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Opinions of Tuesday, 25 December 2012

Columnist: Asare, Kwaku S.

Response to Nana Akufo-Addo v. Electoral Commission?

S. Kwaku Asare

Response to Nana Akufo-Addo v. Electoral Commission?: Matters Arising (Part 1)???

In his article on the above subject, Professor Kuruk misstates, misunderstands or otherwise misreads a point I made in an article, where I argue that the current electoral impasse presents the Supreme Court with an opportunity to cement the country’s democratic credentials (see http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=260278)

Specifically, I argued that “once the writ is filed, the President must stop acting as the President-elect and desist from any and all actions that will be contemptuous of the Court, including, but not limited to the transition arrangements that has put in motion.” (see http://www.ghanaweb.com/GhanaHomePage/features/artikel.php?ID=259175)

Regarding this argument, Professor Kuruk wrote, “Nothing could be further from the truth. If the mere filing of a petition operated as an immediate stay, anybody could cause mischief and disrupt the transition to a new administration by simply filing a frivolous petition challenging the results of a presidential election.”??

First, I was talking about a writ filed by Nana Akufo Addo. He is the direct victim of an alleged electoral fraud. He faces a substantial threat of irreparable damage if he, indeed, is the President-elect and some other person acts in that capacity. He had over 5 million votes. To equate Nana Akufo Addo with “anybody” “filing a frivolous petition” is to trivialize a serious argument.

Second, nowhere did I say that the filing of the petition acted as an “immediate stay.” What I did say is that the President must stop acting as President-elect and desist from any actions that will be contemptuous of the Court. This is a simple call on the President to avoid taking actions that will affect the administration of justice. Courts can grant a stay. An action or inaction by the President is not a stay.

Third, while I did not develop an argument for a preliminary injunction to stop the President from acting as the President-elect, it seems obvious to me that Nana Akufo Addo stands a very good chance of winning such an argument, were he to make it in court. The Supreme Court will likely apply the usual 4-pronged test to rule on such a motion: 1. Is there a substantial likelihood that Nana Addo can succeed on the merits of the case? 2. Does Nana Addo face a substantial threat of irreparable damage or injury if the injunction is not granted? 3. Does the balance of harms weigh in favor of Nana Addo? 4. Will the grant of an injunction serve the public interest?

In my opinion, the answers to the above are all in the affirmative, necessitating a grant of injunction, if that is what Nana Addo decides to seek. On the first question, I have, sua sponte, reviewed some of the election results and found many troubling aspects that cast doubts on the EC’s announcements. It is reasonable to assume that Nana Addo and his legal team would have even more compelling evidence that could lead the Court to also answer the first question in the affirmative. It goes without saying that any damage to Nana Addo is irreparable and the balance of harms clearly weighs in his favor. The President continues to be President and will suffer no harm if he is estopped from acting as President-elect. Finally, it is clearly in the public interest that neither Nana Addo nor the President acts as a President-elect until such time that we really know who is the President-elect.

Professor Kuruk makes other incorrect arguments in his article. In particular, he states “Any political party that fails to take advantage of these opportunities to monitor the electoral process through the appointment of effective polling agents to represent its interests cannot lay the blame on the EC for any alleged acts of malfeasance.” To support this, he cites CI 75, Section 44(2): “The law states quite emphatically that the absence of a polling agent or counting agent will not invalidate the results at the polling station or constituency collation center.”

The law he cites has no relevance to the point he makes. The law simply states that the mere absence of a polling agent does not invalidate election results. But the issue here is not about absence of polling agents. The issue here is possible fraud somewhere in the collation chain.

The Professor also thinks “the most important piece of evidence in any challenge of the results of the 2012 election will be the declarations signed at each polling station.”

These declarations are no doubt important. But they are a mere part of a collation chain that starts at the polling centers, goes through the constituency collation centers to the EC strong room. Errors and fraud can occur anywhere in this chain. Evidence is not just about scanning the four corners of the declaration sheets. The people in the chain are all important sources of evidence. It will be absurd to equate the will of the people to some fraudulent numbers on a declared sheet, whether these sheets are at the polling center, collation center or the EC strong room.

In conclusion, all Ghanaians should remain open-minded about the outcome of any such litigation, if indeed there is litigation. The Supreme Court, should it be faced with such a writ, should do no more than evaluate the evidence dispassionately and render a verdict within a reasonable time. The Court should not be influenced by the declaration of the EC and should review the evidence de novo.