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Opinions of Thursday, 8 August 2013

Columnist: Akwah, Nana

The Power of a Signature - Natural or Procedural Justice

I have heard people like Kofi Adams, Bernard Mornah, Kojo Adu Asare and some members belonging to Respondents making claims of natural justice and fairness. The problem of understanding of what constitute "natural justice" is grossly misunderstood by these discussants.

An explanation of Natural or Procedural justice have to do with the fairness and the transparency of the processes by which decisions are made, and may be contrasted with distributive justice (fairness in the distribution of rights or resources), and retributive justice (fairness in the punishment of wrongs). Thus hearing all parties before a decision is made is one step which would be taken into account as appropriate to be taken in order that a process may then be described as procedurally fair.

Some theories of procedural justice maintain that fair procedure leads to equitable outcomes, even though the requirements of distributive or restorative justice are not met. It has been suggested that this is the outcome of the higher quality interpersonal interactions often found in the procedural justice process, which has shown to be stronger in affecting the perception of fairness during conflict resolution.

The need for an understanding of what constitutes natural or procedural justice will enlighten their understanding, help educate the general public.

However before going any further, it will be appropriate to take a peek at what is "RULE OF LAW"?

The explanation I will proffer is this – the vigilant adherence to the rule of law strengthens a democracy. It ensures that those who govern us operate within our constitutional structure.

It means also that ultimately the rule of law determine its course and not executive officials operating in secret without constraint.

The rule of law makes us stronger by ensuring that decisions will be tested, studied, reviewed and examined through the processes of government that are designed to improve policy. And the knowledge that they will be reviewed prevents over-reaching and checks the accretion of power.

Once violated, the rule of law is in danger. Unless stopped, lawlessness grows. The greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles. As the executive acts outside “its” constitutionally prescribed role and is able to control access to information that would expose its actions, it becomes increasingly difficult for the other branches to police it and once that ability is lost, democracy itself is threatened and we become a government of men and not laws.

Let’s proceed from the premise of rule of law. Now, what constitutes natural or procedural justice and what are the rules of natural or procedural justice?

What constitutes the observance of natural justice in all cases cannot be simply stated. The law requires fairness from a person exercising an administrative power. This is not something that can be set down in anticipation or in a fixed body of rules, as what is fair in any given situation depends on the circumstances.

However, the courts have held that the principles of natural justice are more strongly implied when the decision might adversely affect the person's reputation and that, if the rules and standards of natural justice have not been observed, it is irrelevant to inquire whether the decision reached was a correct one as the decision, being tainted by the failure to observe the proper procedures, is void.

The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker.

Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.

A word used to refer to situations where audi alteram partem (the right to be heard) and nemo judex in parte sua (no person may judge their own case) apply.

The principles of natural justice were derived from the Romans who believed that some legal principles were "natural" or self-evident and did not require a statutory basis.

These two basic legal safeguards govern all decisions by judges or government officials when they take quasi-judicial or judicial decisions.

“Three Common Law Rules” are referred to in relation to natural justice or procedural fairness.

The Hearing Rule - This rule requires that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker.

To ensure that these rights are respected, the deciding authority must give both the opportunity to prepare and present evidence and to respond to arguments presenting by the opposite side.

When conducting an investigation in relation to a complaint it is important that the person being complained against is advised of the allegations in as much detail as possible and given the opportunity to reply to the allegations.

The Bias Rule - This second rule states that no one ought to be judge in his or her case. This is the requirement that the deciding authority must be unbiased when according the hearing or making the decision.

Additionally, investigators and decision-makers must act without bias in all procedures connected with the making of a decision.

A decision-maker must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before him or her without favoring one party over another.

Even where no actual bias exists, investigators and decision-makers should be careful to avoid the appearance of bias. Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation.

The Evidence Rule - The third rule is that an administrative decision must be based upon logical proof or evidence material.

Investigators and decision makers should not base their decisions on mere speculation or suspicion.

Rather, an investigator or decision maker should be able to clearly point to the evidence on which the inference or determination is based.

Evidence (arguments, allegations, documents, photos, etc..) presented by one party must be disclosed to the other party, who may then subject it to scrutiny.

Therefore the assertions that the sins of the presiding officer shall/should not be visited on voters have no legal basics. In the administration of justice the decision is based upon logical proof or evidence.

"In a logical proof, the premises may or may not all be true, the conclusion is a consequence of the premise-set, and, therefore, the conclusion may or may not be true. What we can say in the case of a logical proof is that it is logically impossible for the conclusion to be false unless at least one of the premises is false."

These discussants are underestimating the Power of a Signature!

What is a signature?

It is your name written in your own characteristic way. A “Signature Collection” is a creation that has the name of the person who endorsed or made it, like a signature dish created by a famous chef or a signature clothing line to which a famous person adds their name.

Think about it. When you sign something you are communicating something pretty important. Perhaps you are saying, “I will pay for this; marry this person; perform this service; abide by this contract; purchase this item; loan this money; endorse this product; agree to these terms; name this baby.” A signature is a powerful thing.

Therefore it is not for nothing that the Article 49 (3)(a)(b)of the Constitution mandates that for an election result to be authentic it shall be signed at the Polling Station. The arguments been bandied around is no legal consequences.

The 4th Constitution of Ghana became operational after it had been signed or ratified by Flt Lieutenant Jerry John Rawlings on 8th day of May 1992. Without the signature the Constitution would have had “NO” legal legitimacy.

These persons must understand that the constitution states that it is a prerogative to be exercised by the Presiding Officer. It is an exclusive right or official right and power to decide the authenticity of the results on the Pink Sheet (Statement of Poll and Declarations Results Form, EL 21B and EL 22B)

Furthermore, it is a constitutional requirement that shall be exercised by the Presiding Officer, alongside agents for candidates which the Constitution states.

God Bless Ghana