SCR: Would it be economical to go for a re-run?

Ghana is blessed. We all want peace but do we go to court to seek for peace or for justice? Can there be peace without justice? Thanks to the Chief Justice, the panel of judges, GTV, Multimedia, and the good people of Ghana, the entire Supreme Court case is live on TV and radio for everyone who has an interest to follow with an eagle eye. The Petitioners are praying the Supreme Court to overturn the declaration that John Mahama as the rightful winner of the last December polls because of what they allege was massive fraud during the elections. They are asking the court to also declare the opposition New Patriotic Party (NPP) candidate for that election, Nana Akuffo Addo as president.

However, the court on last Wednesday gave the opportunity to Petitioners and Respondents to give the final statements of their case before the court gives a judgement on the petition. In his last address, Tsatsu Tsikata who is counsel for the third respondent - National Democratic Congress (NDC)- said the demands by the Petitioners are nothing but a request for the judges to impose a retroactive penalty on innocent voters who went to queue in the sun to vote, a request that is not backed by law and should not be taken seriously as describe by Mr Abotsi a renowned senior law lecturer at the Ghana School of Law.

Mr Abotsi, speaking to Joy News, disagreed with Tsatsu Tsikata's claim of retroactivity. He noted that there is nothing retroactive about nullifying invalid votes obtained by a candidate in an election. He pointed out that in the event of a judgement that upholds the case of the petitioners, the president, according to the law, would have been deemed never to have been in office. He explained that this is because as far as the 1992 Constitution is concerned, violation against it is considered null and void. That is “right never passed, liabilities never created and you cannot even claim to have even exercised that particular position, power or authority conferred on you”, he said.

The president lead counsel –Tony Lithur also made an assertion when he delivered his address to Supreme Court that: the constitutional right to vote is fundamental, inalienable and God-given and so the petitioners cannot pray to the court to cancel those votes. Mr Lithur claimed that setting those votes aside would be to deny them of their God-given right.

However a member of the Governing Board of the Centre for Democratic- Ghana and a Professor of Law at the Seton Hall University Law School, in USA – Professor H Prempeh has also differed that assertion by Tony Lithur that, the right to vote in Ghana as everywhere else is a right that emanates from positive law in this case, the constitution and not a God given right as Tony Lithur tried to portray. Professor Prempeh has drastically debunked on Tony Lithur that, the right to vote is not a natural right; it does not come from any god/God. It is a manmade right as is the form of government which is associated, i.e a democratic right and not God given right.

The EC on the other hand, is accusing NPP of cherry-picking evidence to support its petition and has dismissed NPP’s claims of over-voting, fraud and irregularities in the December 2012 election. It argued that the petitioners have not led a single witness in court to demonstrate over-voting. It added that even if some people voted without being biometrically verified the vote cannot be invalidated because the Constitution of Ghana, as well as Supreme Court precedence overrides Regulation 30 (2) of C.I. 75, which prohibits voting without biometric verification. It cited the case of Tehn-Addy vs. Apaloo in which the Supreme of Ghana held that a person qualified under article 42 of the 1992 Constitution of Ghana cannot be denied the right to vote or his entitlement to be registered as a voter. The EC again denied the petitioners claim that there were duplicated serial numbers on pink sheets (the official election documents).

However the EC has indirectly admitted that there were irregularities in the conduct of the election in some polling stations. It assigned the reasons for such irregularities as clerical errors on the part of polling officials who in some instances forgot or overlooked to append their signatures on vital polling documents and wrongly filling out documents in the manner not prescribed by the commission’s rules and regulations. It however added that those clerical errors cannot form the basis for annulling an entire Presidential election. The EC address concluded that the December 2012 presidential election that it declared Ghana’s President John Dramani Mahama, the first respondent in the petition winner, was free and fair. In its’ concluding remarks, Mr James Quashie-Idun, the lead counsel for EC urged the court to dismiss the case as without merit.

Nevertheless, based on the benchmark set by the Supreme Court (SC) for this case, there can only be three outcomes: (1) Declaring Nana Akufo Addo as the rightful winner of the 2012 general elections for John Mahama to handover to him as soon as possible. Or (2) that there were no over voting, irregularities or so ever that affected the final results of the elections and therefore John Mahama to maintain his seat as the President elect. Or (3) that there were indeed some irregularities, over voting, and other malpractices that affected the final results but there was no clear winner who obtained the 50 per cent plus votes as stated in the constitution, therefore there should be a re-run for the leading two parties.

These are all possible outcome. However, the question many economic minded Ghanaians are asking is: should the Supreme Court arrive at the third decision, would it be economical for Ghana to go for a re-run at this critical moment? Can Ghana afford it, looking at the economic mess created by the current single spine structure (sss), the huge judgement debt necklace on Ghana and the alleged massive financial waste, fraud and corruption associated to the GYEEDA report? And even if so, who would supervise that general election: is it going to be this same EC- Dr Afari Gyan and his team? God bless Ghana.

Opoku Bonna LLB, LLM.