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A bold Supreme Court decision – two perspectives
From: Ghana l Myjoyonline.com | George Nyavor          Published On: July 23, 2013, 17:28 GMT
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A bold Supreme Court decision – two perspectives

George Ayittey and Charles Kwaku Amoo-Asante dilate possible outcomes of the Supreme Court ruling and each indicate the option they would consider to be a “bold decision” for the Supreme Court to make in the supreme interest of the nation.

Prof George Ayittey is an economist, author and President of the Free Africa Foundation in Washington DC. He is also a professor at American University. Charles Kwaku Amoo-Asante is an anti-corruption, pro-growth and development activist. He lives in Connecticut, USA.

Perspective one: George Ayittey

SC is caught between a rock and hard place

There are four possible decisions the Supreme Court (SC) can render:

1.Dismiss or reject the petition filed by the NPP, saying it is without merit.

2.Invalidate Mahama’s victory and award the electoral win to Nana Akuffo-Addo.

3.The SC could acknowledge that there were some irregularities that affected the presidential results and when these irregularities are rectified, neither candidate secured 50 percent of the vote. Therefore, the SC may order a run-off.

4.The SC could say the election was so tainted by irregularities that it is ordering a re-vote or do-over of the entire election – both presidential and parliamentary.

I wouldn’t want to be one of the justices ruling on this petition. They are caught between a rock and hard place, which is why I suspect it has taken them so long – more than 6 months -- to come to a decision. It is not an “open and shut” case. The fundamental problem is that the Constitution gives them little leeway or wiggle room. The Constitution asks them to rule on a petition, challenging the validity of the election of the president.

Therefore, a “bold decision,” in my view, is one that thinks “outside the constitutional box” but serves the supreme interest of the country. Keep in mind that the political uncertainty generated by this petition has taken a heavy toll on the economy. There are some investors who are still sitting on the face, awaiting the Supreme Court decision.

On that basis, I will rule out Decisions 1 and 2 for the following four reasons. First, John Mahama’s “win” is only 50.7 percent, which means nearly half of the electorate did not vote for him. Thus, the country is deeply divided and tension remains high. Either one of the first two decisions will alienate half the electorate. No one can predict what their reaction will be.

Violent street protests? That certainly would exacerbate the high anxiety and tension prevailing in the country. Already, the uncertainty hanging over the country has done much damage to the economy by curtailing investment.

Second, either one of the first two decisions would insert the SC into the political fray. It would make the SC look “partisan” and, accordingly, lose credibility as an independent institution. This was the fate that befell Kenya’s Supreme Court after it rejected Raila Odinga’s petition and ruled in favor of Uhuru Kenyatta and William Ruto on March 30. Not only was Kenya’s Supreme Court excoriated as “partisan” but there were also allegations that the Justices had been bribed – an allegation which the Chief Justice, denied Willy Mutunga, vehemently . But the damage had already been done.

In the US, it may be recalled that a disputed presidential election result in 2000 between incumbent George Bush and Al Gore ended up at the Supreme Court, which ruled in Bush’s favor. Now, one of the Justices, Sandra Day O’Connor (retired) has expressed regret that the Supreme Court took up the case in the first place. “Maybe the Court should have said, ‘We’re not going to take it, goodbye.’ ” The case, she said, which effectively awarded the 2000 Presidential election to George W. Bush, “stirred up the public” and “gave the Court a less than perfect reputation” (The New Yorker, May 7, 2013). Perhaps, it might be wise for Ghana’s Supreme Court to avoid that mistake.

Third, the Supreme Court needs to be careful about setting a precedent, which could haunt it forever. If it decides on who won the presidential elections, it makes itself liable to adjudicate on all disputed presidential elections in the future. Since any citizen of Ghana can challenge the validity of a presidential election, an avalanche of such challenges would land at the door of the Supreme Court, which would tie up the Justices for months.

Fourth, Decisions 1 and 2 would amount to a breach of bureaucratic protocol, institutional independence and separation of powers. Ministries and government institutions have certain specific functions to play in government or society. Similarly, institutions have certain specific functions and prerogatives. The creation of money and management of the country’s money supply are the sole prerogatives of the Bank of Ghana. Elections and declaration of winners are that of the Electoral Commission. The function of the Supreme Court is to uphold and defend the Constitution and the rule of law. The military is responsible for the defense of the territorial integrity of the nation.

If there is a problem with currency issue, excess liquidity or inflation, one does not ask the military – nor the Supreme Court – to solve it as this would amount to usurping the function of the Central Bank. The appropriate body or institution to solve it is the Central Bank. Similarly, it is not the function the Supreme Court to determine the winner or loser of a presidential election. That is the sole prerogative of the Electoral Commission. Asking the Supreme Court to decide who won a presidential election in effect usurps the function of the Electoral Commission. Therefore, if some mistakes or irregularities have occurred in the conduct of an election, the appropriate body or institution to fix them is the Electoral Commission. Otherwise, the same problems (irregularities) would re-appear in the 2016, 2020 and future presidential elections.

The arguments above make Decisions 3 and 4 preferable in my view. Of these two, I would strike down Decision 3 – a run-off of the presidential election – as unsatisfactory. Because by that decision, the SC would be saying it found irregularities or problems with the presidential results but not with the parliamentary. If so, how come there are at least 38 petitions challenging the parliamentary results in the courts?

Thus, by elimination, Decision 4 seems to be the most satisfactory of them all. By this decision, the SC would be saying that, given the incontrovertible evidence produced, it believes that both the presidential and parliamentary elections were so marred by “clerical errors” that a re-vote in a year’s time is necessary. Such a decision has the following merits:

1. It is a “bold” decision which lies outside the constitutional box but it is also “face-saving” decision – a compromise – all can live with. The NPP can claim “victory” because its petition was seriously “looked into.” The EC can claim it made “clerical errors” and to err is human. The NDC keeps the presidency for a year and the SC comes out smelling like a rose for being independent.

2. It will be good for the economy because it removes the uncertainty hanging over the country.

3. Above all, it will be good for the country because it gives the country an opportunity to fix a defective electoral commission we have had problems with since its inception in 1992.

There is widespread suspicion that the EC is not independent and Dr. Kwadwo Afari-Djan is a Rawlings protégé. It may be recalled that the NPP boycotted the parliamentary elections in 1992, amid allegations that the voter’s register was inflated with over 1 million ghost names. Similar allegations were made in 1996 about a bloated register (with 2 million fictitious names), voter intimidation by “macho-men” and Volta “World Bank.” Time and again, there has been high tension in the country each time Ghana votes, amid incessant allegations of fraud.

A re-vote should give the country an opportunity to clean up the electoral commission once and for all and make it more transparent, independent for Ghanaians to believe in.

Obviously for a re-vote, steps must be taken to ensure that the irregularities alleged by the NPP do not occur again and electoral rules are strictly enforced. For example,

1. No minors will be allowed to vote,
2. Only Ghanaian nationals are eligible to vote,
3. No biometric verification, no vote
4. No duplicate pink sheets, etc.

A new or Special Electoral Commissioner must be appointed to organize the re-vote since Dr. Afari-Djan has lost public confidence. He is retiring anyway.

This is in the supreme interest of the country because, without an independent EC, a free and fair election is a fantasy, which is destined to produce electoral disputes. Africans take elections very seriously and it must be remembered that the destruction of an African country, regardless of the ideology, religion or ethnicity of its leader, always begins with a dispute over the electoral process or transfer of power.

In recent years, electoral fraud has unleashed political violence, civil war, deaths and destruction in Ethiopia (2005), Kenya (2007), Zimbabwe (2008), Congo DR (2011), among others. The adamant refusal of their respective leaders destroyed these African countries: Liberia (1990). Somalia (1991), Burundi (1993), Rwanda (1994), Zaire, now Congo DR, (1993), Sierra Leone (1998), Ivory Coast (2000, 2011), Egypt (2011), Libya (2011). This largely motivated Dr. Mo Ibrahim, the Cell-Tell billionaire mogul, to offer a $5 million prize to any African leader who steps down peacefully when his term expires or loses an election. This year – and for the third time since the inception of the prize in 2006 – he found no eligible recipient.

Perspective two: Charles Kwaku Amoo-Asante

Ghana and the Judiciary are on trial

No country can succeed without law and order. The Supreme Court (SC) as the bastion of law and order must act decisively on the landmark case before it. The Supreme Court is under pressure to be fair, bold, courageous, tough, objective and independent. The Court is also under pressure to apply the laws, election rules and agreed procedures to the evidence before it and produce a decision that affirms the people’s faith in the judiciary and the country.

Everything is riding on the Court’s judgment. The choice before the justices is not a choice between Charybdis and Scylla. It is a choice between right and wrong. It is also a path finding choice that determines the destiny of this country. This is a choice that Supreme Court justices are paid to make and they must apply the facts and the evidence to the law and pronounce a fair and decisive decision that makes Ghana a better place for others to believe in again.

The SC already set out the issues for the trial very clearly and succinctly at the beginning of the trial. Having set the framework the SC cannot, and should not, be seen to be shirking its duties to uphold the Constitution and laws of the land.

If by their assessment of the voluminous evidence and understanding of the electoral laws, they say the petition lacks merit, they should uphold the EC's declaration of John Mahama as validly elected (Option 1).

If however the evidence and applicable laws point to a reversal of the EC's declaration, the SC should state that and ensure that the EC should declare Nana Addo duly elected. (Option 2).

Finally, if neither candidate scored over 50% of the VALID VOTES cast, the SC should order a run-off within 90 days (Option 3).

These outcomes are fully captured in the existing body of electoral laws and there is no need to resort to so-called "bold" or "innovative" and “outside the box” but reckless decisions which are NOT grounded in the laws of the land.

Before discussing the issues involved in the second and third options, I would like to briefly consider some peripheral issues that have been raised regarding the Court becoming partisan and alienating half of the electorate if it rules against the NDC or the NPP.

The position involving a revote of both the presidential and parliamentary elections being advocated by some extreme intellectuals is neither supported by the laws (or the evidence). The SC trial focused only on the presidential petition and the evidence presented relates only to the presidential election. Additionally, the oft repeated comment that '... It is NOT the role of a Supreme Court to determine the winner or loser of a presidential election' is simplistic and misleading.

The role of the courts is to administer justice and if they determine that one candidate was illegally and unjustly declared to be the winner of an election, the courts must quash that illegality and pronounce the rightful winner. The parliamentary elections and any related petitions must be heard and adjudicated separately. The High Courts (not the SC) have the jurisdiction over such matters, and the SC will be over-reaching its mandate to pronounce on parliamentary election cases which have not yet been properly presented in the High Courts.

A revote of both Presidential and Parliamentary elections amounts to a twisted logic with a toxic conclusion. It is not a bold decision. It is a bold and reckless mistake! It is a decision that is outside the law and does no good to anyone but creates dangerous precedent and mayhem. It is an irresponsible suggestion. Additionally, a revote decision will increase uncertainty in the country and throw the economy into a tailspin and not be in the supreme interest of the country.

Ghana is not looking for a face-saving solution that makes the EC smell good. On the contrary Ghana is looking for a verdict which says enough is enough, a verdict that lays a foundation for a new era in our politics. A new era devoid of political corruption, a new era driven by reason, justice, equity and governance where leaders are elected by the people under a free and fair election. Also, using the figures of the contested elections which gave Mahama a razor thin victory as the basis to indicate that the nation is split in the middle is flawed because the recalculated results based on the petition gives Nana Addo a landslide victory of 60% to 39% which was stolen from him.

Further, the contention that the Supreme Court will in effect commit a breach of bureaucracy if it awards the winner to another candidate fails to take into consideration the law as it stands which clearly delineates the action required by the justices. Furthermore, the justices making a valid legal decision based on the law and the evidence will not make them aligned to a party especially where the evidence presented is incontrovertible and the critics do not dispute that.

If therefore a judge becomes aligned to a party because a judge renders a decision which supports one of the two parties in a case before the judge then there will be judges aligned to all winning parties in all courts which is not so. A judge will only be considered partisan and aligned to one party if and only if justice is not done and NOT seen to be done! This explains why we are asking for the justices to be bold, fair, courageous, independent, objective and decisive and use the law and the evidence to make their decision and produce a just verdict.

Finally, the floodgates arguments are not borne from the facts and law. The law stipulates who can challenge the election results and the Supreme Court will not necessarily accept frivolous lawsuits. Bringing petitions about presidential elections to the Supreme Court requires more effort than going to see a lawyer. No one foresees any such frivolous action simply because NPP wins the case because of incontrovertible evidence. Petitions must be presented to the court if they have cases and there is nothing to show that this will happen simply because of this case.

Revise the 2012 Election Results and Invalidate Mahama’s Victory and Award the 2012 Presidential Elections to Nana Addo Dankwa Akufo-Addo (Option 2).

The critics to this decision contend that Nana Addo will not be able to do much with the current make up of the legislature (Ghana’s Parliament). The critics are wrong for a number of reasons. First, there are about 38 cases of election petitions for the parliamentary filed by the NPP that are yet to be settled by the courts. Although these cases have not received as much coverage as the presidential petition, it is believed the courts will be emboldened to act on them expeditiously, once the presidential petition is settled.

Second, to even entertain the critics’ argument is to agree that any future candidate or aspirant who wins the presidency and whose party fails to win the parliament should not be sworn in and that the incumbent President be allowed to continue in office because such win is "hollow" and no meaningful work could be done by the Executive branch. What a bizarre outcome this will be?

In the US, there are cases, and they are many, in which, the incumbent President worked with the opposition party. Presidents Bush, Clinton and Obama have worked in opposing members of their party in congress to formulate policies to the benefits of their nation. So the critics’ position to the decision to invalidate President Mahama’s victory should not be entertained as it is not based on any empirical evidence.

Those who are arguing that it will be disruptive to change leadership are wrong on several fronts:

Run-Off (option 3) Legally, a run-off is called for if and only if none of the candidates crosses the 50% line.

There are pundits who seek Option 3 as a compromise (face-saving option) and not as a result of the strict reading of the election law. Such pundits belong to the old school of “Fa ma Nyame” (Leave it to God) and “Gyae ma no nka”’ (Do not rock the boat).

They belong to the status quo culture of mediocrity. Such a compromise is fraught with many issues. A compromise decision is not in the best interest of the judiciary and the people of Ghana who are seeking justice and peace in Ghana. The people of Ghana expect that the Supreme Court will exercise its judicial power by interpreting our Constitution and make a decision based on Ghana’s laws, statutes, election rules and procedures and the preponderance of the evidence submitted by the petitioners.

To even consider such a compromise option outside the strict legal considerations it will be worth educating readers of this piece of the material weaknesses in Ghana’s electoral system as discussed below.

The 2012 election petition at the Supreme Court has enabled all Ghanaians to learn about the material weaknesses in our election administration.

Specifically, we have a deliberately compartmentalized system which allows fraud to be perpetrated at the polling station, constituency, district and regional collation centers as well as in the strong room without detection. We have procurement practices and procedures which are fraught with bribery and corruption and lack transparency and allow needless duplicate pink sheets to be ordered and introduced at the collation centers.

We have a voters' register which is deliberately bloated through processes and procedures through actions including opaque reconciliation exercises which exclude the involvement of stakeholders such as the political parties. We have ballot paper and [election declaration forms] (Pink Sheets) printing arrangements which are fraudulent and designed to produce an unfair outcome for incumbency.

We have collation exercises which are corrupt and fraudulent. We have manual systems which are designed to ensure fraud occurs. We have deliberately excluded technology in certain parts of the process in order to facilitate manipulation of results, corruption and fraud to the advantage of the incumbent. We lack adequate quality control procedures for all aspects of the election processes which lead to the release of erroneous results. We have untrained staff and staff who are aligned to parties making their judgment corrupt and lacking independence.

There is an urgent need for better established control procedures which are agreed upon by all the parties and reviewed by technical control experts and other professionals. Any attempt to re-vote without newly improved and better control procedures will lead to more acrimony and will not augur well for Ghana. It may lead to violence and this charged emotional environment may become uncontrollable and place Ghana in jeopardy because people are fed up with the system of corruption in the country.

Below is a listing a few of the concerns which space will not allow me to adequately discuss.

• Which Elections? Is it the first round or a run off?

• What happens If the same irregularities are observed again during the Revote or Re-Run?

• Who Will Administer and Supervise the Election? Afari Gyan and the current EC?

• What Time Frame?

• Who Votes? What Voters’ Register? Is it the bloated register with 6 million bloated voters?

•Who pays for the elections? The cost is prohibitive considering the current economy of Ghana

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