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Ghana must take cue from Kenya

Tue, 2 Apr 2013 Source: Bomfeh Jnr, Kwabena

*CJ MUST SIT UP!*

Watching the Kenyan Election Dispute case on DSTV channel 413 on Thursday,

28th March between the hours of 13:00 and 16:00 GMT, *it was really

worrying and embarrassing that the Attorney General of Kenya could boast of

the speed with which their case was travelling by citing Ghana’s snail slow

pace of handling a similar petition – challenging the validity of the

election of the President.* Kenyan Attorney General, Githu Muigai speaking;

*"As my Lords are aware, as we speak here today the Supreme Court of Ghana

is sitting on the election dispute relating to their election which was

undertaken in December and they are slower than we are and I think we

should take a little credit for the sort of enthusiasm that this court has

brought to a timeous disposal of this matter*.” The Kenyan A-G was allaying

any fears of delay. I sighed with disappoint; Oh NO! What a shame, Ghana!

This is what happens when your standards fall. You become a reference point

for those are accused of falling. It becomes easy and convenient to use you

as a solace. How much less can we fall?

Unlike in their previous elections where disputes or challenges were

settled by the sad option of bullets and machetes, the People of Kenya this

year chose the prescribed channel of using the Court, taking a cue from

Ghana’s opposition leader Nana Addo Dankwa Akufo Addo. When I began writing

this piece, the petition was expeditiously being dealt with. Indeed on

Saturday, 30th March, the Judges of the Supreme Court of Kenya pronounced

judgement declaring the validity of the election of Uhuru Kenyatta as

President of Kenya.

Ghana’s 2012 December polls for both Parliamentary Representation and

Presidential Election came to a peaceful end not without issues and

disputes. Notwithstanding these issues and disputes, President Elect, John

Mahama, per the Electoral Commission’s declaration was sworn into Office on

January 7, 2013 as required by Law pending the determination of the of the

Presidential Petition filed at the Supreme Court challenging the validity

of his election. The Petitioners drew their authority from Article 64 of

the national Constitution which grants the Supreme Court the basis to make

a pronouncement on the decision of the Electoral Commission as well as

guarantees the running of government by the ‘embattled’ President.

The Kenyans may have a taken a cue from the law abiding path Ghana chose in

handling their election dispute but they have overtaken us by taking the

lead in dispensing with their challenge legally without any hitch. Kenya

has now become an example Ghana has no option than to emulate. In the

Kenyan case, the bench was led by the Chief Justice himself. Strangely, our

Chief Justice is missing in the Ghana case. Her Ladyship Georgina Wood has

excused herself from a number of monumental cases namely; the challenge of

the creation of new Districts and the creation of new Constituencies in

addition to this Presidential Petition; to the shock of many a follower of

the proceedings of the Supreme Court atleast since 2009. In this landmark

case unprecedented one would have expected the Head of the Judiciary to

lead the Honourable Bench to decide on it. Madam Chief Justice, your

absence on this bench is not in good taste with the majority of Ghanaians.

Or is it the case of withdrawing from cases in response to the NDC

Chairman’s threat of “many ways of killing the cat”? I do not want to

believe that as the Arch Protector of the Law her Ladyship could be

intimidated by such threats knowing very well the degree of her duty

call. *Whatever

the cause of the Chief Justice’s action may be, her stay off these landmark

cases is a dereliction of duty and classical shirk of

responsibility.*Never has there been such a situation in Ghana’s legal

history. Even ailing

Chief Justices were prepared to stand up to be counted.

The Chief Justice of the Kenya is not only sitting on the case himself, he

has also led the *Court to order for the live broadcast of proceedings in

Court for the view of the general public on their National Television*. If

her ladyship has not been courageous enough to sit on this case, she can at

least see to the live broadcast of the case on Ghana Television like we

witness with the Public Accounts Committee’s sittings.

In Ghana, we still do know how long this case will travel and when it is

actually starting. Our situation is even more pathetic because of the

posturing and attitude the Supreme Court has adopted in entertaining

delays. First it was the unnecessary allowance for the NDC as a different

Party to join the matter in their own right because they sponsored the

first respondent John Mahama. Subsequent to the allowance of their joinder

application, all the NDC has been doing in court is to delay the

commencement of the substantive petition and until the Courts stamps

Authority, they have not indicated the readiness to stop.

Second, the Court instead of directing the conduct of the trial threw the

option to feuding parties who have shown in court their unwillingness to

agree on anything including disagreement itself. After more than two weeks

of adjourning the case ‘sine die’ the counsel for the petitioners have

written to the registrar of the court hinting the dead end of their meeting

with the counsel for the respondents. Could this not have been avoided?

Could we not have seen to the commencement of the trial proper? Even at the

next hearing, one is uncertain whether or not we shall be told as to when

this case is going to begin.

As much as it is worth commending our Judges for unanimously thrashing the

frivolous joinder application by some mischievous NDC members, we must

express our disgust at the snail slow pace at which they are grinding the

wheels of justice. After all, it is also written that Justice Delayed is

Justice Denied. It was in the spirit of this very maxim that they wrote to

be enacted CI 74 to expeditiously deal with presidential petitions

considering its urgent nature. So why must we be in the 4th month of a four

year tenure and still be in court over the validity of who should execute

term? We have no option than to take a cue from the Kenyans who obviously

learnt from the needlessness of their warring past as well as the law

abiding example chosen by Ghana.* The delay tactics employed by the

opponents of the petition is not celebrated at all by many a Ghanaian whose

fears are in expression albeit in a muted majoring protest. *

It is instructive to note that both her Ladyship Georgina T. Wood and Dr

Afari Djan have their hands in the happenings in Kenya. Whereas Dr Afari

Djan helped in the creation of the electoral reforms involving the use of

Biometric Technology though Ghana had no experience in such, Mrs Wood also

helped in crafting the legal reforms in adjudicating electoral disputes

though she won’t have anything to do with that of her own home ground. The

interesting twist here is simply that the Kenyans have shown that they can

learn and learn really fast. We surely have a cue to take from Kenya.

We cannot overlook the hardworking staff of the Kenyan Judicial Service who

worked tirelessly to expedite action in the hearing of the petition. On no

occasion did the courts have to wander with the whereabouts of any

document. There was not attempt by any court staff to hide any document.

Ghana Judicial staff penned to help with the execution of this case must

learn from the colleagues in Kenya. Nobody should attempt to remove or hide

any of the filed applications or documents from the attention of the

judges. Of course the counsel representing the parties involved in the case

generally conducted themselves very well. Each of them restrained

themselves to the time allotted. They reduced the use of acrimonious and

inflammatory non legal language. There was general decorum and surely it

would in the interest of peace for our lawyers to take a cue from their

Kenyan colleagues. The laxity with which the court allowed the wearing of

decent attire and not necessarily the traditional dress code of colonial

legacy cannot equally be slipped over. Considering the long hours expected

to be spent in court, perhaps they(Judges and Lawyers alike) would be

relieved of the stress of this unmodified colonial legacy which is very

much not akin to our environment.

One interesting point that arose in the Kenyan case that struck me and I

see recurring in our court was the point of law that; *where the

petitioner(s) showed that the breaches of the law in the conduct of the

elections affected the general outcome of the election, the burden of proof

shifted to the respondent(s) to show that such breaches did not affect the

outcome.*

*In the end we should all remember that Kenya went through a similar if not

the same experience of resolving a disputed presidential election in court

without any degeneration into war or bloodshed. They have exhibited the

spirit of oneness in deepening the democratic culture of Kenya. It is Kenya

that has won. Not any particular individual or party. Ghana can do and

bright better.*

Is Ghana going to be like Kenya? That is the debate on going pending the

decision of the Supreme Court. How soon that is going to be, we are not

sure. Since Ghana did not turn into Kenya when the late Prof Mills promised

Kenya in 2008 while alive, I am not too sure Ghana will go Kenya after his

death.

*Kwabena Bomfeh Jnr (Member of Parliament [attempted], Kintampo North)*

Columnist: Bomfeh Jnr, Kwabena