Feature Article of Thursday, 24 January 2013
Columnist: Ata, Kofi
By Kofi Ata, Cambridge, UK
One of the benefits so far from the ongoing petition by Nana Akufo Addo et al at the Supreme Court is the administrative incompetency and confusion within Ghana’s electoral management that will require urgent action whatever the outcome of the petition to ensure that such inconsistencies are reduced to the minimum in subsequent elections so as to regain voters’ confidence and trust in the processes as free and fair. I also believe that there may other benefits from the petition whatever the outcome. The singular most important benefit to the petitioners, NPP, the President, NDC, the Electoral Commission, voters and Ghana as a whole, will be a speedy hearing and conclusion of the petition by the Supreme Court. However, I am afraid the actions and omissions of the petitioners so far are a standing block to a speedy hearing and that is the subject of this article, the tenth of post elections series.
It is in the best interest of Ghana, especially President Mahama for the petition to be done and dusted as quickly as possible because, though he is constitutionally, the elected President, until the petition is decided by the SC, there will always be some doubt in the minds of some people about his legitimacy. Nana Akufo Addo also stands to suffer irreparable or irrevocable damage or injury to his interest if the case is unduly delayed and goes on for four years, particularly if the SC rules in his favour because he can only serve the remainder of the four-year term from the date that the SC Justices grant the reliefs he is seeking. Last but certainly not the least, the acceptance of the SC decision whichever way it goes, especially if in favour of Nana Akufo Addo, by both NDC and NPP in a peaceful Ghana, will put Ghana’s democracy on of pedestal equals among the democracies that are centuries old, such as the USA.
It is for the above reasons that, I am disturbed by the belligerent, recalcitrant and adversarial or “patappa” approach being taken by Nana Akufo Addo et al to prosecuting the petition. This approach is uncalled for and causing unnecessary delays to their cause for justice. For example, on the first day of the hearing at the Supreme Court on Thursday January 10, 2013, regarding NDC’s application to join the suit, the legal team of Nana Akufo Addo et al objected to a member of the Justices on the panel. That led to the adjournment of the hearing with an order for the objection to be filed in writing (see “Did the SC Falter on the First Step to a Giant Leap” and “Has NPP Opened SC’s Pandora Box”, Ghanaweb January 11 and 17 2013 respectively). Fortunately, the legal team withdrew the objection on reflection, which then poses question on whether the team consulted Nana Akufo Addo et al prior to the objection being raised in court.
Following the withdrawal, the hearing was rescheduled and a majority decision of 6 to 3 was pronounced by the SC Justices in favour of the application yesterday, January 22, 2013. What shocked me was the response by the General Secretary of the NPP. He is reported to have said, “Now, we are heading to hear the substantive matter that is before the Supreme Court, my joy is that now that the NDC is being joined once the case goes against them then they would have no bases to complain that they were not given the opportunity, so I’m very excited about today’s judgment,” (see “Don’t complain when you lose substantive case- Sir John tells NDC”, Ghanaweb January 22, 2013).
If the above report and quote attributed to the NPP General Secretary were accurate, then why the hell, the petitioners raised the objection in the first place? Does it make sense for a petitioner or an interested party in a petition to rejoice over an objection that has been overruled by a SC? I am not sure if the NPP General Secretary was speaking on behalf of the petitioners, the party or on his own behalf. However, if he was speaking on behalf of the party, then the decision to object to the application was absurd. On the other hand, if he was acting in his personal capacity, then he was either against the objection or he is confused because if the participation of NDC as third respondent in the petition would have offered the opportunity not to have cause to complain, if the judgement is in favour of the petitioners, then why object to that very golden opportunity? To me, this objection was a waste of precious time that could have been avoided though I must admit that it has given clarity to the law (the interpretation of the Constitution on such matters) and a benefit to Constitutional Law in Ghana.
Today, it is reported that Nana Akufo Addo has objected to the motion filed by the EC for detailed information on the alleged irregularities. According to the Daily Graphic, Nana Akufo Addo is reported to have said, “the EC ought not be permitted to employ an application for further and better particulars to compel the petitioners to disclose the nature of evidence petitioners intend to lead during the trial". The EC filed a motion on January 15, 2013 praying the Supreme Court to direct the petitioners to furnish it with "further and better" particulars of polling stations the alleged irregularities took place. According to the affidavit in opposition, the EC already had in its possession originals of the declaration forms and for that reason it was needless for it to request for further particulars from the petitioners (see “Nana Akufo Addo opposes EC’s request for detailed info on irregularities”, Ghanaweb January 23, 2013.
I am at a loss as to how and why Nana Akufo Addo, a renowned lawyer will expect the EC to respond effectively by way of its defence on the allegations he and his colleague petitioners have made against it without the detailed information being requested. From Nana Akufo Addo’s response as quoted above, it is obvious that the information being requested by the EC is already available and in the hands of the petitioners, which according to him, “the nature of evidence petitioners intend to lead during the trial". Why withhold information from the accused if you already have it?
My narrow understanding of free and fair trial in most jurisprudence includes the fact that, the burden of proof is on the accuser, though once a prima facie case is established, the burden of proof shifts unto the accused. In this petition, Nana Akufo Addo et al have substantially asserted the affirmative and therefore the burden of proof heavily lies on them to prove beyond any reasonable doubt that what they have affirmed is nothing but the truth. The fact that Nana Akufo Addo is of the view that they as petitioners have established a prima facie case and therefore the burden of proof has shifted unto the EC, does not absolve them from providing further particulars, if requested, necessary or required.
Again, in all trials and for free and fair as well as expeditious trial, there is a requirement known as “disclosure of information” on both parties (the plaintiff/prosecution and the defence). In some cases, trials are discontinued or dismissed due to the failure of especially but not exclusively, the plaintiff/prosecution to disclose vital information prior to or during the trial, when the court or any of the parties involved subsequently becomes aware of such information. In trials that have been completed and judgement passed such failure could result in an appeal or fresh trial. It is therefore in the best interest of Nana Akufo Addo et al to provide the information or evidence being requested by the EC for a speedy trial, particularly since there is no option for a judicial review in this petition.
Another reason why it is in the best interest of the petitioners to provide the requested information is the principle of “no surprises” at court, though in some cases, surprises may be allowed by a Judge depending on the nature of the surprise. However, if such information is relevant to the successful defence of the accused or successful prosecution by the plaintiff, then the element of surprise would be considered as unfair and may lead to unfair trial if allowed. In most trials, the trial Judge may make an order for disclosure of all relevant information that both parties intend to rely on in court prior to the hearing (often, not less than seven days from the date of the hearing). On other occasions, the trail Judge may make an order for disclosure of information on one or both parties during the trial when necessary and if appropriate. Such could orders mean both the plaintiff and defence must disclose whatever information, including materials they intend to use as part of the prosecution/defence to the other party and make copies of any materials and documents available to each other, where practicable. This is also to avoid delays in proceedings.
From Nana Akufo Addo’s response, the petitioners want to take the EC by surprise in court. This strategy is not in accordance with free and fair trial and a speedy one. In fact, it will work against the petitioners’ aim of avoiding a long trial because if Nana Akufo Addo et al proceed with their objection, there will be another hearing to enable the Justices to make a decision on the application and the objection. Again, even if the SC rules in favour of the petitioners, the EC could ask for more time to study whatever evidence the petitioners provide in court during the hearing and in support of the allegation of fraud and rigging from the 24, 000 voting centres. That could lead to other unnecessary delays that can be avoided by withdrawing this objection.
Nana Akufo Addo et al may be right that a prima facie case has been established by them therefore the onus of the burden of proof is now on the EC. However, in view of the importance of this case, bearing in mind the volume of the evidence in question and the magnitude of the task that the EC faces in identifying the exact red and pink forms from the relevant voting centres and constituencies, would it not be in the best interest of the petitioners to make the burden on the EC lighter? For example, it is true that the EC has in its possession the originals of millions of the red and pinks forms but it would be extremely difficult if not impossible for it to identify exactly which ones the petitioners are complaining about without the petitioners’ assistance by simply providing which voting centres and constituencies those forms complained of originate from. This will definitely assist the processes outside court and speed up the hearing and avoid time wasting.
In my naive opinion, the three objections raised by the petitioners so far are unnecessary and perhaps even frivolous. If the response from the General Secretary of the NPP is anything to go by, then the first objection could be vexatious, to say the least, since the party was aware at the time of the objection that the inclusion of NDC will be give the party no basis to complain if the decision is in favour of NPP. The second objection (to a member of the Justices) was irrational and perhaps an afterthought that did the petitioners, the party and the legal team no good, except cause delay.
The third and current objection by Nana Akufo Addo et al will only further delay the case and reminiscent of “patapaa”, belligerent or recalcitrant attitude that will end nowhere. It beggars belief that the petitioners who are crying for a speedy disposal of the petition are the very ones who are putting impediments in the way achieving that objective. Nana Akufo et al should bear in mind that not only the EC but also the first and third respondent have the right to and may request them for similar further particulars.
What next, object to the President Mahama’s intention to call 4,800 witnesses? Yes, that is unusually high unless the President wants to go into the Guinness Book of Records. He has the right to call whoever he considers as appropriate and relevant to his defence but my advice to Nana Akufo Addo et al is that, for the sake of a speedy trial, please leave this for the Justices to determine who the President must call as a witness without raising another object that will delay your petition, unless you have your own motive for seeking to prolong the case beyond six months, maximum.
It is said that, justice delayed, is justice denied and the more objections the petitioners raise, the longer the case will travel. I am also aware that the wheels of justice grind slowly but exceedingly fine when that is to ensures that the processes are free and fair to all parties. That includes speedy trial but above all, ensuring that the rights of the accused are protected throughout the trial. My suggestion to Nana Akufo Addo et al is that, be selective in objecting to motions because, “patapaa”, belligerency and recalcitrance will not work in your favour at the SC but only extend delay in seeking truth, justice and peace in Ghana.
Kofi Ata, Cambridge, UK