An injunction application at a political junction; legal prowess or 'poor worst'

On January 5, 2021, the Wenchi high court ruled against an injunction application filed by the lawyers of the National Democratic Congress (NDC) to stop Mr Martin Agyei-Mensah Korsah from being sworn in as the elected member of parliament for the Techiman South constituency. The NDC's injunction application was occasioned by their alleged claims among other things, that there was no collation of results at the Techiman South constituency and hence, there couldn't have been a declaration of a winner for the parliamentary seat in the constituency.

Well, we are all familiar with the story of Techiman South and the different media narratives as to what really happened on that day. However, one significant fact we do know is that the National Democratic Congress did ask for the collation of the results for the Techiman South constituency because they believe from their narrative that such an important election exercise as required by law was calculatedly skipped. They, however, requested that if collation was indeed done as claimed by the Electoral Commission, then evidence of the collated results and the declaration sheet should be made public as required by C.I 127 which is the law that regulates the conduct of the elections.

The NDC did not stop there but went ahead to adopt the concordist approach of argument by positing that if they were to grant without admitting that, the EC in fact did do collation, then they (NDC) are invoking a clause in the C. I 127 that allows them to put in a request for a recollation. This call was also blatantly ignored by the electoral commission despite the commission's own law, the C. I 127 permitting such a legitimate demand should any of the competing parties in the election feel aggrieved and make such a request.

To the surprise of many, the commission rather granted a similar request put in by the NDC'S opponent, the New Patriotic Party (NPP) to have the tally of the Banda constituency election for the parliamentary results collated despite the already published evidence of collation and declaration at that constituency. The shocking application of two different sets of laws for two political parties in the same republic triggered some scathing remarks about the EC relinquishing public trust and confidence in them especially when the commission is mandated by the constitution of Ghana to be fair at all times and to all competing parties.

I have always loved the law and admire the legal profession for its luminary prowess of fencing justice for all. Inasmuch as I wished I had the requisite requirements and qualification to practice law, I also do not wean my interest in the law and sharing my layman's understanding of what I call "common law from common sense to the common man". With such an enthusiastic character in law, I do not in any way for once presume or sought to assume a perfect understanding and interpretation of the law. However, I think I greatly reserve the onus right to question the decision of the NDC legal team to file for an injunction to restrict the recognition of Mr Agyei-Mensah Korsah as MP-elect rather than submitting a writ to pray the court to compel the EC to grant the NDC'S request for a recollation of the Techiman South parliamentary results as the NDC is entitled to under the law, C. 127.

Such a request for a recollation in my shallow understanding of the law would have been grounded in law and, perhaps, too glaring to be ignored or quashed by the court. Already, the NDC won the court of public opinion by politically making their case through a PowerPoint presentation of their own purported independent collated results and showing evidence of their pink sheets to the media. I read the comments from two respected journalists in Ghana, Umaru Sanda of Citi news and Samson Lardi Anyenini of Joynews that sought to suggest that until the EC proof otherwise, they back the NDC'S claim that they may have won the Techiman South seat but were swindled.

I still can not fathom, maybe there is some legal impossibility somewhere I am not aware of, why the NDC did not push for a recollation writ instead of the injunction request. Arguing for a recollation by "logic" and merits of such a demand will take the court less time to make a determination, especially when independent public opinion does appear to favour the NDC'S course. Why would the legal team of the NDC put in an injunction request knowing too well that such a request may be too costly to be granted by any judge considering the law's dislike for denying constituents a representation in parliament for some unweighty reasons? Again, the current political junction we found ourselves in the 8th parliament with two splitting paths without a clear majority, any vote is an elephant vote to make a serious decision of electing the third in line to the presidency and such a political fringe will make any Judge look at such a case with some fettered considerations knowing the political ramifications involved.

I think the action of the NDC lawyers may be a legal flop, poor and worst (poor worst) instead of prowess. Their decision to file an injunction may be an itchy mounted sharp arrow that was miscalculated, mistargeted and misfired. Intriguingly so, because the leadership of the NDC party has consistently alleged that they suspect the EC is refusing to do their job at Techiman South because they (EC) may want to favour the NPP to elect the speaker of parliament after which the right thing or the so-called planned error at Techiman South would be corrected.

I find this position by the leadership of the NDC ridiculous and nebulous in the sense that if the EC is really bent on favouring their opponent, the NPP then off course they won't "foolishly " reverse the favour after the speaker of parliament is elected. They will certainly avoid such a fatal reversal of favour so they are not caught pants down by watchers who have long suspected an EC-NPP honeymoon relationship.

The lawyers and leaders of the NDC purportedly claiming to have hatched the plot of using the Techiman South as a safe haven seat to get the speaker to the NPP'S side, should have known that anything but compelling the EC to grant the recollation request would be fiercely fought to the teeth using legal bureaucracies and delay tactics. Maybe a lawyer reading this opinion should review my thoughts.

I’m shocked !!