In praise of Justice Dotse’s written judgement

If there were any Justices who impressed me by their penetrating questions during the hearing into the election petition, these were Justices Baffoe-Bonnie and Jones Dotse. It was Justice Baffoe-Bonnie who elicited the revealing ‘it is not clear in my mind what over voting is’ from Dr. Afari-Gyan. Justice Dotse was the one whose questioning undermined the answer given by the same Dr. Afari-Gyan regarding the instructions given to Presiding Officers not to fill in column C3 when he could not recall the mode in which this instruction was conveyed.

It was on record that these two Justices, in the final ruling, had dismissed the claims of the petitioners to which these two answers of Dr Afari-Gyan relate, being over voting and voting without going through biometric verification. Thus when the various written judgements were released, I was quite eager to find the bases for the dismissal of these two claims by these two judges. My discussions herein, though, is limited to Justice Dotse because I find his written judgement comprehensive, of excellent literary quality, better reasoned and full of recommended reforms meant to plug most of the loopholes exposed by the trial.

As the verdict approached I did set down my criteria of justice in reaction to an article posted by one Dr. Essien on Ghanaweb on 25th August. I hold this strong believe that an election petition should be viewed as an action brought in the public interest and that any forum handling such a case should strive to make substantial inquiry into the matters raised. To be able to make this substantial inquiry required that the EC made available all records that it held of the election. I have therefore criticised the fact that the Court allowed the EC that is constitutionally mandated to keep all electoral records, to withhold them from the parties and the court. I am glad to say that some of the judges agreed with my observations in their written judgements.

Whilst a lot of people struggled to define what was meant by justice in the petition I had a simple criteria for evaluating justice as when:

1. The court considers all the evidence brought before it;

2. The court does not use technicalities to rule out or throw out some of the evidence irrespective of defects in affidavits, exhibit labelling and categorisation;

3. The court does not look beyond the evidence brought before it to consider other extraneous issues since all parties had the opportunity to present evidence;

4. The bench does not substitute its will or sentiments for the law; and more importantly;

5. The ruling itself is justified and explained in terms of the Law.

Were these met in the various written judgements? With the exception of Justice Atuguba by and large all the Justices met these to varying degrees. Those who granted the claims relating to statutory and constitutional infractions ‘stuck’ to these criteria to a greater degree than those who dismissed the claims.

To me, however, it was Justice Dotse who thoroughly examined the matter (in all its complexities) and sought to adjudicate fairly. Contrary to the ridiculing of the claim relating to duplicate serial numbers by some, he was the one who saw the sinister side and was convinced that the existence of two sets of pink sheets was used to abuse the elections, albeit to a limited extent. He was unconvinced by the explanation given by Dr. Afari-Gyan. He stayed his hand simply on the lack of laws proscribing such act. He therefore recommended legislation be brought forward to require that ‘pink sheets’ have unique identification in future elections, same as ballot papers.

This is not an uncritical observation of Justice Dotse’s judgement, though, because I disagree with how he dismissed the claim relating to voting without prior biometric verification which was at variance with how he constructed the ruling. All the legal reasoning he gave leading to the dismissal rather supported his granting the claim. His dismissal of the claim came rather abruptly, especially when it was based on the statement of Dr. Afari-Gyan, whose credibility and competence he strongly criticised in various parts of the judgement.

Justice Dotse said that the petitioners did nothing to rebut Dr. Afari-Gyan on his claim that Presiding Officers were asked to ignore column C3. Anyone who listened to the proceedings knows that this observation is wrong. The petitioners amply tested the ‘error theory’ by asking whether Dr. Afari-Gyan accepted that the numbers on the pink sheets against C3 were related to the elections, to which he answered in the affirmative. Dr. Afari-Gyan was then asked where those numbers should have been recorded instead of C3; he could not show it. It was finally shown that C.I. 75 (which prohibited voting without prior verification) was gazetted long before the date when printing of the pink sheets was ordered. If these do not constitute strong rebuttal of Dr. Afari-Gyan’s testimony, I do not know what more the petitioners could have done.

Whilst it might be unfair to the Justices to hold so, I think their voting pattern was set out to arrive at their unwillingness to overturn the elections. Justice Dotse’s handling of the ‘C3’ question was not satisfactorily explained. He left some ‘footprints’ in this regard when he felt compelled (probably at a very late stage) to ‘flesh’ out his ruling under a further separate heading when it appeared the basis of the dismissal was scanty. He therefore had to bring in the presumption of regularity and the objection by the petitioners to the belated introduction of data supposedly printed from the BVDs, which had not been independently witnessed. Justice Dotse thought the petitioners should have trusted the EC on this even as he himself reserved strong criticisms for their behaviour and lack of candour.

The predisposition of the court as far as the petition was concerned is given away by Justice Atuguba when he wrote thus:

“For starters I would state that the Judiciary in Ghana, like its counter parts in other jurisdictions, does not readily invalidate a public election but often strives in the public interest, to sustain it.”

Thus his action from day one was not to allow the petition to succeed. In the process he ignored his own ruling in Republic v High Court (Fast Track Division) Accra; Ex-Parte National Lottery Authority (Ghana Lotto Operators Association & Other Interested Parties) [2009] SCGLR 390, when he said:

"It is communis opinio among lawyers that the courts are servants of the legislature. Consequently any act of a court that is contrary to a statute such as Act 722 s 58(1)-(3) is unless expressly or impliedly provided a nullity"

Rather he had to arrive at his ruling by taking a rather tortuous and belabouring route. He had to take a legal excursion to Guyana and other far places for authorities to set aside the imperatives of the Ghana Constitution.

The tension that arose between the Justices in holding the predisposed position of not invalidating the election is further exposed by what Justice Annin-Yeboah also wrote thus:

“Our Judicial oath taken on our appointment as judges enjoins us to at all times uphold the Constitution which is the supreme law as clearly stated in the second schedule of the 1992 Constitution”

This statement, in using the plural instead of the singular, informs my mind that there was intense lobbying for them to toe the validation line. It can be seen that he was not aiming this statement only at the parties in the case; he was also addressing it to his fellow Justices. Is this why he is being lashed by you know who?

All the forgoing notwithstanding, I am impressed by Justice Dotse. It is refreshing to know that people of his calibre grace the highest court of the land. He is a credit to the Supreme Court and indeed the Ghanaian Judiciary. He showed his scholarship, his power of logic and his inclination towards modernisation of the court system with his call for admission of electronic evidence. It is a pity that he appears to have ‘yielded’ to pressure/persuasion by dismissing the claim relating to voting without prior biometric verification.

At the beginning of his judgement, Justice Dotse indicated the approach he was going to take, the Ghanaian laws he was going to rely on and the persuasive authorities he was going to use where no precedent exists in Ghana. This was professionalism at its best. He can also indeed be labelled as ‘Judge Reform’. He was the only one who made comprehensive proposals for streamlining the procedures for hearing future petitions and suggested reforms (both legislative and procedural) that will help enhance the credibility of future elections. He made scathing but measured remarks about Dr. Afari-Gyan including the fact that his reputation as a good election administrator, both internally and internationally, has evaporated into thin air.

The ‘icing on the cake’ was his adaptation of Lord Tennyson’s poem, the Brook, to link in the Volta River, the past leaders of Ghana, the two main political parties and the survival of Ghana. This was fit and apt for the historic nature of the trial. We should not pass on the opportunity to more substantially tap his ideas in the kind of reforms our electoral system must undergo and if we do that, certainly elections in Ghana will never be the same!

Dr Yaw Ohemeng