Citizen Mahama Esquire; The First Respondent

Her Lady Chief Justice, Mrs Georgina Theodora Wood, has earned a notable place in the history of the nation. Her decision to give the nation a visual stake-hold in the judicial proceedings on the challenge to the Presidential Elections 2012,has completely realigned the national perspective.

A trailblazer, Lady Justice Wood, has created an enthralling stage, which has captivated an entire nation and observers all over the globe. History is being made and there are personalities who would want to be connected or be a part to this world spectacle of Ghanaian History.

Such a claim has been made at the Supreme Court on the grounds that, the current legal challenge initiated by Mr Akuffo Addo, Dr Bawumia and Mr Obetsebi-Lamptey, in the aspect of which Mr Mahama is named is not lawful. This premise has been argued from the inception of the legal challenge to the Presidential Elections 2012 and is based on the fact that the constitution provides an exemption for the president against any such action.

When a high-ranking lawyer, who is reputed to be on first name basis with world leaders re-echoes such a claim as having been missed by some of the world’s finest judges, it creates some confusion for those who just want to follow the case. We need to demystify this claim and place it aside, so that we can just watch the real case.

Let us assume that Mr Mahama has to travel from the capital Accra, to another part of the country. We also assume that on that route there are brigands, who attack travellers by road. If Mr Mahama for being the “president”, is given a safer option of travel by air, he will not be subject to attack.

So, for the purpose of his trip, the president will have two options; Option One, he can choose to travel in a motorcade or by road just like everyone else. Which means, he will be subject to the same risks of attack. Or…Option Two, which is the presidential option; this instance will mean travelling by air.

We cannot assume, that any of the two modes of travel is the default mode, solely on the fact that one option is better than the other. It is one of choice the president has to make; travel by road [you know the risks] or [rise above it] by travelling by air. If he chooses the flight option, he cannot be attacked [fact]. However if he chooses to go by road and is subject to any risk along the way, the statement of fact that “the president cannot be attacked” is pointless, because for the statement to be true, he must in the air not on the ground.

Back to the courts, the panel of Judges seem nonplussed by this “amicus” furore, all too aware of this subtle variation which has eluded the high ranking lawyer and has led him to draw some attention as a “friend of the court” [amicus curiae- a non partisan individual to a case, who draws a court’s attention to an aspect of the law that the court may have missed].

Nothing being done at the Ghana Supreme Court regarding Mr Mahama, can be stated as a “missed point of law”. It is a fact, that the constitution gives the president of the nation, absolute exemption from any lawsuit. It is a relief which is provided in law to the president and designed to stall any legal infringement on his focus to govern.

Mr Mahama did not use it, or was advised not to. Had Mr Mahama availed himself of this provision, the only way the NPP would have had this lawsuit, would have been to defer or abandon their action against him [Mr Mahama].

In addition to this “absolute privilege”, the president just like any other citizen, [in a claim placed before a court] reserves the right [by choice] to put in an appearance and mount a defence to any claim against him. This is the lesser of the two defences available to the president and is not advisable [in my opinion], on the basis that it is never a good idea to get into a lawsuit. Their outcomes can be unpredictable.

To use the “absolute exemption” privilege in his defence, Mr Mahama would have had to state his intention to do so and would have had to use the title “President” or state his position as “Mr Mahama, President of…”

It is therefore of primary importance, particularly for the petitioners in the claim, papers and documents, that all references to Mr Mahama, are completely disassociated from the title or position of “president”. Otherwise any determination will not hold, as it will be against a “president” who cannot be sued. If there is any reference to Mr Mahama as “President Mahama” in any document filed by either the petitioners or the respondents, it might pose a problem.

The lawyer who sought to alert the court on this supposed “point of law” can rest easy, because the Justices of the Court ; nine of the world’s finest, have gone through it and there is no conflict.

By choosing to exercise his constitutional right to mount his defence as a citizen, Mr Mahama either through his own volition or the advice of counsel [the one throwing documents and tantrums], abandoned the “failsafe” presidential privilege from the lawsuit. As a result in respect of this court case, he can only be referred to as “citizen” Mahama Esquire.

Jedd Rii.

Link: aabicoleridge@live.co.uk.