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US NIGERIA LAW GROUP’S Interim Election Suspension Report

USNLG INTERIM REPORT ON NIGERIA ELECTIONS PART 2: SUBVERSION OF THE ELECTORAL PROCESS AND THE CONSTITUTION VIA AN ORCHESTRATED ELECTION POSTPONEMENT BY NIGERIA’S RULING PARTY

Based on US NIGERIA LAW GROUP’S current election assessment mission to Nigeria, we wish to highlight additional efforts to undermine the elections and subvert the independence of the Electoral Body in Nigeria by Gen. Buhari’s ruling party following the previous assault on the judiciary.

A. SUBVERSION OF THE ELECTIONS AND AGAIN THE CONSTITUTION BY INTERFERING WITH THE INDEPENDENT NATIONAL ELECTION COMMISSION

International human rights lawyer Emmanuel Ogebe at INEC Stakeholder Briefing in Nigeria February 19, 2019

The President Buhari administration has assaulted the judiciary and eroded the rule of law on a multiplicity of levels too numerous to elaborate but some of which was enumerated in our prior report on the CJN imbroglio. It has now also attempted to interfere with the INEC whereas both the judiciary and INEC are guaranteed independence by the Constitution. Incidentally both are the primary and sole organs of government that determine election outcomes in the election process and in the litigation process respectively. To safeguard their independence, neither the head of INEC nor the head of the judiciary can be removed without 2/3 votes of the senate according to the Nigerian constitution.

On Saturday, elections were postponed overnight. Our investigation and analysis indicates that this was orchestrated.

TIMELINE LEADING TO ELECTION POSTPONEMENT

Below is a timeline of curious events leading up to the postponement:

An unverified report claimed the NSA advised that the elections be postponed or the ruling party APC would lose
Gen Buhari said in defiance of a Supreme Court judgment against his party in a state that he would get them extra judicial “justice”
Gen Buhari declared to CNN that he would not be “unseated”
Attorney General Malami wrote a memo to INEC on election postponement for the benefit of the APC
Elections were postponed

Below are the details of the self-incriminating recent statements by the president himself admitting to his displeasure with the judgment and his plans for extra-judicial “justice”:

i. “I am very disturbed by the decision that we are not allowed to participate in some processes in the election. But we have to respect the decision of the institution,” he said.

He added: “I am really saddened by the ruling of the Supreme Court, which barred APC from fielding candidates in Rivers State. The courts have barred us from participating in the general election in Rivers State.

“However, as we remain resolute in our effort to win the 2019 general election, I assure you that justice will be done.”

He declared that his administration would ensure that the Rivers State chapter of the APC gets justice despite the ruling of the Supreme Court, which struck out its appeal. – Buhari February 2019 Thisday Newspaper (on his alternative plans after the judiciary didn’t rule his way)

ii. Similarly the president in another interview was defiant about his remaining in power. The interviewer had asked the President, “This is a vibrant democracy. You came in, unseating the incumbent. Are you worried the same could happen to you?”

To this, Buhari responded, “No. Nobody would unseat me.”

He added, “I am ready to take this country forward for the next four years.” (Punch Newspaper.)

There was no deference to the will of the people as expressed in elections or acknowledgment of the closeness of the race. It was a dictatorial declaration of Gen Buhari’s intransigence.

We need to be clear that the INEC under Gen Buhari started out with inconclusive elections and has ended with postponed elections. These scenarios allowed for crass manipulation and distortions that resulted in unexpected outcomes.

iii. In another stunning public admission, the Guardian Newspaper (Jan 27, 2019) reports, “Buhari, who failed to provide details of what he meant by remote control, said: “I know how much trouble we had in the last election here. I know by remote control through so many sources how we managed to maintain the party (APC) in power in this state.” “

Three facts emerge from the above:

The existence of a presidential remote control using multiple factors to override difficult elections to retain power for the ruling party
The existence of an unknown mechanism for the ruling party to obtain extrajudicial justice even beyond the Supreme Court
The existence of nobody who can unseat Gen. Buhari despite the elections or judiciary

B. BRAZEN INTERFERENCE BY EXECUTIVE DIRECTIVE OF AGF

The Buhari administration perpetrated another violation of the constitution in the run up to the elections. The Constitution categorically provides thus:

“INEC shall not be subject to the direction or control of any authority or person”

S.158 (1) 1999 Constitution

“The powers of INEC to make its own rules, or otherwise regulate its own procedure, shall not be subject to the approval or control of the President”

Proviso to S.160

Gen. Buhari’s Attorney General wrote a memo to the INEC head as reported in the sun news online (Feb 15, 2019.) “The Attorney General of the Federation and Minister of Justice (AGF), Abubakar Malami (SAN), has asked the Independent National Electoral Commission (INEC) to postpone the governorship, National and State Houses of Assembly elections in Zamafara state in order to allow the All Progressive Congress (APC) time to participate in the polls.”

Relevant sections of the AG’s memo are highlighted below:

i.“My office received a petition from the firm of M.A. Mahmud, SAN & Co in respect of the above subject matter, requesting that the subsisting judgment in suit No: ZMS/GS/52/2018–Sanusi Liman Dan-Alhaji and 37 ors V APC be upheld and respected by INEC as the Court of Appeal has upheld the appeal in appeal No: CA/S/23/2019, thus effectively annulling the grounds upon which the purported cancellation of the APC primaries in Zamfara state by INEC was based…

ii.“In this particular instance, constraining circumstances that led to the delay in fielding a candidate were caused by INEC’s refusal to comply with the Zamfara State High Court judgment in the aforementioned suit to uphold the primaries as held. Moreover, INEC cannot foreclose the right of a political party to participate in election without recourse to the Act. By the doctrine and principle of judicial precedent, the appeal supersedes the Federal High Court position in suit no: FHC/ABJ/CS/1279/2018 -APC v INEC & 5 ors.

iii.“In view of the fact, now that the Court of Appeal has upheld the primaries as valid, the APC in Zamfara State will need a little time to catch up with its contemporaries in the election. Granting them this concession is not necessary a favour but a right that inures to all contestants under similar circumstances.

iv.“Consequent, on the above, INEC is invited to comply with the judgment of the Court of Appeal by admitting the result of the APC Zamfara state primaries and also comply with the provisions of section 38 of the Electoral Act which empowers INEC to postpone the election for the governorship, National and State Houses of Assembly election.”

From the foregoing, the following facts emerge:

The AGF was acting on the basis of a private petition in writing the letter and not on behalf of the Government of Nigeria of which he is the Chief Law Officer
The AGF is blaming INEC for “delay” and “refusal” and dictates that INEC “cannot foreclose” the party
The AGF actually admits in writing that the APC needs “a little time to catch up.”

The illicit motive could not be clearer nor more dubious – to score an advantage for a political party!

It should be recalled that ironically VP Atiku, in an earlier bid for the presidency in 2007 was himself only allowed by the Supreme Court to contest very late in the process. Atiku contested without insisting on postponement of the elections.

C. BRAZEN FORGERY, FALSIFICATION, DISTORTION OR FABRICATION OF COURT RULING

Apart from the constitution violations cited above by the AG’s directive, the very veracity of the AG’s claims on the court judgment or lack thereof as the case may be have been robustly queried by counsel in the matter.

“Ozekhome who was counsel to Senator Kabiru Marafa and 181 aggrieved members of the APC that were cited as respondents in the appeal, alleged that the AGF’s letter was anchored on lies. He said that contrary to the AGF’s claim, the Court of Appeal in Zamfara State had in the ruling that was delivered by a three-man panel led by Justice Jumai Hannatu, on Wednesday, dismissed the appeal before it after it was withdrawn. In his counter letter to INEC, Ozekhome, said: “The sole issue that came up for determination was whether Hon. Aminu Sani Jaji (the Appellant) who had filed a notice of discontinuance of his appeal on the 11th of February, 2019, under Order 11 Rules I and 5, could legally withdraw and discontinue the appeal and if so, whether Sanusi Liman Alhaji, Mukhtar Shehu Idris, Governor Abdulaziz Yari Abubakar and 35 others, could still sustain their motion filed on 8th February, 2019, which had been solely predicated on the existence of Appeal No: CA/3/23/2019”.

He said the motion the Governor Yari-led faction of the party filed through their lawyer, Mr. Magaji, SAN, prayed the appellate court to in the interim, order INEC to give effect to the January 25 judgment of a Zamfara State High Court, which recognised them as authentic candidates of the APC in the 2019 general elections. According to Ozekhome, the appellate court did not only dismiss the suit after it upheld the right of the appellant to withdraw it, “more significantly, the court held that the very motion filed by Governor Yari and the others could not be argued as it had been overtaken by events by the discontinuance and dismissal of the appeal on which it was hinged”. “

Read more at: https://www.vanguardngr.com/2019/02/zamfara-apc-crisis-ozekhome-attacks-malami-over-request-to-shift-elections/

Ozekhome argued that “there is no legal basis whatsoever for INEC to change its well informed position by acceding to the demands of M.A. Mahmud, SAN & Co, or the AGF, to ‘comply with the judgment of the Court of Appeal by admitting the results of the APC Zamfara State primaries and to also comply with the provisions of Section 38 of the Electoral Act which empowers INEC to postpone the election for the governorship, National Assembly and House of Assembly elections.’

“No such judgment exists anywhere.”

The clear facts emerging from the foregoing are that:

The Buhari regime acting ostensibly on a private petition interfered with both the Judiciary and INEC regarding the removal of CJN and election postponement respectively
The Buhari regime in both the Judiciary and INEC matters violated the constitution of Nigeria which guarantees their independence from interference
The Buhari regime in furtherance of its partisan agenda in both the Judiciary and INEC fabricated a faux court ruling on the basis of which to base or justify its unconstitutional acts
The Buhari regime stated clearly an unambiguously its displeasure with both the Judiciary and INEC for not delivering its preferred outcomes.

There is a clear pattern of desperation, constitutional violation and fabrication in the actions of the regime towards both key institutions who have a critical role in the elections.

What is obvious is that the elections have been postponed as the AGF illegally and fraudulently requested and that Gen. Buhari has as a result not been unseated. The express desires and declarations of both men have been met with the INEC postponement regardless of whatever excuses are canvassed after the fact to justify the postponement.

D. REMOTE AND IMMEDIATE CAUSES OF THE POSTPONEMENT

From the foregoing we have adduced the remote causes of the postponement as attributable to the combined effects of express declarations of Gen. Buhari and the overt action via memo of his Attorney General to give APC “a little time to catch up.”

From our investigation, there was a more immediate reason. Earlier last week, we were presented with evidence from foreign investigators that rigging equipment had been tracked from point of manufacture to the Nigerian recipient. The main opposition group the PDP has since raised the alarm that a ruling party candidate is also the contractor supplying the card reader equipment for elections results. Conflict of interest doesn’t even come close to describing this travesty. It is a clear violation of the most basic rule of fair hearing and natural justice which is – one cannot be a judge in his own case (nemo judex In casua sua.)
The exposure of the elaborate rigging machinery imported for the purpose of compromising the elections in all likelihood threw the perpetrators into a panic to rejigger their diabolical machinations.

The debilitating effect of an election postponement on travel-weary and cashed voters is that a motivated electorate is demotivated from repeating the exercise. This is an implicit tool of voter suppression that foments rigging.
Similarly the effect of the election postponement on foreign observers was additional expenses, extended stays away from home, expiring visas amongst others. Due to the regimes unfortunate diatribe against foreigners especially this development had the effect of deterring some from remaining in Nigeria. This writer for instance is booked to fly back to USA today based on the expected scheduled completion of the elections. As a pro bono initiative, we are unable to sustain the additional costs for extending like the AU, EU, USAID, IRI, NDI and other multilateral or donor funded international organizations, NGOs and entities.
Special note must be taken of the fact that in addition to the “body bag” threat of Kaduna APC governor ElRufai, the normally taciturn Chief of Staff to General Buhari and perceived cabal arrowhead, wrote a strident op ed against foreign interference. Worse still, he specifically went out of his way to name Riva Levinson, one of dozens of Americans currently in Nigeria for the elections as a Paul Manafort acolyte (Trump’s beleaguered former campaign manager.) Such personalization of an attack by the President’s Chief of Staff while petty is also pointed – it shows desperation and a lashing out at any and every. The rhetorical heat and the postponement effectively pressure these “interlopers” to run them out of town.

E. PREMEDITATED POSTPONEMENT

While it is difficult to establish empirically that the postponement was orchestrated, there is overwhelming circumstantial evidence to that effect.

Our investigations indicate that aircraft and personnel on the presidential entourage returned prematurely from Daura on the eve of the election. The entourage which was supposed to remain in Daura till after the elections flew back on Friday 15 2019 – the eve of the elections lending credence to the suspicion that at that time, the presidency was likely already aware that the elections would not hold the following day. This was before close of business on Friday and the INEC meeting conclusion.
Our investigations reveal further in one of our observation states that hundreds of poll officials trained for the elections had not been given their deployments by 7pm on Friday 15, February eve of the elections. This means it was impossible for them to travel and be in position for elections the following morning as they had not received deployment several hours after close of business on Friday. What was the logistic challenge in completing something as simple as deployment or was INEC aware that it was not going to hold elections thus the failure to notify them?

We are sharing this report for the benefit of the electorate and the international community for the sake of democracy. As people who have fought for, been imprisoned/tortured and defended our democracy going back a quarter century, this is our continuing duty. We urge Nigerians to stay the course and finish the race even if we are unable to stand with you physically. Democracy is a process not an event and it continues this weekend until we get it right.

Thank you for your urgent attention.

Emmanuel Ogebe ESQ

US NIGERIA LAW GROUP

Special Election Mission

Peaceful Polls 2 – 2019

CC: IRI NDI EOM TMG

UK/US/EU/CANADIAN/NIGERIAN PARLIAMENTS et al

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