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A
Bold Supreme Court Decision
Two Perspectives
from Dr. George Ayittey of the Free Africa Foundation and
Charles Kwaku Amoo-Asante, activist at the Anti-Corruption and
Pro-Growth and Development group.
There are four possible decisions the Supreme Court (SC) can
render:
1. Dismiss or reject the petition filed by the NPP, saying it is
without merit.
2. Invalidate Mahama’s victory and award the electoral win to
Nana Akuffo-Addo.
3. The SC could acknowledge that there were some irregularities
that affected the presidential results and when these
irregularities are rectified, neither candidate secured 50
percent of the vote. Therefore, the SC may order a run-off.
4. The SC could say the election was so tainted by
irregularities that it is ordering a re-vote or do-over of the
entire election – both presidential and parliamentary.
Two experts to dilate on these possible outcomes and indicate
which option they would consider to be a “bold decision” for the
Supreme Court to take in the supreme interest of the nation.
George Ayittey
I wouldn’t want to be one of the justices ruling on this
petition. They are caught between a rock and hard place, which
is why I suspect it has taken them so long – more than 6 months
-- to come to a decision. It is not an “open and shut” case. The
fundamental problem is that the Constitution gives them little
leeway or wiggle room. The Constitution asks them to rule on a
petition, challenging the validity of the election of the
president. Therefore, a “bold decision,” in my view, is one that
thinks “outside the constitutional box” but serves the supreme
interest of the country. Keep in mind that the political
uncertainty generated by this petition has taken a heavy toll on
the economy. There are some investors who are still sitting on
the face, awaiting the Supreme Court decision.
On that basis, I will rule out Decisions 1 and 2 for the
following four reasons. First, John Mahama’s “win” is only 50.7
percent, which means nearly half of the electorate did not vote
for him. Thus, the country is deeply divided and tension remains
high. Either one of the first two decisions will alienate half
the electorate. No one can predict what their reaction will be.
Violent street protests? That certainly would exacerbate the
high anxiety and tension prevailing in the country. Already, the
uncertainty hanging over the country has done much damage to the
economy by curtailing investment.
Second, either one of the first two decisions would insert the
SC into the political fray. It would make the SC look “partisan”
and, accordingly, lose credibility as an independent
institution. This was the fate that befell Kenya’s Supreme Court
after it rejected Raila Odinga’s petition and ruled in favor of
Uhuru Kenyatta and William Ruto on March 30. Not only was
Kenya’s Supreme Court excoriated as “partisan” but there were
also allegations that the Justices had been bribed – an
allegation which the Chief Justice, Willy Mutunga, vehemently
denied (http://bit.ly/15M2Pry) But the damage had already been
done.
In the US, it may be recalled that a disputed presidential
election result in 2000 between incumbent George Bush and Al
Gore ended up at the Supreme Court, which ruled in Bush’s favor.
Now, one of the Justices, Sandra Day O’Connor (retired) has
expressed regret that the Supreme Court took up the case in the
first place. “Maybe the Court should have said, ‘We’re not going
to take it, goodbye.’ ” The case, she said, which effectively
awarded the 2000 Presidential election to George W. Bush,
“stirred up the public” and “gave the Court a less than perfect
reputation” (The New Yorker, May 7, 2013 http://bit.ly/16QlynP).
Perhaps, it might be wise for Ghana’s Supreme Court to avoid
that mistake.
Third, the Supreme Court needs to be careful about setting a
precedent, which could haunt it forever. If it decides on who
won the presidential elections, it makes itself liable to
adjudicate on all disputed presidential elections in the future.
Since any citizen of Ghana can challenge the validity of a
presidential election, an avalanche of such challenges would
land at the door of the Supreme Court, which would tie up the
Justices for months.
Fourth, Decisions 1 and 2 would amount to a breach of
bureaucratic protocol, institutional independence and separation
of powers. Ministries and government institutions have certain
specific functions to play in government or society. Similarly,
institutions have certain specific functions and prerogatives.
The creation of money and management of the country’s money
supply are the sole prerogatives of the Bank of Ghana. Elections
and declaration of winners are that of the Electoral Commission.
The function of the Supreme Court is to uphold and defend the
Constitution and the rule of law. The military is responsible
for the defense of the territorial integrity of the nation.
If there is a problem with currency issue, excess liquidity or
inflation, one does not ask the military – nor the Supreme Court
– to solve it as this would amount to usurping the function of
the Central Bank. The appropriate body or institution to solve
it is the Central Bank. Similarly, it is not the function the
Supreme Court to determine the winner or loser of a presidential
election. That is the sole prerogative of the Electoral
Commission. Asking the Supreme Court to decide who won a
presidential election in effect usurps the function of the
Electoral Commission. Therefore, if some mistakes or
irregularities have occurred in the conduct of an election, the
appropriate body or institution to fix them is the Electoral
Commission. Otherwise, the same problems (irregularities) would
re-appear in the 2016, 2020 and future presidential elections.
The arguments above make Decisions 3 and 4 preferable in my
view. Of these two, I would strike down Decision 3 – a run-off
of the presidential election – as unsatisfactory. Because by
that decision, the SC would be saying it found irregularities or
problems with the presidential results but not with the
parliamentary. If so, how come there are at least 38 petitions
challenging the parliamentary results in the courts?
Thus, by elimination, Decision 4 seems to be the most
satisfactory of them all. By this decision, the SC would be
saying that, given the incontrovertible evidence produced, it
believes that both the presidential and parliamentary elections
were so marred by “clerical errors” that a re-vote in a year’s
time is necessary. Such a decision has the following merits:
1. It is a “bold” decision which lies outside the constitutional
box but it is also “face-saving” decision – a compromise – all
can live with. The NPP can claim “victory” because its petition
was seriously “looked into.” The EC can claim it made “clerical
errors” and to err is human. The NDC keeps the presidency for a
year and the SC comes out smelling like a rose for being
independent.
2. It will be good for the economy because it removes the
uncertainty hanging over the country.
3. Above all, it will be good for the country because it gives
the country an opportunity to fix a defective electoral
commission we have had problems with since its inception in
1992. There is widespread suspicion that the EC is not
independent and Dr. Kwadwo Afari-Djan is a Rawlings protégé. It
may be recalled that the NPP boycotted the parliamentary
elections in 1992, amid allegations that the voter’s register
was inflated with over 1 million ghost names. Similar
allegations were made in 1996 about a bloated register (with 2
million fictitious names), voter intimidation by “macho-men” and
Volta “World Bank.” Time and again, there has been high tension
in the country each time Ghana votes, amid incessant allegations
of fraud.
A re-vote should give the country an opportunity to clean up the
electoral commission once and for all and make it more
transparent, independent for Ghanaians to believe in.
Obviously for a re-vote, steps must be taken to ensure that the
irregularities alleged by the NPP do not occur again and
electoral rules are strictly enforced. For example,
1. No minors will be allowed to vote,
2. Only Ghanaian nationals are eligible to vote,
3. No biometric verification, no vote
4. No duplicate pink sheets, etc.
A new or Special Electoral Commissioner must be appointed to
organize the re-vote since Dr. Afari-Djan has lost public
confidence. He is retiring anyway.
This is in the supreme interest of the country because, without
an independent EC, a free and fair election is a fantasy, which
is destined to produce electoral disputes. Africans take
elections very seriously and it must be remembered that the
destruction of an African country, regardless of the ideology,
religion or ethnicity of its leader, always always begins with a
dispute over the electoral process or transfer of power. In
recent years, electoral fraud has unleashed political violence,
civil war, deaths and destruction in Ethiopia (2005), Kenya
(2007), Zimbabwe (2008), Congo DR (2011), among others. The
adamant refusal of their respective leaders destroyed these
African countries: Liberia (1990). Somalia (1991), Burundi
(1993), Rwanda (1994), Zaire, now Congo DR, (1993), Sierra Leone
(1998), Ivory Coast (2000, 2011), Egypt (2011), Libya (2011).
This largely motivated Dr. Mo Ibrahim, the Cell-Tell billionaire
mogul, to offer a $5 million prize to any African leader who
steps down peacefully when his term expires or loses an
election. This year – and for the third time since the inception
of the prize in 2006 – he found no eligible recipient.
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Charles Kwaku Amoo-Asante
The Supreme Court Must Be Decisive, Fair, Bold, Courageous,
Objective And Independent: Ghana And The Judiciary Are On Trial.
No country can succeed without law and order. The Supreme Court
(Court or SC) as the bastion of law and order must act
decisively on the landmark case before it. The Supreme Court is
under pressure to be fair, bold, courageous, tough, objective
and independent. The Court is also under pressure to apply the
laws, election rules and agreed procedures to the evidence
before it and produce a decision that affirms the people’s faith
in the judiciary and the country. Everything is riding on the
Court’s judgment. The choice before the justices is not a choice
between Charybdis and Scylla. It is a choice between right and
wrong. It is also a path finding choice that determines the
destiny of this country. This is a choice that Supreme Court
justices are paid to make and they must apply the facts and the
evidence to the law and pronounce a fair and decisive decision
that makes Ghana a better place for others to believe in again.
The SC already set out the
issues for the trial very clearly and succinctly at the
beginning of the trial. Having set the framework the SC cannot,
and should not, be seen to be shirking its duties to uphold the
Constitution and laws of the land. If by their assessment of the
voluminous evidence and understanding of the electoral laws, the
petition lacks merit they should uphold the EC's declaration of
John Mahama as validly elected. (Option 1) If however the
evidence and applicable laws point to a reversal of the EC's
declaration, the SC should state that and ensure that the EC
should declare Nana Addo duly elected. (Option 2) Finally, if
neither candidate scored over 50% of the VALID VOTES cast, the
SC should order a run-off within 90 days (Option 3). These
outcomes are fully captured in the existing body of electoral
laws and there is no need to resort to so-called 'bold' or
'innovative' and “outside the box” but reckless decisions which
are NOT grounded in the laws of the land.
Before discussing the issues involved in the second and third
options, I would like to briefly consider some peripheral issues
that have been raised regarding the Court becoming partisan and
alienating half of the electorate if it rules against the NDC or
the NPP.
The position involving a revote of both the presidential and
parliamentary elections being advocated by some extreme
intellectuals is neither supported by the laws (or the
evidence). The SC trial focused only on the presidential
petition and the evidence presented relates only to the
presidential election. Additionally, the oft repeated comment
that '... It is NOT the role of a Supreme Court to determine the
winner or loser of a presidential election' is simplistic and
misleading. The role of the courts is to administer justice and
if they determine that one candidate was illegally and unjustly
declared to be the winner of an election, the courts must quash
that illegality and pronounce the rightful winner. The
parliamentary elections and any related petitions must be heard
and adjudicated separately. The High Courts (not the SC) have
the jurisdiction over such matters, and the SC will be
over-reaching its mandate to pronounce on parliamentary election
cases which have not yet been properly presented in the High
Courts.
A revote of both Presidential and Parliamentary elections
amounts to a twisted logic with a toxic conclusion. It is not a
bold decision. It is a bold and reckless mistake! It is a
decision that is outside the law and does no good to anyone but
creates dangerous precedent and mayhem. It is an irresponsible
suggestion. Additionally, a revote decision will increase
uncertainty in the country and throw the economy into a tailspin
and not be in the supreme interest of the country. Ghana is not
looking for a face-saving solution that makes the EC smell good.
On the contrary Ghana is looking for a verdict which says enough
is enough, a verdict that lays a foundation for a new era in our
politics. A new era devoid of political corruption, a new era
driven by reason, justice, equity and governance where leaders
are elected by the people under a free and fair election. Also,
using the figures of the contested elections which gave Mahama a
razor thin victory as the basis to indicate that the nation is
split in the middle is flawed because the recalculated results
based on the petition gives Nana Addo a landslide victory of 60%
to 39% which was stolen from him.
Further, the contention that the Supreme Court will in effect
commit a breach of bureaucracy if it awards the winner to
another candidate fails to take into consideration the law as it
stands which clearly delineates the action required by the
justices. Furthermore, the justices making a valid legal
decision based on the law and the evidence will not make them
aligned to a party especially where the evidence presented is
incontrovertible and the critics do not dispute that. If
therefore a judge becomes aligned to a party because a judge
renders a decision which supports one of the two parties in a
case before the judge then there will be judges aligned to all
winning parties in all courts which is not so. A judge will only
be considered partisan and aligned to one party if and only if
justice is not done and NOT seen to be done! This explains why
we are asking for the justices to be bold, fair, courageous,
independent, objective and decisive and use the law and the
evidence to make their decision and produce a just verdict.
Finally, the floodgates arguments are not borne from the facts
and law. The law stipulates who can challenge the election
results and the Supreme Court will not necessarily accept
frivolous lawsuits. Brining petitions about presidential
elections to the Supreme Court requires more effort that going
to see a lawyer. No one foresees any such frivolous action
simply because NPP wins the case because of incontrovertible
evidence. Petitions must be presented to the court if they have
cases and there is nothing to show that this will happen simply
because of this case.
Revise the 2012 Election Results and Invalidate Mahama’s Victory
and Award the 2012 Presidential Elections to Nana Addo Dankwa
Akufo-Addo (Option 2).
The critics to this decision contend that Nana Addo will not be
able to do much with the current make up of the legislature
(Ghana’s Parliament). The critics are wrong for a number of
reasons. First, there are about 38 cases of election petitions
for the parliamentary filed by the NPP that are yet to be
settled by the courts. Although these cases have not received as
much coverage as the presidential petition, it is believed the
courts will be emboldened to act on them expeditiously, once the
presidential petition is settled.
Second, to even entertain the critics’ argument is to agree that
any future candidate or aspirant who wins the presidency and
whose party fails to win the parliament should not be sworn in
and that the incumbent President be allowed to continue in
office because such win is "hollow" and no meaningful work could
be done by the Executive branch. What a bizarre outcome this
will be? In the US, there are cases, and they are many, in
which, the incumbent President worked with the opposition party.
Presidents Bush, Clinton and Obama have worked in opposing
members of their party in congress to formulate policies to the
benefits of their nation. So the critics’ position to the
decision to invalidate President Mahama’s victory should not be
entertained as it is not based on any empirical evidence.
Those who are arguing that it will be disruptive to change
leadership are wrong on several fronts. A change in government
through elections is not disruptive merely because the incumbent
has been displaced. To accept this notion defeats the necessity
to change party in power for nonperformance. But for the massive
irregularities, improprieties and fraud, Nana Addo would have
been declared and sworn in as the president of the Republic.
Would we then consider such legitimate transfer of power
disruptive? Should this be the argument, then there should be no
elections? After all are elections not disruptive? Are changes
in government not disruptive by itself?
There cannot be peace without justice. We know better that
justice and peace go together. So for those who are beating the
drums for peace and still maintaining that changing of power via
the powers of our laws is disruptive, let truth be told, our
legal system will not deny prosecutors the opportunity to exhume
a body for forensic evidence to convict a criminal simply
because it is disruptive to the grave and messy, would you? Must
we call acts to stop criminals from actions contrary to our
settled laws disruptive? Why then must we agree to such simple
minded arguments that application of our laws to acts or lack
thereof of unscrupulous people in our society is disruptive?
Must we proscribe such behavior to our budding democracy? No one
will say doing the right thing to preserve our laws is
disruptive and therefore if the Supreme Court deems it fit to
act this way they must!
The Supreme Court must act fairly, boldly, courageously,
independently and ensure there is justice and peace and if the
decision is unprecedented, then let it be. If unprecedented
brings justice, then that is what Ghana needs at this time. The
people of Ghana are not in any mood for compromises and
face-saving solutions. They are ready for straight talk express
approach; a radical approach that says enough is enough! No
nuances, no tricks, no winding roads, just straight solutions!
Yes, this decision by the Supreme Court will be "unprecedented”,
and will send a clear message to the Electoral Commission (EC)
and its Chairman, you cannot take the will of the Ghanaian
people for granted through collusion and fraud. This is
precisely why the petitioners are in court! We want to end
business as usual! We want to let Ghanaians and the rest of the
world know, in Ghana, the rule of law functions and the law is
SUPREME!
Run-Off (option 3)
Legally, a run-off is called for if and only if none of the
candidates crosses the 50% line. There are pundits who seek
Option 3 as a compromise (face-saving option) and not as a
result of the strict reading of the election law. Such pundits
belong to the old school of “Fa ma Nyame” (Leave it to God) and
“Gyae ma no nka”’ (Do not rock the boat). They belong to the
status quo culture of mediocrity. Such a compromise is fraught
with many issues. A compromise decision is not in the best
interest of the judiciary and the people of Ghana who are
seeking justice and peace in Ghana. The people of Ghana expect
that the Supreme Court will exercise its judicial power through
interpreting our constitution and make a decision based on
Ghana’s laws, statutes, election rules and procedures and the
preponderance of the evidence submitted by the petitioners and
render a verdict commensurate with the evidence.
To even consider such a compromise option outside the strict
legal considerations it will be worth educating readers of this
piece of the material weaknesses in Ghana’s electoral system as
discussed below.
The 2012 election petition at the Supreme Court has enabled all
Ghanaians to learn about the material weaknesses in our election
administration
Specifically, we have a deliberately compartmentalized system
which allows fraud to be perpetrated at the polling station,
constituency, district and regional collation centers as well as
in the strong room without detection. We have procurement
practices and procedures which are fraught with bribery and
corruption and lack transparency and allow needless duplicate
pink sheets to be ordered and introduced at the collation
centers. We have a voters' register which is deliberately
bloated through processes and procedures designed to bloat the
register through opaque actions including opaque reconciliation
exercise which exclude the involvement of stakeholders such as
the political parties. We have ballot paper printing, Polling
Station Sheets (Pink Sheet) printing and ballot paper accounting
and collation sheet printing and distribution procedures which
are fraudulent and designed to produce an unfair outcome for
incumbency. We have collation exercises which are corrupt and
fraudulent. We have manual systems which are designed to ensure
fraud occurs. We have deliberately excluded technology in
certain parts of the process in order to facilitate manipulation
of results, corruption and fraud to the advantage of the
incumbent. We lack adequate quality control procedures for all
aspects of the election processes which lead to the release of
erroneous results, We have untrained staff and staff who are
aligned to parties making their judgment corrupt and lacking
independence.
There is an urgent need for better established control
procedures which are agreed upon by all the parties and reviewed
by technical control experts and other professionals. Any
attempt to re-vote without newly improved and better control
procedures will lead to more acrimony and will not augur well
for Ghana. It may lead to violence and this charged emotional
environment may become uncontrollable and place Ghana in
jeopardy because people are fed up with the system of corruption
in the country.
Below is a listing a few of the concerns which space will not
allow me to adequately discuss.
• Which Elections? Is it the first round or a run off?
• What happens If the same irregularities are observed again
during the Revote or Re-Run?
• Who Will Administer and Supervise the Election? Afari Gyan and
the current EC?
• What Time Frame?
• Who Votes? What Voters’ Register? Is it the bloated register
with 6 million bloated voters?
• Who pays for the elections? The cost is prohibitive
considering the current economy of Ghana
Conclusion
We do know we live in dangerous times in Ghana considering the
violent tendencies of the ruling party as shown immediately
after the last elections, the vitriolic and high octane
utterances of threats and intimidation made on the airwaves and
the seemingly apathetic leadership to provide a lasting
solution. It has fallen onto deaf ears that the judges who will
decide to vote to reverse the travesty of the EC will be
chastised by the ruling party. Similarly, if they shy away from
their constitutional mandate but to pass the buck back to the
Ghanaian electorate to ask for re-vote or re run on a compromise
basis, they will incur the wrath of the NDC and its aparatricks.
With the NDC in power during the temporary period, the
well-being of the justices may well be in jeopardy. We know the
NDC party is full of “revolutionaries and functionaries” from
the PNDC era and they have not renounced their evil, corrupt and
violent ways which included the killing of the judges a quarter
of a century ago. Yet we strongly hold that these honorable
brave men and women of the highest court of the land should
stand firm and deliver a just verdict irrespective of their
personal affiliations for the sake of mother Ghana. As Kofi
Annan is purported to have said the Supreme Court must be fair!
Ghanaians are saying the Supreme Court must be bold, courageous,
tough and independent and render a verdict which is seen to be
just.
It is our belief that rejecting re-vote or a re-run will
definitely produce a law and order society if the judges show
courage, boldness, fairness, independence and apply the laws,
elections regulations and procedures to the evidence in court
and make a tough, firm and honest judgment in the interest of
the country. Since the whole world is watching us, it is not
farfetched that these judges by doing the right thing will get
international recognition and acclaim and may become
international celebrities who might be invited in many countries
to speak about their experiences on the Supreme Court of Ghana
during the landmark decision. It is not out of the question that
a Nobel Peace Price may fall in their laps.
Charles Kwaku Amoo-Asante
Anti-Corruption and Pro-Growth and Development Activist
Connecticut, USA
Kotoko2000@gmail.com
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