The Uneasiness about the Supreme Court Verdict

Sat, 31 Aug 2013 Source: Ohemeng, Yaw

I am writing this, very much aware of the pleadings for all to be circumspect in their post-verdict comments. However, some things need saying flowing out of how the panel was constituted, the mode of trial and how the final verdict was delivered.

Our Constitution says that justice emanates from the people. If that is so, the reasons why the Chief Justice, who should have presided over the panel, recused herself from the case should be explained to the people now that the trial has ended. It is also said that not only must Justice be done but that justice must be seen to be done. That is why all those who called for proceedings to be telecast live and the GBC that obliged should be commended.

A part of seeing that justice is done also required that all perceptions of conflict of interest, however remote, should have been banished in this all important case. The relationship of Justice Atuguba to the Executive Secretary to the President (Dr. Raymond Atuguba) was one of such disturbing perceptions. Are we to take his dismissal of all the claims by the petitioners as flowing out of his interpretation of the law or that his nephew stood to benefit from that action? I am not impugning anything to his actions but the fact that this question could be asked should have been enough for him to have recused himself from the hearing.

Africa as a continent has not redeemed itself as far as election petitions are concerned. It was thought that if any country was going to buck this trend, that country would be Ghana. This is what the Financial Times of London wrote ahead of the ruling:

“It’s a familiar tale in many African countries. After the ruling party candidate wins a presidential election, the runner-up cries foul and reluctantly heads to court, aware the legal challenge is doomed to fail. That is what has happened in Ghana – except that this time the outcome of the petition is far from preordained.”

“Though international observers said the poll was free and fair, opposition lawyers are viewed as having done a decent job in documenting possible malfeasance. Judges have poured [sic] over the evidence with a degree of rigour rarely seen in any election petition”.

Did we live up to this expectation? On the continent, election petitions are viewed as disputes between private parties contrary to the view held in advanced democracies as cases brought in the public interest. It is in the public interest because it enables the public to be certain that whoever is pronounced the victor in an election was validly and lawfully chosen by them. It does not serve the declared winner any good if the court verdicts from such petitions leave lingering questions. What has gone on in Ghana cannot sweep away the doubts surrounding the election of John Dramani Mahama as the fourth President of the Fourth Republic. The Court has declared him as validly elected alright but are we to ignore the violations, irregularities and malpractices demonstrated in court?

What is vital in adjudicating an election petition is the search for the truth. This requires that substantial inquiry is made into the elections to leave no one in doubt as to who won the elections. The petitioners went to court pleading at least statutory and constitutional violations of over voting, voting without biometric verification and lack of signatures by presiding officers. Are we saying that it was not possible for these three to be conclusively investigated by the evidence available? Our statutes require all electoral materials (i.e. ballot boxes with ballot papers, pink sheets, collation sheets and records on BVD machines) be retained for a specified period, some under seal, to support any post-election disputes. If that is so, could the court not have asked for a sample of ballot boxes to be opened to at least establish that the cases of over voting were mere clerical errors? Could the court not have taken into custody the biometric verification machines before the case started to be able to confirm, at least for a sample of the disputed polling stations, that all voters voted after being verified? Could the Court not have asked for collation sheets for all constituencies? It could have done all these but the trial was not approached as one set out to make a substantial inquiry into the 2012 elections. The trial was rather approached as any dispute between private entities where one can use legal formalisms and technicalities to prevent the scrutiny of records that would have conclusively put to bed any doubts about the winner of the 2012 presidential elections. If such was the approach, then sufficient weight should have been given to the petitioners’ exhibits since that was the only one before the court. The written judgements are awaited with utmost keenness to ascertain the weight the Justices placed on them.

The third issue with the petition hearing was the manner in which the final ruling was presented. The case lasted the best part of eight months. For the parties and the entire nation to have waited seemingly interminably on the day only to hear a ruling that lasted barely five minutes was demeaning to us as a nation. The presentation itself did not live up to the historic nature of the occasion. The number breakdowns did not tally with Justice Baffoe-Bonnie listed as having upheld and at the same time dismissed the claim relating to voting without biometric verification. The impression was given that the panel had to arrive at the ruling rather hurriedly with a lot of horse trading having gone on behind the scenes. It appears they were seeking a certain permutation; or perhaps the historic nature of the occasion was lost on the Justices?

Even though a summary of the ruling was given, one was expecting a ruling that was professionally laid out, setting out the outline of the case, then moving on to the reduction to the determination of two issues followed by the findings on the two issues set out for trial. This was not done and as such no one knows how the two questions were addressed. Did the panel determine the first issue of whether there were violations, irregularities, malpractices and omissions and how did each member vote? Are there any consequential orders from this determination? No Ghanaian is the wiser on these.

Another ‘mischief’ was in how the breakdown was presented on the second issue of the material impact of the infractions. An examination of the voting pattern shows a panel that was split on the violations, same as the nation is split. It would have been better to have called up each infraction with the votes for and against, as this shows 5-4 split in each case against the petitioners. This closeness, if it had been advertised, would have made the parties more guarded in their comments. But hang on; can one even say safely that the panel voted 5-4 on each statutory or constitutional claim? There appears to be an over vote in the claim relating to voting without biometric verification. Justice Baffoe-Bonnie appeared to have voted twice both for upholding and dismissing the same claim.

Lastly, the bench should have addressed each of the parties directly and probably the entire nation as to what contribution this petition would make to the development of our democratic culture. I have read a quote attributed to Mr James Qurshie-Idun that the verdict was a vindication of the processes of the Electoral Commission. Is he trying to cock a hoot at the entire nation? That is why it would have been necessary for the Court to have also publicly rebuked the Electoral Commission on how it conducted the 2012 elections. All these would have gone a long way to ensure that the verdict was acceptable to all and more importantly to enable us all move on from this divisive case.

I fear that people may be seen to have accepted the verdict but deep down they have also been left with the impression that the infractions exposed during the trial are allowable and tolerable for future elections. It would therefore have been necessary for the bench to have spoken to the entire Ghanaian nation as to whether or not it found evidence of the infractions and probably condemn them. All these points may be in the written judgements but with the entire nation watching on television, the bench lost the opportunity to contribute to the healing process.

The impression I got was that the Justices failed to respond to the beckoning of history; were aware of this failure; were embarrassed by this failure; and could not get out of the courthouse quicker than Ghanaians who remained transfixed in front of their television and radio sets long after the verdict had been given. I am not condemning the verdict for I have no basis to do that; I am criticising the process that led to it and the opportunities lost in shaping the course of history.

Dr Yaw Ohemeng

Columnist: Ohemeng, Yaw