The courts and our democratic development

24th July, 2013

The election petition brought by Nana Akufo-Addo et al has laid bare significant shortcomings in some of our most important democratic institutions.
We know now that despite its stellar reputation at home and abroad, the Electoral Commission has a long way to go to reach the ideal of organizing credible elections.

While this does not excuse the dereliction of others, it appears that despite repeated assurances that the NPP would scrupulously protect our votes through lawful vigilance, its leaders and polling agents were literally asleep at their post while, according to our leaders, “our tilapia” was stolen.
We know that many in the media lack the resources and the objectivity to do factual reportage of complex court proceedings.
We know that our Supreme Court is too slow, averse to modern technology and despite its assertion that the “law is in our bosom”, rather erratic in the enforcement of basic contempt procedures.
Despite these obvious flaws, in the last week or so, there has been admiration and commendation for the Supreme Court that defies the logic of our experience. The 9-member panel has been lauded by former President Rawlings, Sam Okudzeto and many others. There have been assertions that the Supreme Court panel will render the right judgment. Unfortunately, a careful reading of our history shows that the Courts have come through at the big key moments in our history. It is hoped that they will do the right thing in this case.
Every successful democracy has some turning points where the judiciary acted to strengthen the rule of law and democracy. Perhaps America’s big moment came in the “Marbury versus Madison” case of 1803 when the Supreme Court ruled that it was the role of the judiciary to decide the constitutionality of the actions of other branches of government.
As Ghanaians, our moment came in the 1961 “re Akoto” case. In that case, the chief linguist of the Asantehene, Baafour Akoto and seven others challenged their imprisonment under the 1958 Preventive Detention Act. Their attorney, J.B. Danquah, argued that the PDA was inconsistent with the provisions of article 13:1 of the 1960 Republican constitution and that the PDA, which was a law should yield to the Constitution. A ruling in their favour would have had far, far-reaching consequences on our democratic development. Many of those who went outside the law to oppose Nkrumah would have worked within the law—Danquah and Obetsebi-Lamptey would not have died in jail—A chastened Nkrumah might have stayed in power till his death in 1972 to execute his transcendent development vision in a democratic Ghana and a lot of the acrimony and finger-pointing we have witnessed may have been avoided.
And yet, the Supreme Court, led by Chief Justice Korsah chose to uphold the PDA!
Then in 1969, in Gbedemah versus Awoonor-Williams, the court expelled the MP for Keta and the leader of the opposition National Alliance of Liberals, Komla Gbedemah, from Parliament. Suffice it to say that the presence of Gbedemah in Parliament would have been good for Ghana. Of course, there have been some rulings on the side of democracy, in the 3rd and particularly the 4th Republic. However, none of these come anywhere near the significance of the Akoto ruling and its impact on our democracy.
It may be that guided by our history, our Supreme Court panel will get this one right, for all of our sake.
In addition to ruling on the petition, some have speculated upon whether the Court should go on to issue directives to other bodies with a view to correcting the glaring defects that have been laid bare during this case. For instance, should they direct the Electoral Commission to publish clearer guidelines—including the definition of “over-votes”?
Should they direct Parliament to pass a law that would clarify and speed up the resolution of election disputes? How can we paralyze our country for so long while trying to determine who should be President after an election?
Should they direct the Chief Justice to take the necessary steps to modernize the administration of justice in Ghana? These speculations are grounded in judicial history. For instance, after the 1954 Brown versus Board of Education ruling in the US, courts in various parts supervised school spending for years—to ensure equity.
Of course, regardless of what the Court does, beyond granting or denying the reliefs sought in the petition, others too have work to do.
Hopefully, the E.C., Parliament, the media and the political parties will all learn from the lapses that have been so cruelly exposed by this case and fix them.

To return to the Supreme Court, their task is, in fact gargantuan.
It will require the wisdom of Solomon to be fair to the petitioners, the respondents, the voters whose votes may be annulled and true to our constitution and our laws.

To succeed, they and indeed our nation need prayers. That is why I fully share the call to prayers by Dr. Otabil that has been re-echoed by former President Kufuor.

My fellow Ghanaians—let us pray—together.

Arthur Kobina Kennedy