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Opinions of Friday, 26 June 2020

Columnist: Dr. Samuel Adjei Sarfo, Esq.

The Supreme Court’s decision was lost in interpretation

Ghana's supreme court Ghana's supreme court

After eating my fufu and peanut butter soup which I prepared all by myself, I went to lay on my bed here in Austin and started dreaming that seven cows were chasing me. I immediately started flying in the clouds and began wondering when I evolved into an angel. At that very moment, a loud ring on my phone brought me down to earth.

My friend and classmate from Ghana announced to me that the Supreme Court of Ghana had given a split decision ordering the Electoral Commission to go ahead and compile the voter’s register while at the same time directing the Commission to use the Voter I.D. Card for the compilation of the register.

In support of this claim, there was this meme he posted to me in which the General Secretary of the NDC was explaining the meaning of the ruling in a stentorian voice whereas all these big NDC lawyers were nodding their heads in agreement. There was another video clip in which Lawyer Xavier Sosu had written authoritatively stating that the Court’s decision was itself enough grounds to conclude that the registration could not proceed, and advising the EC to abandon the exercise altogether. Besides, I also heard a number of radio stations announcing the same interpretation of the Court’s ruling.

Thus, I was disposed to believe these accounts without reading the ruling itself because it accorded with my own state of mind and reasoning; for long before the ruling, I had also predicted in an article that the Supreme Court would allow the EC to undertake the registration exercise while permitting the use of the Voter ID Card.

I wrote the following on my Group Platform without bothering to search for the actual text of the ruling:

1. The Voter Register will proceed as scheduled. 2. The Voter ID Card would be included as a form of identification. 3. The relevant constitutional instrument will be amended to include the Voter ID Card as a form of identification.

I made all these statements without referring to the ruling itself, taking for granted that I was not better than those who were speaking so profusely in public about it…..Until some other classmates began to make statements that were contrary to the prevailing interpretation. Some references were made of some legal interpretation being proffered by some lawyers on the Asempa Radio. These were arguing that the Voter ID Card had been disallowed in the ruling. They presented the ruling itself as evidence that the Court had rejected all the reliefs sought by the NDC. I read the ruling they offered thrice before I got its full implication. Thereafter, I had to apologize for getting it all wrong.

The point of all the foregoing is to establish that the Court’s ruling was rather vague and ambiguous: If the Court divides the issues, it must clearly take care to rule on every issue either granting or denying it. The court cannot grant a relief which it has amended and to which it has attached an unrequested condition. Only the litigant can amend its relief. If the condition invalidates the grant, then the relief is denied. Period! The NDC did not request for any relief subject to C.I. 126; so why grant any such relief?

To wit, if a I go to court asking for you to debar my adversary from entering my dwellings, you cannot say, “I grant your request, subject to his right to use your toilet”. That amounts to a grant and a denial of the grant which can lead to a lot of confusion.

In the matter at hand, the Supreme Court granted the NDC its relief all right but took that grant away by subjecting it to C.I. 126. That created the confusion. What was the purpose of that grant if it was to be subjected to a condition against which the party had filed a suit? The Supreme Court could have done better by simply denying all the NDC reliefs.

That confusion was what led to Asiedu Nketia’s muzzled interpretation; he was genuinely misled by the convolution of the Supreme Court and could hardly be blamed where seasoned lawyers were found standing beside him and bobbing their heads like lizards in agreement.

Even if the respected General was freely winging the narrative, it would have been his right to do so because it is usual for both plaintiffs and defendants to claim victory as a strategy to save face…….And even sometimes to save chaos. Because given the tension surrounding this lawsuit, it is possible to imagine a rioting if the matter had sunk in suddenly that the NDC had lost. The little time given by Asiedu Nketia’s faulty construction might have saved lives: Gradually, as the truth trickled in, people had the capacity to contain their disappointment and euphoria. For all you know, only a mosquito can bite so slowly and gradually to avoid a raucous!

And as to the verdict itself, the Supreme Court pulled off a sleight of hand that saved the country from further litigations and lawsuits. When people choose to condemn the Court for its decisions, they ought to understand how a Supreme Court approaches its opinion. It has to be about maintaining peace and prudence and avoiding activism and preventing a headlong collision with the other branches of government. We must remember that the judiciary is the weakest branch of government because the executive has its law enforcement and the legislature has its masses but the Court has nothing except its pen and robe; so it must exercise its jurisdiction with prudence and tact and wisdom. If the judiciary discovers two paths of justice, it will proceed on the easier one for sure.

We shouldn’t waste our time with the relief requesting the Supreme Court to stop the EC from compiling the register because that one is childish and foolish. The source of law that informed the seminal precedent in the Abu Ramadan case is called The Chevron Deference which presumes that every agency has the power to perform its function according to statutes. That presumption is almost impossible to overcome and appears to hold sway in Anglo-Saxon Common Law.

Yet there was another relief that was grantable: That of expanding the method of identification to include the Voter ID Card and birth certificates. But the price for the grant might have appeared too expensive for the Court under the circumstances. It was obvious that such a grant would mean a direct challenge to the power of both parliament and executive. It would also have opened the floodgates of further litigation and confusion as already threatened by some sections of the population. One by one, others would have sued for the expansion of all forms of identifications, clogging the courts with all manner of frivolous lawsuits. The Court had the duty to cut the matter short. Here, nobody is going to Court again to seek any interpretation of the power of the EC to compile a register; and nobody can come out to express any doubts about what the Court means. The matter has ended!

For in the end, everything was much ado about nothing really. The NDC could have negotiated to expand the list of acceptable identifications to be used in the registration simply by fully participating in the inter-party consultative process.

Instead, it chose procession in the streets and threats and insults and litigation as its modus operandi. The result is the present defeat.

But I even believe that in spite of the Supreme Court’s ruling, it should be possible for the party to negotiate on the side for an acceptable deal with the EC. That process of post judgment negotiations is called plea in remittitur and should be available under the law.