...As Defence Counsels argue on administrative and transposition errors on the part of the Electoral Commission in the Presidential Election Petition of 2012?
The OmanbaPa Research Group
MEMO: JUDICIAL REVIEW
Learned Principal, in the Great Britain, Constitutional and Administrative law is an exciting area of study because it is here that we could learn about how the constitutional and administrative powers or actions of the decision-maker, usually, the public officer or institution- including the courts, could be held in check through the process known as “Judicial Review, now regulated by RSC, Ord. 53. The subject matter of every judicial review is a decision made by some person- here, Electoral Commissioner Dr Kwadwo Afari-Gyan or body of persons- for example, the Electoral Commission of Ghana, whom we will call the “decision-maker”. The [in]actions or omissions of the decision-maker are subject to judicial review. Judicial review is distinguished from an appeal in that an appeal is concerned with the merits of the decision under appeal while judicial review is concerned only with the legality of the decision or act under review. In the GCHQ Case (1985), Lord Diplock classified the grounds on which administrative action [and in our present example- the Electoral Commission,] is subject to judicial control under three heads: 'illegality', 'irrationality', and 'procedural impropriety'. Diplock LJ also said that further grounds may be added as the law developed on a case-by-case basis. The issue then is, was the 2012 No-Verification-No-Vote (NVNV) subject to JR?
CASE COMMENTARY AND ANALYSIS
The election petition challenging the December 2012 presidential authority of John Dramani Mahama of the ruling National Democratic Congress (NDC), began substantively, on Monday, 16 April 2013, at the Supreme Court of Ghana, Accra, with Justice Mr William A. Atuguba; presiding. The remaining eight (8) Supreme Court Justices on the panel are as follows: Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr Justice P. Baffoe-Bonnie, Mr Justice N.S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo. The Law Lords are to consider the following: Whether or not there were statutory violations, omissions, irregularities and malpractices in the conduct of the elections held on December 7 and 8, 2012, and if yes, whether or not these violations, omissions, irregularities and malpractices affected the outcome of the elections.
Both the Article 64 of the 1992 [Fourth] Republican Constitution of Ghana and the Supreme Court (Amendment) Rules, 2012 (C.I. 74), particularly Section 68, provide that after a period of twenty one (21) days after the declaration of election result, a citizen of Ghana can challenge in the Supreme Court the validity of the result so declared or being contested, if he or she so desires, by filing a petition in the Registry of the Supreme Court to that effect... Accordingly; on 28th day of December 2012, Nana Addo Dankwa Akufo-Addo, Dr. Mahamadu Bawumia and Jake Otanka Obetsebi-Lamptey, of the NPP, availed themselves challenging the 9th December 2012 declaration of John Dramani Mahama, as president-elect. Many are those who still argue that legally, the presidency wields some sort of immunity and therefore, President John Mahama, cannot be cited in *any legal proceeding while in office.
So is the NPP’s petition against the President [first respondent], an error of law? Justice Atuguba states no. And the President’s counsels seem to be satisfied with the learned Justice’s position and accordingly, are on the crusade of defending the Electoral Commission on what they describe as “transposition and administrative errors” which substantively, appear to open up the presidency to a reclaim as administrative or procedural errors of a public officer or institution are not immune from judicial review. By virtue of Article 57 “Clause 5 of the 1992 Constitution, we could submit that the President; “while he is in office, could not be liable to *any civil or criminal proceedings in any court” in the Republic of Ghana. I think this angle worth looking at but not the ongoing focus on administrative errors.
From the perspective of constitutional and administrative lawyer, an error of law is where the decision-maker has applied the wrong law on the facts of the case before him/her or though, s/he had the relevant law correct, its application and/or interpretation had been wrong. Error of law is a ground for judicial review both at common law and as a statutory ground. According to Enright, Christopher (2012), a simple and natural meaning of the phrase ‘error of law’ is that the decision-maker has made an error when interpreting law in the course of making the decision and that there are three aspects to the notion that an error of law is an error of interpretation. “One is the nature of the error, which is simple in principle. The other two aspects involve questions for which there are not simple and direct answers– where the error should be located and whether the error can be covert as well as Nature of an Error.”
GROUNDS FOR JUDICIAL REVIEW
In the words of Lord Dipplock, illegality as a ground for judicial review means that the decision-maker [Here, the EC or Dr Kwadwo Afari-Gyan], must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is a question to be decided in the event of dispute by judges. This would mean that when a power vested in a decision-maker is exceeded, acts done in excess of the power are invalid as being ultra vires (substantive ultra vires). In Bromley Council v Greater London Council (1983), it was held that where a local council, whose power is derived from statute, acts outside the scope of that authority, then it will certainly be acting illegally. Another area of concern had been where the approach of the decision-maker appears irrational within the meaning of the word or what Lord Diplock referred to as Wednesbury unreasonableness in the GCHQ Case.
In Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) the Court of Appeal held that a court could interfere with a decision that was 'so unreasonable that no reasonable authority could ever have come to it'. It is contended that the EC Chairman Dr Kwadwo Afari-Gyan had stated before the 2012 general elections that even if one vote was detected to have been in excess of the number of ballot papers issued, the results of that polling station would be annulled. In the words of Dr Bawumia, this decision was indeed implemented in polling stations such as Arabic Primary School in the Upper West Akyem constituency, as well as another polling station in the Tano North constituency. How reasonable was this decision, where the EC itself, could have yes, the capacity to weed out “faked ballot papers”?
It appears unreasonable for the entire voters to forfeit their votes cast, just because someone out there managed to subvert the process. In the GCHQ Case, Lord Diplock said that Wednesbury unreasonableness “applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” Justice Baffoe Bonnie- a panel member on the election case, had for example, inquired from Dr Bawumia, if he was suggesting to the Supreme Court to go ahead to annul the figures in all the affected polling stations merely because some people had voted without verification. This perhaps, suggests the judge’s concerns about this particular pleading. Wednesbury unreasonableness had been used in the cases of Strictland v Hayes Borough Council (1896); and R v Derbyshire County Council, ex parte The Times (1990) to prevent powers from being abused by, for example, exercising a discretion for an improper purpose or without taking into account all relevant considerations.
Having considered that, we now come to procedural impropriety as a ground for judicial review. This according to Lord Dipplock, covers the failure by the decision-maker to observe procedural rules that are expressly laid down in the legislation by which its jurisdiction is conferred, or a failure to observe basic rules of natural justice, or a failure to act with procedural fairness (procedural ultra vires). An example of procedural rules not being followed is: Aylesbury Mushroom Case (1972). For instance, if the rule is that before an election is held, the Electoral Commission shall provide all political parties with the updated voters’ register showing the list of all potential eligible voters, then the EC’s failure to do so might open itself to procedural impropriety, a breach of natural justice and judicial review.
Assuming these prepositions are legally true then the obvious question could be that why the counsels of the three respondents are relentlessly, seeking to suggest in their cross-examinations of the NPP’s Star Witness Dr Mahmoud Bawumia that “to err is human” and arguably so, President John Mahama, ought not to be punished for constitutional and administrative wrongdoings of Dr Kwadwo Afari-Gyan and his non-politically-affiliated EC? On 17 April 2013, Dr Mahamamudu Bawumia, began his evidence-in-chief with NPP lead counsel Philip Addison, alluding that the 2012 presidential election was characterized by irregularities, statutory and constitutional violations and malpractices leading to illegal votes of some 3,924,844 votes collated and counted by the EC in favour of the then candidate John Dramani Mahama and therefore, pleaded with the Supreme Court of Ghana to annul what he describes as illegal votes, which if expunged from the declared result, would leave the then president-elect and now the sitting president, with 41.96% of the valid votes, while his main petitioner and NPP 2012 flag-bearer, Nana Addo-Dankwa Akufo-Addo, settles at 56.65%.
But are these errors of law or errors of fact? In distinguishing Errors of Law from Errors of Fact, Enright, writes that an error in adjudicative decision-making is basically either an error of law or an error of fact. “Lawyers therefore have to classify an error in decision-making as one or the other. If it is an error of fact it does not fall within the ground of review. If it is an error of law then it subject to review. There must be an error, there must be a law and there must be a relationship between the error and the law... It is, however, far from clear as to what is the necessary relationship between an error and law to constitute an error ‘of’ law. The solution is to interpret the word ‘of’”. For the sake of this article, we assume that NVNV has two meanings- Meaning 1 and Meaning 2. We also assume that Dr Afari-Gyan decided that Meaning 1 is the legally correct meaning. However, a review court, decides that Meaning 2 is legally correct. If so, then the EC- has made an error of interpretation in deciding that Meaning 1 and not Meaning 2, was the legally correct meaning of that ambiguous provision.
In making argument for No-Verification-No-Note(NVNV) to mean having gone through all the processes of verification- having your Voter ID to hand; being personally checked against the records from which your personal data (voters’ register) are held and finally, the requirement of having to put your finger on the Biometric Verification Machine to establish your true identity at the polling station as having not yet voted, some colleagues reminded us that a simple Voter ID and personal identification at the polling station, settle all the bio-data requirements. That with your Ghanaian Passport, you should be able to vote and therefore, there could be no case to answer if some voters failed to be biometrically verified. Yes. But was the addition of biometric machine in the voting process not agitated for to check double-voting and to be able to distinguish identical twins from one another with their finger-prints?
Errors of Law
There are three major types of legal rules that are associated with dispute over error of law: (1)Substantive Rules- These authorise the decision-maker to make the primary decision- being the decision that can change the legal position of one or more of the parties; (2) Jurisdictional Rules- These determine the authority of a court, an official or a tribunal to decide a case; (3)Adjectival Rules- these do not directly determine the applicant’s legal position but dictate to the parties and the adjudicator how the dispute is to be heard and are categorized as follows: (a) Pleading- Rules of pleading lay down the manner in which parties must formally state their case for the benefit of the adjudicator and the other parties, (b) Evidence- Rules of evidence lay down what sort of evidence the adjudicator can consider and possibly also in what circumstances and to what effect. At common law there are two sets of rules of evidence- judicial rules for courts and the administrative rules for tribunals and officials, (c) Procedure- Rules determine what is to be done at the hearing and in what order.
Dr Bawumia asserts that having examined some 24,000 pinks sheets, it was discovered that there is a case of many irregularities, over voting, voting without verification, duplication of polling station serial numbers, and pink sheets without signatures of presiding officers. Therefore, the EC’s declaration of John Mahama as winner could not be supported by the primary evidence. “My Lords, it looks like every irregularity, violation and malpractices, is supposed to be an error except the declaration of the results....” According to Dr Bawumia, closer examination revealed that some 535,723 people, allegedly, voted without observing the biometric verification process and that “the EC cannot apply one set of rules to one polling station and a different set of rules to another polling station.” He reiterated that fairness and equity at all polling stations ought to have been evenly applied in 2012 elections. It is contended that pink sheets containing records of voting at some 1039 polling stations and here, with some 705, 305 total votes cast, did not have the signatures of the presiding officers.
With the grounds of judicial review discussed above, we can argue, but with caution that there is indeed, “Trying Times Ahead for John Mahama’s presidency”. Procedurally, Dr Bawumia had told the Supreme Court that the EC had still not fully complied with furnishing the petitioners with particulars of declared presidential results with the said 241,554 voters claimed to have registered abroad. It is also on record that the EC has so far, managed to submit a list covering only 705 voters, including, the “New Yorker Twins”. Dr Bawumia seems to suggest that the EC’s foreign list is not “credible” and that when the petitioners, demanded the bio-data of the foreign voters from the EC, the data they received indicated what he describes to the court as a changing voters’ register, “fake voter ID numbers” and a “mathematical formula” where same names had different numbers running through. Dr Bawumia states the EC provided a total register of 14,301,680 of voters before the election.
But on 9 December 2012 when the EC chairman declared the results of the election, he gave a figure of 14,158,890, a difference of 127,210 from the one they had earlier on provided. Tony Lithur- lead counsel for President John Mahama, not forgetting the other defence counsels, seem to accuse Dr Bawumia of misleading the court- suggesting that he desperately wants to make up the numbers needed to overturn the declared results that favoured his client. Yet the NPP Star Witness insists on ‘Ghost’ Polling Stations, alleging that voting took place at some 22 polling stations which were not among the traditional 26002 polling stations on the EC’s list. In the words of Enright, one of the major common law rules of procedure consists of the rules of natural justice. These require that a party receive a fair hearing from an unbiased decision-maker and that the problem that has beset error of law involves an anachronism in the core sense of that term, namely that the proper time sequence for events was disrupted. “In the popular expression it entails putting the cart before the horse,” he says.
The indications are mixed and unpredictable for John Dramani Mahama, as Afari-Gyan prepares to mount the witness box, to reconcile the balance sheet of the said 241,000 overseas votes which as it stands, might finally determine John Dramani Mahama’s political future?
Researched and Compiled By Asante Fordjour for The OmanbaPa Research Group
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