Constitutional Challenges for NPP at the Supreme Court (Part 1)

Sat, 5 Jan 2013 Source: Ata, Kofi

Since NPP’s press conference on December 28, 2012 to give further particulars on their petition at the Supreme Court (SC) challenging the declaration of President John Mahama as winner of the 2012 Presidential Election, a number of very interesting articles have been posted on Ghanaweb on the legality and or constitutionality of making the President, personally liable in the suit. As a non-lawyer, I had taken the position of just reading and commenting on the works of law experts (law professors, practitioners, students and enthusiasts), rather than poke my nose into matters best left to the Justices of the SC. However, the duty to contribute to such an important national debate has superseded my caution of making a fool of myself by displaying my naivety and ignorance matters of constitutional law and led me to add my voice to the debate.

In a two-part of post election articles (the seventh), I will share my views on the above question and raise other important constitutional questions on the petition. I will also address the dilemma facing the NPP leadership and MPs on the attendance of the investiture of President Mahama on January 7, 2013 and the planned boycott of parliamentary business by their MPs because in their view, it would be illegal for the Executive to present bills, agreements, and others to the Legislature for scrutiny and approval after the inauguration of President Mahama because of the party’s petition pending at the SC.

The second part will deal with the constitutionality or otherwise of two of the grounds for the reliefs that NPP is seeking from the SC and which have received less attention by most, if not all the brilliant articles on the petition so far with the exception of Prof Kuruk. These are, further particulars given under Ground 1 of the petition and I quote, “(a) That 2nd Respondent permitted voting to take place in many polling stations across the country without prior biometric verification by the presiding officers of 2nd Respondent or their assistants, contrary to Regulation 30 (2) of C. I. 75. and (b) That the voting in polling stations where voting took place without prior biometric registration were unlawfully taken into account in the declaration of results by 2nd Respondent in the presidential election held on 7th and 8th December 2012”.

In an earlier article entitled, “Will Nana Akufo Addo Attend Mahama’s Investiture”, (see Ghanaweb December 22, 2012), I identified the dilemma facing the NPP on this matter, especially the national leadership and Ex-President Kufour. However, since NPP claims to be the repository, genesis and methuselah of democracy with absolute belief in the principles of rule of law in Ghana, it is bizarre for them to turn round and say that their petition would be jeopardised if the party attends the inauguration of President Mahama. As a party full of legal luminaries, one expected that they fully understand the words “without prejudice” in the Constitution that they relied on to petition the SC. For the avoidance of any doubt, it means not withstanding the petition, they shall be a President of Ghana and actions and omissions of the President legal as long as it is within the constitutional until the SC makes a decision on the petition. It also means NPP’s attendance at the inauguration (without prejudice” is legal and within the spirit of the Constitution and MUST not and cannot affect the outcome of the petition.

I have always admired Ex-President as a true Elder Statesman and if media reports are true that he will attend the inauguration of President Mahama, as a former Head of State, then, he has not disappointed me. He has shown that despite his reservations about the December Presidential Election result, he puts nation before party and has a firm belief in the Constitution and respects the rule of law. What a true patriot?

The decision by the party to order their MPs to boycott parliamentary business after being sworn in is even more disturbing since so far there are no petition/s against the parliamentary results though the party has publicly indicated its intention to do so and there may be individual parliamentary candidates from across political parties and independent candidates who may challenge the results at the High Court. If NPP truly believes that President John Mahama will be occupying the Presidency illegally from January 7, 2013, and therefore it would be illegal for MPs to consider bills, agreements and others from the Executive, why would the Chief Justice administer the oath of office to him? Why the same Constitution that the party is relying to petition the SC allow the President to be sworn into office and thereafter act accordingly whilst there is a petition against his declaration as President?

In fact, in my view is that it may be unconstitutional for NPP to ask its MPs to boycott parliamentary business simply because the party is contesting the Presidential Election result and hope that a citizen will go to the appropriate court to seek an injunction on NPP to stop their MPs from boycotting parliamentary business on or after January 7 2013. Again, NPP should remember that most businesses in Parliament only require simple majority decisions of the quorum of members and therefore business may carry on with or without their presence but Ghana and their constituencies will be victims if they carry out the planned boycott.

As pointedabove, a lot has been written on whether it is constitutional for the President to be made personally liable as the First Respondent, despite the immunity from such actions whilst still President under article 57(4) and (5) of the 1992 Constitution (see “To Sue or Not to Sue the President by James Allotey-Okai and “The President Can be Sued” by Andy C Y Kwawukume, Ghanweb January 4, 2013; “Akufo-Addo v. Electoral Commission: Matters Arising (Part 2)” by Prof Paul Kuruk, Ghanaweb Janauary 3, 2013 and “The President is Sueable and Not Insulated” by Nana Akwah, Ghanaweb January 2, 2013). They are brilliant articles from writers knowledgeable in law but with varied opinions from different angles. That is what the interpretation and application of law is about and the beauty of it. One does not necessarily have to agree with the views and opinions expressed by these writers as the final arbiter is the SC Justices who will adjudicate on the petition.

My bone of contention is with Allotey-Okai and Nana Akwah who brilliantly analysed the matter from two different perspectives but misapplied their interpretation. Nana Akwah relied on the words “without prejudice” in the Constitution to conclude that the President is personally sueable whilst still in office. I disagree with his conclusion because the words “without prejudice” are there to protect the rights of aggrieved parties to seek redress after the President had left office and again, to enable such parties to amend their suits as appropriate and return to court if they made the President personally liable instead of the Presidency in the first attempt. For example, if instead of Mr X versus the State or Attorney General, the original suit said, Mr X versus the President or John Mahama. On the other hand, Allotey-Okai also relied on the words “prerogative writs” in the constitution to support the view that the President can be made personally liable in a suit whilst still in office. He provided the various writs and succinctly explained what each writ means (“Certiorari”, order by a higher court directing a lower court to send the record in a given case for review, “Habeas Corpus” a demand that a prisoner/detainee be taken before a court to determine whether there is lawful authority for the continuous detention of the person, “Mandamus” an order by higher court to compel or direct a lower court or a government officer to perform mandatory duties correctly, “Prohibition” a directive to a subordinate to stop doing something the law prohibits and “Procedendo”, a directive to send a case from an appellate court to a lower court with an order to proceed to judgment. I should add one other important element of prerogative writs he omitted from his article. That is, the prerogative writ of “Quo Warranto”, which requires a person to show by what authority s/he or they have to exercise a power. Sadly, Allotey -Okai also erred in his application of “prerogative writs” on this subject.

Prerogative writs in the constitution do not give rise to the president being sued personally whilst still in office but rather to subject the actions and omissions of the Presidency and the President to the authority of the Constitution, through the powers of the Legislature and the Judiciary in accordance with the constitution. For example, in cases of serious breaches by the President, a Special Prosecutor could be appointed to investigate the President as was the case of President Bill Clinton and the Monika Lewisnky affair. Again, they are meant to make it possible for the President to face impeachment trial by the Legislature and not the Supreme Court. That is the only trial that the President could be made personally liable whilst still in office. In any other potential trials on actions and omissions of the President (whilst he is still in office) or the Presidency, the state in the person of the Attorney General will be made the respondent.

Others have posed the question, whether the President could sue in his personal capacity had Nana Akufo Addo been declared the winner of the December Presidential Elections instead of John Mahama. The answer is, yes. This is because the Constitution also gives “prerogative rights” to the President, therefore, the President can invoke his prerogative rights to go to court to seek redress either in his personal capacity or using his office though in the personal capacity rarely happens.

It is my candid opinion that the NPP had to make the President the first respondent because of the anomaly created by the rules of the Presidential Election Petitions in the Constitutional Instrument which is in conflict with the relevant Articles of the Constitution that grants the President immunity from being personally liable for prosecution whilst still in office. This is not surprising in Ghana because the Legislature has been approving Constitutional and Legislative Instruments and passing Bills into Acts without necessarily making sure that they do not conflict with the supreme law of the state (the Constitution) as was the case of the Transitional Act 2012.

In this particular instance, there are options that both NPP and President Mahama could avail themselves to. For NPP, if they were aware the conflict between the rules and the Constitution at the time of filling the petition, they could have asked for clarification from the SC but I believe time was not on their side. For the President, his Attorney could go to the SC and argue that the President could not be made personally liable and let the Justices rule on the matter or the President could exercise his prerogative rights by waiving his immunity, subject himself to the authority of the SC and defend himself. I believe this is what he has opted for. Alternatively, the SC itself can clarify the ambiguity and rule that either the President can or cannot be made a respondent whilst still in office.

Many people have questioned the rationale behind the President being made the first respondent in the petition to the SC. Some have even suggested that it is a personal attack on John Mahama and a sign of contempt for the office President as well as the person who currently occupies it. Such views are misguided because NPP should not be apportioned any blame for this unfortunate clash of constitutional obligation or confusion but the blame should be laid squarely on the Legislature who appear to have failed to spot the conflict. The Judiciary (SC) could not be held responsible either because the Judiciary can only ameliorate the confusion/conflict when the matter is put before them by a citizen through a petition or challenge.

I agree that this petition could run the risk of opening the pandora box of suits against the Presidency and the President whilst still in office if the Justices of SC do not take advantage of this historic opportunity to clarify the constitutional ambiguity once and for all. Nothing done in the name of the people and in accordance with Constitution should endanger the sanctity of the Presidency and the office holder but preserve it as sacrosanct. On the other hand, whatever the outcome of NPP’s petition at the SC, it would be a monumental contribution to the development of constitutional law in Ghana that also could enure to the benefit of Ghana and strengthen or weaken the democratic processes.

In conclusion and without prejudice, I am of the view that the NPP petition has brought into public domain the level of irregularities and or administrative incompetence within the electoral processes that might have characterised past elections without notice. It is my hope that the Electoral Commission will take note of the challenges identified by NPP in their petition and take appropriate measures to address them, notwithstanding the outcome the petition. Look out for part Two soon.

Columnist: Ata, Kofi