The Presidential Election Petition: The Winner is

…… Democracy!

At the time that the petitioners filed their case at the Supreme Court there were those who dismissed their action as that of sore losers. There were others who also thought that the action would deepen democracy in Ghana. I subscribe to the latter view on the basis that even ahead of the ruling, the benefits to how we practise democracy in Ghana have began to accrue and over the coming years will become even more apparent.

It is a fundamental principle of democracy that anyone who feels aggrieved should be able to avail themselves of legitimate means of seeking redress. For democracy to thrive, the principle that no one is above the law should be upheld. Seeing the sitting President (though not in his Presidential capacity) being a respondent in a case before the courts should be ample demonstration of this principle. The thinly-veiled warning by Justice Atuguba for the President to conduct himself in a manner that would not be contemptuous of the court will also serve as a plank in the type of democracy that Ghana is seeking to build. I am looking forward to the day when a sitting President can be questioned under oath by investigators.

There are some state institutions, which since January 1993 have not seen the arrival of constitutional rule. They still operate as if we are under military dictatorship. These include: state prosecuting authorities who think they can hold people in detention by merely tagging them as suspects without tangible or substantive evidence; and the Bureau of National Investigations (BNI) who pick people up and deny them the rights granted them by the Constitution. Dr Kwadwo Afari-Gyan and his Electoral Commission belong to these errant state institutions. The EC chairman has always portrayed arrogance in how he dealt with the public. This was evident during the debate on the creation of the 45 constituencies when he referred to some concerned citizens as rabble rousers; and also in the manner in which he disqualified Nana Konadu Rawlings from contesting the 2012 presidential elections. This same arrogant posture was at play when he dismissed the allegations of irregularities by the petitioners with a challenge for them to go to court. It was all sweet music to the ears when the Presiding Judge threw it back at his haggard self at the end of his 13-day cross-examination ordeal.

The sight of Dr Kwadwo Afari-Gyan fumbling under cross-examination really brought it home that anyone exercising power on behalf of society has to be accountable to it. His performance showed that all the accolades he has received in Africa and farther afield must be tempered with the fact that he does not know everything and might even not know everything that goes on in the Commission over which he superintends. This is the very fact that required him to be humble but which he often ignored. Contrary to expectations, the whole country found out that the Chairman of the EC did not know that there are other forms of over-voting besides the ‘classical’ definition. He also did not know that his officials annulled results in some parts of the country where similar irregularities alleged by the petitioners occurred. Disturbingly, he did not even know the country from which some of the electoral materials were sourced. Through the live broadcasts the petition has succeeded in educating the electorate way beyond what the NCCE would have ever hoped to do. Now every Ghanaian knows what a ‘Statement of Poll and Declaration of Results’ Form (otherwise known as pink sheet) is. Now everyone knows what constitute over-voting. It is interesting to note that over-voting was readily detected in a recent election to elect a DCE in a Kwahu District, which led to suspension of the declaration and calls for investigation. The petition has also highlighted that, to safeguard the integrity of elections, it is important to fill the ballot accounting section at the required points in the polling process. This is the alerting mechanism for detecting at best errors or at worst electoral fraud. What about signatures of Presiding officers on poll declarations? We were made to understand, by the evidence of the witness for the first and third respondents, that hitherto, these were considered as mere formalities whose omission was inconsequential. From hereon, it is doubtful, irrespective of where the verdict will fall, that anyone will ignore the legal effect of signatures on poll declarations.

As a result of this petition, the way that results are collated will no doubt change. It has become clear that elections may be peaceful and orderly, counting may be in the public view and yet how the votes are collated may lack transparency. Majority of the electorate do not follow the collation exercise when caught up in the euphoria that follows the declaration of polling station results. There is thus opportunity for pink sheets to be substituted and for figures to be altered at the collation centres. Dr Kwadwo Afari-Gyan himself knows this. Even though he denied it in the witness box, this is the reason why he recommended to the Nigerian version of the EC to make available collation results together with all the composite units. This petition has ensured that in future light will be shone in this area such that there will be an auditable trail from polling stations to collation centres to national figures. This also has implications for how election observers operate. The practice has been for election monitors to look at proxy measures like: absence of violence; no one prevented from campaigning; and no one prevented from voting, augmented by limited visits to sample polling stations to draw conclusions regarding freeness, fairness and transparency. In future election observers will either restrict their reports to what they actually witnessed or they may get involved in tracking results through to the declaration.

Even though the Constitution, in article 64, grants the right to a citizen of Ghana to file a petition to challenge the validity of the election of a president, the rules that govern the practice and procedures of such petitions are left to the Rules of Court Committee. Whatever rules were in place, this was the first time that they were being put to test. To the outsider, it appeared that the court found it difficult to balance adequate time required by the parties against the expediency required to avoid a prolonged period over which the leadership of the country was uncertain. It took close to four months before the substantive case was heard. Did the court entertain a lot of frivolous applications on the way? In the initial stages, it appeared the Judges were making the rules as they went along but gained experience as the hearing progressed. The President of the panel admitted as much. Having gone through the process, the country would benefit immensely if the panel would use their experience to streamline the procedures.

Allied to this is a question that has been bugging me. Should an election petition (especially regarding the election of a President) be seen as a matter between private parties or should it be regarded as an exercise in the interest of the public? I am asking this question because it was baffling that the EC resisted, and was permitted by the Supreme Court to withhold electoral records they alone hold on behalf of the public. As a body funded by the public, one was expecting that the EC would, before the parties prepared their case, make available all the ‘pink sheet’ originals and collation sheets for them to inspect. Failing this, the Supreme Court should have ordered the EC to do so. Had this been done, the matter could have proceeded faster and the ten-day break for KPMG to carry out audit of exhibits would not have been necessary. Maybe this is one area the Court will look at again during any review.

The EC may be a party to the suit alright, but it should have acted as an independent non-partisan public body. It should not have acted the way it did where it appeared to be acting as a ‘grand’ witness for the one whose election was being challenged. It should have seen itself as performing a public interest role instead of using legal formalisms to obstruct the unravelling of what took place. Election petitions should not be seen as a private matter; it should rather be seen as helping the electorate find out the person for whom they voted.

During the entire hearing the EC was seen as aligning itself to the other Respondents, especially in the way it joined the orchestrated objections to cross examination on pink sheets. This has created an unhealthy alliance, which would hurt future elections unless the entire EC establishment is overhauled. A by-product of the petition is that Ghanaians are now paying attention to and debating the contempt powers wielded by the courts of record. The manner in which the Supreme Court applied the contempt powers generated a vigorous debate within and without the country. Within the country, the SC was largely applauded for clamping down on ‘irresponsible’ behaviour that had the potential to disturb the peace, if not checked. This was at variance with others, mainly Ghanaians based overseas, who objected to the manner in which the court dealt with the alleged contemnors. Some even went to the extent of arguing that the SC was curtailing freedom of expression that is granted to every citizen by the Constitution.

There were those who thought that the contempt powers were archaic because citizens have no clear idea about the conduct that will attract the charge. It is thought that, in a democracy, contempt powers granted the higher courts should be codified in a statute so that people can regulate their behaviour. Maybe this is a cue for Parliament to take up the challenge by passing a Contempt of Court Law.

We have seen a gradual shift by the NDC from initially holding that the petitioners had no evidence to the situation where they are now even anticipating that the court might order some electoral reforms at the very least. The fact that there may be consensus around this is conclusive evidence that democracy has been the winner in this petition. The enduring legacy of Nana Akufo Addo and his co-petitioners (Dr Bawumia and Mr Obetsebi-Lamptey) may not be found in the fact that they succeeded in proving their case in court. It will rather be that when the history of Ghana comes to be written in say 50 years time, they would be recognised as having embarked on an action whose effect was to significantly deepen and enhance democratic culture.

Dr Yaw Ohemeng