BALANCING SPEED WITH JUSTICE, THE TASK BEFORE THE 9 JUSTICES

By Asare “Gabby” Otchere-Darko

There is some considerable weight of apprehension across the country. On the one hand, there are people who are a fearful of trouble were the court to rule against the petitioners and there are those who fear the reaction of the ruling party were the court to rule for the petitioners. But one thing ( I hope) unites all sides of the anxiety chain, they want this case to be disposed off (not ‘speedily’, perhaps, but expeditiously and in the interest of justice).
Indeed, such is the level of this apprehension that the Editorial of the Accra Mail last week, ‘Ghana’s Peace & Security in the hands of the NPP’ said, “It may seem all so civilized - that is [NPP] resorting to court action – but many a blood-letter situation has started that way: the refusal to accept election results. Do NPP leaders in their wildest dreams think that Ghana would survive the turmoil of a disruption in the status quo? If that’s their mindset, then their naïveté approaches criminal nonchalance! Reason and wisdom must prevail as they strategise for 2016. They must listen to compatriots like Opanin Adusei, Dr Wereko-Brobby and discontinue this litigation to save our nation the trauma their action is inexorably leading us to.”

In a curious twist, Haruna Attah’s paper is asking whether the NPP was ready for the disruption that could occur if the Supreme Court gave a ruling that would disturb the ‘status quo’, meaning a decision which would invalidate the results declared by the Electoral Commission.

DISTURBING THE STATUS QUO

I find that thinking most curious because the only status quo that could be disrupted is an action that disturbs the Constitution. The Constitution provides for the Supreme Court to be the final arbiter in presidential election disputes, so a decision from the Supreme Court, whichever way it falls, should not disturb the status quo. What would disturb the status quo would be any attempt from any corner to disregard what the declaration of the court may be. Indeed, the security forces, especially the police and the armed forces, will work with what the Supreme Court, the final arbiter, decides. If the decision is that President John Mahama did not satisfy the constitutional requirement to be declared the winner in last December’s presidential election then that is the only authority that the security forces shall obey.

There are those who are pushing for the President to state publicly that he will abide by the decision of the court. But, that may not be necessary. He knows what is expected of him. The world heard him say on January 7, "I, John Dramani Mahama, having been elected to the high office of President of the Republic of Ghana do in the name of the Almighty God swear that I will be faithful and true to the Republic of Ghana; that I will at all times preserve, protect and defend the Constitution of the Republic of Ghana… I further solemnly swear that should I at any time break this oath of office; I shall submit myself to the laws of the Republic of Ghana and suffer the penalty for it. So help me God." Preserving, defending and protecting the Constitution is to abide by the declaration of the final arbiter in presidential election disputes, the Supreme Court.
Already Akufo-Addo has assured the nation that he will abide by the decision of the court. Honestly, that was even needless. Akufo-Addo has no choice but to abide by the decision. The same goes with that strange opinion from the bench that they were allowing the NDC to join the suit so that the party would be bound by the court’s final decision. It is bizarre because it suggests that the NDC has a choice. The problem with that ruling which allowed the NDC to join is that now a party against whom no allegations were made and no reliefs sought is being allowed to raise issues on point of law even when the dispute is only between the petitioners and second respondent, the EC, and has nothing to do with the 3rd respondent (NDC). The 3rd respondent’s interest is duplicitous to that of 1st respondent and by allowing the NDC to join the court now has an extra responsibility to ensure that move does not become costly to expeditious trial.

DELAYING JUSTICE, NIGERIAN CURE

These are the things which can cause delay and, so far, it has been difficult to have a clear sense of the court’s attitude against delay. I was surprised that even though the Supreme Court (Amendment Rules), 2012 (CI 74), which governs challenge of election of president, gives a respondent a maximum of 10 days to file an answer to the petition, the court on Thursday gave respondents 14 days to file their answers to the amended petition! Signals like these can be worrying. CI 74, in its wisdom, stays silent on how long the hearing must take, but it makes it clear that it does wants an expeditious trial, therefore, the court must sit even on weekends and public holidays and that the court must give its decision 15 days after hearing ends and does not permit a review of the decision. The task before the court now is how best to case manage the process to serve the interest of justice, both against delay and against undue haste.
In Nigeria, an amendment of the 1999 constitution (Section 285(6)) limits the entire process of an election petition to 180 days, six months, which seems reasonable - it used to be 30 days some years back under the Federal Republic’s 1982 Electoral Act. In my view, 150 days should be enough for any court to dispose off an electoral dispute. Yet, even the 180 days has been criticised, in the words of respected Lagos-based lawyer, Iwilade Akintayo, “[T]he petitions are a means of seeking to find out whether the persons exercising state authority are doing so with the mandate of the people… That makes an election petition a fundamentally substantive exercise that cannot be subsumed, or reduced in significance, by a resort to merely procedural provisions; like the type contained in Section 285(6)...”

Akintoya continues, “Election rigging is a fundamental assault on the sovereignty of Nigeria; a debasement of the very basis of the Nation’s survival. As such, election petitions symbolically allege and challenge such unpardonable sovereignty subversion. It therefore does no harm to emphasise that in an election petition, it is not the feuding political classes, called petitioners and respondents, that are on trial but the sovereignty of the people that is being called to question. The very foundation of the State’s authority is what is being questioned in election petitions.

“With utmost respect to the Supreme Court, it ought to have considered that Election Petitions are seeking to test the observance of Section 1(2) of the amended 1999 Constitution on whether the Government of the Federation, or any part thereof, have been hijacked, by illegitimate means, especially election rigging and other electoral manipulations. The people, (the presumed makers of the Constitution), will certainly intend that the issue of whether some persons have taken over their Republic, or any part of it, be exhaustively determined on the merits at the Courts. And while the people may have desired that such issues be decided within 180 days, where for any reason it cannot be so decided, the people must have intended that such time lapse cannot make them run the risk of their Republic remaining in the hands of possible civilian coupists…”

UNCHARTED WATERS

After over 1,200 electoral petitions in 2007, the President of the Court of Appeal in Nigeria, issued Practice Direction. The practice direction introduced the practice of frontloading of documents as a means of fast tracking matters. Indeed, the decision by our Supreme Court in the present case to allow parties access to further and better particulars can be seen in this light. Conversely, our Supreme Court was not convinced by the argument of the petitioners that the EC must produce all 26,002 pink sheets because the petitioners have copies of same and did not plead any fear that those official documents in the lawful possession of the EC may be tampered with, for instance, even though that is probable, considering that thousands of duplicate pink sheets have been found in the system.

Last Thursday, Ghana’s Supreme Court was sincere in admitting that the petition before it (by Akufo-Addo and 2 others) is like swimming in uncharted waters for the court and that the parties should consult among themselves on how best to case manage it as the panel do same. We are getting to the hearing itself, the first of its kind, the only thing close to it was in Appiah v A-G (1970), a failed petition which even had to do with the eligibility of an elected ‘ceremonial’ President, Edward Akufo-Addo.

Election petitions are sui generis, which means special or unique. The court has a special duty to deliver justice and within a period of time that would give relevance to the decision and to do so expeditiously without compromising justice. Delaying this case would heighten political tension, thicken the clouds over the legitimacy of the presidency, and, in the words of one commentator, make “grievances linger, breeding anxiety and uneasiness and leading to an inevitable eruption of rage.”

Furthermore, it would subject the judiciary to adverse publicity, affecting public confidence and risk encouraging the employment of “self-help to settle political scores.”

The overriding objective of adjudication in election petitions is to ensure as far as humanly possible that the choice of the electorate is given legal backing. Indeed, it may be fair to say that to drag an election petition beyond five months is to be unfair to the parties involved, and the nation, as a whole. And there is no reason why the current case before our justices must stretch beyond 5 months from the day the petition was filed, December 28, 2012.

AMENDED PETITION

There are those who argue that the decision by the petitioners to amend and add on to the particulars of their case is what can cause delay. On Thursday, the court ruled for the petitioners to amend their petition. This means that, they are now challenging over 900,000 votes as being tainted by over-voting; over 600,000 cases of voting without biometric verification, over 300 pink sheets without the signature of the presiding officer, affecting over 100,000 votes, and some 2.9 million pink sheets carrying duplicates of serial numbers, even though each pink sheet must have a serial number unique to that polling station. The amended petition now includes 28 polling stations, which were not part of the 26,002 officially declared by the EC.

In all, the number of polling stations where the results, as stated on the pink sheets, are being challenged has shot up nearly three-fold from 4,709 to 11,906, affecting some 4.7 million votes, with over 3 million of votes declared for the NDC candidate being asked to be annulled and another 1.47 million for Akufo-Addo to be also annulled. These are huge numbers, considering that the petitioners only have to prove that less than 155,000 votes given to John Dramani Mahama were illegal, to force a run-off or that some 323,000 of the President’s votes were invalid, for Akufo-Addo to be declared the outright winner.

The increase in the numbers does not mean that the threat by 1st respondent (John Dramani Mahama) to call 4,800 petitioners must now increase to 12,000. Indeed, what is in dispute can certainly not be the facts and figures on the pink sheets but the effect of those facts and figures and that will not be determined by polling station agents but by expert witnesses, legal arguments and the like. For the respondents to begin doubting the facts and figures on the pink sheets is to doubt the very basis upon which that disputed declaration of December 9 was made. They cannot pick and choose which aspects of the facts and figures on the pink sheets to accept and which not to and once that matter is settled the court would not need hundreds of witnesses to assist it in settling this dispute. Thousands of polling agents would not be material witnesses in this case.

BESIGYE VS MUSEVENI

That is why it is reasonable to conclude that this case should not travel beyond five months. Yet, the situation in Uganda where the law requires that findings of the court be announced within 30 days from the date of filing the petition is most unfair to the petitioners, especially, and justice, as a whole. Thus in Uganda, after the presidential election was held on 23 February, 2006, the petition was filed on March 7, the court took 8 days to hear the petition and gave its judgment on April 6, 2006.

The decision, which followed an election in which Yoweri Museveni was declared the winner with 59% of the votes and Kizza Besigye came second with 37%, was interesting for a country which, as one commentator put it, has a “life president” and the petitioner did not have enough time to gather enough evidence and make a more compelling case. The seven-member panel court voted as follows, as summarized by a local newspaper:

• Did the EC comply with the law? No (7:0)
• Was the election Free and Fair? No (7:0)
• Did malpractices affect results? Yes (4:3)
• Is candidate Museveni (the incumbent) innocent? Yes (5:2)
• . Should the elections be annulled? No (4:3)

Indeed, whilst the malpractices were said to have affected the results the gap between the two leading candidates was so huge that it was held, just as in a similar 2001 petition, that “it was not proved to the satisfaction of the court” that the malpractices and violations “affected the result of the election in a substantial manner.”

Courts in Africa, while happy to quote the locus classicus, Lord Denning’s reasoning in Morgan v Simpson ([1974] 3 All ER 722) in election petitions, however, in a majority of cases they have given a narrow interpretation to it to mean that a petitioner has to establish, not only that there has been a substantial violation of the electoral laws but also that the substantial non-compliance must have substantial effect on the result of the election.
Thus, when President Levi Patrick Mwanawasa’s election was challenged in 2002, the court held what has become the deciding factor in electoral petitions in Africa, especially. It repeated its earlier view in the case against President Chiluba, “The bottom line, however, was whether, given the national character of the exercise where all voters in the country formed a single electoral college, it can be said that the proven defects were such that the majority of the voters were prevented from electing the candidate whom they preferred; or that the election was so flawed that the defects seriously affected the result which could no longer reasonably be said to represent the true free choice and free will of the majority of the voters.”

Going by the face of the petition before Ghana’s Supreme Court, the figures being challenged are far in excess of what has been held in election petitions in Africa to be substantial to change the outcome of the disputed elections. What is left is how the respondents would proceed to deny with evidence the evidence before the court.

Our Supreme Court is in an unprecedented situation similar to what Americans faced after the November 7, 1876, in which an ad hoc ‘electoral commission’ of 15 members (10 representatives from Congress split equally from both sides plus 5 Supreme Court Justices ruling by 8:7) was set up to adjudicate, which finally overturned the results in favour of Republican Rutherford B Hayes. Democrat Samuel J Tilden led Hayes by more than 260,000 popular votes, and returns showed Tilden with 184 electoral votes (one shy of the majority needed to win the election) to Hayes’s 165, with the 19 electoral votes of three states (Florida, Louisiana, and South Carolina) and one elector from Oregon (originally awarded to Tilden) still in doubt. By early March 1877 the commission of enquiry had resolved all the disputed electoral votes in favour of Hayes, allowing him to win by 185 votes to Tilden’s 184.

It was a little more than 10 years after the Civil War, the nation was again in a state of crisis and there was grave anxiety that another civil war between North and South might break out because of the electoral dispute. The split decision of 8:7, which overturned the results, was accepted by the highly polarised American public and the country’s democracy never looked back.

136 years later, we, in Ghana, are at a similar, if less charged, juncture, the decision of our justices in this case will have a significant impact on the fate of our democracy and, by extension, that of Africa, as a whole. Our justices have every reason to show that they are on top of this pinnacle of history, whether we fall from there or build from there lies in their bosom.
The author is a legal practitioner and the Executive Director of the Danquah Institute, a policy think tank in Ghana.