NPP vrs EC [Supreme Court Case No.9/12/2012]

I might have shot myself in the foot by predicting that NPP may not go to court to challenge the Electoral Commission (EC) for declaring President Dramani Mahama as President Elect in the December 7 and 8 Presidential Election (see “The Mathematical Conundrum for NPP”, Ghanaweb, December 12 2012). As things stand now, NPP is reserving the right to challenge the EC at the Supreme Court over the EC’s declaration of President Mahama as President Elect. If that happens, it would be good for Ghana’s democracy provided justice is not only done but is also seen to be done. For this reason, it is necessary for Ghanaians to prepare themselves for that eventuality and to begin to analyse the potential scenarios that may face the nation should NPP mount a challenge at the Supreme Court. There are a number of potential options and scenarios, some of which could be very fascinating because that would be a novelty in Ghana’s short history of democratic dispensation. In the fourth of post election articles, I will attempt to discuss some of the options that may be put before the Supreme Court.

Before I go into the details of the options, I must pose this important question to Ghanaweb legal experts such as Prof Paul Kuruk, since I am not a lawyer. I am getting the wrong impression that some NPP supporters are being made to believe rightly or wrongly that the Supreme Court could declare Nana Akufo-Addo the winner if the numbers provided by NPP are in his favour to justify such a declaration. Can the Supreme Court make such a declaration and if so what would be the legal (constitutional) basis? My naive understanding is that, declaration of election results is the sole responsibility of the EC and therefore at best, the Supreme Court could only order the EC to recount the votes but not to declare a winner? I will welcome opinions on this before we are all carried away.

The NPP has a number of options by way of the reliefs that could be sought from and be granted by the Supreme Court (SC). Each option must meet specified criterion or criteria. Whichever option/s the party decides to go for must be supported by the incontrovertible evidence being assembled by their experts.

The first would be to ask the SC to invalidate the presidential election held on December 7 and 8 2012 and order fresh presidential election either with the same candidates or even open fresh nominations but that is unlikely, so supporters of Nana Konadu Agyemang Rawlings should not quote me on this. I say unlikely because the SC does not make the electoral rules. That is the purview of the EC. The second is to ask the SC to annul the results of the presidential election declared by the EC and order a runoff between the two leading candidates (that is, between President Mahama and Nana Akufo Addo). The final option is for the SC to overturn the victory of President Mahama and order the EC to declare Nana Akufo Addo, the winner. The status quo is not an option to NPP but remains an option to the SC.

What are the conditions that NPP must meet to seek any of the three reliefs and the chances of their success? In the first option, NPP must not only prove by providing credible and verifiable evidence that there was fraud but also that, the fraud perpetrated during the presidential election was such that the foundations of Ghana’s democracy would be at risk and unsafe if the result as declared by the EC is allowed to stand. This means the fraud must have been massive, systematic, planned and executed, etc. In fact, the first two (massive and systematic) are strong enough to justify the annulment of the presidential election. Again, NPP do not have to prove culpability.

Because the evidence we are talking about is (total) number of votes, it is necessary for NPP to prove that the numbers are huge, at least, equal to or more than the difference between President Mahama’s total votes and that of Nana Akufo Addo (of 325,863 votes). Already, the NPP leadership is claiming that the fraud unearthed is massive and systematic, so this option is for their taking. But would they take their chance on this option? Time will tell.

For the first option to be viable, NPP must jump one big hurdle. That is, if all the votes that were wrongly or fraudulently added to Mahama’s votes were taken out, would the outcome have changed? The answer would be dependent on a number of factors. First, if these were not actual and valid votes cast at the presidential election, then the total votes at the presidential election must come down by that fraudulent or wrong figure. This also means that the threshold for the outright or one touch win of 50% plus one vote would come down by that same margin. All other things being equal for Nana Akufo Addo (that is, at least, his total votes of 5,248,898 remained the same), then there could have been a different outcome. On the other hand, if Nana Akufo Addo’s total votes go up because they were under reported, again, the outcome could have been different and potentially improve his chances of an outright victory. For these reasons, the Supreme Court may be justified in giving consideration to a declaration to annul the presidential election and order fresh elections or order EC to recount the votes and declare the rightful winner.

In the second option, NPP is not required to prove that fraud was massive, systematic and planned. The party must only provide credible evidence that at least 77,130 votes were fraudulently or wrongly added to President Mahama’s total votes. With all things being equal that should make the President Elect short of an outright win. However, this example is practically impossible because as Mahama’s total votes go down so must the total votes at the presidential election and the 50% plus vote also decrease by a corresponding figure and proportion respectively. Again, unless equal or even higher votes are gained by Nana Akufo Addo concurrently, President Mahama could still have enough total votes to gain the 50% plus one vote to secure one touch victory. This option which I suspect the NPP is banking its hope on is not as simple as it appears to the naked eye. From the figures made public by leading members of NPP, it may be relatively easier for NPP to secure 77,130 votes or even more that were fraudulently or wrongly added to President Mahma’s votes but that would not automatically cancel out President Mhama’s outright victory unless Nana Akufo Addo gains similar number of votes or more. It is dependent on the size of the fraudulent or wrong votes given to him.

For the SC to grant this relief, the Justices must satisfy themselves that, if the fraudulently or wrongly added votes are taken from President Mahama’s total votes and similarly the under countered votes for Nana Akufo Addo are added to his total votes, the outcome would be different. That is, neither candidate would have gained enough votes to attain the 50% plus one of the total votes cast at the presidential election. However if the subtractions and the additions would have achieved the same outcome as declared by the EC, then NPP must not even go to the Supreme Court with this option. NPP must thread very carefully before opting for it.

For easy reference, I reproduce the results of the presidential election as declared by the EC for the next paragraph. Total valid votes cast: 10,995,262; Total votes for President Mahama: 5,574,761 and Total votes for Nana Akufo Addo: 5,248,898.

The third option is a hard nut to crack. Based on up-to-date figures from NPP, it appears so far 150,000 votes have been uncovered that according to the party officials were fraudulently or wrongly added to President Mahama’s total votes. This figure is not enough to overturn the results in favour of Nana Akufo Addo, unless Nana Akufo Addo gains at least, double that figure. Even that assumption could further reduce Nana Akufo Addo’s chances of an outright victory as any incremental gains by him over and above the figure lost by President Mahama increases the threshold for the 50% plus one vote.

Considering the difference between President Mahama and Nana Akufo Addo is 325,863 votes, if President Mahama loses 150,000 votes and Nana Akufo Addo gains additional 200,000 votes, Nana Addo will still be short of the 50% plus one vote because the total valid votes cast at the presidential election will increase by additional 50,000 to 11,045,262 votes. Nana Akufo Addo’s total votes will be 5,448,898 but he will require total votes of 5,522,632 to reach the 50% plus one vote to secure an outright win. In this assumption, he is still short of one touch victory by 73,734 votes. If he gains the additional 73,734 votes, the goal post for one touch win will change again and increase by 36,868 votes. In this situation the higher Nana Akufo Addo goes the hotter it becomes for him to secure the outright victory. In my view, this option should be disregarded by NPP because this hoping against hope is highly unlikely, unless President Mahama’s total votes go down significantly and at the same time Nana Akufo Addo’s go up massively to cancel out the 325,863 votes difference between them.

Should NPP opt for any of the three options supported by credible evidence in their favour, what would be the most likely outcome from the Supreme Court? I will not even attempt to second guess what the Justices’ decision could be. However, whatever judgement the men and women of the Supreme Court who will adjudicate on this D-Day (Deliverance or Dooms Day) case, I suspect that in addition to the facts and legal realities, the best interest of Ghana (peace and security and cost implications) would be at the heart of their decision and not party politics. My plea is that democracy is an expensive experiment and therefore not much weight should be given to the cost of reorganising another presidential election. The cost could be justified if the judgement is right for Ghana.

I do not intend to discuss the scenarios that would face Ghana on the four potential options (the above three plus the status quo) available to SC Court since that will be enough for another article. Let me end by reminding readers that NPP has up-to and including 30 December 2012 to file their petition with the SC, so we are still watching this space.

As a matter of interest, will NPP make NDC a party to the petition to the SC? In other words, will the case be NPP versus EC and NDC or just EC? On other hand, if NDC is not made the second defendant, would NDC as an interested party to the petition join as Amicus Curiae (Friend of the Court)? These are interesting times in Ghana for students and experts of Political Science and Constitutional Law. I am still watching this space.