Interview with Professor George Ayittey on the Petition before the Supreme Court
By George Nyavor

Nyavor: Prof, as you know, the Supreme Court is holding hearings on the petition filed by Nana Akuffo-Addo and two other NPP members, challenging the results of the Dec 2012 elections. May I interview you about your thoughts on the proceedings?

Ayittey: Well, I am not a lawyer or a constitutional expert; neither do I belong to any political party in Ghana or the U.S.

Nyavor: It does not matter. Many people hold an opinion on how the Supreme Court should rule. I just wanted to know what your opinion is.

Ayittey: Well, I have no opinion on how the Supreme Court should rule except to say that it should avoid the mistakes made by the Supreme Court in Kenya add Venezuela which also handled a similar case.

Nyavor: How similar were the two cases?

In Kenya’s March 4, 2013 presidential election, Uhuru Keyatta won 50.07 percent of the vote and Raila Odinga won 43.28 percent. Only 8,000 votes separated the two. Subsequently, Odinga filed a petition before the Kenya Supreme Court, alleging election irregularities.

In Venezuela’s April 14 presidential election, the incumbent, Nicolas Maduro,, who was handpicked by the late Hugo Chavez, won 50.7 percent of the and the opposition leader, Henrique Capriles, who won 48.98 percent, has refused to concede defeat.

In all three cases, incumbents managed to win by a squeak: 50.7 in Ghana in Dec; 50.07 percent in Kenya and 50.7 percent in Venezuela. In all three cases, the opposition alleged vote irregularities and fraud.

Nyavor: What were the irregularities?

Ayittey: Odinga’s Coalition for Reform and Democracy (CORD) camp alleged that:

• Though $9 million was spent by Kenya on biometric machinery and registration, people voted without biometric verification;
• There were multiple instances of “over-vote,” where the total number of ballots cast exceeded the total number of registered voters;
• There appeared to be two electoral registers – one for the presidential and the other for the parliamentary. There was a mysterious expansion of over 1 million voters in the electoral register for the presidential election but not for the parliamentary.
• The opposition also complained about the sudden break-down of bio-metric machines, necessitating an extension of voting for another day, as well as the inexplicable break-down of electronic transmission of poll results, which resulted in returning officers being summoned to Nairobi to hand in the results, which caused a 5-day delay in the announcement of the results. The opposition claimed that all these fueled speculation that the results were being “massaged.”

In Venezuela, Capriles complained of uneven playing field (the state-controlled media failed to give him air time), intimidation of his (opposition) supporters and stuffed ballot boxes. Capriles's camp said its own count of polling station tallies across the country showed that its candidate had won. Among the specific allegations:

• There were 283 voting centers where opposition observers were kicked out by ruling-party officials, in some cases violently.
• In 1,176 centers, Maduro took far more votes than Mr. Chávez himself in the October vote—which suggested vote tampering.
• In 562 centers, supporters of the ruling party accompanied voters as they cast their ballots, presumably to make sure voters plumped for Maduro.
• There were some people 120 years old who voted and there were 600,000 dead people on the voter registry.

Further, the Electoral Commission is not independent: It has 5 members; 4 picked by Chavez and 1 by the opposition. Before the vote, the Commission promised a full recount of the votes. In fact, after the initial results were released late Sunday and Maduro proclaimed victory, he said he welcomed a full recount. But after the vote, the government reversed that decision the next day, which brought thousands of protesters onto the streets, banging pots and pan – a characteristic Latin American style of protest. The street protests and ensuing violence claimed the lives of 8 people, injuring scores.

As you can see, though not exactly the same, the grievances of the NPP are similar.

Nyavor: And how did Kenya’s Supreme Court rule?

Ayittey: The Supreme Court issued a ruling rejecting the opposition the petition on March 30, 2013 and declared Uhuru Kenyatta the winner but did not give reasons for its rulings, which it promised at a later date. About two weeks later, it gave its reasons and in a slap to the Independent Electoral and Boundaries Commission (IEBC), it declared that the IEDC should not have included the invalid/spoilt votes in the calculation of the final figures and percentages.

Nyavor: Why was this a bad ruling?

It was a bad ruling on five counts. First, given the highly charged political atmosphere, they should have stayed above the fray, instead of inserting themselves into it by declaring or confirming one of the contestants as the winner. Now they risk being seen as “compromised” or “partisan,” favoring one candidate over the other.

Second, the SC ordered a re-tally of votes from 22 polling stations out of a total of 33,400. The sample was too small. Admittedly, the Supreme Court had only 6 days to make a ruling and, further, CORD (the Odinga camp) may have suggested a scrutiny of those 22 polling stations. However, if that small sample revealed evidence of irregularities, logic suggests that the large remainder must also contain irregularities that must also be scrutinized. If a portion of the meat is spoilt, would you cut it off and eat the rest?

Third, the decision did not erase the widespread suspicion that there were nefarious attempts to manipulate the results and rig the election. It was a bit of a stretch to attribute the irregularities to “clerical” or “human error.” How does one explain:

1. The sudden break-down of IT or electronic transmission of results, necessitating manual tabulation?
2. The break-down of biometric equipment, necessitating voting without biometric verification?
3. The mysterious expansion of over 1 million voters in the electoral register for the presidential election but not for the parliamentary?

Fourth, Kenya is dangerously polarized politically. Uhuru’s win of 50.07 of the vote is one the narrowest majority and the “minority” is nearly 50 percent of Kenyans who did not vote for him. That means nearly half of Kenyans were not pleased with the Supreme Court decision and will still feel aggrieved. This is dangerous because, in Africa, it takes a small group of determined mal-contents to wreak havoc and mayhem -- let alone half of the electorate.

For example, in 1985, the late General Samuel Doe held elections in Liberia. When it appeared that he was losing, he ordered the vote count halted. Ballot boxes were then transported to a secret location at the army barracks where the votes were tallied and Doe declared the winner. Charles Taylor refused to countenance this contumely and started a “bush war” with only 100 men. The rest is history. Similarly in Uganda, Yoweri Museveni started out with only 27 men.

Fifth, the Supreme Court decision did not ease but rather exacerbated tension in Kenya. The country is also deeply polarized along tribal and religious lines. Gikuyus voted for Kenyatta, Kalenjin for Ruto and Luo for Odinga. Religion or tribal politics is a very dangerous proposition in any African country. In Kenya, there is a perception that the Gilkuyus have dominated both the political and economic scenes. Of Kenya’s three presidents since independence in 1963, two – Jomo Kenyatta and Mwai Kibaki -- have been Gikuyu; Daniel arap Moi is Kalenjin. Further, the Kenyatta family are the largest land owners in Kenya and among the richest in Africa.

In Nigeria, tribal politics led to the Biafran War (1967-70). The Igbo, through their own hard work and determination, had become very successful, dominating senior positions in government, educational institutions, etc. But it bred tribal resentment and persecution, which propelled the Igbo to secede. Over 3 million – mostly Igbos – died in the ensuing war. In Rwanda, tribal politics led to the 1994 genocide, in which 1 million Tutsis were slaughtered. In Ethiopia, tribal politics has stunted that country’s growth prospects. In Ivory Coast, it was the politics of religion. The country was split into the Muslim North and Christian South after the Nov 2010 elections. Similarly in Mali, where the Muslim Tuaregs have long chafed under Christian South domination and discrimination. In Kenya, the Mombasa Republican Council, a Muslim group, is demanding secession. They were responsible for a series of attacks on polling stations in the March 4 elections. Clearly, the Kenyan Supreme Court cannot claim to be unaware of these developments. Note: Nearly all the civil wars in post colonial Africa were started by politically marginalized or excluded groups.

Nyavor: How Should Have the Supreme Court Ruled in Kenya and Venezuela? Where were the blunders made?

Ayittey: I believe that the Supreme Court blundered in two areas. First, by inserting itself into the political fray, which caused it to lose much credibility and respect. The most egregious blunder was committed by Venezuela’s Supreme Court. The election was held on Sunday, April 14. The announcement of the results sparked unrest and street protests that claimed lives and the opposition camp called for a recount. On Wednesday, April 17m, the Supreme Court rejected calls for a recount of the disputed presidential vote. The Chief Justice, Luisa Estella Morales, said that manual vote counting wasn't possible in the country. "In Venezuela, the electoral process is absolutely automated in a way that manual counting does not exist," she said in televised comments. She cited the Chávez government's 1999 constitution that "eliminated the manual electoral process." But the opposition insisted that manual vote counts do indeed exist and have been used in most votes when electronic voting machines fail.

Clearly, the Chief Justice, Luisa Estella Morales, acted improperly by rejecting publicly on television, calls for a recount when the petition had not even been filed in the Supreme Court. Before the vote on Sunday, the Electoral Commission had promised a full recount if there was a dispute. Further, Maduro himself said he would welcome a recount. But on Monday, the government reversed itself and two days later, the Supreme Court rejected calls for a recount. This makes the Supreme Court look partisan and an accomplice to a conspiracy.

In Kenya, the Supreme Court inserted itself into the political fray and looked partisan by declaring Kenyatta the winner. More importantly, however, in so doing, it violated the principle of separation of powers and prerogatives. Let me explain because this is important.

Ministries have certain specific functions to play in government or society. Ministries of Defense, Health, Transportation, etc. have specific functions. Threats to the country’s security are referred to the Ministry of Defense or Interior. If you want a new passport, you do not go to the Ministry of Health.

Similarly, institutions have certain specific functions and prerogatives. The creation of money and its management is the sole prerogative of the Bank of Ghana. Elections and declaration of winners is that of the Electoral Commission. The function of the Supreme Court is to uphold and defend the Constitution and the rule of law. It is NOT the role of a Supreme Court to determine the winner or loser of a presidential election. That is the role of the Electoral Commission.

Now, there are ELECTORAL RULES or LAWS that govern elections and they are different from the statutory laws that govern our everyday life. The ELECTORAL LAWS come into play every four years and may say that:
1. Only those 18 or 19 years old and older are eligible to vote,
2. Only Kenyan NATIONALS are allowed to vote;
3. To vote, a Kenyan must be biometrically registered, etc.

There are also electoral rules or laws pertaining to how and where the votes are to be counted; how the results are to be transmitted to the central collation center; what constitutes a spoilt ballot, an invalid ballot or a rejected ballot, etc. These are the electoral rules or laws that are known to ALL political candidates and must be followed by the Electoral Commissioner and ALL political parties.

Now, after an election a dispute may arise. The opposition may allege that:

1. Minors were allowed to vote,
2. Non-nationals were allowed to vote,
3. People voted without biometric verification,
4. The number of people who voted EXCEEDED the number of registered voters in some constituencies,
5. The number of registered voters for the presidential election exceeded the number of registered voters for the governorships and parliamentary elections,
6. Polling stations were placed at secret location unbeknown to the opposition (8 locations in the case of Ghana).
7. Other allegations of systematic fraud, etc.

When such a dispute is brought before a Supreme Court, its responsibility is to investigate and determine if the ELECTORAL LAWS were followed or broken by the Electoral Commissioner. Remember, the primary role of a Supreme Court is NOT to determine who won or lost an election but to uphold the rule of law. The Supreme Court is NOT set up to overturn a decision by the Electoral Commission. The EC must do so itself.

Nyavor: But people see the Ghana’s Supreme Court as the “final arbiter” and expect it to declare who won the Dec election.

Ayittey: That is true but the Supreme Court should avoid falling into that trap. It will lose its independence and respect if it is seen as pro-NDC or pro-NPP by declaring one candidate as the winner. Kenya’s Supreme Court blundered badly on this. By declaring Kenyatta the winner, it over-stepped its bounds and usurped the function of the Electoral Commission. It made matters worse when it later declared that invalid or spoilt votes should not have been included in the final vote count.

Under Ghana’s Constitution, the Supreme Court is only empowered to rule on the VALIDITY of an election. Accordingly, I believe, it should just stick to upholding the electoral rules. Where the rules were not followed, it means the votes there were invalid and should be thrown out. For example, if the SC finds that minors or non-nationals were allowed to vote, this would be a clear breach of the electoral laws. In this case, all that the SC can say is to tell the EC to remove ballots cast by minors and non-nationals, recount and re-tally the votes and declare whoever has the greatest number of votes the winner. That is all that a Supreme Court can do: Revert the issue back to the Electoral Commission to fix the problem -- similarly with other breaches or irregularities.

Now, if you want a higher court to do the recount and re-tabulation with the power to OVER-RULE the Electoral Commission, then you must create a special court for this purpose. In Senegal, this special court is called the Constitutional Court and in Ivory Coast it is called the Constitution Council. Such a special court rules only on electoral matters. It can decide who can contest a presidential election. In Jan 2012, Senegal’s Constitutional Court ruled that Wade can run for a third term – a ruling which sparked days of rioting. In Nov 2010, Ivory Coast’s Constitutional Council over-ruled the Electoral Commission and declared Laurent Gbagbo the winner – a decision which plunged the country into civil war. In both cases, the Constitutional Court and Council were packed by the president’s cronies and supporters.

Kenya and Ghana do not have such special courts. Their Supreme Courts do not have the power to overturn an Electoral Commission declaration. All they can say is “We found some irregularities in the results from some polling stations and ask the EC to fix them.” By accepting the EC’s lame excuse of “clerical” or “human error,” the Kenyan Supreme Court looked “partisan.”

Nyavor: What was the second blunder?

Ayittey: it pertains to the cavalier manner in which opposition grievances were handled. The Kenyan Supreme Court rejected the opposition petition out of hand and declared Kenyatta the winner. In Venezuela, it was worse. There, the Supreme Court rejected opposition calls for a recount – even before such a petition had been filed before it. Go to

To make matters worse, the president-elect, Nicolas Maduro, dismissed the opposition as “fascists.”

Opposition challenges in both Kenya and Venezuela were not handled well. As a former university professor, many a student has challenged the final grade that I gave them. To start the appeal process, they could petition the Chairman of the Department. If they so, he may refer them back to me to try and resolve the dispute. Regardless of whether the petitions are frivolous, baseless or not, we (the Chairman and I) both make every effort to give the students a FAIR hearing and attempt to resolve the matter to everyone’s satisfaction.

This is important because we never dismiss any grievance or petition out of hand as “groundless” and the Chairman strives to show that he is impartial and does not automatically side with the professor. So if a student’s grade is just 2 points short of a B+, I might upon re-grading award him those 2 points and change his grade to B+. We make this effort because we want to student to feel that he is part of the university community and that his grievance was adequately redressed to his satisfaction.

This is what I expected the Kenyan Supreme Court to do. To revert the issue back to the Electoral Commission and say, “We found some irregularities in the results from the sample of 22 polling stations. Check the results from the remaining 33,378 polling stations and make the necessary adjustments. If none of the two top candidates secure more than 50 percent of the vote then schedule a date for a run-off.”

A run-off would mop up the stench of tribalism as it would force candidates to canvass for votes or court tribal groups other than their own. It would also put to rest the suspicion that the March 4 vote was manipulated or rigged. My preference would be a re-run of the entire elections because of the high number of rejected ballots. Voters were confused. This time, however, a new Electoral Commissioner should be employed. [The current one, Isaack Hassan, cannot be trusted.] The difference in cost of running a run-off and a complete re-run is likely to be same as it is the same electorate voting again. If a portion of the meat is spoilt, the entire meat should be thrown out.

It is quite possible that correction of the irregularities and re-count may not change anything or result in a run-off and it is also possible Odinga may well lose a run-off. But doing things this way gives the aggrieved party the satisfaction that its grievance was seriously addressed and not just brushed aside. I believe this is how one keeps confidence in the electoral system as well as independence of the Supreme Court.

As it stands now, the aggrieved party may feel the Supreme Court sided with the Electoral Commission and brushed off their grievance as due to “clerical error.” This can destroy confidence in the electoral system as well as the credibility of the Supreme Court itself. As Michael Wrong wrote in the International Herald Tribune on April 2:

“Civil-society campaigners, who were briefly shocked into silence by this weekend’s Supreme Court ruling, are bracing for a long campaign in the defense of the bill of rights. One issue they will have to tackle — in a country polarized as never before — is the political disengagement of people who queued for eight hours in the sun to vote, saw the tallying process grind to a halt, digested the damning details of the petitions citing election-law violations, only to be told this botched process was free and fair after all. Odinga has predicted a surge in voter apathy given that “what has happened here is a replica, a repeat of what happened five years ago.”
A Facebook page created over the weekend captured that bitterness. Entitled “I will NEVER VOTE in a Kenyan election,” it had attracted over 25,700 likes by midday Tuesday. “We are done with Independent Judiciary, Independent Electoral Commission, we are done,” reads reads one post.. “Let all Kenyans be done with VOTING, the most useless exercise in Kenya.” (http://latitude.blogs.nytimes.com/2013/04/02/kenyattas-victory-is-a-defeat-for-kenya-and-justice/)

Nyavor: Any last word or lessons to be learned?

Ayittey: The situation in Venezuela has improved dramatically and tension haseased after intensive lobbying efforts by Brazil. As the Wall Street Journal (April 19, 2013) reported:

“Officials from Brazil and other nations lobbied Nicolás Maduro in recent days to back away from his hard-line stance and accept a review of the votes as a means to strengthen the credibility of his election, and to help calm street protests from opposition voters who believe the election was rigged.
The lobbying effort came to a head Thursday at an emergency meeting of a new Latin American security forum, called Unasur. Mr. Maduro arrived at the meeting with the audit proposal in hand. Unasur, co-founded by Brazil, stands out because it explicitly excludes the U.S.” (p.A11).

Brazilian companies and banks underpin important sectors of the Venezuelan economy and there have been concerns about political instability and widespread bloodshed in Venezuela.

The move by Maduro and elections authorities to allow a recount is a face-saving exit strategy for both that spaes the country turmoil and bloodshed. It allows opposition leaders to claim that their demands have been heard and it also strengthens the legitimacy of Mr. Maduro's presidency.

The only sad thing is that it took an outside entity – Brazil – to knock some sense into the government officials and push them to do what they should have done in the first place. Eight people are dead and scores injured because of the intransigence. Now, the Venezuela Supreme Court, which rejected outright calls for a recount, will now have to eat its own words.

As for Ghana’s Supreme Court, my heart goes out for the Justices. They are caught between a rock and a hard place. Whatever decision they come out with will displease some people. But it is not their fault. Rather, the Constitution, which may need revising:

First, there should be a Constitutional requirement that all electoral disputes be resolved before the final results are announced. This was not done in December, which is why the issue landed on the laps of the Justices.

Second, the time span between elections and the inauguration of the new president is too short for disputes to be resolved. Either move the election day to November or the inauguration day to February to allow sufficient time for the disputes to be resolved.

Third, when the election of a new president is being challenged in the Supreme Court, it would be judicious to put any inauguration on hold until the dispute is resolved. You cannot ask the Chief Justice to swear in a new president when at the same time there is a petition before her/his own court challenging the validity of his election.

Fourth, there should be time limit on the ruling. Kenya’s Supreme Court had two weeks to make a ruling and Ghana’s case has dragged on for four months.

Finally, the Supreme Court should aggressively push for a Constitutional Review. Although the current 1992 Constitution has been revised, it is still terrible. Among its defects are the following:
• A very powerful Executive who appoints:
a. The Speaker of Parliament,
b. All the Supreme Court Justices,
c. 7 of the 11-member Police Commission,
d. 30 percent of District Assemblymen
e. 11 of the 25-member Council of State
This guts separation of powers and checks and balances when the President appoints heads of the very institutions that are supposed to check his powers.
• We have too many ministers and deputy ministers – about 74 at last count for a small country.
• The Council of State has outlived its usefulness and needs to be abolished.
• We have too many parallel institutions with overlapping functions and jurisdictions.

The excessive duplication of administrative functions has gotten so dire that the government consumes all it collects in revenue, leaving little or no savings to finance investment or capital expenditures. The cost of keeping the government running (Recurrent Expenditures) has risen dramatically. In 2011, total revenue stood at GH¢12 billion (or $7.5 billion). However, Recurrent Expenditure (GH¢9 billion) plus Transfers (GH¢2.4 billion) plus Interest Payments (GH¢1.7 billion) added up to GH¢13 billion and left the government with negative savings. That, in turn, meant the government had to borrow to finance Capital Expenditures on infrastructure projects. And does the multiplicity of ministries and agencies do their work?

The absurdity of all this became apparent when the “Woyome scandal” erupted in early 2012. A businessman and self-acclaimed financier of the ruling NDC party, Alfred Woyome, received a gargantuan GH¢51 million judgment debt for the abrogation of a contract to refurbish sports stadia. It was later discovered that he had no contract with the government. Nonetheless, when the scandal broke, a plethora of government agencies and institutions with conflicting jurisdictions sprinted to investigate. They are the Police (CID), Bureau of National Investigations (BNI), the Attorney-General’s office, Auditor-General’s Office, CHRAJ, SFO, Fast Track Courts, the Public Accounts Committee of Parliament, the High Court and then on top of all these, the president set up the Economic and Organized Crimes Office (EOCO) – at least 10 of them and all this battalion of investigators are on government pay-roll. And what happened to the “Woyome Scandal”? What did this armada of investigators accomplish?