The presidential election petition was once again a demonstration of Ghana’s commitment to rule of law and deepening of our democracy. It also was an indication of the deep faith Ghanaians and political shareholders in particular repose in state institutions.
To this extent, the petitioners and all those who supported the petition as the only tenable option to answering concerns of election irregularities must be commended.
The petition was brought praying the court to consider certain violations and irregularities which to the minds of the petitioners, vitiated the integrity of the 2012 elections. And to the extent of their irregularity, nullify votes involved. These irregularities found expression in unsigned pink sheets, duplicate serial numbers, duplicate polling station codes, over-voting and voting without biometric verification inter alia.
The journey was long, laborious, intriguing and suspenseful. All parties presented their cases the best way they could. But of extreme interest and essence, were the testimonies of the petitioners and the second respondent. Equally significant was the evidence adduced by the petitioners.
The most instructive episode during the trial was Dr. Afari Gyan’s encounter with Counsel Philip Addison under cross examination. I need say no more about what transpired as everybody watched it live on TV. However, certain observations are worth recapping. In response to questions relating to voting without biometric verification, Dr. Afari Gyan admitted in open court that, certain individuals (influential and popular figures as he described them) were entitled to vote without biometric verification. This admission runs counter to their claim that none voted without biometric verification. More interestingly was his ostensible confusion about what constitutes over-vote albeit, such confusion did not disregard the petitioners’ definition of same as valid.
Indeed, he went further to admit that on the face of the pink sheets shown to him, records captured would support the petitioners claim as per their definition. Afari Gyan also admitted during cross examination to the existence of more unsigned pink sheets than the 904 they originally alleged. The catalogue of admissions by the second respondent relevant to the petioners’ claims could go on and on.
After all was said and done, counsels on all sides were required to submit their written addresses simultaneously. They all by far obliged. Then the drama began. First, the Judges set a date for counsels to present oral addresses for thirty minutes which to my mind, could have been done on the 31st of July. Ordinarily and ideally, one would expect in the interest of expedition which has been essential throughout this trial, that the judges would ask counsels for further clarification if there were any the day they made their oral submissions. A further date was however announced after the oral submission on which the Judges will ask lawyers for clarification on grey and unclear areas. This move was to all intents and purposes, counter intuitive and proved as the day came, to be of less utility to the achievement of the stated object.
THE DRAMATIC VERDICT AND ITS THREAT TO GHANA’S DEMOCRACY
The date 29th August 2013, became all of a sudden a very popular day in Ghana. It was on every Ghanaian’s lips. This date also engineered several activities and introduced many enterprises including the “peace enterprise”. Many individuals and organizations given the nature of the case before the Supreme Court and the propensity of peace breaking down, elected to engage in peace campaigns in preparation for the “supreme day” and beyond. Truth be told, even though these calls were important and legitimate, they sometimes exaggerated the potential of chaos and almost in the long run heightened the uncertainty.
On Thursday 29th August, 2013, all was set for the ruling. Anxiety swept across the country. Parties and non-parties alike sat on pinching tenterhooks. To make it worse, the Judges unusually delayed for almost four hours before coming to give their verdict. And this was to set the tone for more ludicrous and strange things to happen that day. When the Judges finally came, except the President of the panel who was strangely excited, most of his colleagues wore sad faces which for me was striking. In less than five minutes, a judgment on such a landmark case had been given with the outrageous excuse that, for the sake of convenience the various judgments had been lodged with the court registry albeit that was belied later. It still boggles my mind why there was such an indecent haste to dispose of the case so much so that, errors in the judgment itself could not be corrected before reading.
Without going into the arithmetic of who or how many granted and how many did not grant the petitioner’s claims, the court held that the petition lacked merit. This means that, none of the categories of irregularity alleged by petitioners occurred during the 2012 election. And indeed by extension, it was the cleanest election ever held. Before indicating the dangerous prospects this unfortunate verdict holds for Ghana’s democracy, I wish to ask this nagging question. All will recall that prior to the start of proceedings, some two broad directions were given which would be the standard against which the petition was to be measured namely; whether there were irregularities and statutory violations and to what extent these affected the outcome of the elections. It was grieving to note that, throughout the judgment Mr. Atuguba JSC read, nowhere was reference made in support or against the petition’s claims to this standard. Was it the case that, it no long mattered or some other considerations took precedence? This is a question that is begging for an answer as we struggle to clear the fog around the Supreme Court’s backward judgment.
By this ruling, the political class has been indirectly told that they must win elections at the polling stations by all means necessary. And that, all that is required is for the Electoral Commission to declare one as winner. With such a mentality now strongly instilled in politicians by the grace of our Supreme Court ruling, our democracy has been placed in harm’s way. Our politics also stands a greater danger of further degenerating into thuggery and unspeakable violence in the coming years.
The integrity of our elections by this ruling is no longer necessary which runs counter to the tenets of democracy. With the testimonies and admissions of Dr Afari Gyan coupled with the evidence, it became clear that the integrity of election 2012 was undermined. And therefore to ignore all these and regard the votes emanating therefrom as valid, is to say the least a huge assault on our democracy.
The court’s verdict presupposes that no over-voting occurred during the 2012 general election or in fact, it did happen but does not matter. Such a judicial posturing opens up future elections for all kinds of manipulation including having more votes recorded than were actually cast. How can elections in such a situation be said to be credible? And how can that be construed to mean the free expression of the will of the people? Meanwhile, the constitutional injunction is that which says power emanates from the people through a free expression of their will in an election.
By this ruling, it also stands to reason that, the use of a Biometric Verification Device (BVD) to detect qualified voters is unimportant. And that, we might as well do without it. The question that ought to be asked then is, if there were no utility in the use of the BVD relative to enhancing the integrity of our elections, why did we invest so much money in the procurement of same? This unfortunate ruling also will mean that, people in future elections can demand to vote without biometric verification insisting that their “right to vote” supersedes all other electoral regulations. The net effect of such a situation is creating a conducive nursing bed for all kinds of election malpractices. This ruling is indeed a sad and a backward one.
The unanimous decision by the court to dismiss the claim regarding unsigned pink sheets by Presiding Officers also poses a grave danger to our electoral democracy. By this ruling, the weak argument by the Electoral Commission that such signatures are materially insignificant has been upheld. This opens up the opportunity for potential “election mercenaries” to manufacture their own pink sheets whose authenticity cannot be ascertained because serial numbers on them are just “mere numbers” to alter results and make sure they find their way into the declaration. This in all conscience, is a danger to the future of our elections.
The saying that our elections will never be the same has become common place in recent political discourse. But the objective reality is that, such a statement is not in the positive sense. Political players will now use every tool in their tools box to win elections including deliberate employment of irregular strategies. The upshot will be a sad erosion of our democratic gains over the years.
Reflecting on the implications of the Supreme Court ruling on our democracy, I cannot help but come to the conclusion that, it was an unfortunate and indeed a backward ruling. We may as required by law accept it as it is emanating from the highest court of the land, but its judicial durability i.e its ability to stand the test of time remains a suspect.
God bless our homeland Ghana.
Source: Atik Mohammed - Policy Analyst
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