Feature Article of Wednesday, 9 January 2013

Columnist: Rii, Jedd

How The Elephant Jumps Into Court

It is encouraging to see a cross-sectional engagement by the people of Ghana, on the impending challenge by The National Patriotic Party [NPP] to the just ended elections.

Pundits have worked themselves into a frenzy, offering divergent takes on the legal standing of the case. The result is a befuddled or confused section of people, eager but unable to fully grasp or engage in the proceedings. It is important to debunk some of the confusing suggestions and explain issues in simple terms.

First; Can the president be sued? The answer to that question is: No! The Ghana Constitution grants a president of the Republic, absolute immunity from prosecution, and that means without exception.

The next question is: Did Mr Akuffo Addo and others, make an error in naming the President; Mr Mahama [who cannot be sued], in their challenge at the Supreme Court. The answer again is; No. It is not an error.

NDC stalwarts and lawyers have lined up to slam the decision and even NPP legal luminary; Ndebugri Esq. and other party heavyweights have broken ranks to question the validity of naming the president. Such reverberations coming from the NPP camp, suggest that there is some uncertainty on this issue.

To understand the impasse which is really a simple legal tangle, there is the need to make reference to Procedural Law, which is simply rules which must be followed in the process of a court case. It comes in three sequential parts as follows; 1.Filing the case. 2.Prosecuting the case [or the court room drama]. 3.Getting a verdict [or the ruling] It is important to understand that this sequence is strict and unidirectional. If you fail to follow the rules at any stage, the case will not proceed to the next stage and if it is discovered later that rules were not followed the case might collapse.

As an example. The court is unlikely to accept any issues once a trial has begun, if you fail to mention it when filing the court case. Again going to a judge’s house, chambers or interacting with a judge during a trial will be seen as trying to solicit a verdict before a trial.

There are two requirements for the first stage [Filing the case], just as in any application; compulsory and optional elements. The procedural rules in bringing a case to court requires that you make your application correctly; you answer the compulsory questions and keep to time limits required by procedural rules. If you fail to do so without valid reason, your application will fail.

The requirement to name Mr Mahama was therefore not optional for Mr Akuffo Addo and others, but of the law. One thing to remember is that, naming a person in a lawsuit does not mean you have to sue him or you get to sue him. You must have a legal basis for your claim and it must be permitted by law.

The court will require from Mr Akuffo Addo and others, the legal basis or explanation why Mr Mahama should be part of the suit. If Mr Akuffo Addo and his party are unable to give reasons why the president [who cannot be sued] is part of the challenge, the court will throw out the case. This is because the court cannot act unconstitutionally by presiding over a situation, which is not allowed by law.

So how do Mr Akuffo Addo and his team get past the first stage in a situation that some legal aces and luminaries are stating as insurmountable.

The solution while not obvious, is very simple. Mr Akuffo Addo and others will have to make a submission to the court stating; That while Mr Mahama is named in the action before the court, it is in compliance of rules of procedure and that, the party [Mr Akuffo Addo and others] have no intention of bringing a suit against Mr Mahama at this time.

This will immediately have two effects; First, it will allow the case to proceed because the president is not being sued and secondly, Mr Mahama, will not have to enter a defence since he is not being sued.

That is how the elephant jumps into court.

Mr Akuffo Addo and his party can then go on, to explain the reasons for naming but not suing the president, by stating the much mentioned Rule 57 of the constitution and the fact that his name only appeared because of rules of procedure.

To show the Supreme Court the import of the action, they must stress that the exclusion of Mr Mahama will have no effect whatsoever on the case or the remedy being sought, because all the facts and issues which would have been relied on, are the same as those, that will be used against the Electoral Commission[ which is now effectively the only respondent].

I hope this will go some way to reassure the millions of NPP supporters and those of other parties and people whose hopes are resting on this motion being carried through the courts by Messrs Nana Akuffo Addo, Obetsebi Lamptey and others. The nation and the world accepts their convictions and it will not be ignored. Putting it to test will only show the great strides in democracy that the nation and its people are making and every effort should be made to support it even if we have different views or choices. In the words of Dr Kwame Nkrumah, we are;”one nation, one people and one destiny”.

We can choices, but it must be with integrity and that means doing the right thing.

Jedd Rii

This article was produced by Abigail Asantewaa Coleridge, with and on behalf of Jedd Rii a regular visitor on Ghanaweb and it was prompted by the ongoing debate. aabicoleridge@live.co.uk