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Opinions of Tuesday, 2 April 2013

Columnist: Bomfeh Jnr, Kwabena

Ghana must take cue from Kenya


Watching the Kenyan Election Dispute case on DSTV channel 413 on Thursday,
28th March between the hours of 13:00 and 16:00 GMT, *it was really
worrying and embarrassing that the Attorney General of Kenya could boast of
the speed with which their case was travelling by citing Ghana’s snail slow
pace of handling a similar petition – challenging the validity of the
election of the President.* Kenyan Attorney General, Githu Muigai speaking;
*"As my Lords are aware, as we speak here today the Supreme Court of Ghana
is sitting on the election dispute relating to their election which was
undertaken in December and they are slower than we are and I think we
should take a little credit for the sort of enthusiasm that this court has
brought to a timeous disposal of this matter*.” The Kenyan A-G was allaying
any fears of delay. I sighed with disappoint; Oh NO! What a shame, Ghana!
This is what happens when your standards fall. You become a reference point
for those are accused of falling. It becomes easy and convenient to use you
as a solace. How much less can we fall?

Unlike in their previous elections where disputes or challenges were
settled by the sad option of bullets and machetes, the People of Kenya this
year chose the prescribed channel of using the Court, taking a cue from
Ghana’s opposition leader Nana Addo Dankwa Akufo Addo. When I began writing
this piece, the petition was expeditiously being dealt with. Indeed on
Saturday, 30th March, the Judges of the Supreme Court of Kenya pronounced
judgement declaring the validity of the election of Uhuru Kenyatta as
President of Kenya.

Ghana’s 2012 December polls for both Parliamentary Representation and
Presidential Election came to a peaceful end not without issues and
disputes. Notwithstanding these issues and disputes, President Elect, John
Mahama, per the Electoral Commission’s declaration was sworn into Office on
January 7, 2013 as required by Law pending the determination of the of the
Presidential Petition filed at the Supreme Court challenging the validity
of his election. The Petitioners drew their authority from Article 64 of
the national Constitution which grants the Supreme Court the basis to make
a pronouncement on the decision of the Electoral Commission as well as
guarantees the running of government by the ‘embattled’ President.

The Kenyans may have a taken a cue from the law abiding path Ghana chose in
handling their election dispute but they have overtaken us by taking the
lead in dispensing with their challenge legally without any hitch. Kenya
has now become an example Ghana has no option than to emulate. In the
Kenyan case, the bench was led by the Chief Justice himself. Strangely, our
Chief Justice is missing in the Ghana case. Her Ladyship Georgina Wood has
excused herself from a number of monumental cases namely; the challenge of
the creation of new Districts and the creation of new Constituencies in
addition to this Presidential Petition; to the shock of many a follower of
the proceedings of the Supreme Court atleast since 2009. In this landmark
case unprecedented one would have expected the Head of the Judiciary to
lead the Honourable Bench to decide on it. Madam Chief Justice, your
absence on this bench is not in good taste with the majority of Ghanaians.
Or is it the case of withdrawing from cases in response to the NDC
Chairman’s threat of “many ways of killing the cat”? I do not want to
believe that as the Arch Protector of the Law her Ladyship could be
intimidated by such threats knowing very well the degree of her duty
call. *Whatever
the cause of the Chief Justice’s action may be, her stay off these landmark
cases is a dereliction of duty and classical shirk of
responsibility.*Never has there been such a situation in Ghana’s legal
history. Even ailing
Chief Justices were prepared to stand up to be counted.

The Chief Justice of the Kenya is not only sitting on the case himself, he
has also led the *Court to order for the live broadcast of proceedings in
Court for the view of the general public on their National Television*. If
her ladyship has not been courageous enough to sit on this case, she can at
least see to the live broadcast of the case on Ghana Television like we
witness with the Public Accounts Committee’s sittings.

In Ghana, we still do know how long this case will travel and when it is
actually starting. Our situation is even more pathetic because of the
posturing and attitude the Supreme Court has adopted in entertaining
delays. First it was the unnecessary allowance for the NDC as a different
Party to join the matter in their own right because they sponsored the
first respondent John Mahama. Subsequent to the allowance of their joinder
application, all the NDC has been doing in court is to delay the
commencement of the substantive petition and until the Courts stamps
Authority, they have not indicated the readiness to stop.

Second, the Court instead of directing the conduct of the trial threw the
option to feuding parties who have shown in court their unwillingness to
agree on anything including disagreement itself. After more than two weeks
of adjourning the case ‘sine die’ the counsel for the petitioners have
written to the registrar of the court hinting the dead end of their meeting
with the counsel for the respondents. Could this not have been avoided?
Could we not have seen to the commencement of the trial proper? Even at the
next hearing, one is uncertain whether or not we shall be told as to when
this case is going to begin.

As much as it is worth commending our Judges for unanimously thrashing the
frivolous joinder application by some mischievous NDC members, we must
express our disgust at the snail slow pace at which they are grinding the
wheels of justice. After all, it is also written that Justice Delayed is
Justice Denied. It was in the spirit of this very maxim that they wrote to
be enacted CI 74 to expeditiously deal with presidential petitions
considering its urgent nature. So why must we be in the 4th month of a four
year tenure and still be in court over the validity of who should execute
term? We have no option than to take a cue from the Kenyans who obviously
learnt from the needlessness of their warring past as well as the law
abiding example chosen by Ghana.* The delay tactics employed by the
opponents of the petition is not celebrated at all by many a Ghanaian whose
fears are in expression albeit in a muted majoring protest. *

It is instructive to note that both her Ladyship Georgina T. Wood and Dr
Afari Djan have their hands in the happenings in Kenya. Whereas Dr Afari
Djan helped in the creation of the electoral reforms involving the use of
Biometric Technology though Ghana had no experience in such, Mrs Wood also
helped in crafting the legal reforms in adjudicating electoral disputes
though she won’t have anything to do with that of her own home ground. The
interesting twist here is simply that the Kenyans have shown that they can
learn and learn really fast. We surely have a cue to take from Kenya.

We cannot overlook the hardworking staff of the Kenyan Judicial Service who
worked tirelessly to expedite action in the hearing of the petition. On no
occasion did the courts have to wander with the whereabouts of any
document. There was not attempt by any court staff to hide any document.
Ghana Judicial staff penned to help with the execution of this case must
learn from the colleagues in Kenya. Nobody should attempt to remove or hide
any of the filed applications or documents from the attention of the
judges. Of course the counsel representing the parties involved in the case
generally conducted themselves very well. Each of them restrained
themselves to the time allotted. They reduced the use of acrimonious and
inflammatory non legal language. There was general decorum and surely it
would in the interest of peace for our lawyers to take a cue from their
Kenyan colleagues. The laxity with which the court allowed the wearing of
decent attire and not necessarily the traditional dress code of colonial
legacy cannot equally be slipped over. Considering the long hours expected
to be spent in court, perhaps they(Judges and Lawyers alike) would be
relieved of the stress of this unmodified colonial legacy which is very
much not akin to our environment.

One interesting point that arose in the Kenyan case that struck me and I
see recurring in our court was the point of law that; *where the
petitioner(s) showed that the breaches of the law in the conduct of the
elections affected the general outcome of the election, the burden of proof
shifted to the respondent(s) to show that such breaches did not affect the

*In the end we should all remember that Kenya went through a similar if not
the same experience of resolving a disputed presidential election in court
without any degeneration into war or bloodshed. They have exhibited the
spirit of oneness in deepening the democratic culture of Kenya. It is Kenya
that has won. Not any particular individual or party. Ghana can do and
bright better.*

Is Ghana going to be like Kenya? That is the debate on going pending the
decision of the Supreme Court. How soon that is going to be, we are not
sure. Since Ghana did not turn into Kenya when the late Prof Mills promised
Kenya in 2008 while alive, I am not too sure Ghana will go Kenya after his

*Kwabena Bomfeh Jnr (Member of Parliament [attempted], Kintampo North)*