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Opinions of Sunday, 7 March 2021

Columnist: Nana Yaw Osei

2020 Election Petition: Indeed, only Museveni’s court can exonerate Jean Mensah from scandalous collations

I do totally agree with John Mahama that the Supreme Court of Ghana did not give the former president a fair hearing in the just-ended election petition. “The language of judicial decision is mainly the language of logic.

And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man” (Oliver Wendell Holmes Jr).

Although I concede that certitude is an illusion and tranquility, not the destiny of human beings, almost two hours judgment that Justice Anin-Yeboah read in the full glare of the public was nothing short of logical incongruity, judicial pantomime, psychological whodunit, and contradictions both philosophically and epistemologically antithetical.

I am not expressing a vaunting logical knowledge repository. I was virtually plunged into the state of emotional and mental disquietude when the Chief Justices cited a common law from Yoweri Museveni’s SC as one of the grounds of dismissing Mahama’s numerous applications. This was an ample testimony that the verdict was a far cry from justice.

Suffice it to say that the SC of Uganda during the said case was independent of Museveni's influence; why must the Seven Member SC panel compare Ghana with Uganda while they knew with perfect certainty that Uganda leader has track records of putting his political opponents and their agents under house arrest during election results collation? During the 2016 election in Uganda, Museveni's closest competitor, Dr. Kizza Besigye, and his party agents were placed under house arrest during the collation of results.

In the 2011 journal article entitled, "Judicial politics: election petitions and electoral fraud in Uganda, Jude Morrison found that the SC in the 2001 and 2006 presidential elections petitions acknowledged voting irregularities but was unwilling to rule against President Museveni. In Ghana, under the 2020 election petition, the petitioner was seeking to clear all doubts that emanated from collation of results.

A think the 7 justices goofed by citing a common law from Uganda that has gained international notoriety for electoral fraud. Ghana has an enviable reputation for democracy, and the SC cannot cite a common law from Uganda, which is a semblance of democracy.

Maybe like their Uganda colleagues, evidenced by afore-referenced articles, the judges were also unwilling to rule against the president, in spite of electoral irregularities.

Also, the 2020 ruling was not bereft of contradictions. For instance, I really haggled to catch this drift. The evidence by the PW2 and PW3 were fanciful, and that Dr. Kpesse-Whyte and Rojo Mettle-Nunoo must blame themselves for leaving the national collation center in the lead-up to the declaration.

Along the line, the judges also asserted that the Electoral Commission is an independent body that could discharge its duty without recourse to party agents or anybody’s help. If so, why must the court conclude that the NDC national agents must blame themselves for leaving the strong room?

The main conundrum is the extent of relationship between PW2 and PW3 blaming themselves for leaving the EC strong room and the inconsistent results declared by the EC chair! What an ethereal jurisprudential quagmire to behold! What was the correlation between Rojo Mettle-Nunoo certifying regional results and the multiple figures declared by Jean-Mensah?

The lawyer of Akuffo-Addo telling his colleague he cannot confront the PW1 with EC figures, and the judges did not see that as a shred of evidence for electoral collation fraud? Perhaps the Judges were right; only Museveni's court could vindicate Jean Mensah. Was Mahama denied Justice, or the Judges were not fair to him?

From the perspectives of classical history, justice could be understood as a history of changes in and constraints to the notion of justice as reciprocity. Historically, justice is believed to be the difference between balanced and unbalanced reciprocity.

Plato and Aristotle devoted ample time to understand justice. Plato was the best dissenter from the idea that justice emanates from reciprocity. In his Republic, Plato saw justice as a matter of command and obedience, specifically the obedience of the inferior elements in any complex by the supreme.

The obedience of the impulsive parts of the soul to the rational parts is taken as a model for justice in the political scene. Aristotle, in the Book V of the Nicomachean Ethics, saw justice as reciprocity.

It is probable justice enters the scene when reciprocity is or ought to be accomplished by an exercise of authority. Assuming the Assembly of God Church [My Church] is embarking on Easter Convention, the sharing of benefits and burden is an issue of fairness not justice.

Someone who breaks a promise made to this writer does not constitute an injustice. The bottom line is that the existence of antecedents to an established claim. Simply put, the difference between justices and fairness is a reference to a claim or framework of claims that is antecedently established.

Justice entails reference to established antecedents, whereas fairness needs no established antecedents. Relative to Ghana's electoral antecedents, an established antecedent has been peaceful collations devoid of the use of brute force and rid of military firing life bullets into the crowd, killing innocent citizens. An established antecedent that the electoral commissioner declares one results not multiple.

The 2020 election declaration and trial were both in sharp contrast with the established antecedent in Ghana and globally. The Judges denied Mahama and Ghanaians who voted for him Justice. This is a dangerous precedence for Ghana's election.

Jean Mensah and the Judges have failed honest Ghanaians. Judges cannot say that everything was alright with the 2020 elections. Citizens were murdered in cold blood. EU observer missions described the collation process as not transparent. They denied Ghanaian justices by not making electoral reforms.

All these judges are saying what characterized election 2020 is ok to be replicated in the future? "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought, not free thought for those who agree with us but freedom for the thought that we hate” (Oliver Wendell Holmes Jr).

Some of the thoughts we hate are a travesty of justice and an unfair trial. SC panel must be reminded that they are arbiter of last resort, and that judges shielding Jean Mensah’s electoral malpractice risk plunging the country into an electoral pogrom.

The Judges must be good by their judicial oath to dispense justice for the sovereign will of all Ghanaians not the executive branch of government.

Recommendations.

Jean Mensah, Bossman Asare, and director of the election at EC must resign.

The University of Ghana, University of Cape Coast, must begin to offer programs in career electoral management (Career electoral commissioners).

EC head, IGP, CJ must be elected through universal adult suffrage for 5 years renewable mandates.

The Supreme Court must complement the trial process with Ghanaian traditional judicial systems.

EC must scrap the regional collation centers.

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