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This is a very, very long read, I must warn you beforehand. You might want to get seated first, and probably grab some popcorn before proceeding. But I guarantee that if you persevere to the bottom of the article, you will be glad you did that. With the disclaimer out of the way now, let us dive in.
By the year 2020, the tenure of the National Union of Ghanaian Students (henceforth NUGS) on the governing board of the Ghana Educational Trust Fund (henceforth GET Fund) had ended. It was the turn of the Ghana National Union of Technical Students (henceforth GNUTS) on the board.
There is some kind of gentlemanly agreement between NUGS and GNUTS to rotate representatives on the governing boards of two key state educational institutions – the Students Loan Trust Fund (henceforth SLTF) and the GET Fund.
I am not quite sure if this rotation is rooted in law. In other words, if GNUTS sends a representative to the GET Fund, a NUGS representative would head to SLTF. After four years, the two student unions make a swap and the cycle continues.
However, for four years since 2020, GNUTS has failed to send a representative to GET Fund’s governing board to represent the interests of Ghanaian students.
The process to elect a representative from within GNUTS has been rocked with litigation – injunctions and suits from different interest groups within the Union.
This year, there is yet another opportunity to send a representative from GNUTS to the governing board of SLTF. But I have noticed that the kind of acrimony that characterized the previous election and its aftermath is creeping in on this one. Union members are beginning to align along the two different interest groups that dominated the previous election.
And unfortunately, there has been loads of deliberate disinformation to mislead delegates who will be voting to elect the next student representative on the board of SLTF.
But where do I, Amodani Gariba, come in? As a stakeholder in the legal tussle that defined the aftermath of the electoral process three years ago, I am morally burdened to present the facts from a dispassionate and objective perspective. I owe this not only to prosperity but to the many delegates who need the facts to draw their own informed conclusions on the matter.
I shall chronicle events exactly the way they transpired and compliment them with a legal commentary especially as it relates to the deliberations of the Judicial Council (I was a member and played an active role in resolving the case internally as we shall see subsequently) and the high court.
Now some basic facts of the case. The electoral commission (henceforth, EC) of the Union held elections during the congress at Cape Coast Technical University on 31st October 2020. Among the positions up for grabs was ‘GNUTS external board representative’, the winner of which will proceed to sit on the governing board of GET Fund to represent Ghanaian students.
Three members of the Union filed their nominations to contest. They were Joshua Tetteh, Prince Agbofa Awuku and Ebenezer Boakye Agyemang. Joshua was a former coordinating secretary of the Union, while Prince Agbofa Awuku and Ebenezer Boakye were former public relations officers and former presidents respectively.
The nomination of Prince Awuku was surrounded by a needless controversy. Prince Awuku was a member of the EC but had resigned to contest for the position. Some members still think it was wrong for Prince Awuku to have taken part in the contest. But I do not agree with such thinking.
The fact that Prince Awuku resigned before contesting settles the matter in my opinion. There would have been a case of legal or even moral impropriety had he kept his position on the electoral commission while at the same time contesting the election.
But that was not the case. It is not morally wrong to have a change of mind on something. In fact, every man has the right to change their minds. Even the Holy Bible says it is only a fool who does not his mind. Therefore, the attempt to spin Prince Awuku’s change of mind as something that was either immoral or illegal simply does not cut it.
At the end of the voting, Joshua Tetteh emerged as the winner. He polled 67 votes while Prince Awuku and Ebenezer Boakye managed 61 and 13 respectively. But this victory would not last a day, for the troubles began even before the results were declared.
A member of GNUTS called Timothy Nagriwum popularly known as ‘HND lawyer’ petitioned the Judicial Council on 31st October to order the annulment of the suspension of article 72 of the constitution, which paved the way for the elections. Now you are probably confused, so let me explain the circumstances surrounding the suspension of Article 72 by the Central Committee (CC) of the Union.
Article 72 of the constitution of the Union sets out the modalities the EC must follow in organizing elections which includes the nomination process. Article 72 (2) states clearly that, “within three weeks commencing the date of appointment, the electoral commission shall issue notice inviting nomination from interested qualified candidates through the SRCs.” If this is the provision of article 72(2), what warranted CC’s suspension of article 72 of the constitution?
On 8th October 2020, the EC opened nominations for all the portfolios in GNUTS except for GNUTS external board representatives. Why would the EC do that? We would find out later as we read. As a result, on 31st October 2020, EC was confronted with a dilemma. EC wanted to conduct the elections for GNUTS external representative but they could not possibly do so without contravening article 72 of the constitution.
The CC then compelled the EC, through a resolution which suspended article 72 to pave the way for the EC to add the portfolio of the GNUTS external board representative to the positions under contest. But was it legal for the CC to suspend Article 72 of the constitution?
We will find this out later in the read. But certainly, not everyone on Congress grounds at Cape Coast agreed with the decision of the CC. Certainly not Timothy Nagriwum. But his petition to the Judicial Council fell on deaf ears. Similarly, Andrews Twumasi Obeng, a former public relations officer (2017/2018) wrote a petition on 20th November 2020 challenging the legality of CC’s resolution. But this petition too was not heard by the Judicial Council.
The Judicial Council’s persistent negligence on the matter provided the grounds for the petitioners to proceed to the high court to seek redress. Having been a member of the Judicial Council myself, I can understand how the logistical challenge of the part of the Council could have accounted for this outcome. The Judicial Council does not have a budget of it own. Whenever it wants to hear a matter, it must write to seek funds for National Executive Committee (NEC).
Aside the tedious nature of the process, most of the time, the funds never come.
Andrews Twumasi Obeng and Mohammed Kamaru-deen (former GNUTS President) on 29th December 2020 filed a suit at the Accra High Court against GNUTS and EC. Justice Audrey Kocuvie-Tay, who sat on the matter ruled on 18th June 2021 to stay proceedings because she was convinced that Andrews Twumasi Obeng and Mohammed Kamaru-deen had not thoroughly exhausted the internal adjudicative mechanism of the Union before filing a suit at the Court.
Pursuant to the ruling of Justice Audrey Kocuvie-Tay, plaintiffs Twumasi Obeng and Mohammed Kamaru-deen filed a suit with the Judicial Council of the Union. It was at this point I became directly involved in the case. I was a member of the Judicial Council that sat on the case in Sunyani on 4th July 2021.
I played a lead role in the sense that the rest of the ten members tasked me to produce the detailed ruling of the unanimous verdict of the panel that sat on the case. So, I am very abreast of the issues.
The defendant in the case (EC) didn’t show up before the Judicial Council for the hearing. Saving the situation was Richard Nana Appiah and four others who had filed an ex-parte motion to join the defense as 2nd defendants. The motion was filed on 24th June and the bench granted the motion on the day of the hearing, 4th July. The stage was then set for hearing as both sides readied their arguments and evidence.
The principal issue for determination before the Judicial Council was whether it was legal for congress to have suspended article 72 to pave way for the election of GNUTS external board representative. The 2nd defendant acknowledged that the article 72 applies of all elected positions in GNUTS but argued that COVID-19 put a constraint on the EC, which necessitated online nomination and vetting for only the portfolio of GNUTS external board representative. But more important, the 2nd defendants argued that Congress under Article 17 (1)(a) and (f) of the constitution had the power to suspend article 72 of the constitution.
Article 17(1)(a) talks about the power of congress to review or amend the constitution. The bench understood that to suspend an article is not equal to a review or amendment of same. But assuming without admitting that suspension is equal to review or amendment, the constitution lays down the procedure that congress must follow to exercise this power.
These procedures are clear under article 82. Congress, based on the fact available to the Judicial Council, did not follow any of the steps outlined in article 82 in suspending article 72. The point I am making here is that the idea that congress has the blanket power to review or amend the constitution is false.
Article 17(1)(f) talks about the powers of the congress to pass resolutions which would be regarded as policies of the Union. But to suspend a constitutional provision cannot be termed as a policy of the Union.
In fact, policies are made on the back of constitutional provisions, not their suspension. Besides, policies do not solve short term problems like the one which the suspension of article 72 attempted to solve. Policies solve problems in the long-term. Therefore, the very purpose for the suspension of article 72 defeats the claim that the suspension was a policy of the Union under article 17(1)(f).
Anyone abreast with the constitution of the Union would notice that the word ‘suspension’ is not mentioned anywhere. In fact, the framers of the constitution didn’t envisage that there may be a time that an article in the constitution would need to be set aside and so didn’t make any provision for such eventuality.
Therefore, it is very difficult to use any provision of the constitution to justify the suspension of article 72. And in any case, suspension of an article holds considerable weight in law than a review or an amendment of it. This means that on the very least, if congress had wanted to suspend article 72, they should have followed the procedure outlines in article 82.
I also noticed during the hearing, an insidious attempt to misrepresent the constitution by counsel for 2nd defendant. All the words in article 72(8) were quoted verbatim, with the exception of an insertion of an alien phrase, which reads, “or any grievance pertaining to the election.”
The deliberate insertion of the alien phrase into Article 72(8) gives a very different interpretation to the article. Without the insertion of the phrase, the defendants would not have had the basis to make argument in subsequent paragraphs of their defence statements, such as paragraphs 31, 32, 33, 34, 35, 36, and 37.
At the end of the day the Judicial Council had to decide. On the face of the case and evidence presented, we found that the elections for the position of GNUTS external board representatives were not conducted in accordance with the constitution of the Union. As a result, we had to annul the election and called for fresh election to be conducted in accordance with the law.
But the party that we blamed for the incompetence was the EC. The EC had terribly handled the processes leading up to the election. Evidence submitted showed that EC had refused to open nomination for GNUTS external board representative, even after it had several indications to do so, including a letter from Shaban Abdul Kadir.
The Judicial Council ruling on the night of the hearing was without conundrum. Four justices voted against the annulment of the election, while seven including the Chief Justice voted for it.
Even though there was a visible disagreement, the bench thought that by virtue of a majority vote, a decision has been made, and there was no need to show division amongst our ranks. We therefore agreed to announce a unanimous decision.
In fact, one of the justices that dissented – Tampuri Abubakar – scribbled the unanimous verdict in my notepad, from where the verdict was read on the night of the hearing at Sunyani. In fact, when the Chief Justice was reading the unanimous verdict, it was not possible to decipher from our demeanour that there had been prior disagreement.
So it came as a surprise the following day while I was on my way back to Koforidua when I received a call from Tampuri Abubakar demanding that he be given the opportunity to state why he dissented in the detailed ruling that I was tasked with writing. This was odd because, even though he had truly dissented, he gave his tacit approval for the Chief Justice to publicly read a unanimous verdict.
How did he expect the Judicial Council to produce a majority and a minority ruling to a unanimous verdict? But it appeared that it was not Tampuri Abubakar alone who wanted such an opportunity – the remaining three justices wanted the same.
Two things could explain the sudden change of stance by the minority justices. They were simply being disingenuous and completely ignorant of the implications of agreeing to a public declaration of a unanimous verdict.
This is the case because it is easy to see that they were acting on an afterthought. They ate their cake and wanted to have it back. But that was not impossible. So I went ahead to produce the detailed ruling of the unanimous verdict. This ruling formed the basis of the report that the Judicial Council had to submit to the Central Committee (CC) of the Union.
On the day of the CC meeting at Takoradi Technical University, the four dissenters had produced a ‘minority ruling’ which they had forcefully wanted to submit to the CC, almost resulting in a fisticuff between the Chief Justice and Tampuri Abubakar.
I was very sure in my mind that the litigation in the high court would continue, regardless of the outcome of the Judicial Council hearing on the matter. However, the outcome of the Judicial Council hearing could have a remote influence on the ruling of the high court on the matter.
I need to emphasize that the high court stayed proceedings and asked the complainants to seek the intervention of the Judicial Council on the matter. If the position of the Judicial Council is a unanimous decision against conduct of the election of GNUTS external board representative, then the high court may likely side with the Judicial Council and bring the matter to conclusion.
But if on the other hand, the Judicial Council is divided on the matter, it would create doubt about the credibility of the Judicial Council in the mind of the Judge, making quite necessary for her intervene steeply on the matter.
I believe stoking division among the Judicial Council after the public declaration of a unanimous verdict was engineered to achieve the objective of creating doubt about the credibility of the justices. Unfortunately, it worked to some extent.
I have been accused of being bribed. Many allege the ruling I produced was authored by a lawyer. It has been three years now, yet no one has brought evidence to prove their allegations. But when I analyse the structure, format and content of the so-called minority ruling, I cannot but conclude that it was authored by lawyer, in reaction to the allegation that a lawyer authored the detailed ruling of the unanimous verdict. I challenge anyone reading this to analyse both documents; Judicial Council ruling which I wrote and the minority ruling and tell me which of the documents is likely to be authored by a professional. But I will forever be proud that till date, the high court has not been able to denounce the detailed ruling of the Judicial Council. It has stood the test of time.
I kind of understand the pain of the 2nd defendants who of course were aligned with Joshua Tetteh on the matter. I know the 2nd defendants very well. They are all National Democratic Congress functionaries. I am even friends with some like Richard Nana Appiah. There was a false assumption on the part of the 2nd defendant that I sympathise with the NDC, so naturally, I would be sympathetic to their cause.
There was an expectation that I would bend the law for them. But when I did not do that, they were very disappointed, and the first step in their grief process was to attack me. But I hope the knowledge that I am neither NDC nor NPP would help their healing. I would pay dearly for standing by the Constitution, however.
I run for the president of the Union in 2021. Joshua Tetteh and his NDC group made sure I lost the election, campaigning that I was NPP. To them, if I am not NDC, I must be NPP. I guess they think in binary terms when it comes to politics even though there are more than 30 political parties in Ghana. This is just one example of how partisan politicking is impeding the progress of our union.
The Judicial Council ruling should have brought the matter to an end. Particularly if the parties involved respected the Judicial Council as the highest judicial body of the Union. But that was not the case. Organizing new elections in accordance with the constitution would have saved the Union a lot of traumas. But the egos of some people and an extreme sense of entitlement got in the way.
That is how Joshua Tetteh, the embattled winner of the election went to the high court to place an injunction on the verdict of the Judicial Council. He did this even though he was not a party to matters that the Judicial Council ruled on. What this meant was that NEC cannot implement the ruling of the Judicial Council until there is a declaration from the court to that effect.
Aside from the injunction, the high court also ruled that the Union should submit the name of Joshua Tetteh to GET Fund to be sworn in, in an interim capacity, until she determines the matter. Furthermore, she declared that all financial benefits from GET Fund accrued to the student representative on the board should be kept in an escrow account, pending final determination of the matter. However, this high court ruling was problematic. To order that Joshua Tetteh be sworn in an interim capacity is effectively to declare the case in his favour even before determining the case.
A more reasonable approach would have been to allow a neutral person from among NEC or a person approved by NEC to represent the Union on the board rather than Joshua Tetteh, pending her final determination.
Abdul Karim Abubakar, then the coordinating secretary of the Union rightfully thought the High Court’s ruling was inimical to the Union. He wanted to challenge it legally.
He sought the input and approval of other NEC members, but it appeared they disagreed with him and didn’t sign onto a legal challenge of the High Court’s decision. Abdul Karim Abubakar even though disagreed with the court, was prepared to write a letter to GET Fund based on the instruction of the High Court Judge. But the rest of the NEC members especially the President of the Union, Ahmed Akusie disagreed.
They wanted the letter crafted in such a way that did not reflect the true instruction of the High Court. To do this is simply contempt of the court.
In short, NEC wrote a letter that created the impression that the matter in court had been settled when that was not the case. In fact, Ahmed Akusie and Joshua Tetteh went about visiting other members of the board, presenting Joshua as the substantive student representative chosen by the Union.
Their machinations almost worked. The stage was set for the swearing-in of Joshua Tetteh as the student’s representative on the board of GET Fund, in a manner that goes against the instruction of the High Court.
Those dreams were cut short, however. Prince Awuku got wind of the planned swearing-in of Joshua Tetteh and placed an injunction on it. GET Fund after finding out the true state of the matter from the injunction, decided not to proceed with the scheduled swearing-in until all court-related matters have been settled.
Efforts at getting a truly neutral person to serve on the board pending the determination of the case failed. This is the status of the legal tussle that has resulted in the loss of opportunity for GNUTS to represent the students of Ghana on the board of the GET Fund.
The narrative that Prince Awuku is the villain in this whole affair is unfounded, both in terms of the facts and legality of the issue. If anything at all, the blame should be put at the doorsteps of the EC and Joshua Tetteh.
Joshua Tetteh disrespected the Judicial Council and planted division among the members. And what did the Judicial Council do to deserve that? Resolving a matter based on the dictates of the constitution. Besides, if not for his greed of wanting to garnish the benefits that come with the office he sought to occupy, he could have represented Ghanaian students until the courts decided the matter. This raises questions about his true intention in student politics. Is he in for personal aggrandizement or for the interest of students?
Almost a decade after serving as a coordinating secretary of the Union, Joshua Tetteh still has his shadows hanging over the Union. He is after this position or that. It is a no-brainer that Johsua Tetteh should leave the stage and rather groom younger student leaders to take up the mantle to continue.
But again, failure to do this raises serious doubts about his true intentions. It is more like Joshua Tetteh is in this business of student leadership for personal benefit, rather than the progress of the Union and its teeming young members.
It is against this background that members of his campaign team have sought to draw Abdul Karim Abubakar into their mess by trying to apportion his blame in the GET Fund brouhaha. I t is obvious they are doing this because Joshua Tetteh has no intention of leaving the mantle for young leaders like Abdul Karim to represent GNUTS on the board of SLTF.
I hope this article sets the records straight and sets the tone for responsible campaign from each side of the divide. And more importantly, allow delegate in the upcoming elections make sound choice devoid of propaganda. If this objective is achieved then the article has served its purpose.
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