On the 28th December 2012, the New Patriotic Party (NPP) began a court process to challenge the validity of the election of John Dramani Mahama as President of the Republic of Ghana pursuant to the Presidential election held on the 7th and 8th December 2012. In the said petition to the Supreme Court of the land, Nana Addo Danquah Akufo Addo, Dr. Mahamudu Bawumia and Jake Otanka Obetsebi-Lamptey, flag bearer, running mate and chairman respectively of the NPP were the 1st, 2nd and 3rd petitioners respectively. Also named as respondents in this petition are, the incumbent president H.E. John Dramani Mahama as the 1st respondent and the Electoral Commission as the 2nd respondent. This is where the ‘wahala’ begun, to sue or not to sue the president.

One school of thought has it that, the president enjoys immunity against all legal suits of any sort as stated in article 57(4) and (5) of the 1992 constitution. I have copiously stated it here for our benefit: 57 (4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law. (5) The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court.

I beg to differ with those who go by this argument. The constitution is quite clear on this subject. It says clearly in article 57(4) that, “subject to the operation of prerogative writs”, meaning, the President's immunity is also subject to the operation of the prerogative writs. These are actions for HABEAS CORPUS, ORDERS OF MANDAMUS, CERTIORARI, PROHIBITIONS and so on, directed against the President in the performance of his official functions.

HABEAS CORPUS simply means a writ which requires that, a person under arrest should be brought before a judge or into a court.

MANDAMUS is also a judicial remedy which is in the form of an order from a superior court to any government subordinate court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under the law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases statutory duty. It cannot be issued to compel an authority to do something against statutory provision. For example, it cannot be used to force a lower court to reject or authorise applications that have been made, but if the courts refuses to rule one way or the other then mandamus can be used to order the court to rule on the applications . CERTIORARI on the other hand is a type of writ seeking a judicial review. A writ of PROHIBITION is also simply a writ directing a subordinate to stop doing something the law prohibits.

From the above definitions, it is clear that, the president enjoys some immunity but it is subject to a number of writs as stated above. Worthy of note also is the satisfaction of the requirements of AUDI PARTEM principle, which is simply the principle which requires that the other party be heard. It can be inferred also that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. This case calls for a careful scrutiny of what we put into our constitution. For instance in Namibia and Eritrea, the President has no immunity from legal proceedings in respect of acts done in his official capacity. Thus article 31(1) of the 1990 Constitution of Namibia provides:

"No person holding the office of the President or performing the functions of President may be sued in any civil proceedings save where such proceedings concern an act done in his or her official capacity". (Emphasis mine) Likewise article 43 of the 1996 Constitution of Eritrea too provides: "Any person holding the office of the President may not be sued in any civil proceedings or charged for a crime, save where such proceedings concern an act done in his official capacity as President..." (Emphasis mine)

Another school of thought has it that the CI 78 which is being used as a defence in the decision to join the president to the suit is flawed. They go on to say that, the CI 78 is inferior to an act of parliament which is rather inferior to the constitution. Then I will ask, didn’t the subsidiary legislation committee of parliament do due diligence before it placed this particular provision in the CI 78? Again, going back to the AUDI PARTEM principle, it is only fair that the person whose election is being challenged is given a fair hearing before a judgement is passed which in all terms and purposes will have an effect on him. It will be bad on my part if I do not site precedents on this particular case. Now the scope of article 57(4) fell for determination in NPP vrs. The President of the Republic of Ghana, Flt. Lt. J. J. Rawlings and Anor. (Supra) wherein the President was personally sued on his nomination for District Chief Executives of the District Assemblies. On the issue whether under article 57(4) the President could personally be made a defendant, Amua-Sekyi and Aikins, JJ.S.C. held that article 57(4) granted the President qualified immunity and that he can be sued personally in respect of actions under article 2 and those seeking prerogative orders.

Ampiah, J.S.C. on the other hand also expressed his view on this same matter thus:

"Article 57(4) which exempts the President from being brought before the Court personally for acts done in the exercise of his functions under the Constitution, excludes actions brought under Article 2 and also proceedings involving prerogative writs. Any person alleges that there has been executive, legislative or judicial act which is inconsistent with or in contravention of the provisions of the Constitution may bring an action against any person (including the President) who is alleged to have done the act or authorised the doing of that act. That action could be against that person alone or jointly with the Attorney-General". (Emphasis mine)

As said earlier on, article 57(4) is a reproduction, word by word, of article 44(9) of the 1979 Constitution of Ghana. Now the rationale for granting to the President, qualified and not absolute immunity from proceedings arising in connection with the performance of his official duties, was clearly and unambiguously articulated at paragraph 122 page of the 1978 Memorandum to the 1979 Constitution in the following words: "We are, however, convinced that even an executive President should not be endowed with unlimited powers nor be immune from constitutional controls. On the contrary, we believe that the President should exercise the executive power of the State in accordance with the Constitution and subject to conditions clearly stipulated in that Constitution". (Emphasis mine)

ATUGUBA, J.S.C. also on the matter of Martin Alamisi Amidu Versus John Agyekum Kufuor, President of Ghana and the Attorney-General was of the view that, left to him alone, the president can be sued in the summary of the ruling below: As to the first contention that "this court lacks jurisdiction to entertain the Plaintiff's action against the Defendants herein", the same is partially well founded. The first defendant is the President of Ghana and it was the contention of the Honourable Attorney-General, Nana Akufo-Addo that he enjoys immunity from suit or court proceedings generally under article 57(4) which provides: "(4) without prejudice to the provisions of article 2 of the Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done in the performance of his functions, under this Constitution or any other law". (emphasis supplied). The proper construction of this provision is quite a vexed question. I must confess that if it were open to me so to hold, I would have eagerly held that the President could be sued in the performance or purported performance of his functions under the constitution, since that would advance constitutionalism, the rule of law and the negation of the bemoaned days of Re Akoto & Ors. But as was aptly put by Smith, J. in BALOGUN V. EDUSEI (1958) 3 WALR 547 at 553: "The Courts of Justice exist to fulfil, not to destroy the law…”.

In rounding up this article and just thinking aloud, I want to ask: should the 7th and 8th December 2012 election gone in favour of Nana Akufo Addo and HE John Dramani Mahama, was not satisfied, could he also have sued? If he could have sued why then could he not be sued also?

I am by this not a Justice of the Supreme Court and as such cannot pass judgement, but all I can do as a responsible citizen of our nation is also to share some few thoughts that will enrich our discussion on this subject. Now we sit back, fingers crossed and hoping against hope that our Law Lords will make a cogent judgment on this matter that Law students in the coming years will find useful in their studies.

God bless our homeland Ghana.

ALLOTEY-OKAI, JAMES. STUDENT. KNUST, KUMASI. jamesalloteyokai@gmail.com