Atiku vs Tinubu in the US: What is really at stake?

It is often said that there is no smoke without fire, especially the kind of “smoke” that has consistently sparked fiery questions about a person’s identity in both his personal and professional life; the kind of smoke that transcends the shores of Nigeria to the US, choking its judiciary and educational institutions. The kind of smoke around the persona of President Bola Tinubu has now caused former Vice-President Atiku Abubakar to go in search of the underlying fire in the US.

BACKGROUND

Unsatisfied with the declaration of Tinubu, candidate of the All Progressives Congress (APC), as the winner of the March presidential election by the Independent National Electoral Commission (INEC), Atiku, presidential candidate of the Peoples Democratic Party (PDP), together with Peter Obi, his Labour Party (LP) counterpart, challenged Tinubu’s victory at the presidential election petition tribunal (PEPT).

Part of the issues raised by the opposition parties include Tinubu’s failure to secure 25 per cent of votes cast in the federal capital territory (FCT), his alleged forfeiture of $460,000 in the US, his academic records alleged to have been forged and his “non-qualification due to the double nomination” of his running mate, Kashim Shettima.

The petitioners also challenged the failure of INEC to transmit election results electronically.

The PEPT gave its judgement on the matter on September 6, ruling in favour of Tinubu. The five-member panel tribunal dismissed three different petitions challenging the outcome of the presidential poll and summarily ruled that the petitions were devoid of merit.

Then, the petitioners proceeded to appeal the judgment of the tribunal at the supreme court.

THE SMOKE

There have been allegations of discrepancies in Tinubu’s academic records. It first started with allegations that he did not attend Chicago State University (CSU) as he claimed. Tinubu’s credentials show that he graduated from CSU in 1979 with a bachelor’s degree in business administration, accounting and management.

The dust on the matter was settled when CSU released a statement confirming that Tinubu attended and graduated from the institution. It, however, said US federal law prevents the institution from providing “any further information” about Tinubu without his consent or court order.

Hence, Atiku approached a US court in the northern district of Illinois seeking an order compelling CSU to release Tinubu’s academic records.

Atiku and Obi had told the PEPT that Tinubu distorted his age and has conflicting academic and personal records; and that his academic records, if released by CSU, would settle the controversy and aid the tribunal. However, Atiku could not get a court order for CSU to release the documents before the tribunal gave its judgment.

ATIKU’S SEARCH FOR ‘FIRE’ IN US

In the suit filed in the US, Atiku requested that CSU furnish him with the following records: an example of a Chicago State University diploma issued in 1979, Tinubu’s diploma certificate issued in 1979, an example of a Chicago State University diploma that “contains the same font, seal, signatures, and wording as contained in Exhibit C to the First Liu Declaration, which purports to be a CSU diploma issued to Mr Tinubu on or about June 22, 1979”, CSU documents certified and produced by Jamar Orr, an associate general counsel at CSU at the time.

The former VP requested the documents on the claim that the records Tinubu submitted to INEC were not his original certificates and that they had been altered, and that is grounds to nullify Tinubu’s election victory.

On September 19, Jeffery Gilbert of the US magistrate court granted Atiku’s request and ordered CSU to turn in Tinubu’s records within 48 hours.

Two days later, on September 21, Tinubu filed a motion seeking to stop CSU from releasing his records to Atiku. In the application before a federal judge, Tinubu asked to be joined in the suit because it is his personal information that is being sought.

The president equally questioned the authority of the magistrate to issue the order against CSU while also asking the order of the court to not be given effect until his application is determined.

In an emergency hearing that same day, Nancy Maldonado, a US district judge, agreed to extend the deadline and asked both parties to present additional arguments on September 28.

In the fresh appeal filed on Monday, Tinubu claimed that Atiku did not meet the jurisdictional requirement for the court to grant the reliefs he sought. He said contrary to the PDP candidate’s claim that the documents sought would support his suit challenging the presidential election, the applicant (Atiku) cannot use the academic records before the supreme court in Nigeria.

APPEAL DEADLINES

Section six of the election judicial proceedings practice directions, 2022, (practice direction issued by the court of appeal) provides that a notice of appeal shall be filed at the registry of the tribunal or court of appeal within 21 days in respect of a final decision, and 14 days in respect of interlocutory rulings.

However, section two of the supreme court election appeals practice directions, 2023, stipulates that an appellant shall file in the registry of the court of appeal, notice and grounds of appeal, within 14 days from the date of delivery of judgment appealed against.

That means that Atiku had till September 20 to file his appeal — which he did on September 18.

The implication of this deadline on a surface level is that Atiku can no longer present any evidence he gathers at the supreme court.

CAN EVIDENCE FROM THE US COURT BE TENDERED AGAINST TINUBU?

Given the constitutional deadlines for filing an appeal or addition of appeals, TheCable contacted Festus Ogun, a constitutional lawyer, for some clarifications.

Ogun explained that even if Atiku still had time, whatever evidence or documents he gets from the US cannot be joined in the appeal pending before the supreme court.

“If Atiku files an appeal within 14 days as stipulated in the practice direction of the supreme court 2023, then that appeal has to be decided within 60 days from the day the judgment was delivered. In the calculation of the 60 days, you need not exclude weekends and public holidays,” Ogun said.

“Any evidence got by Atiku Abubakar from the court in the US is not relevant to the appeal pending at the supreme court. It is too late, even at the tribunal. Under the first schedule to the electoral act, at the point of filing your petition, you either file or list all the documents you want to rely on at trial. Even if this document is brought up within trial after issues have been joined in the pleadings, you cannot introduce new documents. Now, imagine a judgment has already been delivered. You can only submit records that are part and parcel of the tribunal.

“The supreme court is not there for trial but to evaluate the documents that had been presented at the court of appeal and to evaluate the decision of the court of appeal. So, you cannot introduce a new issue on appeal. The supreme court cannot look at any alien or extraneous document. In fact, I am very sure none of his lawyers, very senior and respected lawyers, can introduce that document any day anyhow.

“The overall essence of why the document is being sought is maybe in furtherance of public interest or maybe a strategy for the 2027 election petition; I wouldn’t understand. But I am saying without any fear of contradiction that the document sought to be got from a US court cannot be relevant to the appeal currently pending at the supreme court.”

Asked if Tinubu can be sued or his election overturned should there be discrepancies in his academic record, Ogun said the president enjoys immunity.

“As far as I know, a criminal suit cannot be filed right about now because the president enjoys immunity under section 308 of the constitution. On the other hand, I believe that there is no reason, in my view, why his academic record should be hidden, except the president has something to hide. It is a matter of public interest,” he said.

Timi Olagunju, a lawyer and policy consultant, said it is difficult for new evidence to be introduced at the apex court. He, however, held that it is not impossible.

“The challenge with appeal is that it is difficult to introduce new evidence except those are sufficient enough to prove that without them, there will be a miscarriage of justice,” Olagunju said.

Asked if it would make any difference if the documents are discovered to have been altered, he said: “In that sense, we can now talk about if the error will be considered a technical error or errors that go to the roots of the matter. Does it constitute a miscarriage of justice? It is a very difficult and dicey matter because it would have been asked if those documents were submitted at the tribunal. So, it is difficult to introduce new evidence at the supreme court.”

On the possibility of introducing new appeals, he said: “Yes, very, if the lawyer is able to prove that without the introduction of those evidence, there is going to be a miscarriage of justice and that there is an error in the judgment of the tribunal.

“But the challenge is that in the Nigerian constitution, Tinubu can run as long as he has a secondary school leaving certificate. In my opinion, if Atiku gets those documents and there are discrepancies, it is now to institute criminal proceedings, and perjury against Tinubu. But does it disqualify him from becoming president as long as he can show a secondary school certificate, no”.

As many political pundits have noted with regard to the controversy, Tinubu’s decision to forestall or prevent the release of his records leaves certain questions begging for answers —  is there a fire behind Tinubu’s academic record? If at all there is any, how big? Is it big enough to consume his political career?