By Dr. Michael J.K. Bokor

Thursday, February 7, 2013

The lawsuit filed by the NPP is gradually exposing a lot that we must continue to interrogate as we monitor the developments unfolding right in front of our eyes.

I am still struggling with the rationale behind the NPP’s lawsuit and want to raise some nagging aspects for our discussion. What exactly is the NPP in court to achieve? And how will that achievement add any value to our democracy?
One major justification that the party’s leaders and supporters used to support the court action was that it would help us refine our democracy and curtail future manipulation of the electoral process. They haven’t ceased couching their claims in that fluff.
But I don’t see how this lawsuit will do anything of the sort. Plainly put, how can the demand that the Supreme Court annul 4,670,504 valid votes cast at the 2012 polls and declare Akufo-Addo as winner of the Presidential elections add any value to our democracy? On what basis is this “value” being framed as such? What will make anything of the sort a “value,” at all?
If the NPP were, indeed, seeking to use this lawsuit to add value to our democracy, why didn’t the petitioners even ask for a re-run of the general elections should their allegations be substantiated? They haven’t done so because it is not their focus. What they are looking for is that their Akufo-Addo should be declared the winner after over 4 million votes have been annulled. How inconceivable?
How do you add value to a democracy when the votes of over 4 million citizens guaranteed the right of franchise are annulled for no apparent reason but just because one political party is peeved that it didn’t win the elections and has fingered that quantum of votes as the cause? What sort of democracy will this skewed and dangerous desire build for us?
Again, if the NPP sought to use this lawsuit to help us deepen our democracy, why didn’t the petitioners ask for “electoral reforms” as part of the reliefs that they demanded in their petition? Or, why haven’t they suggested anything other than the insistence that Akufo-Addo be declared winner of the elections? What will declaring Akufo-Addo as such add to our democracy?
This is where the morbidity of the petition comes to full view. And, for me, this is the crux of the matter.
I am more persuaded by the stance taken by Dr. Paa Kwesi Nduom and his PPP that even though they had their own reasons for doubting the fairness or transparency of the elections, they didn’t support the NPP’s lawsuit. Instead, they would strongly urge that electoral reforms be carried out to improve the general elections in future. Fair enough because no general elections held anywhere in the world are without problems, being conducted by human beings—and we know that perfection is not a human quality!
Improving the electoral process isn’t the responsibility of the Supreme Court but the very institutions charged with conducting elections or participating in such elections which, in our case are the Electoral Commission and the various political parties. That responsibility is outside the Supreme Court’s purview.
Indeed, the primary responsibility of the Supreme Court is the interpretation of the country’s laws, especially the Constitution. As it is known to function, the Supreme Court won’t choose leaders for the country. It will determine cases brought before it on how the leaders are chosen to see whether the laws or constitutional stipulations guiding the procedures for choosing such leaders have been duly followed or not. Its interpretation may give us some ideas on what should be done, but the Court can’t make kings because that is not its constitutional mandate.
That is why it will look into this lawsuit to see if the procedures were flouted, and call for a re-run of the elections if it so determines. That is why the NPP petitioners’ exclusion of a re-run deepens the morbidity of their petition.
And that is why I strongly opine that in determining this NPP lawsuit, the Supreme Court will focus on the Constitutional provisions regarding the conduct of the elections to determine whether the Electoral Commission followed the stipulations regarding the 2012 elections. It will interpret the Constitutional provisions against the background of the NPP’s allegations to tell us whether the EC fell out of step or not.
I can assume at this stage that the Court will also examine all the evidence to be made available and determine the case within that ambit to see which Constitutional provisions were flouted or adhered to, and the implications.
It is only then that it can tell us whether the general elections were grossly misconducted or properly conducted in accordance with the Constitutional provisions. Or whether there should be a re-run or not. But that is not what the NPP is interested in.
From the Court’s response to the NPP petitioners’ request for the pink sheets from the EC (which it threw out today), we can see clearly how the wind is blowing. Not only did the Court say that the petitioners’ demand was "pre-mature, superfluous, and unnecessary" but it also said that the petitioners were represented in the EC’s strong room as we well as on the ground on Election Day and they should have copies of the collation sheets and the pink sheets.
So, I am beginning to have a hunch that the Supreme Court is gradually opening a window for us to see early the ebb and flow of this case. That is why it is meticulously making sure that the preliminary legal issues are dealt with to clear doubts on what it will do as an interpreter of the Constitution and not a king-maker.
The Court has so far given its ruling on those preliminary issues, the latest of which today revealed to me that it is set to do its interpretation of the electoral laws as stipulated in the Constitution. Two of those rulings have a direct bearing on the legal technicalities that the Court is helping us see clearly.
By granting the petitioners an application for leave to amend their petition within two days, the Court has helped the NPP to deepen its challenges. The petitioners will now amend their original petition asking the Supreme Court to annul 4,670,504 valid votes cast during the elections in 11,916 polling stations (instead of the earlier 4,709) where alleged irregularities were recorded.
Pronto!! This amendment means the petitioners will have to provide “further and better particulars” to the respondents—regardless of what they have already been ordered to provide in respect of the 4,709 polling stations contained in the original petition.
Today alone, the Supreme Court ruled on four different applications filed by petitioners and respondents in the case relating to the petition challenging the results of the 2012 Presidential elections.
If the NPP were interested in improving our democracy, why would its legal team be objecting to the NDC’s being joined to the lawsuit and protesting against a basic legal procedure such as providing “further and better particulars” to the respondents to enable them know what the real contents of the NPP’s allegations are so they can position themselves for defence?
Or, why would the NPP petitioners not know that they would acting prematurely and superfluously by asking the Court to order the EC to give them the pink sheets—all after they had already publicly dangled those very documents (or imitations?) at press conferences and other public forums, which they called their “watertight evidence”?
How would they not know that the burden of proof was on them and not the plaintiffs to be demanding from the plaintiffs the very documents that they had used as the basis for their allegations? Or did they not make those allegations because they had what confirmed their fears, doubts, and suspicions about the conduct of the general elections?
Even, lay people like us know that what the NPP was demanding from the EC won’t be granted by the Court; and we were proved right.
As the legal technicalities continue to be cleared or new ones emerge, we will continue to monitor the situation to see how the case will be steered to a pure constitutional responsibility of law interpretation to be performed by the Supreme Court. I am more than persuaded that by the time the dust settles, those expecting that the Supreme Court will declare Akufo-Addo as the winner of Election 2012 will become so disillusioned as to wonder whether it was political expedient at all to seek redress in the dark chambers of the Supreme Court.
They need to know right now that king-making is indeed not a constitutional responsibility thrust upon the Supreme Court. Its main function in this lawsuit is to interpret the Constitutional provisions regulating the electoral process.
So, I end this opinion piece with the very question that set me off: What exactly is the NPP in court to add to our democracy?
To confirm that Dr. Kwadwo Afari Gyan stole the elections for President Mahama and must be removed from office and the entire Electoral Commission overhauled? That the general elections were fraught with irregularities, tampering with votes, outright stealing of votes for President Mahama, or flouting of the electoral process because not all polling stations adhered to the Biometric Verification Procedures? That 28 “illegal” polling stations were haphazardly created to attract votes for President Mahama? And that annulling 4,670,504 valid votes will be the best action to be taken in consequence?
And, above all, that despite all these “irregularities,” there shouldn’t be any re-run of the elections; and that instead, the elections should be declared in favour of Akufo-Addo? What sort of value will anything of this sort add to Ghana’s democracy?
As it was in the beginning, so shall it be in the end. I ask again: Why is the NPP in court, dear reader?
I shall return…
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