The 2020 presidential election petition and the exercise of discretionary powers

The 2020 Presidential Election Petition has been heard. The court on 4th March, 2021 gave its judgment. A court’s final judgment especially by the Supreme Court is to bring finality to a matter in dispute, but I wonder if majority of Ghanaians will hold the view that the dust has actually settled on all the happenings of the 2020 Presidential Elections.

This article will seek to argue that Ghanaians have been badly let down by the court in its failure to exercise its discretion in the interest of probity and accountability, two solemn declarations and affirmations Ghanaians committed themselves to in the 1992 Constitution. Whether or not the court exercised its discretion in the interest of justice is another matter.

In this article I shall focus on judicial discretion which according to the Oxford Dictionary of Law is: “The power of the court to take some step, grant a remedy, or admit evidence or not as it thinks fit”. Article 296 of the 1992 Constitution inter alia provides that: “Where in this Constitution or in any other law discretionary power is vested in any person or authority-

(a) that discretionary power shall be deemed to imply a duty to be fair and candid;

(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased wither by resentment, prejudice or personal dislike and shall be in accordance with due process of the law”

At the just ended Presidential Election Petition, a number of applications were filed by the Petitioner and almost all of them were dismissed by the court. But I paid especial attention to one particular application. The Electoral Commission or the 1st Respondent had elected not to testify after the Petitioner had closed his case.

They also proceeded to close their case arguing that the Petitioner had not discharged any burden of proof warranting their response. The court agreed with the Electoral Commission. The court also agreed with the 2nd Respondent who had also elected not to give evidence. The court thus ruled in their favour. The dismissal of the application of the Petitioner arguing that the 1st Respondent had already elected to testify and therefore could not resile from that election coupled with the reluctance of the court to invite the Chairperson of the Electoral Commission on its own motion to give evidence precipitated this present article. Discretion is coeval with arbitrariness or unfairness. The exercise of discretionary power therefore can only yield two outcomes; a fair and candid outcome or an arbitrary and capricious outcome.

Unfortunately, the decision by the Supreme Court to uphold the refusal of the Chairperson of the Electoral Commission, Mrs. Jean Adukwei Mensa to testify at the trial notwithstanding her sworn affidavits indicating her readiness to avail herself for cross-examination, and also not to call her to give evidence on the court’s own motion was a dereliction of duty by the court in my view. Millions of Ghanaians glued to their television sets following the live proceedings including this writer felt disappointed and hard done by the court for not exercising its powers under Section 58 of the Courts Act, 1993 (Act 459). The section provides that: “In any proceedings, and at any stage of the proceedings, a court either on its own motion or on the application of any party, may summon any person to attend to give evidence, or to produce any document in his possession or excerpts from it subject to any enactment or rule of law”.

The Electoral Commission is the body clothed with the responsibility of conducting and supervising public elections, and the conduct of the Commission when not properly discharged has the potential of destabilizing this country. The eruption of violence that engulfed Ivory Coast in recent past following a disputed election results is an excellent example.

Thusly, what was on trial at the Supreme Court in essence was the conduct and performance of the Electoral Commission and in particular its chairperson who doubles as the Returning Officer for the Presidential Election.

Given the key role played by the Chairperson of the Electoral Commission, it was just fair and candid for her to have been heard and to explain to Ghanaians the figures she declared on 9th December, 2020 and the unsigned press release issued on the 10th of December, 2020 that sought to correct the figures she had announced on 9th December, 2020.

It was the expectation of Ghanaians that the court would have invited the Chairperson of the Electoral Commission on its own motion to testify and to account for her stewardship. That would have been the proper thing to do in the interest of justice, probity and accountability. Never in the history of the 4th Republic has the results of a presidential election been declared in error and an unsigned press release issued the following day to correct the purported inadvertent error. Which law in Ghana allows declared results of a public election, more so a presidential election to be amended by a press statement? This is clearly an injurious infraction of Article 49(2) and (3) of the 1992 Constitution and regulation 44(10) of the Public Elections Regulations, 2020 (C.I. 127), the laws governing public elections in this country which the Electoral Commission cannot stray.

Without doubt, the court has delivered its ruling on the matter, but that ruling leaves a clutter of doubt and a deluge of unanswered questions in the minds of many a Ghanaian. A situation I consider as an unalloyed unfairness on our democracy and Ghanaians as a whole, and the court cannot escape blame.

If in the opinion of the court, holding Mrs. Jean Mensa to her sworn affidavit to testify will support the case of the Petitioner and so will have none of it, then I am afraid the court had rather taken sides in the matter. And an unfortunate occurrence, which offends the sense and sensibilities of the administration of justice which requires justice delivery to be carried out without fear or favour, affection or ill-will. Even if Jean Mensa had not sworn an affidavit to testify at the trial, the court had a duty to Ghanaians to call her on the court’s own motion for her to testify as a public officer whose conduct was being questioned.

Justice emanates from the people says the 1992 Constitution and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to the Constitution. Therefore any ruling of our courts in particular where the discretionary power of the judiciary is called upon, the exercise of that power in all cases must aim at protecting and preserving fundamental human rights and freedom, unity and stability of this country as espoused by our Constitution.

It is unthinkable that a whole Presidential Election Petition at the apex court of this land can come to an end without a word of testimony from the Returning Officer for the Presidential Election who had even sworn affidavits on two different occasions that she will testify. What an anticlimax! Her evidence to all intents and purposes should have been seen by the court as a national assignment and accountability to Ghanaians as a public officer whose pay and perquisites are paid for by the taxpayer.

A sworn affidavit is a solemn oath on paper that an administrative body or a court in the interest of justice and equity must give effect to depositions contained therein.

Jean Mensa swore an oath that she will testify, if she decides to do a U-turn that will amount to sheer subterfuge and skulduggery. The court by asserting that it will not compel her to testify in spite of her sworn affidavit to do so in effect has endorsed treacherous trickery. A person driving from Tema to Accra on the motorway cannot do a U-turn. Any such U-turn will be illegal and inconsiderate driving that a police officer on the spot will arrest. However, lucky Jean Mensa did such a U-turn flagrantly in front of the bench and in the public view but those mandated to take action surprisingly turned a blind eye and maintained a pious silence on her infamous action. Can it be argued that by this decision a sworn affidavit has lost its utility value?

I do not find the exercise of the court’s discretionary power to uphold Jean Mensa’s decision not to testify as one that bodes unity and stability for this country. I am struggling to understand how come seven independent minded panel members of the bench invited to exercise their discretion for A or B and almost on all occasions they exercised that discretion jointly and severally in favour of B. The unanimity of thought and reasoning of the bench in its ruling on all the applications of the Petitioner appears to be a very strange mathematical regularity which defies common cognitive understanding of the ordinary person on the street.

The exercise of discretionary power finds eloquent expression in the wisdom of Apostle Paul in 1 Corinthians 10:23 where he admonishes his followers on how such powers ought to be applied. He says: “All things are lawful for me, but all things are not expedient, all things are lawful for me but all things edify not”.

The court has every right to exercise its discretionary powers any how it thinks fit and that decision may be lawful, but will that decision albeit lawful pass as expedient and will that decision also edify. The word “edify” is synonymous with words such as develop, uplift, enlighten, educate etc. The question is, was the decision of the court expedient and if so has it edified the nation in any form or shape? In a nutshell, discretionary powers should never be used in a way that will distort and disturb the decorum of our democracy and the rule of law.

The court in its final judgment delivered on 4th March, 2021, unanimously dismissed the petition as having no merit. The court heavily relied on the evidence of the Petitioner’s 1st witness, Mr. Johnson Asiedu Nketiah and described the evidence of the Petitioner’s two other witnesses; Dr. Michael Kpessa Whyte and Mr. Robert Joseph Mettle-Nunoo as fanciful tale and unworthy of their consideration. At least, the court had the benefit of hearing from the Petitioner’s three witnesses and formed its opinion on their evidence. I wonder the weight the court would have placed on the evidence of the Chairperson of the Electoral Commission if she had been called to testify and the general effect it would have had on the final judgment of the court.

The Petitioner in his address to the nation after the court’s final verdict stated that though he was legally bound by the decision of the court, he disagreed with the process of the trial and the ruling of the court. The Petitioner observed that everything was done in the trial to allow the Chairperson of the Electoral Commission to evade giving evidence. He was worried about that dangerous precedent for public officers. The Petitioner was of the view that the Chairperson of the Electoral Commission’s conduct is a cause for worry and the Electoral Commissioners have no reason to be in office because they have not been impartial.

The inconvenient reality and the combine effect of the decision of the court without the evidence of the Electoral Commission and the response of the Petitioner, a former President of the Republic is that the credibility and transparency of the 2020 presidential elections has still not been resolved, a rather sad spectacle and a regrettable outcome.

I pray that institutions of this country will discharge their duties and functions in a manner that will help advance our progress as a people but not to retard our forward march. God bless our home land Ghana and make our nation great and strong.