THE six-year-old bid by some Nigerians to make former military ruler, Gen. Abdulsalami Abubakar, answer charges of human rights abuses in the United States (U.S.), has reached a decisive point.

The U.S. District Court for the Northern District of Illinois, Eastern Division, Chicago, yesterday ordered that the trial must continue.

Judge Matthew F. Kennelly, in a 10-page ruling, held: "The court denies the defendant's motion for certification of an interlocutory appeal under section 1292(b) as well as his motion for stay pending appeal."

"Certification," in the American judicial system, is an application by a party to a suit for stay of proceedings pending an appeal.

The suit was filed by elder statesman, Chief Anthony Enahoro; Hafsat, a daughter of the presumed winner of the 1993 presidential elections, the late Chief Moshood Abiola; and a prominent human rights activist, Chief Arthur Nwankwo.

The plaintiffs had, through their counsel, Mr. Kayode Oladele, at the U.S. court, accused Gen. Abubakar of involvement in the death of Abiola and the torture of some other citizens.
The plaintiffs sued under the Alien Tort Claims Act, 28 U.S.C. and 1350, and the Torture Victims Protection Act (TVPA), 28 U.S.C, 28 and 1350 (2)(a).

In August last year, Abubakar's counsel, a Washington DC-based Nigerian, Mr. Ephraim Ugwonye, had brought a motion for summary judgment. He had argued that the "act of state" doctrine precludes American courts from adjudicating the dispute and that the plaintiffs had not exhausted available remedies in Nigeria, as required by the TVPA.

To determine the objection, which was opposed by Oladele, the judge listened to "experts' opinions" on both sides. The President of the West African Bar Association (WABA) and Lagos-based lawyer, Mr. Femi Falana, among others, advised the court that the plaintiffs could not get remedy in Nigeria.

Mr. Bayo Adaralegbe, a partner in the Babalakin law firm currently in United Kingdom, was one of the "experts" for Gen. Abubakar who argued that the Nigerian legal system was capable of handling the matter.

In his ruling, Judge Kennelly held that the "act of state" doctrine did not preclude his court from determining the plaintiffs' case.

This ruling prompted Ugwonye to file an appeal and at the same time file for certification, which was dismissed yesterday.

In his written submission, Oladele had argued thus: "Section 1292 (b) certification are sparingly given and in deciding the defendant's motion, this court should note the caution given to the District Court Judges by the Seventh Circuit in Ahrenholiz vs. Board of Trustees of the University of Illinois."

The plaintiffs' lawyer had added: "The present case is unsuitable for the certification and appeal under section 1292 (b) does not present an abstract controlling legal issue and therefore must be denied."

While denying Abubakar the request, Judge Kennelly yesterday held: "The defendant's argument is misdirected. The power to change the laws of this country, including the TVPA, lies with the Congress, not the courts."

He added: "Finally, the court takes offence at the defendant's suggestion that we determined that Nigerian judges "are corrupt and inept. That is, quite simply, not so."

Kennelly held further: "Our ruling on the exhaustion issue concerned steps the former Nigerian military regime took to prevent Nigerian judges from doing their job. The court has in no way, shape, or form concluded that Nigerian judges are anything other than honourable."

He added: "From the reasons discussed above, the court denies the defendant's motion for certification of an interlocutory appeal under section 1292 (b) as well as his motion for "stay pending appeal."

Both parties were given nine months to do "discovery". This is a process where parties to a dispute exchange documents, list their witnesses and possibly take care of the issue of visas for any of their witnesses.

Speaking with The Guardian at the 21st Floor of the court at 219 South Deraborn, Downtown Chicago, Oladele said his clients would at trial convince the court that their rights were violated.

Ugwonye, on the other hand, said that he would advise his client on the way forward. The options include whether to come and defend himself in the U.S. or to reach a compromise with the plaintiffs.

He added, however, that the "utmost decision" lay with Gen. Abubakar.