Supreme Court reverses Ghana’s gain

A founding Dean at the Faculty of Law, Ghana Institute of Management and Public Administration (GIMPA), Prof Kwame Frimpong says the judgement delivered by the nine Supreme Court justices in the just-concluded Presidential Election Petition has taken Ghana back to the Stone Age.

“Unfortunately this case has set us so many years back maybe even to the Stone Age,” he said at a symposium organized by Danquah Institute (DI), a policy analysis group to review the Supreme Court’s verdict of August 29 in the landmark presidential election petition.

Using a Biblical analogy, Prof. Frimpong asked “is the judgement giving life to Ghana in terms of advancing our democracy or is it bringing us to a dead end of our democratic aspiration?”

He said the critical issue to ask “is whether we endorse illegality or we take a firm position against any system of impunity that has plagued this nation over the years.”

“Why is the EC boss emboldened to make statements like ‘Go to court’ if he doesn’t believe that at the end of the day the end would justify the needs. My concern about this judgement is the fact that now if you read the judgments, particularly of Atuguba and Adinyira JJSC putting too much faith in polling agents shifting the burden of responsibility unto them that they should have exercised scrutiny over the voting, is that their role?”

He said that “what we are discovering is that it does not matter and at the end of the day all that we need is that the results are declared and if you are not comfortable go to court and if you go to court nothing because your polling agent didn’t do his work.

“Are we advocating the very thing we are trying to prevent? That at the end of the day let us decide at the polling station whether you will win or not and it is a very dangerous thing for Ghana and we condemn it with all our strength and might.”

He said that the decision of the court had left many, including practicing and aspiring lawyers confused, saying “Even a Year 1 student could tell me he did not understand the judgement.”

“There are so many flaws in the judgments. When I read them I was confused to be honest, adding “the difficulty we are all facing is whether this judgement has enhanced our understanding of democracy. Whether it has established a credible situation which we can build on our desire to have free and fair election?”

He said Justice Atuguba’s judgement did not advance constitutionalism, explaining “If you read Atuguba’s judgement you notice that it has a critical weakness with due respect to him…There are so many contradictions, it is incoherent. There are so many serious quotations. That is beautiful but they are not advancing constitutionalism.”

“When you are dealing with interpretation of a constitution, the supreme law of the land, it is ideal to also look for authorities of similar constitutions to buttress your case and not relying on criminal law, company law cases; they are not of relevance.”

Prof Frimpong said that “If you look at the judgement by Justice Adinyira, you notice that almost half of her work was devoted to the role of the polling agent which I don’t think is very important because of the mandatory requirement on them.”

He said one ‘finest’ statement came from Justice Anin Yeboah who cautioned the court about over reliance on foreign judgments, adding “when you quote extensively from any jurisdiction and without necessarily doing a serious analysis and therefore you draw the conclusion that is to adjudicate a case in Ghana, it is wrong and we should not endorse that.”

On the claims of over-voting, voting without biometric verification and the absence of signatures of some of the Presiding Officers, Prof. Frimpong said “it is a simple mathematical issue.”

“Has there been over-voting? Did people vote without prior biometric verification? Did some of the presiding officers not sign the pink sheets?” he asked.

He said the referee (KPMG) gave the court the figures involved in each category, adding “I am wondering why it took the court eight months to decide. Couldn’t the case have been dealt with maybe within one month if they chose to? I think it was unnecessary for the long duration.”

“What seems to have been a major flaw throughout the judgement was the fact that they are saying even though irregularities took place, if we allow the irregularity to be used to annul the results, it will amount to disenfranchising Ghanaians against article 42.”

“Let me make it very clear…you disenfranchise when you make sure that he/she does not have a right to vote. When you annul, it does not necessarily amount to disenfranchisement. You are merely declaring that legal procedures have not been complied with…Otherwise, any provision which requires a particular practice in order to vote amounts to disenfranchisement.”

“If you look at the nature of the right to vote, then we don’t have to have any law…you just wake up and go out there to vote. We need regulations based on the same constitution before you can vote.”

“I don’t think the court is right when they are saying that by necessarily declaring any infringement null and void of the constitutional provision amounts to infringement of Article 42.”

“As it has been said, the presiding officer shall sign. He is the one with the mandate to ensure credible election.

“What about Presiding Officers failing to sign. The interesting thing is that they are trying to tell us that if you don’t sign it doesn’t mean anything then what is the need of the signature basis of the SHALL requirement. SHALL is mandatory and MAY is empowering but permissive.”

“Once you are mandated to sign, then it is a requirement for establishment of the credible voting and if that has not taken place then there is no election which is valid and it should be cancelled.”

On voting without biometric verification, Prof Frimpong said it was an established requirement agreed by all the parties, adding, “At the same time we are being told that even if there was no biometric verification it did not matter.

“Why did we make laid down procedures for purposes of elections in the country if those procedures did not mean anything?”

“I would advise strongly that for purposes of all future elections to be credible, transparent and to be legitimate, we need to go back to the drawing table and ensure that all those rules and regulations are complied with.”

He said “my main worry is that assuming for the purposes of this discussion, if those flaws emerged, where do we go after this case? I wonder whether the judges took this into consideration in their judgement.”

He advocated for a constitutional court modeled along what pertains in South Africa “because we relied on the Supreme Court judges who seem not to have sufficient knowledge about constitutionalism.”

He said that no one can claim to be above the constitution but a careful analysis of the judgment appeared to contradict the claim.

“If you watch this particular judgement, indirectly some of the judges are trying to say that they can declare some of the constitutional provisions invalid and so they are above the constitution.”

“If you look at the judgement critically they inadvertently gave it to the petitioners but they didn’t admit it.”