Abu Ramadan & Evans Nimako v. the Electoral Commission & the Attorney General: Judgment turned political football
By Kwabena Opong
For political purposes this article would define politics as the art of the convenience. The phrase ‘art of the convenience’ may be syntactically challenged but so is the context of the current argument on the Ghanaian Supreme Court’s decision on the country’s Electoral Commission to delete names of all who registered to vote with the National Health Insurance Card. The decision, clear and concise as judicial decisions should be is now under scrutiny by lawyers, laymen and politicians assuming ridiculous dimensions after the Electoral Commission deciphered the order as not meaning what was written. Wow! Since then interpretation of the order has been elevated to the realm of the absurd. And the intrusion into the fray by a Supreme Court Judge must have stoked the fires of the argument.
According to the Supreme Court in the case of Abu Ramadan & Evans Nimako v. the Electoral Commission & the Attorney General the electoral body should delete the names of all who registered to vote with the National Health Insurance card in 2012. The EC’s response immediately was that it acknowledges that the credibility of the elections depends on a clean voters’ register and will therefore take steps, “in line with existing law to ensure that the final register is clean and credible before the general elections on November 7.” Next thing we heard was a volte face from the EC that the highest court’s decision was not specific in its order to the EC to remove the names of those who registered with the NHI card and that it would not remove any names from the electoral roll as ordered after all. The proverbial ball was immediately set to roll as politicians, lawyers and social commentators took to the airwaves to offer their interpretation of the order. The discussions and ruminations on the issue took a political turn. Government spokespersons took the side of the Electoral Commission and echoed the commission’s response not to honor the Court’s order. Some who claimed to be apolitical took the middle road concluding in some cases that the only way out was the so-called validation. The opposition on the other hand does not understand what part of the order was ambiguous. Prof. Kwaku Asare, a Ghanaian constitutional law teacher in the USA remarkably contends ‘There is no ambiguity regarding orders the court made, there is no ambiguity whatsoever, it’s very clear and am surprised the public seem to be creating ambiguity when none exists. There is no confusion, just because someone put a spin on an order that is clear does not mean that there is confusion or a controversy ….’ On his part another legal scholar, Raymond Atuguba, formerly at the University of Ghana Law School and an immediate past executive secretary to President John Mahama surprises legal experts and the lay public with his opinion that the decision of the country’s highest court did not hand out victory to the plaintiffs in spite of the clarity of the ruling. He is among those who see the order as ambiguous and without any clarity.
James McLaughlin writes: “While lawyers, litigants, analysts and even witnesses provide a running commentary in the news media, the voice of the most authoritative participant — the judge — is usually silent, except for written opinions and the occasional ruling from the bench. Many judges simply choose to avoid talking to the press.” He goes on to ask if that should be the case.
Not necessarily, according to some judges and reporters. Robert Pirraglia, a judge in Providence, R.I., for 20 years, argues that a more candid judiciary could improve news coverage and ultimately benefit the public. “There needs to be more contact between judges and reporters, more exchange of information,” says Pirraglia, “The ground rules have to be clear, but if there’s no communication, the chasm between the media and the judiciary will continue.” It is not clear if Supreme Court Justice William Dotse subscribes to Judge Pirraglia’s theory but he certainly broke the norm of judges not commenting on their own decisions when he was quizzed by a journalist after a function in Accra. He was emphatic in his confirmation of the judicial decision of which he was a party saying there was no ambiguity in the judgment he and his colleagues reached regarding the removal of the names of those who registered with the NHI card. He added further that any further clarification must be sought from the Court. There has not been any such precedence but Judge Dotse is a citizen and has every right as the journalist who asked him that question. There is also no law or legislation, neither is there any convention that judges should not comment on judgments or cases that come before them post judgment. It is not likely too that he spoke in his position as a judge but rather more like an observer. Certainly Jugde Dotse provided fodder for the talking heads on radio and newspapers. A section of the political divide has never forgiven him for commenting that the various judgment debts including those of Mr. Alfred Agbesi Woyome and some foreign companies were a deliberate “create,-loot-and-share” exercise by all involved. He never mentioned any particular party but some in the ruling party believe they were the target of the judge’s rebuke.
Meanwhile the argument still rages on with the lawyers, politicians and journalists each staking their claim to their positions. So far, the EC does not seem interested in seeking redress at the Court. Its decision not to expunge the more than four million names appears to be final. It is strange because the Commission was rather quick to respond to the order saying it would respect and honor the Court’s order. The confusion and the cacophony of theories and legal arguments going round on the issue and its ramifications might delay plans for the upcoming general elections in November. It is a strong likelihood that this is not the last time the Supreme Court is sitting on the issue. Several others, including some pro-NPP pressure groups are preparing to go to court. Abu Ramadan and Evans Nimako may also return to the Court for further clarifications. There are still others who think that the EC should be charged with contempt for its refusal to honor the order.
One fact remains: Ghana needs a new electoral register. The dance around it is perilous.
The writer is the editor in chief of Amandla, and a Director of the New York based Center for Media & Peace Initiatives (CMPI)