Buhari vs.Yar'Adua: the unresolved issue(s)

ON December 12, 2008, he was secure in his legal rights and ensconced in the presidential villa for a term certain on the back of a Supreme Court verdict confirming him as properly elected by over 70% of Nigerian voters.

Twenty months earlier, President Umaru Musa Yar'Adua was hanging by a slender reed, or; so it seemed, since he could neither plan long-term nor prepare for a fresh election in all the period an election petition against him was coursing through the courts. If not his Achilles' heel at the time, that 20-month limbo likely paused him on all else, but the media instead pointed somewhere at his health as a probable cause of presidential lethargy.

The press would later crater the remainder reputation of the country's Supreme Court for reaching a split verdict in Yar'Adua's favour in a case editorialised by a plurality of the media as decided solely by power-play without a scintilla of law.

"But of course", said Mr. Rotimi Akeredolu (SAN) the Nigerian Bar Association president, "Justice Niki Tobi's majority decision of the Supreme court in Buhari's election case against Yar'Adua is not the law. The dissenting judgment of Justice Oguntade (annulling the election) represents the law".

In truth, only a few things are clear in Nigeria, but the country's election law is not one of it. Since independence in 1960, Nigeria's election law has been beset by a meaningless clause asking all courts to affirm disputed elections notwithstanding any number of breaches, once it appears to the courts that the election still held in "substantial compliance with the fundamental principles and objectives of the Electoral Law".

This "substantial compliance clause", as it is called in Nigerian patois, has proved over the years to be what it is; an impossible command, because actions taken in violation of "a mandatory statute" cannot, in a round-about way, "substantially comply" with the same statute, as violated, in a contradiction of terms. Yet, this impossible clause is constantly inserted by Nigeria's federal parliament(s) into every election law for no sensible or logical reason, and worse; it is inserted without an accompanying legislative definition of what the phrase, "fundamental principles and objectives of the Electoral Law" means, as the referent that will ring-fence the boundary of permissible election malpractice.

Not hilariously, therefore, the Judges of the Supreme Court simply return the favour to Nigeria's incurious Senate and the House of Representatives; for drafting such meaningless law. The Justices anyhow deploy a rule of thumb in a patch-work adjudication of election matters on case by case basis, and they do so with some justification, since a sentence in a statute that's lacking in both clarity and certainty is not a law, anyway.

Strictly speaking then, Nigeria does not have an electoral law, and never had one, despite all of the country's yesteryear pretensions to electoral reforms. More unfortunately, the Supreme court's "save-thy-neighbour" recourse to a rule of thumb so as to make legal sense of Nigeria's legislative nonsense only causes public annoyance with frothy hisses because Nigerian people do not know...but need to know...what else must be violated in addition to the electoral law before an election can be invalidated as void.

That's the crux of the un-resolved issue in Buhari vs Yar'Adua. And at least on this point there can be no dispute, that "justice" means purpose and purpose means a norm-path to be passed so as to know right from wrong. It was ironically whilst getting lost on that norm-path that the Supreme Court lost its way; and along with it, a spatial consciousness of the overriding purpose of Buhari's election petition.

For neither Justice Sola Oguntade's dissenting judgment nor Justice Niki Tobi's lead judgment ever made clear, for all purpose, what an invalid election factually means in Nigeria, or attempted to make clear what's needed to be violated in addition to the electoral law before an election can be adjudged invalid in a court of law.

More crucially, the legal meaning of "a free and fair election" remains unknown and un-decided till date, despite a continuum of words written by the seven empanelled Supreme Court Justices and pronounced openly as final verdicts. In terms, both the lead and dissenting judgments of the Supreme Court in Buhari vs Yar'Adua can neither pass policy nor logical mustard as a matter of law; and, if viewed under the best lights, both judgments can only leave Nigeria as awkwardly as it has been since independence; without any electoral shape or form.

By not declaring a rule of law on the threshold that must not be crossed or else a cancellation of the polls in Nigeria...a duty which no other institution or authority is positioned to do, effectively...the Supreme Court utterly fails once again to guide the 50 political parties and their polling agents on impermissible electoral conduct. For all that, the Supreme Court fails the more urgent duty of guiding the Independent Electoral Commission (INEC) on the limits of its acceptable conduct at future elections.

So, there again, Nigeria has it; something ventured, nothing gained; a gruelling 20-month legal episode involving no fewer than 20 lawyers and 10 appellate court justices has ended but yielded no lesson as a binding rule for the future. Political development is thus directly stunted by the Supreme Court in a country nearing 50 years as a sovereign state that's just been left alone to continue to repeat its election mistakes without any authority to stand in the gap for a nearly riven Nigeria that's so full of intellectuals, signifying nothing, because the country's aggregate intellect is un-directed on a norm-path in all tiers of government, but rather left to wander on a primrose path of dalliance.

If an endeavour requiring reasoning alone, such as deciding once and for all the meaning and boundaries of a "free and fair election" for the sake of public order, still eludes the grasp of elite Nigerians, and has eluded both the National Assembly and the Supreme Court since 1960, what else can one confidently say Nigerians can competently do on their own without seeking the help of foreigners abroad?

Not now attempting to telescope the next election in 2011 too closely, the odds are that these same election issues would be presented again to the Supreme Court, now that the best endeavours of Yar'Adua's and Buhari's lawyers have jointly yielded no court-declared rule of conduct for all persons and authorities on election matters.

However, before that next presidential election petition arrives the Supreme court in 2012, Chief Justice Kutigi, along with Justices Niki Tobi and Sola Oguntade, shall have retired from the bench, making it impossible to make the call in advance if the next Panel of Justices will fulfil the creed of being final deciders of the meaning of a "free and fair election", or, simply defeat it.