‘Would a judge in a constitutional democracy by annulling an election be interfering with a decision made by voters who are given power to choose who is to govern them? I think that Judges have a constitutional duty to annul an election where there is clear evidence of patent violations of the principles of free and fair democratic election such as the evidence of… the violation of the principle of one man one vote…’ Tsekookoo JSC, in the Dr Kizza Besigye v EC & Museveni Yoweri Kaguta, Election Petition No. 1 2006. [P.212]

There are international principles governing elections and challenging election results. For instance, Item II.3.3 of the Venice Commission’s Code of Good Practice in Electoral Matters sets out the main principles that should govern any process for challenging the outcome of an election. As a starting point, the Code states that, ‘failure to comply with the electoral law must be open to challenge before an appeal body.’ The Code notes that, ‘The procedure must also be simple… It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases.’

The Code also states that appeal bodies: ‘should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats [or votes]. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small.’

IN Resolving Election Disputes, Denis Petit of the Organisation for Security & Cooperation in Europe’s Office for Democratic Institutions and Human Rights (the OSCE/ODIHR) impresses upon us that, ‘Election disputes are inherent to elections. Challenging an election, its conduct or its results, should however not be perceived as a reflection of weakness… but proof of the strength, vitality and openness of the political system…’

The presidential election petition before Ghana’s Supreme Court, calling for some 40% of votes cast to be annulled because of allegations of malpractices, irregularities, constitutional and statutory violations, is of enormous significance to the future of Ghana’s democracy. It will be a landmark decision not because it will depart from an existing precedent but because it will put judicial flesh on existing constitutional and statutory provisions yet to be tested in a challenge to a presidential election.

Being the first, it will set precedent for future cases and it will mean both vertical stare decisis (lower courts will be bound by it) and horizontal stare decisis, as the Supreme Court will itself by inclined to be bound by the ratio of this case in similar cases in the future, even though it will not necessarily serve as an inexorable command for the future.

In his article published in the Daily Graphic, former UN Secretary General and Ghana’s foremost international statesman, Kofi Annan, stated that the fact that people cannot tell which way the Supreme Court will decide in the ongoing petition challenging the December 2012 election of President John Mahama is in itself a great testament to the professionalism, independence and integrity of the nine-member panel, presided over by Justice William Atuguba. The weight of national burden and divided national expectations on the shoulders of these nine justices is perhaps the greatest ever to have befallen any other court in our history.

This is so primarily because the case involves settling with finality the democratic choice of the holder of Executive power for over 25 million Ghanaians. Not only are the judges concerned about how the nation will respond to the decision days after it is given but how the decision will impact on public confidence in the Judiciary, its consequences on the integrity of future elections in Ghana and, perhaps, Africa, as a whole, and how future generations will view how the individual men and women on the panel stood up to this heavy responsibility. They must see it as, indeed, a special privilege and a great opportunity to do something monumental that will outlive them, etching their names forever in the landmarks of history.

While some of us have expressed some legitimate concerns over recent moves by the Court to effectively censor free speech on the merits of or issues emanating from the election petition, we appreciate the difficult position that the Court finds itself in. The Supreme Court has been put in a most sensitive position as the nation’s balance wheel. Whilst justice must remain blind and should be meted out objectively, without regard to the identity of the supplicants, the Court is fully aware that its decision in this case could, if care is not taken, tilt and spill the balance of stability of the state into instability. And, we must all in principle support the Court in its quest to install, but constitutionally acceptable control mechanisms on the PA systems of public discussions on this case.

Potential post-trial conflict

Recent comments attacking the judges or threatening mayhem must be understood for not necessarily their influential impact on the minds of the justices but on the challenges that such comments pose to securing greater public acceptance of the Court’s final decision. Thus, for instance, regardless of the intention of those calling for civil war if the court is to declare John Mahama invalidly elected and Akufo-Addo as validly elected, the court may not, a priori, be so bothered about that call influencing its decision but rather how it might sour the reaction of a sizeable section of the public to any such judgment from the bench.

Inciting messages like that above have pushed the Atuguba Court to take proactive steps to control the potency of any such potential post-decision threat to our peace and stability. As Lord Denning said in R v Commissioner of Police of the Metropolis [1978] 2 All ER 319, ‘We [as judges] must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right.’

The Kenyan Supreme Court, conscious of the nation’s recent history of political violence, in setting out issues for directions in the election petitions before it last March, warned the parties involved, right from the onset, not to discuss the case outside of the court. The parties ‘their agents and supporters or advisors [were] directed to desist from prosecuting the merits of their case on any other forum other than this court.’

Chief Justice Willy Mutanga stressed, “It is the responsibility of the advocates to advise their clients in these cases about the consequences of conduct or statement that can undermine the authority of this court.” Here in Ghana, if the politicians, the media and all of us allow, either through commission or omission, the authority of the Supreme Court to be undermined by irresponsible, incendiary comments in the mass media during this trial, we will effectively be preparing the nation for a potential post-trial conflict.

So far, apart from the Supreme Court (which permitted live broadcast of proceedings and now summoning individuals before the Court for alleged unguarded utterances), it is not yet clear what active measures the political parties, constitutional and statutory bodies like the NCCE and the National Peace Council, religious bodies, the media and civil society groups are taking to prepare the nation for the outcome of this case. We do not have time on our side and we must begin to talk to each other responsibly about this now and structure the way forward. There must be a clear national agenda to keep the peace after justice has been delivered and this agenda must be crafted and driven by all major stakeholders in order to gain broad legitimacy.

It is easy to be diddled and fizzled by daily pictures from court of Johnson Aseidu Nketia and Kwadwo Owusu Afriyie (general secretaries of their respective parties) exchanging pleasantries, chatting and laughing together. In fact, that is as far as interactions between the two parties go. No platform exist for two of the main parties in the law suit who are also the two main political parties in the country, NDC and NPP, to meet and talk and see how they can work separately and together to keep the nation together after this trial. The Judiciary is doing its bit, what is the rest of society, including the other key arm of government, the bipartisan Legislature, doing to help this all-important peace project?

The political consequences of this case are clearly far greater and complex than the issues of law to be settled and the facts to be determined. The judges, lawyers and parties are fully aware of this fact. At the beginning of Ghana’s presidential election petition trial the Supreme Court set for itself two issues to be determined: (i) Whether or not there were violations, omissions, malpractices and irregularities in the presidential election held on December 7 and 8, 2012; (ii) Whether or not these violations, omissions, malpractices and irregularities, if any, affected the result of the said election?

In order to determine these issues the Court has to look at the Constitution and the laws of the land governing the conduct of elections and election petitions; evaluate the evidence before it, after listening to all the arguments and take a decision which the Court has been empowered to by the Constitution (specifically Article 64) and the constitutional instrument, (specifically the Supreme Court (Amendment) Rules, 2012 (CI 74). As I said on Joy FM’s Newsfile programme on Saturday, June 29, the Court must confine itself to the four corners of the Constitution, the electoral laws and the evidence before it and restrain itself from exercising any policy preference that may go against the express legal position and the weight of evidence before it.

In cases of such overwhelming national interest, cleaved along the delicate bipolar axis of our politics, it is when the court chooses to downgrade or compromise clear constitutional and legal provisions in favour of some subjective, discretionary, public policy preference that we are likely to risk plunging the nation into the abyss of the undesirable. It is what one Ugandan Supreme Court judge called, transporting “the judge from the heights of legality and impartiality to the deep valleys of personal inclinations and political judgment.”

There are, for example, partisan political actors who have been making sponsored trips across the country, telling the public that the Supreme Court has not the power to ask a sworn-in President to step down and declare another candidate as validly elected. That is potentially a dangerously false statement that must not go unchallenged. Article 64 of Ghana’s 1992 Constitution reads in full as follows:

The validity of the election of the President may be challenged only by a citizen of Ghana who may present a petition for the purpose to the Supreme Court within twenty-one days after the declaration of the result of the election in respect of which the petition is presented.

A declaration by the Supreme Court that the election of the President is not valid shall be without prejudice to anything done by the President before the declaration.

The Rules of Court Committee shall, by constitutional instrument, make rules of court for the practice and procedure for petitions to the Supreme Court challenging the election of a President.

The Constitution is the status quo

The Constitution envisages no problem when it comes to invoking the Court’s powers under Article 64 where a president has been up and doing, his Ministers appointed, his government in full function, passing laws, spending taxpayers’ money et al. Thus, invalidating the election of the President will not disturb any status quo. The Constitution is the status quo. What can disturb the status quo is any action designed to sidestep the Constitution, such as refusing to accept the decision of the Court as provided under Article 64. The Constitution, ergo, makes it plenteously clear that the nine-member Atubuga Court hearing this petition is clothed with the power to declare, if persuaded by the evidence before it, that John Mahama was not validly elected or vice versa. Furthermore, per the authority stipulated under Article 64(3) of the Constitution, CI 74 has clearly laid out the practice and procedure, which includes that after having declared the election of one candidate invalid, the Court may go further, after evaluating the weight of evidence before it, to declare that another candidate was rather validly elected.

Part V of CI 74, which contains the Election Petition Forms (Form 30), is clear on the specific reliefs that a petitioner can seek when challenging a presidential election. It provides:

(1) The petitioner(s) states (state) that at the election AB, KT, MY, were candidates and the Electoral Commission has returned AB as validly elected. (2) The petitioner(s) says (say) that… (here state grounds relied on by the petitioner(s)). Therefore your petitioner(s) prays (pray) that the Supreme Court declares

that AB was not validly elected, and that KT was validly elected; …… ……………………..

It is by this prescribed format that Akufo-Addo and two others have framed their petition and further inviting the court to give any additional relief which it may deem fit as provided for in (c).

Public mood and Supreme Court decision making

As the case gets to its final stages, all eyes and ears are on the nine judges, to see any whiff of a sign of where the decision might go. A cough from the bench may even be interpreted as either pro-Addison or pro-Tsikata. Propaganda mongers are spinning themselves into butter in the hope that they may get the bench dizzy on the issues in favour of the party they support. Delivering the 1986 Reith Lectures, Lord McCluskey noted, ‘It is difficult to escape the conclusion that the choices which the system leaves the judge free to make are influenced by the judge’s personality, his instincts and preferences, his accumulated social and philosophical make-up and his sense of the public mood.’ Yes, the public mood. There has been a decent amount of research in the United States and elsewhere that suggests the Supreme Court does in fact respond to public opinion. Ghana cannot be an exception to this matter-of-fact.

As some authors have noted, ‘Considering that the United States is a democracy it is reasonable to believe, and even expect, that all of our governmental institutions are subject to public opinion. However, it is also a consideration that the Supreme Court was not originally meant to be a democratic institution in and of itself. For the most part however most people would consider it disturbing if the Supreme Court consistently went against the preferences of the public at large. It is a common argument that because the public can simply choose not to comply with Supreme Court decisions it is important for the Court to attend to the policy moods of the public. If the Court did not do this many of its decisions would go unheeded by the public and it may eventually lose its legitimacy.’

There is no doubt that the public mood is split heavily in Ghana on this election dispute, even though a scientific survey may show it tilting more favourably on one side than the other, you will, nevertheless, still find millions on both sides of the divide taking entrenched positions. Also, studying recent discussions in Ghana, public opinion sometimes tends to focus more on the attitudes of the nine justices than on the evidence before them. Some predictionists wonder whether or not the Court “will be brave enough” to “do justice” even if the petitioners prove their case. Some say the Court has a very rare opportunity to save our democracy and cannot blow it.

Some have concluded that considering the numbers involved, the evidence is too overwhelming for the Court to even attempt to protect the declaration of December 9, 2012. Some even say the Court should rule for the petitioners because the NDC are wrecking the economy. Others say the Court will use technicalities to dismiss the petition. Others say “public policy” considerations will take precedence for the Court to maintain the “status quo” and just offer proposals for future elections. Some say, this is “a court of compromise” and “for the sake of peace” (and even justice) it would settle for a re-run of the election between the top two candidates, John Mahama and Akufo-Addo.

In all this, people appear to be looking at the background of the judges, their rulings in this and other cases, who appointed them, the political atmosphere and the opinion-maker’s own partisan biases, etc. Herein lies the danger because the off-the-cuff exercise of stigmatising the justices is not likely to be informed by any analytically provable empirical evidence but by unexamined perceptions, misconceptions and rumours. We should resist the temptation to pick out individual judges, the entire panel or a section of it for public bashing. It could end up unleashing a dangerous negative force for which we never bargained.

Politics and Supreme Court decision making

The debate here in Ghana is really no different from what pertains elsewhere with the judiciary—how much is Supreme Court decision making driven by law or politics? In their seminal research, ‘Legal Constraints on Supreme Court Decision Making: Do Jurisprudential Regimes Exist?’ Jeffrey R. Lax and Kelly T. Rader of Columbia University, the authors, support the view that the law can trump politics even in the Supreme Court:

‘The problem, in our view, lies in the conception of Supreme Court decision making at the heart of some fact-pattern analyses. The implicit picture is that of simple case sorting, or routine law application. A case comes before the Court, is assessed according to some rule or balancing test, and is sorted into a ‘‘yes’’ or ‘‘no’’ bin accordingly, like separating spoons and forks from a pile of silverware.

But most Supreme Court cases are not spoons or forks. Being a Supreme Court justice is like holding a ‘‘spork’’ (pronged disposable spoons) and trying to decide whether it is more like a spoon or a fork. Arguably, even the most ideological justice would decide cases in a structured fashion, sorting out how cases will be decided depending on what the facts of the cases are—even if how those facts are weighted is based on her preferences and not traditional notions of law or the precedents handed down by the Court itself,’ they argue.

The Supreme Court is one institution that the Constitution deliberately sets out to shelter from politics. Even though personal ideologies may factor into the decisions of justices’ decision, the only argument is over how and to what extent such personal ideologies affect decisions. In their book ‘Decision Making By The Supreme Court’ (2011), Richard Pacelle Jr, Brett Curry and Bryan Marshall, the authors, pose a few searching questions: ‘Is the Supreme Court a bevy of Platonic guardians or the keepers of the covenant, or is the nation’s balance wheel? Does the Court perform a constitutional soliloquy, or is it part of a colloquy in building doctrine?’

To them decision making is a function of the opportunities for and the constraints on the Court. With the nine-member US Supreme Court as their case reference, the authors make the point that, ‘Normally the Court has two ideological wings and a centre that usually includes the median justice and is effectively the Court’s fulcrum. The Thurgood Marshalls and the Antonin Scalias are not going to be coaxed to the middle (although there is occasionally an unusual vote). They will continue to vote their sincere preferences. The key, then, lies in understanding the justices in the centre… We can conclude that, with regard to the Court as an institution, the median justice really plays a critical role.’

Find the law and apply it

The Akufo-Addo case does not necessarily call on our judges to be exceptionally activist. Their task is simply to find the law and apply it to the evidence before them. It is called interpretivism -- staying within the confines of the Constitution (or the statute). The court must simply be alert to its responsibility and mandate and avoid the kind of temptation that a Supreme Court justice of Uganda, Kanyeihamba, spoke against in Attorney General v. Paul Ssemwogerere & Hon. Zachary Olum, Const. Appeal No.3 of 2004. He said:

‘In my view, Constitutional principles and rules should always be interpreted objectively and impartially without regard to consequences except in very exceptional circumstances which do not exist in this appeal. It would be an error to construe constitutional provisions on the basis of what that construction might lead to. It is untenable in a case of this nature to suggest that the Constitutional Court or any other court has or can exercise discretionary powers and decline or grant a remedy sought by a petitioner or litigant on the basis of some extraneous issues other than judicial and constitutional…’

The Atuguba Court needs and deserves all the support and prayers the citizens of Ghana can give it; and, certainly not outright vilification. They have done enough so far to show that, by and large, they are capable of being just and fair. Let the parties in the case and their supporters concentrate on making and winning their case on the evidence before the Court.

The justices are fully aware of the responsibility entrusted on them and the people must trust them to deliver justice. As the authors of ‘Decision Making By The Supreme Court’ point out, ‘The authority of the Supreme Court to interpret the law and the Constitution give it an indisputable measure of legitimacy. But the Court must guard that legitimacy. The fact that its decisions help shape public policy gives it an important measure of power. The Court’s exercise of that power can enhance or diminish its legitimacy.’

The author is a barrister and the Executive Director of the Danquah Institute, an Accra-based public policy think tank. gabby@danquahinstitute.org