Robert H. Jackson, a judge of the American Supreme Court, introspectively said of his court, “we are not final because we are infallible, but we are infallible only because we are final”. This is an admission by a respected jurist from America that even the Supreme Court is fallible but because of their finality, their decision is binding on all. The major pillar of democracy is a periodic, free, fair and credible election. Another pillar of democracy is rule of law and yet another important pillar of democracy is an impartial and independent judiciary. The election is purely carried on by politicians, so also is the making of the law, which forms the foundation of the election. This means that if the politicians decide today to play by the rules during elections, which they gave to themselves, and honourably accept the outcomes of elections, the judiciary will become irrelevant to the political evolution of Nigeria.
Throughout my adult life, it was only once that the American presidential election was settled by the Supreme Court and even at that, the loser at the Supreme Court, Al Gore, disagreed with the judgment but accepted it. The whole world was sympathetic to him because he won the popular vote with 50,999,897 votes to George Walker Bush’s 50,456,002 votes. But the law in America is that presidential election is won, not by popular votes, but by electoral votes. Each state is allocated an electoral vote depending on certain criteria and whoever wins the state, wins the electoral vote of the state. There is a total of 537 electoral votes and whoever wins 270 electoral votes is declared the winner irrespective of whatever is his popular vote. To make the matter more painful for Al Gore, the determinant state in dispute, Florida, was governed by Jeb Bush, the younger brother of his main opponent, George Bush. The difference in popular votes in Florida was about 300 and it was believed that some votes from some polling units were unaccounted for. Some votes were also unjustifiably excluded. Eventually, the electoral vote of Florida was added to George Bush and he scored 271 electoral votes as against Al Gore’s 266 to clinch the Presidency. It was his experience in that election that inspired him to make the popular statement that in an election everybody must ensure that not only should every vote be counted, but that every vote counts.
Whenever a judgment is given by any court, before you criticize, you must first of all ask what the law says about it. In Imo election, Emeka Ihedioha scored 273,404 votes, but did not score 25% of the votes in two third of the 27 LGAs of Imo State and was declared the winner of the election. He scored 25% in about 12 LGAs, whereas he needed to have scored 25% in about 18 LGAs to be declared the winner. INEC was, therefore, wrong in declaring him the winner because the law states that one must have the highest number of votes cast, including scoring 25% of the votes in two third of the 27 LGAs before being declared the winner. INEC would have ordered a rerun election between the first two candidates to determine the eventual winner. (Please see Section 179 of the 1999 Constitution of Nigeria as amended). Hope Uzodinma scored 96,458 votes, but claimed that his votes in 388 units amounting to about 213,667 votes were wrongfully excluded by INEC, which if added to his score will give him victory in the election by a total of about 310,125 votes. The Supreme Court agreed with him and declared him winner. The law is that INEC has no power to exclude the valid votes of a candidate.
But the cardinal question is if votes from 388 units were excluded, why would INEC go further to declare a winner, when the position of the law is that if the number of voters in the voters’ register in the polling units where elections did not hold exceed the difference between the votes garnered by the first two candidates in an election, INEC shall not declare a winner, but order a rerun to determine the eventual winner. The rerun in this case is for all the candidates in the election not only for the first two candidates. This is because the results of the final election may affect the outcome of the election. This was why Prince Abubakar Audu was not declared the winner of the Kogi election, but a rerun was rather ordered by INEC. It is obvious that by the number of votes, 213, 669, Hope Uzodimma adduced were excluded from his votes, the number of voters in the voters’ register in the 388 polling units exceed the difference between the votes of the first two candidates which stood at 273,404 – 190,364 = 83,040 on the day INEC declared Emeka Ihedioha the duly elected governor of Imo State. The Supreme Court has decided in Wike’s case that it is the number of voters in the voters’ register that is considered when determining over voting not the number of accredited voters by the card reader, so INEC’s argument of over voting based on the accredited voters as reason to exclude the results cannot be legally sustained because the votes were still less than the voters in the register of the 388 units. We must also note that if the number of accredited voters in the excluded polling units are added to the total number of accredited voters in the declared results, it may add up. So ab initio, in the eyes of the law, Emeka Ihedioha did not win the Imo State election. The blame for the electoral quagmire in Imo State should first and foremost be laid on the doorsteps of INEC.
However, is the law which holds that it is the manual register that will be considered in determining over voting rather than the card reader just? It is obvious that even if the number of votes acclaimed excluded are less than the number in the manual register but more than the accredited voters, it is commonsensical that there is over voting otherwise the whole essence of accreditation would be defeated. Unfortunately this is so because the card reader has not been recognised in the Electoral Act which also prohibits electronic voting or transmission of results (Please see Section 52(2) of the Electoral Act 2010, as amended). If the law seems unjust, INEC fails to perform its duty rightly, politicians fail to play politics fairly and by the rules, it would not be surprised for the Supreme Court to deliver judgement questionably. It is a systemic abuse and failure.
Politicians and INEC should immediately repent from their electoral dubiousness. They must realise that no condition is permanent. The unjust rules you make today may be used against you tomorrow. The Electoral Act must be urgently amended to make it rather difficult for a politician to bring in such volume of results to INEC and make it impossible for INEC to reject them. The conduct of INEC in the 2019 Imo elections must be thoroughly investigated with a view to sanctioning the erring officials to deter others in future. Our Courts must rise to such occasions to give judgement based on justice and not claim to follow rigidly some provisions of a statute that will lead to absurdity. History has shown that great jurists of the past have interpreted the law purposefully to guarantee justice, after all, one of the canons of interpretation of the law, gives judges the right to depart from the ordinary meaning of the words of a statute if applying it will lead to absurdity. It appears to me that awarding a politician votes in excess of the accredited votes looks absurd no matter the position of the law because it couldn’t have been the intendment of the framers of the law to have votes in excess of the accredited voters. Justice must not only be done but must be seen as done. Justice in Imo election may have been done but it may not have been seen as done. This means that we need to do more to sanitize our elections and make them more acceptable to all in future.
The ball is not in the judiciary’s court, it lies squarely in the politicians’ court. If the Okorocha clan and the Hope Uzodimma clan had worked together to contest under the APC ticket, Hope Uzodimma would have won outrightly and this would have prevented all this embarrassment on everybody. If the PDP had given us an Electoral Act that addressed these challenges during its 16 years sojourn at Aso Rock, they may not be on the receiving end today. If APC fails to perfect the Electoral Act today, they may be at the receiving end tomorrow. There is no doubt that history can be mad at times but history must be made all the time. Truth be told, there are periods when politics can be unfair but politicians must learn to disagree at times but accept the outcome of results for the common good of themselves and their party.
They must avoid the courts as means of settling political disagreements. Political disagreements are better settled politically through dialogue, negotiations and compromise. Four years is around the corner and the patient dog eats the fattest bone. They must realize that God rules in the affairs of men and all powers are ordained by God. He gives power to whom He wishes and we must submit ourselves to the majesty of His heavenly Lordship. The rulers of the earth may be the Kings but God is the King of kings. The judges may be the lords but God is the Lord of lords. Since history seemed to be mad in Imo election, I submit that the best authority to appeal to is God and let His will be done in Imo state.