Feature Article of Thursday, 14 March 2013
Columnist: Nkrumah, B. B.
By BB Nkrumah
There is difference between common sense and legal sense; often the courts rule by legal sense. Many will agree with me that while some of the courts’ decisions are not popular with the masses, they are legally justifiable decisions. For example, the recent order of release of Mr. Woyome’s frozen bank accounts is an example of an unpopular decision yet the court’s judgment had legal basis for such disposition. In short, there was no legal basis to hold onto his bank accounts. After all, Woyome is not a convicted criminal. Our laws give him equal protection of “presumption of innocence until proven guilty” clause.
Today, we read that 327 applicants, who were drawn from some of the 11,916 polling stations where alleged irregularities took place, have petitioned the Supreme courts to join the legal challenge of the ongoing electoral disputes. We also know that the petitioners contesting the legitimacy of President Mahama have opposed the move by these 327 citizens’ 35 different applications. Of course it is smart to oppose it, and even smarter when you oppose it through the people’s courts to get their judgment on your side. But the question is this: “would this tactic work in Ghana’s legal system?”
I am not an attorney but I read a lot of dispositions by courts. I also read the petition filed by the presidential candidate of the New Patriotic Party (NPP) in the December 2012 polls, Nana Addo Dankwa Akufo-Addo; his running mate, Dr. Mahamadu Bawumia, and the Chairman of the NPP, Mr. Jake Obetsebi-Lamptey. And fortunately, the language used in the laws governing the adjudication process of election disputes was so clearly and technically written that the ordinary educated Ghanaian can understand. Let me first begin by digesting some of these laws to see if they make sense to you.
First of all, the electoral laws make it very clear that a Ghanaian is entitled to challenge the results of the elections (key requirement: must be a Ghanaian). Secondly, that the Supreme Court will ensure the “speedy determination” of any presidential election petition (key term: speedy determination). These are not all the laws but these two are enough to significantly delay the outcome of the verdict. When NPP filed its petition at the Supreme Court, the petitioners began like this: “The Petitioners are all Ghanaian citizens by birth …” a clear invocation of the law giving them the right to challenge the results. So if the petitioners as named in paragraph 2 above petitioned the courts on Ghana’s election (and I am not arguing about their legitimacy or necessity – they meet all those extras), and have been granted recognition then why on earth will NPP try to oppose same colored and citizens by birth, who have legitimate interest (because either their constituents/polling stations were named in the petitioners writ or as instrument for abetment) from being party to the case at the Supreme Court? The idea of “I am more important person than this person” because of political affliction or social class is no friend of the law. It is the genesis of racism at its inception.
Secondly, I have serious concerns about the phrase in the law, particularly, Supreme Court (Amendment) Rules, 2012, (C.I. 74) that interjected the deceptive language “speedy determination” as opposed to more definite and honest language as “no longer than XX days (weeks, months, or years).” I pity all these brilliant NPP legislatures who allowed such technical and broadly interpreted verbiage to be mended in the law. That term “speedy determination” is relative, and a key to delay justice. Look at it this way, speed limits on roads could be made easier in law with 2 or 3 words such as “slow down” or “drive with caution” but rather the roads are clustered with definite numbers such as speed limit 45km/h or 50km/h and so forth? Why didn’t politicians allow the cautionary signs rather? You are right; your response is as good as mine! For the same reason that someone’s “slow down” interpretation may be 90km/h versus what the law may attempt to define for that road. The bottomline is this: the Supreme Court will be justified in taking as long time it needs to arrive at a decision as they try to fulfill the “speedy determination” clause.
Here are the realities: There were certainly electoral irregularities that can significantly change the political landscape of our country. Any objective person who has looked at the facts, followed the testimonies of the people, and listened to the Electoral Commission’s explanations need not to have Harvard degree to sense that conspiracy took place. And I pray that NPP gets the deserving victory to serve as deterrent to future political parties who may plot to steal the peoples vote.
Unfortunately, our legal system, and for that matter the Supreme Court, will be justified to do the following: Grant the 327 additional petitioners to the case based on the facts that they may all be Ghanaians, and they have legitimate interest to the case because of the facts that they were either directly mentioned in NPP’s writ or their work at the polling station or constituency was brought into disrepute. Also, the Supreme Court can take as long time as it wishes to hear the case and it will still be justified to be in compliance with “speedy determination” goal. So I am no pollster or magician or any prophet if I say its judgment on the disputed elections will come in 2014, even longer. Let’s wait and see!
In summary, common sense tells us that NDC’s legal team has no defense to the facts unveiled by NPP’s team by their long empty response to the case. But this bright NDC legal team knows very well that good defense and/or common sense don’t always win court cases hence they have resorted to delay tactics and I am afraid they may be successful in exploiting the legal loopholes in our electoral system to give their candidate at least one term. It’s pathetic but it’s legal for NDC to do what they are doing. You might think our parliamentarians will review the laws and close any loopholes but guess what? They will leave them as they are in hope to use them as revenge; a typical mentality of African law makers and politicians. Don’t forget the laws on “causing financial loss to the state” how flexible those laws are subjected to different interpretation per political party in power. Fellows, we have a long way to go. On that note, I wish NPP better luck next time, and great job NDC for taking Ghanaians for a free ride. God bless Ghanaians, God bless Ghana.