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Opinions of Monday, 31 October 2016

Columnist: Ata, Kofi

Can EC still disqualify Dr Nduom?

By Kofi Ata, Cambridge


Last Friday, Justice Eric K Baffour, a High Court made a very interesting judgement in the case of the Republic versus Mrs Charlotte Osei, the Electoral Commission; Ex Parte Dr Papa Kwesi Nduom over the disqualification of Dr Nduom as candidate for the December 7, 2016 presidential election. This article is a review of the judgement by a “non-learned mind” (to borrow Kweku Baako’s words).

Until I read the full judgement on Ghanaweb, I was a bit confused as to why judgement went in favour of Nduom. However, on reading the judgement, I understood why Nduom and his supporters were jubilant. The reasons, according to Justice Bafour and I quote, “the grounds upon which the Applicant mounts this application has been stated by him to be anchored on:

(1) breach of the rules of natural justice (audi alteram partem) and (2) error apparent on the face of the record”. The Latin words means "listen to the other side", or "let the other side be heard as well", an established legal principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them (see “Nduom wins against EC - Full court ruling”, Ghanaweb, October 28, 2016).

Whilst I may agree with Justice Bafuor on the first of the two grounds, I totally disagree on the second. In fact, my view is that Justice Baffour misdirected himself on this matter by accepting that Nduom was disqualified on the grounds of “ERROR” apparent on the face of the record. On the contrary.

In fact, according to the Returning Officer and the Electoral Commission (EC) and I quote. “The Commission is unable to accept Dr Nduom’s nomination because the number of subscribers to his forms did not meet the requirements of Regulation 7 (2) (b)of CI 94.

The Returning Officer and the EC provided further details are as follows: “One subscriber Richard Aseda (‘Asida’ on the Voters’ Register with Voter ID No. 7812003957) endorsed the forms in two different districts (pages 21 and 39).

The subscriber was found to be on the Voter’s Register in one district thereby disqualifying his second subscription and reducing the total number of subscribers to below the minimum required by the Law. The same subscriber (Richard Aseda (‘Asida’) endorsed the form with different signatures in both portions of the nomination form. This raises questions as to the legitimacy of one or both signatures.

We will refer the matter of the possible forgery of the signature(s) to the Ghana Police Service and the Attorney General for investigation and prosecution in line with the following sections of the Criminal Offences Act,1960 (Act 29): Section 211; Perjury Section 248: making false declaration etc. for office or voting; Section 251; Deceiving a public officer Section 256; Corruption, Intimidation and personation in respect of election” (see, “Why Nduom and 12 presidential aspirants were disqualified”, Ghanaweb, October 10, 2016).

From the above, it is very clear that Nduom was disqualified not because of an “error” but rather for an electoral offence of potential forgery, fraud and deception of a public officer. For reason of misdirection, all the authorities relied upon by Justice Bafour as basis for “the ERROR APPARENT ON THE FACE OF THE RECORD” are null and void and of no consequences. Nduom did not make error but committed unlawful and potential criminal acts of forgery, fraud and deception of a public officer for which he must be investigated and prosecuted, if there is credible evidence.

I do appreciate that Justice Bafour was mindful and guided by the fact that the application was through “Certiorari which is not concerned with the merits of the decision. It is a complaint about jurisdiction or some procedural irregularity like the breach of natural justice”.

However, my experience and understanding of cases of procedural breaches interfering with natural justice is that, after finding of fact of the breach in favour of the applicant, judges should not end there but ask themselves, had the procedure/s been followed or not breached, what would have been the outcome? If the outcome would have been the same, then, a different approach is taken in the judgement.

It is my submission that had Justice Bafour posed the question, had the Returning Officer given Nduom a fair hearing, what would have been the outcome, the answer would not have been any different because on the “facts” apparent on the face of the record, Nduom committed forgery, fraud and deception and therefore the Returning Officer could not have given him the opportunity to correct an unlawful and criminal acts.

This question was very critical in the matter before Justice Bafour because the Returning Officer could not have brushed aside potential crime and simply invite Nduom to cover up the crime since doing so would have meant the Returning Officer is complicit in the cover up.

Justice Bafour also contradicted himself in his judgement because he claimed he was not interested in merit of the decision. Yet, he relied heavily on the so called “error apparent on the face of the record”. What was the error apparent on the face of the record? It was the use of the unqualified subscriber in the person Richard Aseda (Asida), who did not only subscribe twice but also gave two different signatures.

It was precisely these “errors that also constitute potential forgery, fraud and deception upon which the Returning Officer disqualified Nduom. In effect, Justice Bafour did consider the merits of the Returning Officer’s decision (the grounds for the disqualification) but erred in concluding that they were mere and errors that should be corrected by Nduom but not criminal acts to be investigated and prosecuted.

The next question is, do courts or judges in Ghana consider the laws on the statue books, including case law and their relevance when adjudicating on cases? I pose this question first and foremost because of the existence of the Representation of the People Law 1992 (PNDCL 284) Section 28.

The “Offences Relating to Nomination Papers and Ballot” states among others as follows: “A person who (a) forges, fraudulently defaces, or destroys a nomination paper, or any other document relating to the registration of a voter, or delivers to a returning officer any nomination paper, knowing it to be forged commits an offence and is liable on conviction to a fine not exceeding c1 million or to imprisonment for a term not exceeding two years or both; and shall, for a period of five years from the date of the expiration of his term of imprisonment be disqualified from being registered as a voter or voting at an election”.

Is Justice Bafour Bafour unaware of PNDCL 284 Section 28 or simply because the application was by Certiorari, PNDCL 284 is irrelevant? I disagree with this approach because that should be the exception and not the norm in matters of judicial review of decisions by administrative bodies, which are not earlier decisions of lower courts.

Second, PNDCL 284 Section 28 is very relevant because the former NPP MP for Bawku Central, Mr Adamu Sankade was charged, tried, convicted and jailed by a High Court in 2012 on three counts of false declaration by voting, perjury and deceit of public officer over his nationality under PNDCL 284 Section 28 and others stated by the Returning Officer as basis for Nduom’s disqualification.

Adamu Sankade’s crimes were the same as those for which Nudom was disqualified. The question Ghanaians would want to ask Justice Bafour is, why different rules for different people? Is it because Nduom is rich and Sankade is poor (relatively)? What sort of judicial system that operates on one rule for the rich and powerful and another for the poor and weak? Is that natural justice?

It was also surprising the harsh words Justice Bafour used to describe the decision of the Returning Officer. They were uncalled for and I suspect Justice Bafour was angered by the challenges raised by Counsel for the Returning Officer and the suggestion that the EC is independent and cannot be ordered by the judiciary.

I disagree with those who hold such views because the actions and omissions of all bodies, organisations and institutions in Ghana (both state and non-state actors) are subject to review by the judiciary.

The EC’s independence is as far as it is within the laws of the land and subject to judicial review.

In conclusion, and in my “unlearned mind”, this judgement is perverse (on the facts of the matter, the grounds for disqualification, the evidence and precedence) and should not be allowed to stand. Even Counsel for Nduom, Ayi Quaye Otoo knows that and that is why he became very emotional on Newsfile when the host, Samson Lardy Ayenini mentioned the potential forgery, fraud and deception in the case and accused Samson of misleading the public.

Samson was not misleading the public but stating facts as reported.

Can the EC still disqualify Nduom? For Nudom and his supporters who are deceiving themselves that Nduom is back on the ballot paper, I have bad news for you. First, Judge Bafour did not order EC to reinstate Nduom but to give him the opportunity to correct the errors on his nomination forms for reconsideration by the EC. Secondly, the gospel fact is that, there were no errors on the forms to be corrected by Nduom.

Instead, there were forgery, fraud and deception that are incurable.

Consequently, the EC can and must still disqualify Nduom because he committed electoral crime on his original nomination form, an offence subject to further investigation, prosecution, a fine and or imprisonment and a five-year ban, when convicted.

I admit that Nduom has not been charged, tried and convicted so is innocent until proven otherwise. Nevertheless, someone who aspires to the highest office of the land must uphold the highest standard of trust and honesty. On this occasion, Nudom has failed and not fit for the office of the President of the Republic and should be disqualified.

The Attorney General and the police must speed up their investigations as a matter of urgency and put Nduom and Richard Aseda (Asida) before the court as soon as possible but not before 7 December 2016. Nduom should be jailed and banned if found guilty as in the case of Adamu Sankade.

For those who are suggesting that the EC should invite all the other twelve disqualified aspirants and put them back on the ballot papers, you are misguided because most, if not all of them also committed forgery, fraud and deception and must suffer the same penalty as Adamu Sankade. All Ghanaians are equal before the law.

In conclusion, this case has not only exposed the unwillingness and inability of the citizenry to comply and obey the laws, rules and regulations but also the unwillingness and inability of the authorities to enforce the same.

What are laws, rules and regulations for if even the courts would not enforce them across board but do so selectively on the basis of one’s wealth, power and position in society? This is the root cause of corruption, poverty, disease and underdevelopment in Ghana. Nduom and others must not only be disqualified but also charged, prosecuted, jailed and banned when found guilty.