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Opinions of Wednesday, 6 February 2013

Columnist: Ata, Kofi

What an Historic Supreme Court Judgement?

By Kofi Ata, Cambridge, UK

Yesterday February 5, 2013 will go down in history as the second turning point in the ongoing Presidential Petition. The Supreme Court (SC) by unanimous decision allowed the application by Nana Akufo Addo et al, the Petitioners for details of Ghanaians who voted abroad at the December 2012 Presidential Election from the Electoral Commission (EC), the Second Respondent. The SC also unanimously granted the application by the First, Second and Third Respondents for further and better particulars from the Petitioners regarding the petition challenging the declaration of President John Dramani Mahama as the winner of the presidential election. In my view the objections to the applications were unnecessary, the additional hearing uncalled for and simply precious judicial time wasting that all the parties and Ghana cannot afford. In this twelve of post election series, I want to discuss the importance and potential implications of the SC ruling and the tactics being employed by the two opposing political parties (NPP and NDC) on this matter.

Before I discuss the judgement, NPP and NDC, let me briefly consider the role of the EC. I am unsure if the EC objected to the application by Nana Akufo Addo et al for details of those Ghanaians abroad who were registered and voted in the elections. These were those on official government assignments including students on government scholarships, staff and family members of diplomats, Ghanaians working with UN and other International Organisations and their families as well as police and military staff serving abroad. If the EC objected to the application, I do not know what justifiable reason/s the EC offered for their objection. I guess it could be that they may have to ask for permission from all those concerned to provide their private and personal details, especially, home or residential addresses to avoid breaching Data Protection Legislation in their respective countries of residence at the time of the registration and voting.

That reason may be unsound because the registration and voting would have taken place within the premises of Ghanaian missions in those countries, so any Data Protection Act in those countries would not apply to Ghanaian diplomatic missions since those missions are considered as extensions of Ghana. Again, since the details were revealed to a third party in Ghana and the EC is in Ghana, no foreign jurisprudence can compel the EC to account for its actions in foreign country. Third, the EC acted under a court order and therefore were not in breach of privacy laws. Last but not the least, Ghanaian missions abroad have diplomatic immunity under the Westphalian System though I stand corrected as I am not up-to date on the Westphalian Syste but I am pretty sure to be right. So if the EC objected to application by Nana Akufo Addo et al for the details, then what was their reason/s for objecting apart from stalling the hearing?

Why did Nana Akufo Addo et al objected to the application from the respondents for further and better particulars on the allegations that, there were massive irregularities and rigging at over 4,000 polling stations and therefore results from them should be nullified by the SC and Nana Akufo Addo declared winner? Nana Akufo Addo who claimed to be one of the best Attorneys in Ghana is reported to have said that, he did not want to give the evidence to EC but will do so in court. This is the most irrational reason I have ever come across in any litigation. Nana Akufo Addo as a lawyer must be aware of the principle of “no surprises” in court. This is to ensure speedy and fair trial. As I explained this principle in my earlier article entitled, “Nana Akufo Addo, “Patapaa” Will Delay Your Petition” (see Ghanaweb, January 24, 2013), I do not intend to go into any further details, expect to say that I was very disappointed on the reason offered by Nana Akufo Addo for his objection. It even baffles me when Nana Akufo Addo should have known that such an objection was nothing but time wasting which was not in his own interest as well as that of his party and Ghana as a whole.

The principle of “no surprises in court” is very critical and cardinal to fair trial and the administration of justice. In fact, it is so important that even when the evidence is incriminating to the party that holds it, it MUST be disclosed and shared with the opposing party. For example, on Monday February 4, 2013 a former UK Energy Minister and Member of Parliament who resigned his ministerial post to fight a charge of perverting the course of justice pleaded guilty on the first day of his trial because of a text message between himself and his son incriminating him. The text messages which were unknown to the prosecution were given to the prosecution by his own legal team despite the fact that, the former minister had strongly denied the charge since May 2011 and resigned in order to fight the charges and clear his name.

For those of you who may not be aware of the case, a newspaper became aware that the minister has asked his wife at the time to accept a speeding offence on her driving licence in order to avoid six months driving ban in March 2003. At the time of the offence, he was a Member of the European Parliament and his car was caught driving by speed camera doing 69 miles per hour in a 50 mile per hour speed limit and claimed his wife was the driver. He and his exchanged the following text messages, "we all know that you were driving and you put pressure on Mum. Accept it or face the consequences. You've told me that was the case. Or will this be another lie?" The former minister responded: "I have no intention of sending Mum to Holloway Prison for three months. Dad". His son replied: "Are you going to accept your responsibility or do I have to contact the police and tell them what you told me?" These supported the now former wife’s claim that she was not the diver but her ex-husband. Yet the defendant’s own legal team made such incriminating evidence available to the prosecution. That is how the wheels of justice should and must turn and not delaying or withholding crucial evidence till hearing day.

Nana Akufo Addo et al have not done themselves, their party and Ghana any favour by objecting to this simple and reasonable request. They made very serious allegations against the Respondents and should not expect to be treated with golden gloves at the Supreme Court because and as they rightly say, this petition is about Ghana’s democracy and its credibility. Fairness and natural justice only demand that the accused is given adequate information about the charges against them in order to prepare adequately for their defence in court. The suspicion that the accused would temper with the evidence if provided in advance is porous and should not be accepted. How could that happen when NPP holds the originals of whatever information and particulars provided to the accused? That was just an excuse to play games that has backfired.

Even if the SC upheld the objection and denied the application, it would have ultimately cause delay during the hearing because whenever the evidence were presented in court, the accused would have the right to request for an adjournment to study the evidence due to the sheer volume of the evidence. If the SC granted even an hour adjournment that would be precious time waste which could have been avoided earlier. In fact, now that Nana Akufo Addo et al have applied to amend the petition to increase the number of polling station to 11,000, it is only right and fair for the respondents to apply for further and better particulars to cover the additional polling stations if the petitioners’ application is granted. Should that happen, I plead with Nana Akufo Addo et al not to oppose the application because it would serve no purpose except further delay the petition

It beggars belief why His Excellency, President John Mahama and the NDC are also opposing the application by the plaintiff to vary the petition. Nana Akufo Addo et al made it clear from the beginning that, NPP were examining further evidence at the time the petition was lodged with the SC. It was logical from this that they intended to make available further evidence on completion of the examination of the additional electoral materials from the remaining polling stations. It follows from that that should they become aware of any more irregularities or rigging which support their allegations and strengthened their case, it is only fair that they amend the petition. Again, within the time constraint of twenty one days from the date of declaration, it was not possible for NPP to have examined all the materials from the over 26,000 polling stations. The opposition is misguided and should be withdrawn immediately, especially, in view of yesterday’s rulings.

What is the basis of the opposition by President Mahama and NDC apart from the fear of losing the case? I thought both claim that the allegations are baseless, without merit and that NPP has no credible evidence that there were massive irregularities and rigging? If that is the case, why are President Mahama and NDC opposing the opportunity for the petitioners to present more (unreliable) evidence in court, since that could be in NDC’s favour? Is that also not typical delay tactics? Fair trial and justice also require that all parties must have their day in court, which means both the plaintiff and accused must not be impeded in court.

It appears to me that both NDC and NPP do not want this petition to be heard expeditiously for partisan interests. For NDC, the longer the petition is stalled, the better for them because the party is in power. It is also becomes less likely that the SC will uphold the petition. However such ideas could be self defeating because the longer this petition hangs over the country, the longer the question mark over the legitimacy of President Mahama continues. A long delay is also not good for Ghana in general and the credibility of the Supreme Court and the Judiciary in particular could be dented. Lastly, justice delayed is justice denied. At the end of a long fought battle whatever decision is made would be unfair to one of the parties. For example, if it goes in favour of Nana Akufo Addo et al, they would have been denied the period already served by President Mahama. On the other hand, should the decision be in favour of President Mahama, he would have been serving under the cloud of a stolen verdict for all that period. Whichever way, it’s not fair to either of them. It sounds strange but true that Nana Akufo Addo et al may also want to delay this case as long as possible for political gains. I do not believe in conspiracy theories but from what Gabby Otchere Darko is reported to have said, I suspect Nana Akufo Addo could also benefit from a protracted hearing at the SC. He claims that, the reason for NPP MPs boycotting the vetting of ministers is not based on logic but political in order to deny President Mahama any legitimacy. If that is the view of the petitioners then the objective for delaying the case is to bring Mahama’s presidency into disrepute in the eyes of Ghanaians and the international community. The fact reasons that irrespective of the President’s legitimacy emanating from the Constitution, there will always be some doubt in the minds of people, including myself, on whether he was genuinely elected. Others also claim that Nana Akufo Addo want the petition delayed so that he can hang on as leader of his party and possibly become the Presidential candidate in 2016. I personally do not subscribe to such view because it is highly unlikely and Nana Akufo Addo would not attempt such a fruitless expedition.

Why do I say the SC ruling/s is or are historic? First, the fact that the Justices were unanimous on both applications is significant. It simply vindicates my position that the objections were unnecessary and time wasting. Second and as I have always said, whatever the outcome of this petition it would be beneficial to Ghana’s democracy. The implications of the ruling that the EC should provide details of Ghanaians who voted abroad to the petitioners should not be under estimated because it has the potential to have big ramifications on the case and in the future. Among others, the decision means that, the EC cannot cook up electoral figures in the near future.

Prior to yesterday’s judgement, it has been suspected that all elections since 1992 have been skewed in favour of one candidate or party by inflation of either or both the electoral registers or actual votes in certain regions of the country. This ruling could put a stop to such practices if they ever existed because the EC would be careful in perpetrating such acts in the future since it would be possible for someone to go to the Supreme Court to ask for the details of those who actually voted.

Again, it is the suspicion of some of us that the figure given by the EC (over 200,000) as Ghanaians who voted abroad is on the high by our estimates. This is therefore an opportunity for the EC to prove those of us sceptics wrong and maintain or repair its dented credibility. In fact, should the EC be unable to provide details of such voters to the actual figure or at least within a small margin of error, then the EC is in trouble and the petition would be hugely strengthened. Indeed, such a failure would throw EC’s defence into serious doubt and bring the hearing into confusion because Nana Akufo Addo et al could immediately apply for the annulment of the total votes from abroad or even the annulment of the Presidential Election as it could be unreliable. These are challenging times for the EC, Dr Afari Gyan and Ghana’s democracy. The credibility of Dr Afrai Gyan and his EC are at stake and we patiently for the EC’s response.

Another implication on the EC is that their independence would be in doubt and questionable. It could suggest that the EC was manipulated and controlled by the government in power, NDC. It could also mean that it is possible the EC suffered similar fate in the past under previous regimes such as Ex-Presidents Kufuor and Rawlings. Again, Dr Afari Gyan’s reputation as a strong minded and independent Commissioner would be in tatters and with it his career. He would be seen as a cheat, weak and a political servant of the government of the day. His legacy, if any, would disappear into oblivion and would he go down in history as the worst Electoral Commissioner in Ghana.

The EC’s inability to provide the details would put in question the veracity of not only the 2012 elections but previous ones, the legitimacy of President John Mahama and the credibility of NDC as a party. The President and NDC would be seen as accomplices or aiding and abetting fraud and massive electoral rigging.

In the same vein, should NanA Akufo Addo et al fail to provide more information and further particulars that are credible to cover the over 4,000 polling stations or the increased figure according to their amendment, their claim also falters and they would be licking their wounds in tears and digrace. Such failure could have serious and damaging implications for Nana Akufo Addo’s political legacy and the future of his party. All the parties in this case (Nana Akufo Addo et al, NPP, President Mahama, NDC, the EC and Ghana have too much at stake regarding this ruling. They are now sitting on explosive volcanic fissures just waiting to erupt uncontrollably under their very nose. Whichever way the flow of the hot volcanic magma or ash would flow is anyone’s guess. These are challenging times and we eager await the outcome but in the mean time, I am proud of the Justices for a yeoman’s work done. They should keep it up.

Kofi Ata