By Kofi Ata, Cambridge, UK

Thursday August 29, 2013, Ghana, the beloved country chalked another success in her democratic journey. By a 5-4 majority, the Supreme Court ruled to confirm the declaration of President Mahama as validly elected on 7 and 8 December 2012. A decision that has been accepted in good faith by the NPP Presidential Candidate, Nana Akufo-Addo. In this brief article, I want to assess one aspect of the constitutional importance of this landmark ruling.

For easy reference, I reproduce the verdict of the SC Justices as given in court by the Presiding Justice.

“We unanimously dismiss the claims relating to duplicate serial numbers, duplicate polling station codes, and unknown polling stations. That is for short”;

“Atuguba, Adinyira, Baffoe-Bonnie, Gbadegbe, and Akoto-Bamfo, dismiss the claim of over voting”;

“Atuguba, Adinyira, Baffoe-Bonnie, Gbadegbe, Akoto-Bamfo, dismiss the claims relating to absence of signature of presiding officer”:

“Atuguba, Adinyira, Dotsey, Baffoe-Bonnie, Gbadegbe, Akoto-Bamfo dismiss the claim relating to voting without biometric verification”;

“Ansah, Owusu and Anim Yeboah grant all the three claims, that is to say, over voting, absence of presiding officers’ signature and voting without biometric verification, annul the votes involved and order a rerun of the affected areas”;

“Dotsey JSC grants the claim of over-voting but has provided a road-map in his judgement as in the figures of votes to be ascertained and cancelled and a re-run of the areas affected”;

“Dotsey JSC upholds the claim relating to absence of presiding officers’ signatures on the pink sheets cancels the results concerned and orders a re-run of the areas affected”;

“Baffoe-Bonnie JSC grants the claim of voting without biometric verification cancels the votes involved and orders a re-run of the areas affected”; and

“In the circumstances the overall effect is that the first respondent was validly elected and the petition is therefore dismissed”.

From the above, it is abundantly and unambiguously clear that not a single Justice was prepared to disenfranchise even a single voter. Among the reliefs sought by the Petitioners was for the SC was an outright annulment of 4 million Ghanaians including those who “allegedly” voted without biometric verification and to deny them their constitutional right to vote. I found this relief not only unreasonable and irrational but also unconstitutional and I have been proven right by all the nine Justices.

I was one of the few who posited that the “No Verification, No Vote contained Regulation 30 (2) of CI 75 was unconstitutional because it contravenes Article 42 of the Constitution, which states, “Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda” (see my article entitled, “Constitutional Challenges for NPP at the SC Part II, Ghanaweb, January 9, 2013).

Though four out of five Justices granted the all the three claims of over voting, absence of presiding officers’ signature and voting without biometric verification, they did not grant the relief of outright annulment in all three statutory violations as sought by the petitioners but instead ordered a rerun in the affected areas (polling stations). This is very significant and a powerful message that the Justices hold in high esteem the constitutional rights of Ghanaian citizens to vote under Article 42. In fact, I would go further to even say that, the unwillingness of all the nine Justices to annual a single vote outright is a de facto ruling that “No Verification, No Vote was unconstitutional, though others may disagree with me strongly.

As I said my above mentioned article, that the interpretation and application of constitutional or fundamental human rights by the judiciary in most liberal democracies is done to enhance and not to restrict the enjoyment of such rights by citizens. On this occasion, I can say without doubt that that is exactly what the nine Justices of the SC did. By annulling votes and immediately reinstating them by an order of a rerun, they are directly saying that, the constitutional rights of Ghanaians citizens cannot and should not be taken away lightly but with a heavy heart.

When the written decisions of the various Justices become available, I am sure Ghanaweb contributors will analyse, digest and debate the contents and I will certainly be part of that and to contribute to the development of rule of law and democracy in Ghana. I congratulate President Mahama on the affirmation of his election and commend Nana Akufo Addo for conceding defeat despite his disagreement with the verdict.

Kofi Ata, Cambridge, UK