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President Obama’s Shadow on Ghana’s
Elections
George B.N. Ayittey
Ghana was the first sub-Saharan African country U.S. President
Barak Obama visited in July 2009. He selected Ghana because it
was a “model of good governance, democracy and strong civil
society participation.” Kenyans were miffed that he did not
visit his fatherland and the Nigerians smelled a rat: That his
visit to Ghana was an insipid conspiracy to destabilize
Nigeria. But Nobel Laureate Wole Soyinka disagreed: A visit by
Obama would have sanctified the putrid mess called Nigeria. He
threatened to have Obama stoned if he stepped foot in the
country. Mercifully, President Obama wasn’t stoned in Ghana.
President Obama gave a rousing speech in Parliament that was
hailed across Africa to the discomfort of its aging autocrats:
quack revolutionaries and crocodile liberators, who sit tight
in office for 20, 30 and even 40 years. He ripped into them,
condemning corruption, senseless wars, and the rule of
tyranny. Some highlights of President Obama’s speech on July
11, 2009:
• Development depends upon good governance . . . That is the
ingredient which has been missing in far too many places, for
far too long. That is the change that can unlock Africa's
potential. And that is a responsibility that can only be met
by Africans.
• No country is going to create wealth if its leaders exploit
the economy to enrich themselves, or police can be bought off
by drug traffickers. No business wants to invest in a place
where the government skims 20 percent off the top, or the head
of the port authority is corrupt. No person wants to live in a
society where the rule of law gives way to the rule of
brutality and bribery. That is not democracy, that is tyranny,
and now is the time for it to end.
• History is on the side of these brave Africans and not with
those who use coups or change Constitutions to stay in power.
Africa doesn't need strongmen, it needs strong institutions.
• In the 21st century, capable, reliable, and transparent
institutions are the key to success -- strong parliaments;
honest police forces; independent judges -- (Applause); an
independent press; a vibrant private sector; a civil society.
(Applause.) Those are the things that give life to democracy,
because that is what matters in people’s everyday lives.
• As we provide this support, I have directed my
administration to give greater attention to corruption in our
human rights report.
The full speech can be read in its
entirety here: http://www.america.gov/st/texttrans-english/2009/July/20090711110050abretnuh0.1079783.html
The part that grabbed my attention was his statement that:
“Africa doesn't need strongmen, it needs strong institutions.”
At present, the strength of Ghana’s institutions is being
tested by the current dispute over the election results. So
far, we have comported ourselves admirably by remaining calm
and following the Constitution, allowing the petition process
to wend its way through the courts. We all deserve a huge
round of applause – a lesson we can teach other African
countries.
An institution is simply an established and formal ways of
doing certain things for a certain particular purpose. For
example, we have the institution of marriage because society
says if you want to have a child and raise a family, you don’t
grab just any woman from the street, rape, impregnate and then
abandon her. There are proper procedures to follow,
collectively called the institution of marriage. Similarly, we
have institutions of money, of democracy, of the media, etc.
The state also has these key state institutions: the civil
service, the judiciary, parliament, the military, the police,
the electoral commission and the central bank. For example, if
someone has stolen your goat, one does not take the law into
one’s own hands. There are certain steps and procedures one
must follow to retrieve the goat or obtain justice.
Institutions are to society what systems are to a vehicle.
Regardless of horsepower, shape or color, a vehicle is an
amalgamation of systems: ignition system, fuel system,
electrical system, cooling system, suspension system, brake
system, etc. Each system is designed for a specific purpose:
the brake system to CHECK the speed of the vehicle and stop a
run-away vehicle; the suspension system prevents the vehicle
from bouncing along the road; anti-sway bars prevent the
vehicle from rolling over; the muffler (exhaust system)
prevents the vehicle from making too much noise; and cooling
system prevents over-heating.
Each system is independent of the others and cannot be
mismatched. For example, oil, a lubricant, cannot be used as
coolant in the radiator. When a system breaks down, it must be
repaired promptly. Parts designed for one system cannot be
used to repair another. Periodic maintenance and repair are
vital for optimal operating efficiency of each system. When
all systems are operational, the vehicle is said to be in good
or top working condition.
Similarly, for purpose of governance, a society has seven key
institutions: The civil service, the judiciary, the media, the
security forces (military, the police or law-enforcement), the
electoral commission, Parliament and the Central Bank. Each
institution has a specific function to play and should not be
cross-matched with different functions. For example, the role
of the military is to defend the territorial integrity of the
nation and protect its citizens while that of the judiciary is
to enforce the rule of law and dispense justice fairly. Having
soldiers run the government is a mismatch because they are not
trained as such; only to fight and kill an enemy. The other
institutions – parliament, judiciary, police, central bank,
etc. – have specific roles to play.
For these seven institutions to operate well, they must be
independent and free of interferences from any quarter. They
must also watch each other, thereby providing institutional
checks and balances. While Parliament must watch over the
executive to ensure that it is not spending recklessly, the
President must also watch to see that judges are not on the
take. When all these institutions are working well, good
governance is said to prevail – akin to saying that a vehicle
is in good working condition when all of its systems are
working well. Thus, good governance requires, first,
independent institutions and, second, each institution to be
working well. It is not achieved by establishing a “Ministry
of Good Governance” as Tanzania did.
None of these concepts should be new as they can be found in
our own traditional system. The four institutions in a village
government are the chief (executive), Council of Elders, the
Village Court and the Village Assembly (parliament). They are
all independent and separate. All, however, must obey
customary law. It is the cord that keeps a tribe together.
Similarly, a Constitution is the yarn that weaves a modern
society together. It is the supreme law of the land and ALL
must obey it. The Supreme Court is the final court of appeal
that defends and protects it, ensuring that all laws enacted
by parliament are in compliance with the Constitution. When
ALL follow and obey the Constitution, constitutional rule or
rule of law is said to prevail. Theoretically, the Supreme
Court is more powerful than the Executive or the Legislature
(Parliament). It can strike down a parliamentary law as
“unconstitutional” and have the President “impeached” for
acting “unconstitutionally.”
When an important issue – such as the current dispute over
election results -- is before the Supreme Court (SC), ALL must
wait patiently for the justices to take their time and render
a decision. It is the final court of appeal. Its role is to
ensure that ALL obey the Constitution. The Justices did not
write the Constitution; only to enforce it. It is like our
traffic laws. The Police did not write those traffic laws;
only to enforce them. You cannot have a situation where people
overload their vehicles and drive as they like on whichever
side of the road at whatever speed. There would be mayhem,
chaos, deaths and destruction on our roads. ALL, regardless of
their station in life, must obey the same traffic laws: Drive
on the right, obey the speed limit, etc.
Similarly, you cannot have a situation where some people obey
the Constitution whilst others don’t. There would be chaos,
lawlessness and the fabric of society would be shredded. The
role of the SC is to ensure that ALL follow the Constitution –
just like in traditional Africa. ALL, including the chief,
must obey customary law. An African proverb drives home this
point that the survival of the tribe is far more important
than the individual: “Individuals don’t live to be a hundred
years old but the tribe can live for centuries.” Similarly in
modern parlance, “Ghana is bigger than John Maham and Nana
Akufo-Addo.” Ghana does not belong to the NDC nor the NPP.
John Mahama garnered only 50.7 percent, meaning nearly half
the people did not vote for him. And not all those who did not
vote for him are NPP. This is not a NDC versus NPP issue. It
is the future of Ghana as a nation, which is at stake.
Therefore, whatever we do today must be done right for the
sake of our country, its reputation, our children and future
generations.
Rushing with the inauguration of President John Mahama on Jan
7 is NOT the proper way of doing things when a petition is
before the Supreme Court (SC). This is not about the merits of
the petition; it is the SC which must decide that. We must all
wait for the SC to render that decision. Installing a new
president BEFORE the SC makes a ruling has troubling
implications and sets a dangerous precedent:
1. It shows utter disrespect and contempt for the Supreme
Court. It is the government saying the SC can go to hell and
it does not care about what the SC will say. It is going ahead
anyway with its plans to inaugurate the new president. This is
dangerous because if the government has such contempt for an
institution, why should any other body respect it? ALL,
including the President, must respect the Supreme Court and
the Constitution.
2. Charging ahead with the inauguration when the issue is
before the SC is extremely provocative. We have told the
people to be patient and allow the court process to proceed.
Why inflame the situation? Why should the people continue to
be patient when the government is not prepared to be patient?
We have a situation where some people are following the
Constitution whilst others show no inclination to do so – like
some people driving on the right while others drive on the
right. Catastrophe is inevitable.
3. Such an action puts the Chief Justice in an awkward
situation. She cannot swear in a new president while at the
same time the SC is evaluating the validity of his election.
That makes no sense. What if the SC rules that Nana Akufo-Addo
indeed won the elections? Are we going to have Nana Akufo-Addo
inaugurated and installed as the President too and end up with
two presidents – just like Ivory Coast in Nov 2010 – and add
more confusion? Why can’t we wait for the SC to make a final
ruling? What difference would it make to Ghana as a nation if
a new president is installed in June, instead of January?
Personally, I doubt if the SC would declare Nana Akufo-Addo
the winner since that would mean the SC is usurping the
functions of another institution -- the Electoral Commission
(EC). The SC won’t inject itself into vote recount, reviewing
rejected ballots, etc. That’s not its function. Its function
is to ensure that laws and procedures are followed. Most
likely, the Supreme Court would send the case back to the EC
and say, for example:
“We found credible evidence of mis-calculation. So RETABULATE
the results together with reps of the opposition parties,
using ONLY numbers on the Blue/Pink collation sheets everyone
signed. We are appointing a 3-judge panel to oversee this
re-tabulation to ensure that it is done fairly and
transparently. Then tell us and the nation the new results.
Come back to us if you any further difficulty.”
In effect, the Supreme Court would merely be reiterating what
the Electoral Commission should have done in the first place –
resolving the discrepancies BEFORE announcing the results.
This is what the U.S. Supreme Court did in the Florida dispute
in 2000. It sent the case back for a recount; it did not do
the recounting itself. And while the recount was going on,
everything – including the inauguration of President Bush –
was placed on hold.
In my view, the Supreme Court should go further: If there are
clear cases of “over-voting,” Dr. Kwadwo Afari-Gyan should be
arrested and prosecuted for breaking the law. If you have
difficulty with this proposition, then ask why a tro-tro
driver should be arrested for “over-loading.” Further,
Returning Officers who did not sign the collation sheets, as
well as those polling agents who allowed people to vote
without biometric verification, should also be arrested and
prosecuted.
This is how STRONG institutions are built. If those who run
these institutions do not themselves obey the law, then how
can the institutions enforce the law? And of what use are the
institutions and how can they ensure good governance? More
importantly, a STRONG judiciary is needed to ensure that all
institutions and everybody obey the Constitution. It is that
which shields us from tyranny. Such a judiciary should be able
to make its decisions independently – without fear or
intimidation and interference from any quarter. Unfortunately,
that has been part of the ugly legacy bequeathed to us by the
Rawlings revolution. It has shredded the moral fabric of
Ghanaian society.
Newspapers critical of the policies of the Rawlings regime
were shit-bombed in the 1990s. The Ghanaian Chronicle, Free
Press and Crusading Guide suffered such indignities. Supreme
Court Justices who made a ruling that displeased the regime
were not only intimidated but also abducted and brutally
killed. Such was the case on June 30, 1982 when three judges
-- Mr. Justice Fred Poku Sarkodee, Mrs. Justice Cecilia
Koranteng-Addow and Mr. Justice Kwadwo Adjei Agyepong --
together with a retired Army Officer, Major Sam K. Acquah,
were abducted during curfew hours from their homes, murdered
at the Bundase Military Range in the Accra Plains and their
bodies doused with petrol and set ablaze.
http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=126507
More recently in 2010, when
former Attorney-General and Minister of Justice, Betty Mould-Iddrisu
lost a number of high-profile cases against former New
Patriotic Party (NPP) officials.
The National Democratic Congress (NDC) Chairman, Dr Kwabena
Adjei threatened the judiciary, saying “We will clean it
(judiciary) if they don’t take steps to clean it. We will
clean it and let everybody everywhere blame us for interfering
in the judiciary and we will take them on … at the right time,
you will see how we clean it. There are many ways to kill a
cat.’’ The NDC had accused the Chief Justice, Mrs. Georgina
Theodora Wood, and members of the bench of a “grand
conspiracy” to ensure NDC lose cases in the courts.
That statement drew widespread condemnation, with some even
calling for the arrest and prosecution of Dr. Adjei. A retired
Supreme Court Justice, Professor Justice A. Paaku Kludze,
warned that the threat should not be taken lightly as judges
in the country may soon become targets of physical harm and
killings, just as it happened in the revolutionary regime of
Rawlings. “When a PNDC or an NDC man talks about cleaning the
judiciary, you remember in 1982 that some of them were
eliminated, physical elimination is one way of cleaning the
judiciary,” he told Citi FM. Justice Kludze said “when you use
that word, it can spread terror in the minds of some judges…I
am afraid it is very frightening. It looks like we are going
back to the days of Nkrumah or the PNDC.”
Our fate or prospects as a country depends upon allowing our
institutions to work independently and doing what they are
supposed to do. That’s what good governance is all about and
“Development depends on good governance” said President Obama
on July 11, 2009. We are doomed as a country if we allow the
executive to interfere with our institutions and prevent them
from doing what they are supposed to do. Political and
democratic maturity dictates that we should allow the SC to
make a ruling before rushing ahead to install a new president.
It is not Jphn Mahama or Nana Akufo-Addo who will save Ghana
but our collective responsibility to follow the Constitution.
It is a duty we owe to our children and also a powerful
message to send to the rest of Africa.
The inauguration ceremony is premature and should be postponed
until the Supreme Court makes a ruling – for or against the
petition.
George B. N. Ayittey
The writer is a native of Ghana and president of the Free
Africa Foundation based in Washington. He is the author of
Indigenous African Institutions, Brill (2006).
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