By Dr. Michael J.K. Bokor

Tuesday, March 15, 2013

The Supreme Court has adjourned 'sine die' the NPP’s lawsuit, and instructed the parties to the case (that is, the three NPP petitioners led by the Akufo-Addo, on the one hand, and President Mahama (first respondent), the Electoral Commission (2nd Respondent), and the NDC (joinder)), on the other hand, to decide on the memorandum of issues they want the court to determine.

Consequently, the Court has ordered the parties involved to ensure within 7 days that they agree on the issues to be determined by the court or inform the registry of the court if they fail to reach an agreement for the Court itself to determine the memorandum of issues.

Several intriguing issues stand out in this directive by the Supreme Court that tells me clearly the direction in which the lawsuit is moving. The Supreme Court’s adjournment of the case “sine die” (indefinitely), which is unusual but indicative of the long, winding route that this lawsuit will take is in and of itself interesting. Those calling for an expeditious determination of the petition had better think twice.

The need for the parties involved in the suit to decide on the specific issues that they want the Court to determine is clearly intriguing, for several reasons. Does the Court think that all these parties will ever agree on common issues to be determined by it?

To be clear on this aspect, it is important to observe here that the memorandum of issues refers to the aspects of the petition that the petitioners raised in their application for directions in court and that of President Mahama, stating the specific areas of interest to him (also captured in an application made to the Court).

Obviously, both the NPP petitioners and President Mahama aren’t on the same page concerning the issues of interest to them. Simply put, they have no common ground except that they come into contact only because there is a petition before the Supreme Court challenging the outcome of Election 2012. What the NPP’s petitioners want isn’t exactly what President Mahama wants the Court to do in determining the lawsuit. In other words, the two have different issues in their applications. Is that conflict of interest what the Court is asking them to “synchronize” so they can agree on the specific aspects for the Court to determine?

The process toward reaching a common ground is not clear. We are told that in consultation with the bench, Justice Atugubah advised the parties to meet and agree on the issues collectively so the case could start. Where and how are these parties going to meet to decide on the memorandum of the issues? A well-equipped team of security officers need to be put together for the occasion if ever these parties are to meet face-to-face to do what they have been instructed to do. It is inconceivable that these antagonistic forces will ever come face-to-face to decide on a matter that has already divided ranks. What specific steps will they take to reach out to each other? The process itself is problematic.

Of course, they can communicate through writing, but I see a big challenge here already. Who will initiate the action? Or do we expect them to work independently and exchange documents toward collapsing issues into one final memorandum of issues to represent a consensus on specific issues? If I may hazard a guess here, I can say that in this case, the NPP’s legal team will tweak its application for directions in court and give the President/NDC legal teams and the Electoral Commission a copy and in turn pick up what the President/NDC legal team and the EC have for it.

Thereafter, all will generate separate documents embodying the three parties’ issues to be agreed upon after exchanging drafts. Then, a final memorandum of issues will be generated, agreed upon, and forwarded to the Supreme Court. And all of this to be done in 7 days?

Considering the entrenched positions taken by each party, will any be willing to sink differences so that a common front can be attained for them to all agree on specific issues? I don’t think so. The NPP has raised a number of issues in its application for directions in court, which was objected to at the Court’s sitting on Thursday by Samuel Kojo, the counsel representing the NDC with the explanation that “the application is alien to the rules of court.”

So, the preliminary issue (the application for directions in court) is itself in dispute; how are the parties, then, expected to stand on it to reach a common ground on what the Court should look into? Certainly, President Mahama’s legal team has also applied to the Court for directions on issues to be determined. I see a fundamental conflict in this area, and will be very much surprised if the petitioners and the respondents can ever reach a compromise as instructed by the court. Probably, that is why the Court adjourned sitting indefinitely! The 7-day ultimatum given by the Court will elapse without anything concrete being agreed on by the parties. After all, the interests of all the parties don’t converge. They don’t intersect to suggest that a compromise will be easily reached within the period.

What the NPP petitioners are looking for is not necessarily the same as what the respondents and the NDC are looking for as a trump-card to play in this legal game. Interests differ because each party will want to take advantage of the others’ miscalculations. By throwing the ball back into the courts of these parties, the Supreme Court is being smart because if they fail to reach a compromise, it will then step in to pick and choose whichever issue it deems determinable. In that sense, then, when it gives its ruling at the end of the process, it will be good or bad for any of the parties. Assuming that in choosing the issues the Supreme Court sidesteps what the NPP considers as the pith of their petition, will the NPP petitioners agree? Or if the Court goes for what President Mahama will be ill-prepared to accept, will he be comfortable enough to accept the outcome of the case? And the EC too? I strongly am inclined to say that it is not likely that the parties will ever reach a compromise on the memorandum of issues. Thus, the strong likelihood is that they will take the Court’s option to inform the Registry of their failure to reach an agreement, which will compel the Court itself to choose the memorandum of issues to determine.

If the onus falls on the Supreme Court itself this way, there will be fireworks. Tempers will flare. I suspect strongly that the petitioners won’t like it nor will the respondents. Thus, the Court will do all it can to stamp its authority on the matter; but that measure will provoke objections and motions and counter motions, which will delay the determination of the case all the more. As the matter stands now, it is clear that the Supreme Court is giving all the parties the long rope. Some may hang themselves with it. Others will not and take actions that will make the determination of this case a protracted one. Putting everything together, then, I can tell that this case will definitely raise surprises, which we must be prepared for, especially when the 7-day ultimatum elapses and the parties fail to reach a compromise.

Who says that in such a contest of wits, the NPP petitioners will compromise with their political foes? Or that President Mahama will agree with the NPP petitioners to choose issues that he has already debunked and ram them down his throat? It won’t happen. The Supreme Court is really in for a rough and tough legal challenge. I hope nobody trips in the process.

I shall return…

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