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2023 presidential election court diary part 20: How Supreme Court can annul itself ~ by Emmanuel Ogebe


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The task before the Supreme Court is clear. Decades ago, the court agreed that Tinubu deserved to be prosecuted for the very same reasons that are again before them now. Case closed.

Nothing has changed since that determination in Gani Fawehinmi’s suit. Tinubu was not pardoned. In fact, he has gone on to commit additional crimes since then.

Tinubu was so scared of his unmasked past coming to haunt him that he held a tight grip on Lagos in case that was all he could achieve politically while scheming and biding his time to wheel and deal his way back to power.

As has been pointed out in recent days, Evans Enwerem

International human rights lawyer and pro-democracy advocate, Barrister Emmanuel Ogebe, at the Tribunal
International human rights lawyer and pro-democracy advocate, Barrister Emmanuel Ogebe, at the Tribunal

resigned as Senate President after his fraudulent past was exposed – following his failed crocodile tears claiming it was his late twin brother’s. At least his was the same sex. Tinubu’s younger self was a female long before transgender surgery became a thing.

Then we also had Salisu Buhari who resigned as Speaker after his dubious “Toronto” certificate was exposed.

All of these happened at a time when Tinubu’s own fraud was known but he refused to resign even back then. A southern Christian senator and a northern muslim legislator had the honor to resign but not a southern Muslim Tinubu. Honor has perished in the land even amongst the proud and honorable Yoruba tribe.

So the Supreme Court does not need anything new, although there’s more. It has been down this road before. To again fail to hold Tinubu accountable where his contemporaries had the decency to honorably resign is to simply incinerate the work of prior justices of the court who, faced with the very same person’s skullduggery, prayed that he should be held liable someday.

Even without the Chicago forgery evidence, the court can look at its own decision on Tinubu as Governor to determine the same issue of Tinubu as President.

In the prior case, the Supreme Court said Tinubu couldn’t be prosecuted then (because of immunity) till after he left office in an action brought by legendary human rights advocate Gani Fawehinmi.

The difference now is simply that this is a legal challenge by parties in an election questioning his very qualification to be president. As such the issue of their locus standi or his immunity does not even arise. This issue is foundational to his legitimacy.

Decades of election jurisprudence has defined and refined this issue. In the Paul Unongo v Aper Aku (NPP v NPN) case, the appellate court held that the election tribunal erred in dismissing the election petition on the ground that Aper Aku now enjoyed immunity from lawsuits as Governor.

Therefore the Supreme Court has the duty, nay, responsibility to complete the task undertaken by its predecessors-in-title being given a historic unfettered hand to conclude the arc of justice.

To fail to do so would be to render the labors of our heroes past, Gani and their fellow justices of that era, to be in vain.

Already, the court goofed when it forced APM to withdraw its appeal against Tinubu’s election this week.

APM had made a compelling argument concerning non-compliance with strict-liability provisos relating to nomination of running mate which Tinubu violated.

The Supreme Court claimed APM had nothing to gain even if they were right as they were not election runners up.

With due respect, that was a highly unfortunate perspective.

Firstly, if the error were grave enough to nullify the election, then notionally APM would have another chance at contesting along with other parties in a rerun. Of course, that wouldn’t be the situation if it was a runoff.

Secondly, a lot of litigants were denied judgment on the basis that they had no locus standi. In this instance, APM, which was one of the few who had standing to sue, were unduly kicked out on baseless grounds.

Thirdly, this is an issue of national importance to the citizenry. If a violation of the constitution or the election occurs, it is a public interest matter. It cannot be waved away frivolously.

The irony is that so much has happened to make this easy for the court.

A UK court did substantial justice to Nigeria despite all the failings and technicalities in Nigeria’s case including the unfortunate fact that an ex-CJN testified against Nigeria contrary to our laws and a former Nigerian AGF even gave an arbitral award against Nigeria too.

Nigeria was extremely fortunate that the level of corruption in the case was well documented and that the British judge was conscientious because it is untrue that then AGF Malami was unaware of the case till 2019.

The British court has shown the Supreme Court how to extract substantial justice despite technicalities for Nigeria’s benefit.

The American court too has made the job easier for the Supreme Court. Judge Nancy Maldonado worked hard through the weekend to produce a 31-page judgment ordering the release of Tinubu’s records for use by the Supreme Court.

Then of course, the Nigerian Supreme Court itself lay the groundwork for holding Tinubu accountable in Fawehinmi’s historic lawsuit prior.

Today’s Supreme Court must choose between siding with itself and it’s ancestors and predecessors or whether to side with the villain and villainy. In so doing, it risks ceasing to be a court but an instrument of state capture for a misruling class. And it risks the commission of class suicide.

Emmanuel Ogebe, Esq., is a prominent US-based international human rights lawyer and Nigerian pro-democracy advocate with the US NIGERIA LAW GROUP in Washington. Last month, he marked the 26th anniversary of his exile to America after abduction and torture by Gen. Abacha for demanding an investigation of the assassination of pro-democracy icon over an election annulment. He traveled to Nigeria to monitor the presidential election trial and appeal.

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