S. Kwaku Asare
Without prejudice to the written opinions, whose release date remains shrouded in mystery, the procedural absurdities surrounding the August 29, 2013 in curiae announcement of the Supreme Court’s vote tally in Akufo Addo et al. v Mahama et al. raise substantial questions about the Court’s process and ultimate verdict.
On August 14, 2013, the Court announced to the nation that it will render its opinion on the presidential election petition on August 29, 2013. It was commonly and reasonably understood that the Court will hold all its conferences, tally its votes, assign responsibilities for opinions and release an opinion, the first, probably the only, thing when the Court resumed sitting on August 29. At a minimum, the nation expected a decision and the ratio decidendi, perhaps in summary form but nothing less.
This rational expectation was upset in extraordinary ways on the judgment day. First, the Court kept the nation on tenterhooks, as it inexplicably remained in conference for nearly 4 hours. Second, the Justices emerged out of conference, not to read the expected opinion, but to hurriedly announce the vote tally on the six constitutional and statutory violations.
Third, on the question of biometric verification, the Presiding Judge said, “Atuguba, Adinyira, Dotsey, Baffoe-Bonnie, Gbadegbe, Akoto-Bamfo dismiss the claim.” “Baffoe-Bonnie JSC grants the claim of voting without biometric verification, cancels the votes involved and orders a rerun of the areas affected.” This glaring inconsistency was instantly noticed by many who were listening and it went viral on social media when someone posted that “there is an overvote by Baffoe-Bonnie!” Nonetheless, and rather surprisingly, the inconsistency remained invincible to Baffoe-Bonnie and the other Justices.
Quiet apart from the inconsistency and absurdity, this was of substantive importance. The likelihood of success on an application for a review of the Court’s decision is low if the vote is 6-3, as announced by the Court. The petitioners, on that calculus, may decide that an appeal is unnecessary and concede the election. As it turns out, Nana Akufo did concede, on August 29, based on the Court’s 6-3 announcement. The following day a slip from the Court announced that Baffoe-Bonnie did not vote to dismiss the claim, as announced on August 29. Indeed, he voted to uphold the claim. Thus, the vote was 5-4, not 6-3. How did the Court get itself in this pickle and where else in the world can such a mysterious set of facts present itself?
Fourth, the Presiding Judge announced that the opinions were immediately available at the registry. It turns out that the opinions were not available at the registry on August 29 and are still not available as at the time of writing this article (September 3, 2013, 4:00PM GMT).
Several questions follow:
1. Was there the usual final conference before August 29, 2013? If so, what was the outcome of that final conference?
2. Who and what delayed the Justices on August 29, 2013?
3. Why were the opinions (at least, a summary ratio decidendi for the majority and the minority) not announced as expected on August 29, 2013?
4. Why did the Presiding Judge announce that the opinions were available at the registry when they were not available? Alternatively, is someone at the registry refusing to release the opinions, if indeed they are available?
5. How could there be such a consequential “error” in the tally of 9 votes by the Supreme Court Justices? After all, this is indisputably the most important case in the Court’s history, the Justices had ample time to tally the votes and the world’s eyes were on the Court!
Something is very wrong! The Chief Justice owes a duty to the nation to find out and explain what went wrong!