Audu’s death was unfortunate. Its timing was profoundly problematic. But what is ludicrous is what it exposed. The lack of painstakingness in our attention to important details.

There will always be hard cases in law. Cases will always lie on the fringes. And some cases will depend on competing philosophical interpretations. But when a difficulty stems from the drafting that has weak mathematical or logical foundations, the higher courts are not in any real quagmire. It is my submission that the Kogi governorship election whose result was announced on the day Audu died was conclusive. Courts in general exist to do justice and in all circumstances they must strive to ensure justice is seen to have been done. But they are by no means legislative bodies. They have legitimate powers to interpret and not to re- write laws.faleke-bello

The supreme court has powers other courts may not have. In possessing finality, it is saddled with a particular moral burden. It has wide powers to grant reliefs , give consequential orders and do complete justice. And justice it must always dig deep and do.

The Electoral act and the INEC guidelines for 2015 elections read together provide that a governorship election is conclusive, and has produced a governor-elect, if the leading candidate has met conditions demanded by section 179 of the constitution, and the margin between the two leading candidates is more than the total number of registered voters in polling units affected by cancellation, and or postponement of voting. INEC in drafting its guidelines for 2015 made the reliance on the voters register for the determination of inconclusiveness unambiguous. So it was in the contemplation of the umpire, the parties and the electorate that that the set of circumstances that materialized on the day Audu died would leave INEC with only one option – to declare the election inconclusive.

That is fairness. But it is injustice. That guideline has poor mathematical foundation. And the timing of Audu’s death threw a latent absurdity into bold relief. But anyone can argue , as the supreme court did, that the law is clear and simple. And therefore there was nothing either the INEC or the courts could do. And I will beg to differ. The law in any material circumstance is not simply a set of legal data .

Renowned legal philosopher Ronald Dworkin rightly theorized that law is interpretive. Law must have integrity. According to Dworkin, the law in any material situation is the interpretation that fits pre-existing legal data ( constitution, statutes, guidelines etc) and has the best moral appeal. APC’s Audu polled 41,353 votes more than PDP’s Idris who finished second. Total number of registered voters in the polling units affected by cancellation or postponement was 49,000. INEC deemed the election inconclusive.

However, the total number of voters cards (PVCs) issued for the affected polling units was about 25,000. A registered voter without a PVC was irredeemably ineligible to vote. So had the election gone smoothly everywhere, INEC would have expected not a single vote more than 25,000 from the affected areas. Put differently, the maximum amount of votes available at the supplementary election INEC announced for the affected areas was no more than the total number of PVCs issued – 25,000- for the affected polling units.

Mathematically therefore, Audu’s lead was absolutely insurmountable. The relevant provisions of guideline that demanded declaration of inconclusiveness under certain circumstances sought to cure a mischief. It could not have been the intention of anyone to chase shadows. Neither is any law legitimate if it is frivolous and tantamount to an expensive superfluity. A second placed contestant with even a remote mathematical probability of catching up with a leading candidate must be encouraged, protected. But an election is conclusive when the possibility of the result being affected by any supplementary election no longer exists.

If neither the law nor INEC is insistent that the aim of a supplementary election is to ensure every single registered voter exercises voting rights; if the law precludes supplementary election when the certainty of its futility is a fact; why then was Kogi governorship election in 2015 not conclusive? It must be accepted that empirical eligibility was not defined by the fact of registration , but by the possession of a PVC by a registered voter.

Inconclusiveness under the circumstances therefore must be determined by the factor on which ultimate eligibility rested. If the number of PVCs distributed is the better assessment of the probability of a supplementary election affecting the result, then what kind of justice did that guideline seek to serve? It is possible that the guideline was deliberately permissively crafted.

Severe logistical challenges impairing PVC distribution could have forced the disregard of the PVC for accreditation. Such an eventuality must be why the guideline left room for maneuver. So should INEC have declared the election conclusive? No. INEC had issued a guideline that was subservient to the electoral act, and its disregard for PVCs and card readers, and exigency. To that extent INEC’s hands were tied. INEC was therefore right to declare the election inconclusive. An umpire must obey her own rules. But who was not similarly bound? I would argue, the Supreme court. If the supreme court had courage and relied on its powers to do substantial justice which it reiterated in Amaechi vs INEC, it could have interpreted the electoral act and the INEC guideline less docilely. The injustice in Faleke was not incurable. The supreme court was invited to interrogate conclusiveness but it wringed its hands and considered it fait accompli. The court shackled itself. Only registered voters who had been issued with PVCs were eligible voters that day. That figure is firm and verifiable.

What was important was definitive eligibility on the day of the original election. The idea that more PVCs could be distributed before the supplementary cannot affect the consideration of conclusiveness of the original election. Would such a reading defeat the intentions of the framers of the electoral act or the INEC guideline? Not at all. The primary objective of the framers must be the sustenance of practicable democracy. Democracy doesn’t prescribe frivolity. Were this not the case the framers would have insisted that all elections would be inconclusive until ever polling unit in every relevant constituency has participated. But that would be unhelpful pedantry. And neither the law nor democracy is that fastidious.

The law allows the deputy governor- elect to inherit the superior position of the joint ticket in the event of the death of a governor elect . Some would then argue that INEC had not announced Audu winner. But the material event in law is not the ritual of INEC’s declaration but the correct legal interpretation of the state of affairs at the time of Audu’s demise. At the time of death INEC had accepted , approved and relied on a certain set of results to declare the election inconclusive.

If INEC’s interpretation of inconclusiveness is mathematically or jurisprudentially faulty then the fact that INEC failed to make right declaration before his death cannot deny him his rightful status and cannot defeat its implications. Subtract the insistence on a frivolous guideline, Audu, it would have been discovered, died a governor- elect . If the supreme court had laid emphasis on justice and asked itself the right questions it would have arrived at only one logical outcome.

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