The Judiciary And The Promotion Of Democracy In Ghana

THE JUDICIARY AND THE PROMOTION OF DEMOCRACY

IN GHANA: THE 2012 GENERAL ELECTIONS AS A TEST CASE

By Kwame Arhin

Legal Practitioner, Kumasi

And one time Ashanti Regional Chairman of the Public

Tribunal, Kumasi.

E-mail:karhin60@yahoo.com

THE JUDICIARY, they

say, is the bed rock of DEMOCRACY and national development. This saying is to a

very large extent true of the Western democracies such as the United States,

Britain etc. etc., where the judiciary is to a great extent insulated against

the heat and tumbles of politics. Can this be said of countries in Africa

including Ghana?

It

is my view that in recent times the Ghanaian judiciary has enjoyed some amount

of independence but the level of judicial independence will be highlighted the

more at this time that the Supreme Court is going to be confronted with this

electoral case. Is the judiciary going to live up to expectation? Much as we

believe they will live up to

expectation, the answer will largely depend on the caliber of judges that are

going to be empanelled.

After

about three months of intensive electioneering campaign in which the political

parties unfolded to the electorate the good things and programmes they had for

Ghanaians in the event of their being given the mandate to steer the affairs of

the nation for the next four years, Ghanaians on December 7, 2012, went to the

polls to exercise their franchise. Generally, the elections were held in a

peaceful manner.

The

New Patriotic Party, led by Nana Addo Dankwa Akufo-Addo had, according to them,

detected some foul play in the conduct of the elections and as a result wanted

the Electoral Commission to defer the declaration of the results so to enable

them have their grievances redressed. This notwithstanding the Electoral

Commission on December 9, 2012 declared the results with his Excellency John

Dramani Mahama as the winner.

Now,

true to their word, the NPP has taken the matter to the Supreme Court. Now, Nana

Addo-Dankwa Akufo-Addo and others, suing as individuals, among other things,

are challenging the validity of the election of the President which is in

accord with Article 64 (1) of the 1992 national constitution. With this case

the credibility and integrity of the Ghanaian Judiciary is going to be tested.

It is a very high profile case the determination of which calls for legal

brains of the highest caliber.

THE PRACTICE OF

DEMOCRACY IN AFRICA

Democracy

has been simply defined as a government of the people, by the people, for the

people. This is the simplest of definition given to democracy which can easily

be understood by the common man on the street (i.e.) the layman. What it means is

that it is the citizens of a

particular country who through the exercise of their franchise, decide who

should rule or govern them. It is an inalienable right which cannot be taken

away without just cause. It means therefore that real sovereignty rests with

the people. Any attempts therefore to tamper with votes during elections is

seen as a serious threat to democracy and same must seriously be resisted

through due process and not violence. This has often characterized elections in

Africa and it is about time we halted it. Such electoral malpractices make

meaningless the practice of democracy in Africa.

The

late Sir IVOR JENNINGS, one time Vice Chancellor of the University of Cambridge

and a legal luminary in his book “DEMOCRACY IN AFRICA” had this to say

about our practice of Democracy. “When a stone is rolled down a

bare-hill-side, it dislodges other stones, and other stones so dislodged, dislodge

other stones,

so that in the end not a single stone but a cascade of stones reaches the

bottom of the hillside” (emphasis mine).

This

to me is an advice given by the late academic and legal luminary to all and

sundry who desire to practice true democracy. Democracy has numerous virtues

and ideals so that care must often be taken in order not to turn them into

“cascade of stones” which could be worthless.

THE ROLE OF THE

JUDICIARY

The

Judiciary as I have already stated play a major role in democratic dispensation

and nation-building. With this high profile case, our dear nation is on the threshold

of reaching yet another level of our democratic dispensation. It is the courts

we look up to in order to reach that goal. A good decision in this case by the

Supreme Court could place Ghana on a

higher pedestal in our quest for Democracy. It would afford Ghana international

repute.

The

late Benjamin N. Cardozo, one time an associate Justice in the United States Supreme

Court had this to say about the judiciary, “The Judiciary, insulated as it is

against the heat and tumbles of politics, shall be the least dangerous to the

political rights of the people”. By this Justice Cardozo aforementioned meant

that of all the arms of government it is the judiciary which, by its nature, can

champion the rights of the people.

In

his book titled, “THE NATURE OF THE JUDICIAL PROCESS”, Justice Cardozo says that

even though the judge’s powers in

matters of adjudication are enormous and can be subject to abuse, they must in

pursuance of their duties be guided by what he terms JUDICIAL SELF-RESTRAINT. And

judicial Self Restraint takes its roots from the DIGNITY and HONOUR often

associated with the calling. It is an undeniable fact that judges are revered

and dignified by the society.

In

the introduction of his book already cited, at page 16, this is what Justice

Cardozo again says of the role of the

judge in his interpretation of the Law, “The Judge as the interpreter for the

community of its sense of the

Law, must supply omissions, correct

uncertainties and harmonize results with

justice through a sense of free decision”.

Judges

must see themselves as repositories of the law and justice. By the stroke of

the pen of the judge and children yet unborn may be made to suffer hardship,

poverty and misery. In the same vein, the stroke of the pen of the judge can

bring happiness progress, peace and harmony. People look up to Judges for

redress of their grievances. For this reason, we pray that judges who have

courage, good morals and possess analytical mind of the highest caliber are

selected and/or appointed to handle this very high profile case.

COMMENTS ON THE

EFFICACY OF THE COURTS JUDGEMENTS

It

appears to me there is a lot of propaganda going on in respect of the efficacy of

the Supreme Court’s judgment. This has led to the interpretation of the law as

contained in Article 64 of the 1992 constitution. This state of affair, to me,

is most unfortunate. I have seen people who are not versed in the law trying to

interpret the law as they like when even Lawyers can make mistakes in the

interpretation

of the law. This has compelled me as a Lawyer to add my voice to it.

To

begin with, people must see the constitution as the Fundamental or Supreme Law

of the land from which all other statutes derive their source. The constitution

makes provision for the appointment of the Electoral Commission and his staff.

It also makes provision for the President, Vice President, etc, etc.

Article

64 (1) states “The validity of the

election of the President may be challenged only by a citizen of Ghana who may

present a petition for the purpose to the Supreme Court within twenty-one days

after the declaration in respect of which the petition is presented”.

(2)

“A declaration by the Supreme Court that the election of the President is not

valid shall be without prejudice to anything done by the President before the

declaration.”

The

golden rule in the interpretation of the statutes is that it must be

interpreted so to give to it the real intentions of the Legislator. I believe

by inserting that article, the Legislator envisaged a situation whereby there

could be electoral malpractices and for which somebody might desire to

challenge its validity. It means therefore that, the Electoral Commission cannot,

by any stretch of imagination, be said to be the final arbiter in electoral

processes. An aggrieved individual can have recourse to the Supreme Court to

have his grievances redressed.

The

Electoral Commission declared the

results and announced that His Excellency John Dramani Mahama

emerged the winner because, of all the Presidential candidates, he got the

highest number of votes and satisfied the requirements to be made the President.

Now, if at the end of the day the

Supreme Court finds something to the contrary and declares that the election of

His Excellency John Dramani Mahama as President is not valid, then by operation

of law, he cannot be the President. One cannot put something on nothing and

expect it to stand, so said the late Lord Denning MR. The law must be

interpreted in order to correct and clear all uncertainties with the view

to bringing out the real intentions of the legislator.

CONCLUSION

It

is the nation’s prayer that judges who would be selected to handle this case

see it as a very big honor. They should also see it as a national assignment

which demands of them the best of their qualities and capabilities.

I

have to state that in writing these treaties, I do not hold brief for any

political party. I do so from the point of view of a Lawyer and a Human Rights

Activist. I hope in the determination of this matter, there would be no witch-hunting.

If the evidence is not there to support the allegation, the Judges should be bold

to say so. On the other hand, if there is enough evidence to substantiate the

allegation, they should be bold to say so. All we need is fair and sound

judgment that can stand the test of time. The judgment, in the normal course of

things, will open up a new CHAPTER in the country’s quest for a true democracy.

I believe no matter which way the judgment goes it will be good for the

development of our democracy and will as well serve as an eye-opener to other

African countries. At the end of it all the saying that “Law is the just

intervention/ interference of the STATE in the INTERESTS and PASSIONS of

humanity” would have been made manifest.

It

is my prayer that our Judges live up to expectation as they have been doing.

Pix: Author – Lawyer Kwame Arhin