldn't have said that, here we find everything correct.
Imagine not having serial numbers on ballot papers somebody saying it is logistics problems; that is to say they can print currency without serial numbers, print passport without serial numbers, let the airlines start printing their tickets without serial numbers. By the way, where was the interrogatory which the Supreme Court ordered to be served on Iwu? Did you people hear it mentioned anywhere? What about the ballot
papers that were supposed to be used in April but were delivered in June, a hard evidence, did you hear anything about it? What about the documentary evidence which shows that Iwu instructed the printers of the ballot papers that no serial number should be put, what was the verdict of the tribunal on it? Nothing! In a situation where there are conflicting results from 28 states, what did the tribunal say about it, nothing. What about the total figures that gave 35 million in one and 36 million in another, all signed by Iwu, what did the tribunal say about? Nothing! Yet INEC submitted that more than 40 million votes were cast, but results were 35 and 36 million, how do you gloss over all these damning inconsistencies? For those who say Buhari and Atiku should not go to the Supreme Court, they are not patriotic.
It is left for the Supreme Court to look at all these things critically and say what it sees as the true position of things. And find whether our laws have change as far as inconsistent documents emanating from the same source is concerned. If you have two inconsistent documents, they simply cancel each other. We are talking about non-compliance, which makes the exercise invalid.
We proved that some of the figure used to arrive at the final result were compiled five days after the results had been announced, how did they then arrived at their figures? We mentioned 24 states affected by such arbitrariness. But all these things were ignored. All they cared about was that we did not prove our case. What was the responsibility of the umpire, nil. I don't think that is the law. We must ask the higher court to look at it.
Why did you not consider the documents that were on record? There were ample discrepancies in the number of voters registered, votes cast, those voided and what have you.
What was the court's decision on the inconsistencies before it? Nothing! So on what basis could the court say that we did not prove what we claimed? How else do we prove it? Now in this present case, they accepted our documents as their own, they didn't bring anything. We told the court that based on these documents, the results were invalid, they said no, based on the documents, the results were valid. Was it not now necessary for the court to now look at the documents and say whether we are right or they are right? But they just took their address and adopted it whole sale that the results were valid.
Does this make you uncomfortable?
Yes, because we are now encouraging self-help in political matters and that is a very dangerous thing. I wish to say that anarchy is a very dangerous pastime and it is an ill wind that blows nobody any good. That is why some of us are straining to see if we can correct these things than allowing people to take laws into their hands. I must commend Gen Buhari for resisting the temptation to allow the people take to the street to express their displeasure at the development.
Today it is Buhari and Atiku, nobody knows who it will be tomorrow. That is why our people say when you see a hen scattering excrement with its legs, we should pursue it because no one knows who will eat the legs. In 2003, a good number of people who felt not concerned by what happened were victims in 2007.
When 2011 comes only God knows who will be the next victim. Why don't we then correct it and act according to the laws of the land. Let there be an opportunity for people to vote freely for whoever they want and when the votes are counted, the loser can shake hands with the winner and begin to strategize for the next election. But in a situation where there is doubt everywhere, you leave people with no choice but to contest it.
How do you convince people that an election was free and fair? While, for instance, the document that showed release of election materials from Owerri in Imo State manifested only five local government areas, the rest have nothing? So who collected the materials for the rest 22 local government areas? What is the evidence showing that they were ever delivered, nil? And this was so in Oyo, Rivers and the rest of then. In Rivers State, police, SSS and Civil Defence Corps signed results sheets.
There were about 24 states without valid results. And the Practice Direction, which was made with good intention, was misapplied. When it is the petitioner, they are strict, when it comes to the respondent, it is permissive; is that the way to do it? When respondents make application, oh you don't use Practice Direction to shut out anybody, when the application is from the petitioner, oh it must be strictly applied. It is not right to do things in that way.
Are you surprised at the idea of live coverage of the judgment, because the hearing was not covered live?
I am still surprised at the idea of live coverage. We did not apply for it. We were only told there would be live coverage, and I presumed the court approved it. I am still asking myself why the Justices ordered that the camera should not be focused on them? We observed that throughout the proceedings, they did not focus on the judges.
But if we are coming to read judgment, it is not the role of the lawyers, it is the role of the Justices and if they don't want to be seen why do they allow the life coverage? Is it not to say that the petitioner did not prove anything? Why the Justices ordered that the camera should not be beamed on them is an answer, I believe, they will have to answer someday. That is not one of the ground of appeal but one cannot stop being curious why they ordered that they be not filmed on the day they were giving judgment.