Has Kenyan Supreme Court Beaten Ghana’s Supreme Court?

By Kofi Ata, Cambridge, UK

I spent most of yesterday watching the live coverage of the Kenyan Presidential Election Petition decision by the Kenyan Supreme Court on my laptop from about 8.30 am till the decision was announced by the Chief Justice just after 2.00pm UK time. It is the time taken by the Kenyan Supreme Court to hear and decide the petition vis-à-vis Ghana’s Presidential Election Petition which is currently the Supreme Court, which is the subject of this post election article. This article is not about the legalities of the two petitions but only to discuss the time frame of the two petitions.

Kenya held presidential election on March 4, 2013, the results were announced five days later on March 9, 2013 and a presidential petition against the declared results was filed at the Supreme Court by the defeated candidate on March 16, 2013 which was subsequently joined by an NGO (The African Centre for Open Governance, AFRICOG). Yesterday, March 30, 2013, the Kenyan Supreme Court gave its ruling rejecting all the four reliefs being sought by the petitioners. In other words, it has taken the Kenyan Supreme Court just two weeks to hear the petition and make its decision, which is final and paves the way for the president elect to be inaugurated on April 9, 2013.

The Ghanaian presidential election took place on December 7 and 8, 2013 and the results declared on 9 December 2013. The defeated candidate filed a presidential petition against the declared results on December 28, 2012. As at yesterday and after three months, the petition is no near a full hearing, let alone a final decision by the Supreme Court. In fact, the substantial issues to be argued before the Supreme Court and for the Supreme to decide on have not even been identified and agreed upon by the parties involved.

The Ghanaian and Kenyan presidential elections had similar characteristics to some extent through the use of Information Technology by the respective Electoral Commissions. They bore another similarity through the challenges of IT equipment failures. In Ghana, the failure of Biometric Voter Verification Machines led to the extension of voting to a second day and Kenya also suffered similar IT equipment failures, especially with the tallying of votes from collation centres. It was reported that in some cases, IT equipment increased the total number of rejected votes by a factor of eight, which resulted in delay of the declaration of the final results and also cast doubt on the credibility of the figures and the declared results that finally culminated in the election petition.

Again, the case of the Kenyan petition, there were four different interested parties made up of the Petitioners, the First Respondent, the Second Respondent (the declared victor and the Electoral Commission) and an a neutral Joiner (an NGO) In the case of Ghana, there are also four parties though in reality, three interested parties because the interests of NDC are no different from those of President Mahama.

So why has the Kenyan Supreme Court been able to hear and decide on a presidential petition with 14 days but it is taking Ghana’s Supreme Court over three months to do the same? In terms of the numbers game, Kenya has a total population of over 41.6 million and Ghana’s population is over 24.6 million. It is obvious that the total numbers of registered voters and actual votes involved in the Kenyan petition would be considerably higher than those of Ghana.

The Kenyan Constitution is specific on the time frame for hearing and deciding a presidential petition which must be within a specified period and before the inauguration date of the new president. That specified period was up to midnight of March 30, 2013. As a result, the Kenyan Supreme Court had no option but to work to the constitutional deadline, to which they admirably achieved yesterday. Whether their verdict is good or not is another matter and not the subject of this article.

On the other hand, the Ghanaian Constitution does not specify the time frame within which an election petition must be heard and decided. Though the constitution grants the right to challenge the declaration of presidential election results, it at the same allows the disputed president elect to be sworn into office when the petition is still pending. This absurdity has given Ghana’s Supreme the privilege of hearing and deciding the petition at a time of their choice. An absurdity that could deny the citizenry, the right to be ruled by the true elected leader; the electorate, the right of the true value of their votes and the candidates the right to expeditious trial. As a result, the Electoral Commissioner and the Electoral Commission have a cloud of doubt hanging over their integrity. In fact, the slow pace of the petition is such that, the Supreme Court may be abusing its constitutional authority to decide the dispute within a reasonable time, though what is reasonable is not defined by the Constitution.

The Constitutional Assembly that drafted Ghana’s 1992 Constitution should bear the brunt of the blame for the above absurdity and the delay in deciding the current presidential petition. The norm in most democracies is for any challenge to election results, particularly presidential ones to be decided before the date of investiture. Why the Assembly departed from this norm is anyone’s guess. However, it appears to me that the framers of the constitution danced to the tune of the government at the time by ensuring that should the first democratic presidential election under the Forth Republican Constitution did not go the way of the then ruling government, any legal challenge at the Supreme Court could be stalled till the president being challenged, which was most likely to be President Rawlings, completed the four year term. This was more or less a constitution made to ensure the continuous rule of Rawlings by fair or foul means. Today, Ghana is paying a heavy price for the lack of independent minded decision by constitutional framers.

Ghana’s Supreme Court should also accept responsibility for the undue delay in deciding the petition. Despite the weakness in Constitution regarding the time frame for dealing with presidential petition, nothing stops the Supreme Court from giving the petition the utmost urgency that it deserves, hear and decide the petition within a maximum of three months. The Supreme Court could have acted expeditiously to hear the petition and make a decision if it so wished through continuous hearings, including even at weekends as the Kenyan Supreme Court did.

The failure of the Supreme Court to attach urgency to the presidential petition is casting Ghana in a bad image within the international community of democratic countries, where rule of law is effective. Ghana is acclaimed as the shining light in African democracy but the actions of the Kenyan Supreme has put Ghana’s democracy a step backward. Perhaps, Ghana may be receiving laurels and accolades that she may not deserve.

For the country to be living under suspicion of whether the December 2012 presidential election was free and fair, transparent and whether the declared victor was the real winner is damaging to the democratic credentials of Ghana. It is even laughable that the constitution allows the absurdity of the disputed results to stand until the petition is decided. The delay could also be potentially, a source of political tension within the country and even disincentive to investors, especially foreign ones. Probably, Ghana should be taunted for its democratic absurdity instead of an example of best practice.

To avoid this absurdity again, especially in 2016, Ghana should take urgent steps to amend the Constitutional Articles on the date for holding Presidential Elections and the Time Frame for dealing with Presidential Election Petition. I recommend that presidential elections are held at least, three months from the date of investiture and presidential petition should be heard and decided within three months from the date of the declaration of presidential results but not less than seven working days before the date of investiture.

It is in the best interest of Ghana as a whole for the Supreme Court to expedite action on the presidential petition and dispose of it as early as practicable. After all, justice delayed is justice denied. The delay is damaging to Ghana. The Kenyan Supreme Court has shown the way. Will Ghana’s Supreme Court follow?

Kofi Ata, Cambridge, UK