The Absence of a Concession and the Powers of the Supreme Court

Sat, 9 Feb 2013 Source: Asare, Kwaku S.

S. Kwaku Asare

As far as I know, no constitution, in the world, recognizes or even acknowledges the importance of a concession by the losing presidential candidate in a presidential election. Nevertheless, the concession has become a ritual that all the advanced democracies acknowledge and recognize as an important element of their electoral activities. It is that singular action that signifies the successful resolution of an election and avoids the involvement of the judicial branch, in an activity that should properly belong to the political space.

Occasionally, however, there is a dispute about the election results and the concession is not forthcoming. In that situation, the optimal solution is to have the courts resolve the dispute prior to inaugurating the President. This is because most countries realize the irreparable harm inherent in inaugurating a President, who may not have been validly elected. Such harm includes, but is not limited to, the cloud that hangs around the Presidency, which might deter international stakeholders from dealing with the President, or dealing with him under significant uncertainty. Domestically, the President’s power to appoint is likely to come into conflict with the legislature’s power to vet, as a serious legislature may raise questions about the wisdom in investing vetting resources into appointments that may be short-lived. Local actors may be plunged into a wait-and-see mode and freeze their business plans, in light of the uncertainty about the direction of the country.

It was the necessity of avoiding this harm that led the Florida state courts and the USA federal courts to work tirelessly, and around the clock, to resolve the election dispute between former President George W. Bush and the then Vice-President Albert Gore in 2000. On December 12, 2000, 35 days after the November 7, 2000 election, the USA Supreme Court ended the election dispute, paving the way for the inauguration of President Bush on January 20, 2001. In the words of the Court, “when contending parties invoke the process of the courts, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” On December 3, 2004, the Ukraine Supreme Court resolved the disputed Ukraine presidential election of 21st November, following televised hearings that lasted only 5 days.

Of course, we currently find ourselves in a peculiar situation of having inaugurated a President, who may not have been validly elected. The Chief Justice was required by law to swear in the President even as the same law required her Court to decide whether the President, she swore in, was validly elected. It is easy to forget that nothing in our Constitution necessitates this patently absurd state of affair. It is an electoral-commissioner (EC) created problem, facilitated by a legislature that is too eager to cede legislative power to the EC.

The first President of the 4th Republic was inaugurated on January 7, 1993. Therefore, under the 4 year-term rule, succeeding Presidents must be inaugurated on January 7. That is the constitutionally determined date, from which we must set an election calendar, taking into account the possibility of a runoff (under the 50%+1 rule), transition, and where necessary judicial intervention. Thus, contrary to the popular belief, there is no constitutional basis or a good reason to hold general elections on December 7, when the inauguration is slated for January 7. The December 7 date for holding presidential elections is an EC created recipe for political chaos, when viewed in light of the constitutional determined inauguration date.

To be sure, the Constitution vests the power to conduct and supervise elections and referenda in the EC. However, this power, per se, does not confer on the EC the authority to set election and referenda dates. Rather, what the Constitution envisages is for the people, through their representatives in Parliament, to set election and referenda dates and for the EC to put an electoral infrastructure in place to allow for orderly voting on those dates. Inexplicably, under C.I. 15, the EC has arrogated this date-setting power to his office, with the tacit approval of parliament. The EC does this by issuing a writ of an election (see C.I. 75(2)(2)(b)).

The EC power-grab, by itself, might not be so problematic if it was exercised wisely. Alas, as some of us have pointed out in the past, the election dates set by the EC have been unreasonable. C.I. 75 does not set a date certain for elections. Rather it creates a window (not less than 30 days or more than 90 days after the last day that the EC sets for the nomination of candidates). In his wisdom, the current EC has chosen days in the first week in December, exposing the country to the risk of a rushed transition, the embarrassment of an inauguration while election disputes are unresolved, and the current political impasse, epitomized by NPP MPs who appropriately refuse to vet nominees of a President who may not have been validly elected.

By way of contrast, the 1992 Presidential election was held on November 3, 1992, two clear months before the presidential inauguration. It is time for parliament to redress this quadrennial problem with a law that sets a date for general elections. The date must take into account the potential for a runoff, the need for an effective transition as well the possibility of an election dispute. The first Saturday in November seems a logical date (see a proposal from 11 years ago http://www.ghanaweb.com/GhanaHomePage/features/artikel.php?ID=22740).

But what next, now that we have inaugurated a President, who may not have been validly elected? In my opinion, the Supreme Court, the only body, that can pronounce on the validity of the election of the President, must realize the awkwardness of the current situation, confront the issues and resolve the election dispute expeditiously. After observing the Court’s proceedings for the last month, I am gravely concerned about the temporal trajectory of the proceedings and have substantial doubts about whether the dispute will be timely resolved.

The election petition procedures (C.I. 74) underscore the importance of a timely resolution of such disputes as they stipulate daily sittings, (including Saturdays, Sundays and public holidays) once the petition and answer are duly served and the application for further and better particulars has been determined.

Alas, 42 days after the petition was filed and 32 days after the inauguration, the Court seems to be caught in a lot of motions but very little movement. During this period, the Court has decided that a political party is a necessary party to an election litigation that it could not initiate, thereby creating a curious litigation landscape where only one political party is joined as a necessary party. At the same time, the Court has also managed to decide that the EC needs not share “pink sheets” with petitioners, where such petitioners (or their agents) were in the election strong room, notwithstanding that one petitioner was neither a presidential candidate nor an agent of a presidential candidate and could not have had access to those pink sheets. And to top it all, the Court has set aside 16 days for the petitioners to amend their petition (2 days) and the respondents to provide amended answers (14 days). By way of contrast, the USA courts and the Ukraine Supreme Court resolved their presidential election disputes in 35 and 12 days respectively.

It seems the lack of a clearly specified and smart timeline for pre-hearing motions is standing in the way of a timely resolution of this presidential election petition. The judiciary’s record on the timely resolution of election disputes provides an additional good reason to worry about the pace of the current presidential election petition. Followers of the courts and politics, no doubt, recall the case of Amoo v. Addotey, a parliamentary-election dispute, which took longer than 4 years to resolve, allowing Addotey to serve a full term, even though Amoo was validly elected.

It is for this reason that the Supreme Court must now announce and pre-commit itself to a timetable for the current presidential election petition. There are, at least, three advantages to such a pre-commitment. First, it provides a certain date on which the 2012 Presidential election outcome will be resolved. This, in turn, will reduce political uncertainty for all stakeholders, allowing them to better plan their business and operations. Second, it will discipline the lawyers involved in the litigation, allowing them to focus on the substantive issues and to prepare and present only their most relevant evidence and important witnesses. Third, it will discipline the Justices, allowing them to focus on the substantive issues and freeing them from distracting motions that lead to bad law (e.g., who can join an election petition?).

What should such a timetable look like? The Court should provide a hearing period, of no more than 10 days, allocated in some way to the disputants (perhaps 5 days to the petitioners and 5 days to the respondents). At the end of the hearing, the Court should give a decision, in no more than 7 days.

Thus, assuming the Court resumes sitting on February 24, (after the protracted16 day lull for the amended petition and answers), this case should be decided no later than March 18, 2013. That will be 100 days after the election, 79 days after the initial election petition, and 69 days after the inauguration! While that is certainly too many days to decide an election outcome, the Court would have managed to “mitigate damages” under the circumstances and allow the country to return to the semblance of political normalcy!

Columnist: Asare, Kwaku S.