The recent Supreme Court (S.C.) decision not to compel the Electoral Commission (E.C.) chairperson, Jean Adukwei Mensa, to mount the witness box for the 1st respondent, E.C., elicited a lot of reactions from certain individuals and one of whom was no other than the respected constitutional law expert, Prof. H.K. Prempeh.

On reading his radical albeit emotive written reaction, one’s immediate reaction was.... oh my gosh, this budding legal luminary will, one day, find himself regretting this emotional outburst, no matter his legal standing.

In other words, he’s advocating that this infamous loose statement - “any idiot can go to court” by a certain gaffe-prone General Secretary of the petitioner’s party, National Democratic Congress (N.D.C.), comes to pass every 4 years. That’s to say, the court should forgo precedent to entertain any frivolous presidential election petition, setting aside the status quo and time-tested axiom, “he who alleges must prove” but rather shift the burden of proof from the petitioner to the respondent.

That means, the S.C. should likely entertain presidential election petition frequently down the line from the likes of, for instance, Akua Donkor of Ghana Freedom Party fame and others, on frivolous fraudulent claims without the burden on them to adduce evidence to back their claims. Who is going to bear the cost of all these litigations every 4 years? Is it going to be on the taxpayers’ tap?

Talking of exact social cost here, this is, clearly, advocating for wanton judicial activism in our judicial system. Is it taken into consideration the likely possibility that throwing away judicial precedent, even in special instances, allows any shady activist judge to, conveniently, set aside precedents to do what he/she wants? Can our fragile present democratic system with regards to our wobbly judicial past and wanton allegations of judicial malpractices cope with/handle this? Isn’t this kind of radical emotional thinking, experimentation or adventurism likely to corrupt the very system we’re trying to protect? With our kind of political and judicial history, isn’t it better, and more so safer, for our judges to stick to precedents or what they know best and cautiously avoid any experimentation with our judicial system?

It only takes one determined person in the executive branch and some activist judges in the judiciary as well as some few enablers in the legislature to torpedo any seemingly credible democratic system if we were to go by such a suggestion of judicial activism or experimentation. If there is anything to go by, the recent events in the United States of America should serve as a copious caution to such radical experimentation in our system. Over 240 years of democratic constitutional rule/system/practice didn’t stop a certain MAGA president to push beyond the constitutional boundaries of that country.

This constitutional rule was nearly toppled on January 6, 2021 by some few determined individuals led by a power hungry ‘wannabe’ dictator who was then enabled by some intimidated right-wing self-interested conservatives in the legislature and some radical conservative evangelical Christians. Just imagine the outcome if the MAGA president own appointed judges hadn’t resisted the call to bypass precedents and had allowed those frivolous claims of electoral fraud to go ahead in the courts without adducing any credible evidence from the petitioners to back those fraudulent claims. Please spare us such judicial activism in our fragile system.

The simple truth is that the N.D.C. petitioner and his lawyers managed to outwit and outsmart themselves with their own legal strategies/tactics (not a mean feat in itself). They thought they were being smart with the court proceedings. Their ‘not-so credible’ witnesses, who seemed to make up their stories along in the witness box coupled with the failure to follow precedent in producing evidence (further and better particulars) appeared to have done irreparable damage to their case. Their seemingly lazy approach by not taking the pains to make available to the S.C. their own ‘alternative’ figures or results and expecting to build their case around the 1st respondent results or witness alone was, apparently, a monumental legal ‘faut pas’ that seemed to have severely injured their case right from the beginning. They appeared to be bungling along, right from the beginning, with their court filings.

Even if the judges were to be sympathetic to their cause and to be inclined to forgo precedents, they need to have something from the petitioner to compare with, but they got nothing meaningful.

One was of the view and thought that the petitioner should have an idea i.e. their own set of figures or estimation as to why they came to that conclusion that no one won the presidential election and that there should be a run-off.

The petitioner cannot be permitted to have his/her own figment of imagination about the actual figures and expected him/her to be supplied/provided with the figures by the 1st respondent own figures and then turn around to dispute them anyway if the figures don’t match their imaginative figures.

The court should be helped or afforded the opportunity to have both disputed figures from both sides i.e. the petitioner’s and that of the respondents’ to enable it to compare and contrast in order to make a determination in either way, otherwise, it’s just a mere fishing expedition/discovery trip on the part of the petitioner and his legal team because he didn’t like the outcome of the presidential election as it didn’t result in his favour. Without the petitioner’s own figures to compare with, the petitioner will continue to doubt the 1st respondent’s figures so far as the figures aren’t in the petitioner’s favour.

In 2012 National Patriotic Party’s (N.P.P.) presidential election petition, the petitioners (from N.P.P.) had their own sets of facts and figures by diligent compilation within a short space of time. They came to the court to confront theirs (further and better particulars) with that of E.C.’s to enable the court to decide on. In that instance, the then E.C. and its co-respondent, N.D.C., had no choice but to mount the witness box to defend their own evidence/results otherwise the judges would have been left with only the petitioners’ robust witness to their results/evidence (further and better particulars) to make a determination on the case. Both respondents, E.C. and the N.D.C., then couldn’t afford the luxury to close their case right after the petitioners (N.P.P.), voluntarily and confidently, closed theirs.

Why should it be different in this case and what’s so special about this petition from that of 2012 besides the obvious to warrant such a radical concession?

The petitioner is in court because he didn’t like the outcome of the presidential election but has no tangible evidence to back his case besides conjectures, feelings, innuendos and imaginations. Arguably they’re so lazy to do their own homework properly to gather evidence and compile their own sets of results. And now, they just want the court to help them to do that by resorting to the court of public opinion which is, unfortunately, prompting/inciting such emotional outbursts from such respectable individuals such as this learned professor, and forgetting that they were the ones who elected and initiated to go to the court of law in the first place.

They are their own worst enemies and thus have caused damage to their own case. It’s very irritating that the petitioner and his team of lawyers and witnesses have chosen to just curtail all the excitement they build up. No one should shed any tears for them.

Now, if this legal view or suggestion is taken seriously and allowed to hold, it’s surely going to be a big deal to the taxpayers’ purse in paving the way for ‘kwasia be nti’, ‘any idiot can go to court’ with frivolous election petition claims every 4 years without any substantial evidence, and expect the court to entertain him/her. And the question is: can we, as a society, afford the time, space and resources for that?


"Facts Are Sacred but Opinions Are Free"