By John K. Akpalu, Esq.

Whatever justifications some NPP supporters have for blaming President Kufour for not ensuring their party’s victory in the December 7, 2008 elections and Nana Akuffo-Addo’s election as his successor, he must be highly commended for drawing Ghana away from the brink of disaster. I was in Ghana from December 19, 2008 through January 4, 2009 and speak from first hand knowledge. Unless one was in Ghana at the time, it is difficult to appreciate how close Ghana came to civil strife. So tense was the situation in the country, particularly during the presidential run-off on December 28, 2008 and in the days leading up to the Tain constituency elections that many religious leaders had to come out publicly to plead for calm and restraint.

Two actions by President Kufour neutralized the machinations of some in the NPP leadership and in Nana Akuffo-Addo’s campaign team, who had by their actions and utterances, conveyed to Ghanaians that they were determined to see the NPP remain in power and Nana Akuffo-Addo in the presidency at all cost. These were after the run-off elections on December 28, 2008 when it became apparent that Dr. Mills and the NDC had won.

The first was when President Kufour came out on December 30, 2008 with a statement to the NPP and NDC supporters to await the declaration of the winner by the Electoral Commissioner. By this time, most Ghanaians knew that Dr. Afari-Gyan was likely to declare Dr. Mills the winner – and this was not lost on President Kufour. By coming out with this statement, President Kufour - contrary to the fear of some NDC supporters that he will maneuver to keep the NPP in power, and the hope of some NPP supporters that he will join them through all means to install Akuffo-Addo in power - signaled to the NPP die-hards that he will not play their game at the expense of the peace and tranquility of Ghanaians.

The second and more important step taken by President Kufour was to publicly announce in his New Year Message of January 2, 2009 his intention to hand over the presidency on January 7, 2009 when his constitutional mandate expired. This announcement thwarted the efforts of the same NPP die-hards, who when they saw that all was lost and that their candidate Nana Akuffo-Addo was on the verge of losing the elections, were planning various scenarios to create mayhem and confusion in the country in order to force President Kufour’s hand. Their hope was that he will declare a state of emergency and remain in power past the January 7, 2009 mandate until they could manage, through the law courts or otherwise to deliver the presidency to Nana Akuffo-Addo or if that failed, to force Dr. Mills and the NDC to agree to a negotiated coalition government.

Anyone who doubts that these were the plans afoot then should read the Feature Article on Ghanaweb of January 15, 2009 titled “WHY NPP MUST DEFEAT THE BLAME GAME” written by one Gabby Otchere-Darko, designated as Nana Akuffo-Addo’s campaign strategist. While commending Pres. Kufour for standing by his principles, he also let off in that article that some in the NPP were “angry that Kufour did not use the coercive powers of the state to call a state of emergency in the Volta Region or Tain.” This Freudian slip tells volumes.

It is clear from my observations and those of others during the run-off on December 28, 2008 and the Tain elections on January 2, 2009 that some members of Nana Akuffo-Addo’s campaign team had a win at all cost mentality and were prepared to let Ghana go to ruins if that did not happen. Way before the December 7, 2008 elections, and with the advantages of incumbency behind them, they were so sure of Nana Akuffo-Addo’s victory that they virtually considered him the de-facto President-in-waiting. What with musicians singing Nana’s praises, presidential level motorcades and police escorts and ‘pre-inaugural’ visits to other African heads of states. There was talk within the NPP of “one touch” meaning Akuffo-Addo was going to win the December 7, 2008 elections by a landslide - over and above the 50 percent plus one margin. Imagine the shock and horror when Nana did not even make the 50 percent mark!

Thanks to a free media and the work of the various FM Radio Stations, Ghanaians had become politically astute and very savvy in using the ballot box to send a message to politicians who would take them for granted while they are in office only to come back during election time to try to buy their votes with money, food and empty promises. They kept mental logs of every insult, display of arrogance and corruption – including an insult by their president who called them lazy. They also remembered their information minister telling them to go eat raw mangoes and fried corn if they are hungry.

Backed by the psychological advantage Nana Akuffo-Addo had in coming very close to winning the December 7, 2008 elections, his campaign team re-organized for the December 28, 2008 run-off. Surely, they thought, the run-off would produce a few thousand more votes, which is all Nana needed to put him over the top. Then came the shock that Dr. Mill was leading the count in the 229 constituencies that had voted!

Even if half of the scoops on Radio Gold were to be believed, there were plans by some NPP adherents prior to the December 28, 2008 run-off and thereafter, to create a crisis should Dr. Mills and the NDC win. Some were motivated by an inordinate fear of former President Jerry John Rawlings and his potential influence in a Mills administration. To such people, any other scenario was better than handing over to Dr. Mills and the NDC even if that was the desire of the majority of Ghanaians. The NPP was not prepared to lose the presidency at the ballot box.

How else could one explain the sequence of events following the run-off on December 28, 2008? When the Electoral Commissioner was set to announce Dr. Mills as the winner of 229 constituencies on December 28, 2008, Nana Akuffo-Addo and his campaign team protested, leading the Electoral Commissioner to agree to their demand to hold elections in the remaining Tain constituency. Following this concession, Nana Akuffo-Addo publicly announced that the NPP was going to vigorously contest the Tain elections which were to be held on Friday, January 2, 2009. Yet while President Rawlings, Dr. Mills and the NDC campaign apparatus decamped to Tain to canvass for votes, Akuffo-Addo made no effort to campaign in Tain. His campaign team also did not put up any serious effort there. To most observers, the Tain gambit was only a ploy to buy the NPP more time to put other plans in action.

Having raised issues about electoral malfeasance in some constituencies in the Volta Region, it was apparent that Akuffo-Addo and his team were hoping for a nullification of those results, which would then give him the lead. They had no intention of contesting in Tain. When it became clear that Dr. Afari-Gyan was not going to play along and was indeed going to hold elections in Tain and make it determinative of the winner, the NPP put in gear their next plan of action which was to use the law courts to halt the process. After agreeing to the Tain elections, the NPP now went against clear constitutional provisions by rushing to court on January 1, 2009 to seek an injunction to prevent the Electoral Commissioner from declaring the winner after the Tain elections. The NPP even falsely announced through Nana Akuffo-Addo’s communications director Dr. Arthur Kennedy that they had obtained a court order to stop the Tain vote – a vote they had forced the Electoral Commissioner to hold and their leader had publicly told Ghanaians he was going to vigorously contest!

The other prong of the NPP plan of action, when the court action failed, was to announce a boycott of the Tain elections by citing security concerns – even though the presence of military and police personnel and poll watchers from all over the world assured that Tain was the safest place in Ghana, if not in the world on January 2, 2009; and even though their government was in power and had all the means to ensure their safety. So egregious and desperate were the actions of some in the NPP and Nana Akuffo-Addo’s campaign team that a party elder, Mr. B. J. Da Rocha had to come out and publicly plead with them to let the Electoral Commissioner do his work.

Article 64(1) of Ghana’s 1992 Constitution makes clear that the validity of an election of the president may be challenged only after the results have been declared. Article 46 also provides that except as provided in the 1992 constitution or in any law not inconsistent with the constitution, the Electoral Commissioner shall not be subject to any person or authority. Thus prior to any challenge of the results, the Electoral Commissioner has complete independence in reviewing, addressing and evaluating any alleged electoral malfeasance and in incorporating his review in announcing the winner of a presidential election. The action of the NPP in seeking an injunction against the Electoral Commissioner, not only undermined the constitutional authority and independence of the Electoral Commissioner, but appeared to have contravened Articles 46 and 64(1) of the 1992 Constitution.

Ghanaians must be thankful that the Learned Judge Hon. Edward Amoako Asante, refused to enjoin the Electoral Commissioner on January 1, 2009 from announcing the winner of the presidential election, thus indirectly rejecting attempts by some elements in the NPP to create a constitutional crisis. By Article 66(1) and (3) of the 1992 Constitution, President Kufour’s term expired on January 7, 2009. The result of any injunction would have operated to leave Ghana without a leader after January 7, 2009 since both the president and the Vice-President would have been out of office by then. The Vice-President could not assume the presidency after January 7, 2009 because constitutionally, he only serves the unexpired term of the President when he dies, resigns or is impeached – and must leave office with the President when his term expires. Arguably, the Speaker of the newly constituted parliament may assume power in such a circumstance under Article 60 (11) but the constitution requires that elections be held within three months of the Speaker assuming the presidency. This provision, which was intended for situations where both the President and Vice-President are both unable to perform their functions as a result of death, resignation or impeachment may not apply to a scenario where there has already been an election with the results undeclared and the subject of litigation in the courts.

What such a political stalemate may have wrought is anyone’s imagination. One cannot rule out civil strife making way for possible military intervention. President Kufour’s statesman-like conduct in signaling to the NPP that they must abide by the Electoral Commissioner’s decision and in refusing to extend his stay through the declaration of a state of emergency or other extra-constitutional means is commendable. To that end, Nana Akuffo-Addo must also be congratulated for calling for peace during those heated times, conceding defeat - if only grudgingly – and attending Dr. Mills’ inauguration. Those actions show unsurpassed love of country and clearly showed that he really believed in Ghana. Ghanaians who lived through these times will forever remember him for his gracefulness and statesmanship. Ghanaians must be thankful to President Kufour and Nana Akuffo-Addo for letting cooler heads prevail.

+John K. Akpalu, Esq. LL.M. (Harvard). The writer is a practicing attorney in New York and can be reached at jakpalu@gmail.com.