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Opinions of Sunday, 11 January 2015

Columnist: Kennedy, Arthur Kobina

Ben Ephson On The 2012 Elections

Irmo, South Carolina
9th January, 2015
I have received and read my copy of the above book by my friend, Ben Ephson.
Let me begin this review by thanking him for his efforts documenting and analyze our elections.
While the data is interesting and will be reference material for a long time, the narrative portions of the book fascinating.
This is indeed a great first draft of the 2012 election.
Obviously, even before delving into the book, the first question to my friend and Ghana is this:
In view of the NPP petition, can we accept the data here as a true reflection of the 2012 elections?
Since there were allegations of fraud in 1992, 1996, 2004, and 2008, have we had any clean elections under the 4 th Republic? If yes, which ones?
Next, when Presidential and Parliamentary elections are going on at the same time, could one be rigged without the other?
Third, could counting the ballots in the boxes have gotten us to the truth quickly?
Fourth, if the NPP had won, could Nana Addo as President had worked successfully with an NDC Parliament?
Fifth, in view of 2012, what is Afari-Gyan’s legacy?
The first point of interest was the account of the meeting by 30 people convened by the National Peace Council (NPC) and attended by representatives of the Electoral Commission, the NPP, the NDC, and Civil Society on 9th December. According to his report, repeated from an earlier report in the “Dispatch” at this meeting, the NPP alleged fraud and malpractices in the December 7th and 8th elections. After some NPP polling station agents were called into the meeting to present evidence of the fraud, the meeting was adjourned for the EC to look at the evidence. An hour later, the EC told the reconvened meeting that the EC was unable to halt the results because the NPP had failed to tender all the pink sheets from the affected constituencies. He concludes the portion by reporting “The meeting ended at 9.00 pm with advice from the NPC that any aggrieved party could go to court”.
Apparently, the next morning, December 10th, Afari-Djan was served with an injunction by an Accra High Court restraining him from declaring the results of the elections. He informed the bailiff that the said results had been declared the previous evening.
The obvious question is this: How would things had evolved if the injunction had reached the EC boss before the results were declared?
It is interesting that while fraud was alleged in the December 9th meeting, by the time the case got to court, the allegation of fraud had been removed.
The next issue relates to the performance of the lawyers, for the petitioners, the President, the EC and the NDC.
If Kenya could dispose of a similar case in 2 weeks, why did it take us so long to settle our own case?
How did they do? Did the NPP make a good case? Did the party present the right witness and documents?
For instance, on the issue of voting without biometric verification, both Justices Adinyirah and Gbadegbe took issue with the performance of the petitioners. Justice Gbadegbe stated that “The petitioners, who bore the initial burden of proof on the allegation of absence of biometric verification, did not file any process that has the effect of challenging those depositions. The effect of this is that in the face of the depositions by persons who actually voted at some of those polling stations and testified from their own knowledge to what actually they saw and participated in, the evidence of the second petitioner, who was not at any of those polling stations, cannot be preferred.” A few lines later, he writes “One question that the failure by the petitioners to make available a single affidavit from a person who was present at any of the polling continually brings up, is: why were they not called?”
Was this an answer to “You and I were not there?”
How did the lawyers for the EC do? What about the NDC lawyers? Was the President’s representation adequate?
Should the whole court, including the Chief Justice have sat on the case?
What was the quality of the judgment delivered by the court? Was it as good as Re: Akoto or better? How did the court conduct itself ? Was the court right to go after Sir John and others? Whose judgment was the most succinct and persuasive?
How did the party leaders handle the verdict?
Next, Mr. Ephson makes the case about the importance of the very polling agents whose role was the subject of so much debate during the case. He argues very forcefully that properly trained polling station agents are the answer to rigging.
If they are so important, should we continue to leave their training in the hands of the parties? Might it be better if they were trained—with national resources by the EC, together with the Presiding Officers they will work with?
Finally, regardless of whether we think this case should have gone to court or not, we have all seen the flaws in our electoral system that was exposed. We should have a conversation, led by men and women—of all political and social groups who put nationalism ahead of partisanship and facts before opinions to look at the flaws and to answer the questions I have raised—so that we can end, once and for all, this quadrennial desire to go to court following elections.
Let us move forward—together.
Arthur Kobina Kennedy