Constitutional Challenges for NPP at the Supreme Court (Part II)

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GENERAL DeGAULE 11 years ago

I am also aware that all the political parties agreed with the Electoral Commission (EC) prior to the elections that, “No Verification, No Vote” and this was publicly confirmed by the Chairman of the EC just before the da ...
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I am also aware that all the political parties agreed with the Electoral Commission (EC) prior to the elections that, “No Verification, No Vote” and this was publicly confirmed by the Chairman of the EC just before the day of the elections.

Did they agree on "no verification no vote" or "no biometric verification no vote". The latter would be placing blind faith in technolgy which can fail at any time.
Mania. 11 years ago

Thanks for your comment. Which ever way, any agreement will be in conflict with the constitution and therefore illegal. This is clearly plaited Kurk and Ata. It will be injustice and fundamentally wrong to disenfranchise vo ...
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Thanks for your comment. Which ever way, any agreement will be in conflict with the constitution and therefore illegal. This is clearly plaited Kurk and Ata. It will be injustice and fundamentally wrong to disenfranchise voters because of non verification and especially so, when they have gone through other acceptable means of verication.
I will me mystified if the learn judges accept this pleading of the npp.
stanley annan 11 years ago

i agree with you. NPP is only using the court to cover their defeat.

i agree with you. NPP is only using the court to cover their defeat.
THOMAS AMPOMAH 11 years ago

After reading carefully this article, I have come to the conclusion the the writer is someone who do not understand the workings of the constitution and the other laws of the land. First, he failed to appreciate that the cons ...
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After reading carefully this article, I have come to the conclusion the the writer is someone who do not understand the workings of the constitution and the other laws of the land. First, he failed to appreciate that the constitution enjoins state institutions to make other laws that will complement it. Second, he said every citizen of 18 years is entitled to be registered to vote without recognising that the constitution did not provide any machanisms for such an exercise but enjoins the EC to make CI for the exercise of that duty. Is the writer aware that not everyone of 18 years by Dec 7 was allowed to vote? Finally, he argues that CI 75 is unconstitutional. I disagree. CI 75 is a law that the constitution itself has given the EC the power to provide to guide its elections. In every elections there are rules which govern them. The constitution do not provide any explicit rules for conducting elections but gives the EC the power to do so. finally, is the writer aware that several Ghanaians were also turn away from voting because they were not verified? Is he aware that it was because of the problems with the verification that the EC extended voting to the next day? My friend who wrote this article need a little insight into the laws of Ghana. CI 75 is never unconstitutional and no Supreme Court judge will declare it so. We should control our partisan considerations when contributing to discourses of this nature. Thanks to all for reading.
myself 11 years ago

The power given by the Constitution to make laws under it does not include the power to flout it.When the Constitution grants the right to all persons 18 and above to vote power to regulate the exercise of that right will not ...
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The power given by the Constitution to make laws under it does not include the power to flout it.When the Constitution grants the right to all persons 18 and above to vote power to regulate the exercise of that right will not include the power to disenfranchise qualified persons who wish to exercise their right to vote. To the extent that the EC purported to exercise a power under the Constitution, it would be violating it in those circumstances.
Dr. SAS, Attorney at Law 11 years ago

Good job.
Laws and rules passed by administrative bodies to effectuate a constitutional function is given great deference by the court. This is what we call in Administrative Law "The Chevron Deference" named after the semi ...
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Good job.
Laws and rules passed by administrative bodies to effectuate a constitutional function is given great deference by the court. This is what we call in Administrative Law "The Chevron Deference" named after the seminal US Supreme Court decision in Chevron USA, Inc. v. Natural resources Defense Council, Inc., 467 U.S. 837 (1984).
But the question still remains whether what the parties decided had the imprimatur of a legitimate administrative law....If it does, the rule should have been challenged before, not after the elections. If it is challenged after the elections, it will be without prejudice to the election itself; it will apply to future elections.
In any case, the foregoing point is moot since it does nothing to help the NPP case. If indeed, a voting procedure was violated, it would definitely constitute an irregularity but not per se amount to rigging. To prove rigging, the plaintiff must show by clear and convincing evidence:
a. mens rea, i.e. a guilty mind that intentionally schemed to rig the elections.
b. That the rigging was of such a nature that it resulted in a different outcome, specifically that had the rigging not occurred, the plaintiff would have clearly won the election. It is my opinion that showing that there would have been a second round will not suffice!
Under the circumstances, I doubt that the NPP will be able to meet this high standard. But even if they meet it, the court will still invoke its prudential powers to rule against NPP. Under the prudential powers, the court can refuse to rule in a certain direction if it is obvious that such ruling will lead to chaos. (Read Bush v. Gore, 531 U.S. 98 (2000).
Kofi Ata, Cambridge, UK 11 years ago

Dr SAS, thanks for your excellent contribution. I purposely left out the powers of the Supreme Court to consider the common good of the nation in making their ruling to avoid being seen as biased against the NPP but you are a ...
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Dr SAS, thanks for your excellent contribution. I purposely left out the powers of the Supreme Court to consider the common good of the nation in making their ruling to avoid being seen as biased against the NPP but you are absolutely right that, the option is available to the Justices. They could say that, though President Mahama might not have won, to avoid confusion, chaos and potential conflict let the status quo remain. Could that be a recipe for potential conflict ? That is why I left it out. Again the article was becoming too long but thanks for that contribution.
THOMAS AMPOMAH 11 years ago

I AM VERY SAD THAT THE WRITER HAS FAILED TO APPRECIATE THAT THE POWERS GIVEN TO THE EC BY THE CONSTITUTION IS IMPORTANT. CAN WE SAY THAT SINCE THE CONSTITUTION MANDATE EVERY ONE OF 18 YEARS TO VOTE SO THAT PERSON CAN GET UP O ...
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I AM VERY SAD THAT THE WRITER HAS FAILED TO APPRECIATE THAT THE POWERS GIVEN TO THE EC BY THE CONSTITUTION IS IMPORTANT. CAN WE SAY THAT SINCE THE CONSTITUTION MANDATE EVERY ONE OF 18 YEARS TO VOTE SO THAT PERSON CAN GET UP ON ELECTION DAY AND GO TO THE POLLING STATION AND TELL THE ELECTORAL OFFICERS THAT HE/SHE IS 18 SO THEY SHOULD ALLOW HIM/HER TO VOTE.NO WHERE DO THE CI 75 FLOUTS THE CONSTITUTION. THE CONSTITUTION ITSELF IS AWARE THAT ELECTIONS CAN BE RIGGED THAT IS WHY ARTICLE 64 IS PROVIDED. LET US BE CIRCUMSPECT BECAUSE WHATEVER HAPPENS IS GOING TO BE A PRECEDENT FOR THE FUTURE. HOW CAN SOME CITIZENS BE DENIED THEIR RIGHT TO VOTE SINCE THEY COULD NOT BE VERIFIED BY BIOMETRIC BUT OTHERS WERE ALLOWED TO DO SO? CAN SUCH PEOPLE ALSO GO TO COURT TO CHALLENGE THAT? CAN YOU ENVISAGE THE CONFUSION THAT WILL RESULTS FROM THAT. JUSTICE MUST BE EXERCISED FAIRLY AND FIRMLY! THANKS! THE END JUSTIFIES THE MEANS!!
Ko 11 years ago

Thomas,you sound to me like the last night's contributor called KAB.No one is saying that the EC has no legislative powers to govern the conduct of the elections.The argument is that when those secondary legislations come int ...
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Thomas,you sound to me like the last night's contributor called KAB.No one is saying that the EC has no legislative powers to govern the conduct of the elections.The argument is that when those secondary legislations come into conflict with the constitution then the constitution prevails.Your argument sounds to me like illegalities even when they ran contrally to the spirit of the constitution should hold because the ec has the right of legislation.Voting is a fundamental right and it goes to the heart of the constitution.It should take more minor than a minor mistakes to disenfranchise.As we speak now it even seems like from the ec response to the petition nothing like that took place and would soon turn out to be academic.
Kofi Ata, Cambridge, UK 11 years ago

Thomas, I never implied or said that the EC does not have powers to make rules to regulate elections. That is one of their constitutional powers. However, what I said was that, any rules, including the CI 75 that is in confli ...
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Thomas, I never implied or said that the EC does not have powers to make rules to regulate elections. That is one of their constitutional powers. However, what I said was that, any rules, including the CI 75 that is in conflict with the supreme law of the land, the Constitutional will be declared unconstitutional by the Supreme Court. I also said that even primary legislation passed by parliament would be declared unconstitutional by the Supreme Court if it contravenes the Constitution.

I added that the same applies to Executive Instruments and gave the example of Prof S Kwaku Asare versus the Attorney General when the Supreme Court ruled the Executive Instrument unconstitutional.

The question of those who were turned away is different from those who voted without the biometric verification. If they think their constitutional rights were breached, they could petition the Supreme Court though the damage caused them could not be remedied as far as the 2012 elections are concerned but for the future (if the Supreme Court rules in their favour)

I disagree with you that the article has any partisan considerations.
Dr. SAS, Attorney at Law. 11 years ago

There is a presumption that any law passed by a relevant body is in accord with the constitution and existing laws unless this presumption is rebutted by a high court through an action brought before it. There is also a presu ...
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There is a presumption that any law passed by a relevant body is in accord with the constitution and existing laws unless this presumption is rebutted by a high court through an action brought before it. There is also a presumption that latter laws are superior to former ones because statutory construction aptly assumes that all relevant laws are judiciously reviewed before the passage of latter ones. The wisdom in this presumption is that a legislative body will do its due diligence. Please do not assume otherwise.
On the question of the hierarchy of laws, please review the latin expression "Leges posteriores contriarias abrogant." It should inform your analysis.
The foregoing does not in any way take away from your otherwise excellent essay.
Zaga 11 years ago

Charleyman, I don't know you, and you might claim not to be a repository of legal knowledge all you like, but this is what I call: let superior argument prevail. The NPP and their ilk cannot recomcile with the fact that, than ...
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Charleyman, I don't know you, and you might claim not to be a repository of legal knowledge all you like, but this is what I call: let superior argument prevail. The NPP and their ilk cannot recomcile with the fact that, thanks to Nkrumah, the Ghanaian populace is much more homogenious. There is no particularly predominant tribe - that would be a figment of the imagination. The more you reject this socio-political trend, the more you become irrelevant as a body politic.
Whatever 11 years ago

My understanding of what you've stated is that there was verification done for the 306,498 voters under challenge but it wasn't done with a biometric machines as agreed at IPAC. So therefore how can the NPP claim IPAC agreeme ...
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My understanding of what you've stated is that there was verification done for the 306,498 voters under challenge but it wasn't done with a biometric machines as agreed at IPAC. So therefore how can the NPP claim IPAC agreement is legal i.e ebforcefeable and to what to extent can a behind close-door IPAC agreement take precedent over the express right to vote which is an inalienable right? Secondly resident polling station agents deployed by the NPP agreed to the reversal to manual verification and the question is, was it well within their remit to do so ? If it was, then the NPP will be sent packing. If it wasn't, Again the legal principle of PRINCIPAL-AGENCY Relationship could also be invoked against the NPP especially when the powers they gave to those agents were not explicitly marked out to begin with.
Whatever 11 years ago

Mahama cannot be liable for the deeds of the staff of EC who do not know the difference between his voice and that of Afari Gyan's own. The EC is an independent commission so Mahama cannot be blamed for its decisions or the b ...
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Mahama cannot be liable for the deeds of the staff of EC who do not know the difference between his voice and that of Afari Gyan's own. The EC is an independent commission so Mahama cannot be blamed for its decisions or the behaviour of its hired staff. In any case, his suggestion cannot be an act of control or influence because the whole EC regarded Mahama as a CANDIDATE then, not president. But the question I would like to ask the NPP is that, did the president contest the elections as a candidate or president? If he contested as a candidate then his suggestion should be seen as a suggestion of a candidate. On the other hand, if he contested as a president then he was not a candidate in the elections and could not have been declared president-elect and NPP could not have sued him in his capacity as president elect. Either way the NPP has no case.
Joseph 11 years ago

Congratulations to all discussants. This is the only time I have read sensible discussion devoid of insults on an issue. I wished all Ghanaweb discussions were like this. Once more, thanks to you.

Congratulations to all discussants. This is the only time I have read sensible discussion devoid of insults on an issue. I wished all Ghanaweb discussions were like this. Once more, thanks to you.
Paul Amuna 11 years ago

Kofi Ata, once again you have provided sound, clear and cogent and unbiased arguments on the issues at stake and I hope Ghanaians will read and value these opinions. As you indicated in resting your case, it is indeed the ard ...
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Kofi Ata, once again you have provided sound, clear and cogent and unbiased arguments on the issues at stake and I hope Ghanaians will read and value these opinions. As you indicated in resting your case, it is indeed the arduous task of the supreme justices to examine the merits of the patitioners' case.

On the balance of the arguments, I can't help feeling that their judgment will be balanced, fair and based entirely on merit and more importantly guided by defence of the Ghana constitution. These seem to tie in well with your own opinions and conclusions. Once again I thank you.
Ko 11 years ago

This particular posting appeared on Ghana web last night but unfortunately vanished by the morning.The article was heavily attacked by one contributor named KAB in indecorous language but a few took him on.The research that w ...
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This particular posting appeared on Ghana web last night but unfortunately vanished by the morning.The article was heavily attacked by one contributor named KAB in indecorous language but a few took him on.The research that went into writing the article was impressive to say the least.The analysis impeccable and the reasoning solid.Keep it up.
Kofi Ata, Cambridge, UK 11 years ago

I sent the article to Ghanaweb on Sunday evening but whilst posting a copy on Moderngahan.com, I realised some typing errors so I e-mailed the corrected version to Ghanaweb at about 10.00pm yesterday (UK time) and requested t ...
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I sent the article to Ghanaweb on Sunday evening but whilst posting a copy on Moderngahan.com, I realised some typing errors so I e-mailed the corrected version to Ghanaweb at about 10.00pm yesterday (UK time) and requested that the corrected version should be posted instead. It did not appear to us here in the UK till after 11.00am, so I did not read those earlier comments. My apology.
Nana Kissi 11 years ago

I am a real lay man when it come to legal matters but I have enjoyed all you have put out so far. Very cogent, unbiased and very educative. Thanks guys(contributers)for not throwing insults out there. I am an NPP sympathizer, ...
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I am a real lay man when it come to legal matters but I have enjoyed all you have put out so far. Very cogent, unbiased and very educative. Thanks guys(contributers)for not throwing insults out there. I am an NPP sympathizer, but the more I read these, the more depressed and angry I get for the way Nana has turned this thing into. I wish he had conceded so that we can do some introspection.
Nana Kissi 11 years ago

I mean Kofi. My iPad made it Komi. Sorry.

I mean Kofi. My iPad made it Komi. Sorry.
Paul Amuna 11 years ago

I wonder if we read the same article. How much do you know or understand of the constitution? You may have your own opinions and if so express them, but to say that the writer "does not understand" the constitution is to me a ...
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I wonder if we read the same article. How much do you know or understand of the constitution? You may have your own opinions and if so express them, but to say that the writer "does not understand" the constitution is to me an insult on what most readers perceive as intellectually sound, balanced, unbiased and if you like, based on the writer's UNDERSTANDING of the constitution.

Sadly it is you who probably does not understand the constitution. Please give us a break and hold your peace!
DAVID ATUGIYA 11 years ago

Very good piece. The arm chair lawyers have dismissed the NPP pe

Very good piece. The arm chair lawyers have dismissed the NPP pe
DAVID ATUGIYA 11 years ago

Very good piece. The arm chair lawyers have dismissed the NPP petition. Let wait to see whether the SC will uphold the submissions of the arm chair lawyers.

Very good piece. The arm chair lawyers have dismissed the NPP petition. Let wait to see whether the SC will uphold the submissions of the arm chair lawyers.
Obiri Yeboah London. 11 years ago

Thank you for your time wasted,God will richly bless you.I hope every reader will learn something out of it.

Thank you for your time wasted,God will richly bless you.I hope every reader will learn something out of it.
Joe 11 years ago

The important thing about HRA, when it comes to conuaitstiontl law. is how it interfaces with existing conuaitstiontl law. The relationship isn't so much in respect of existing rights as it is in respect of the method by whic ...
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The important thing about HRA, when it comes to conuaitstiontl law. is how it interfaces with existing conuaitstiontl law. The relationship isn't so much in respect of existing rights as it is in respect of the method by which those rights are applied to UK law.There are ways in which individual rights do relate to existing law, but they are more substantive than conuaitstiontl.HRA (unlike EU law) incorporates the convention without upsetting existing conuaitstiontl arrangements HRA allows for challenge of any law common law and primary and secondary legislation on grounds of incompatibility, but primary legislation (i.e. acts of parliament) cannot be *struck down* only declared to be incompatible (which does not effect their validity in law). This maintains the rule of parliamentary sovereignty and reflects the nature of the UK constitution (much of it works because of the influence of factors outside the law such as conuaitstiontl conventions).There are the issues of the introduction of foreign (ECtHR) jurisprudence into UK law, and the status of the HRA in terms of implied repeal (raise by Laws LJ, in the Thoburn case).To understand the relationship fully you'd have to look at the issues in claiming a breach of rights such as proportionality that were not usual in judicial review proceedings prior to HRA and other issues surrounding its comparison to conventional judicial review such as standing, treatment of groups with no group legal personality etc.You should do more reading on constit law and post more Qs if there's something in particular you don't follow. There are some lawyers and students around here but there are also lots of people with an axe to grind especially when it comes to HRA References : law grad
laomlyro 11 years ago

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Constitutional Challenges for NPP at the Supreme Court (Part II)

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