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Opinions of Friday, 20 September 2013

Columnist: Dekportor, Mensah

SC verdict: a victory for the Ghanaian voter

Supreme court verdict: a victory for the ghanaian voter

Analysis of the majority and minority decisions of the Supreme Court judges in the election petition case clearly indicates that the judges in examining the case were in a contest of practical versus technical judicial decision making. Whereas the majority side were mindful of the full implications of their decision on the Ghanaian society in general, the minority were more focused on strict and technical interpretation of laws regardless of the consequence of such interpretation on the Ghanaian society.

The majority side judges demonstrated a fierce obsession with protecting voter rights as enshrined in the constitution whereas the minority sought refuge in dogmatic adherence to literal interpretation of laws at the expense of the protection of voter rights and social cohesion. For instance, one of the minority judges in interpreting Article 49(3) of the constitution referred to a golden rule of interpretation and stated that “words must be given their ordinary meaning unless same shall lead to absurdity”. It is obvious that a key ingredient of the golden rule the Honourable Judge referred to is that words should not be interpreted to result in absurdity. Therefore a situation where a literal interpretation of words in article 49(3) results in cancellation of votes cast by voters because of the absence of the signature of presiding officers is a classic instance of interpreting words in a law such that it results in an absurdity. How do you explain to the ordinary person in the street that his vote has been cancelled because a presiding officer failed to append his signature to the document on which his vote was recorded without incurring his wrath? Why should the presiding officer be more important than the voter in any election? Why should the conduct of presiding officers determine the outcome of elections as opposed to the conduct and decision of the voter? If this is not the absurdity that the golden rule of interpretation seeks to prevent then what is? Compare this to the position taken by one of the majority judges on this same issue of non signature of pink sheets by presiding officers. He stated that “I think that such an approach is not rooted in shared common sense and undermines the entire process of elections by having innocent voters disenfranchised on purely technical grounds”. The Honourable Judge emphasized further that the petitioners failed to prove that the non-signing of pink sheets had in the “slightest manner tainted the election or results declared”. In other words, the results as declared based on votes casted and openly counted were not disputed by the petitioners except on a procedural technicality of the absence of signature of presiding officers and other grounds related to administrative errors and infractions of election officials. The practical focus in the interpretation and administration of election laws should not be to cancel decisions of voters on grounds of procedural technicalities as advocated by the Honourable minority Judges. Such a position would elevate presiding officers above voters in future elections and lead to voter apathy and at worst chaos during elections.

Thank God that the Majority decision is what prevailed and is the law that governs future elections because the majority decision endorses the sanctity of votes and instructs that validly casted voters should be protected at all cost. The decision of the majority of Judges in the case on all the key issues was thus a decision in favour of upholding voter rights as enshrined in our constitution and preservation of social cohesion and stability.

It is a fact that the petitioners failed to prove during the case that there was fraud of any sort in any votes cast in all the 26,000 or so polling stations. They rather sought to rely to a large extent on procedural technicalities in the recording of votes in constituencies largely won by the President to overturn the declared results. If the petitioners were confident that something untoward happened at polling stations during the election they should rather have requested the courts to order a recount of votes at polling stations that they had issues with and a confirmation of the results from the records of the biometric machines. Not even a rerun of elections at pollings stations as advocated by the minority judges was thus necessary. The more prudent approach of the minority judges should have been to order a recount of votes as opposed to the much more expensive and socially destabilizing decision of a rerun of elections that they opted for . Future solutions to issues as raised by the petitioners where no clear case of fraud is established should therefore be to order a recount of votes not a rerun of elections as a show of respect for voter rights. Thank God the majority the majority decision prevailed and is the law going forward because no one should be declared President in any elections in Ghana through annulment of votes and a disenfranchising of voters.

The President was validly elected and should be congratulated highly for allowing institutions of state like the Judiciary to freely function when his presidency was at stake. Congratulations to Nana Akuffo Addo should rather be low key since he had no choice than to accept the Court’s verdict because he did not win the case. He should however be congratulated for keeping himself in the political limelight through this unwarranted and unpatriotic case. He has through the case succeeded in making himself still the frontrunner in NPP politics going into 2016. It should however be obvious to the NPP that try as Nana Akuffo Addo has tried, he has in two successive elections won largely in 2 regions and has lost a third contest by failing to employ technical strategies to reverse the peoples mandate as given to President Mahama. His track record in elections is not that impressive and would not change come 2016.

The Supreme Court decision can largely be summarized as follows going forward 1. The voter is king in any election. 2. The integrity of the Electoral Commission must be protected and preserved hence the unanimous 9-0 verdicts of the Supreme Court. 3. Pink sheets evidence and analysis alone is not enough to overturn validly declared election results.

Thank God the majority view is the law going forward. The minority view is not practical and would have made election administration in Ghana chaotic and destabilizing if it had prevailed.

Report by: Mensah Dekportor NDC- Germany Communication Director Email: