Did Ghana’s Supreme Court err in the landmark 2012 Petition of the Presidential Elections?
Presented by Kofi Ayim
The Report was commissioned by the Ford Foundation “for its interest in the reform of African electoral systems…” Mr. Bamidele Aturu, the author, attended and observed the entire proceedings of the Supreme Court of Ghana of the presidential elections on December 2012, which was finally decided in August 2013. In a Foreword to the 94-page report, Chidi Anselm Odinkalu Ph.D (LSE) writes among others: “…The decisive votes are increasingly cast by mostly men and a few women who sit as judges in Supreme Courts after hearing arguments from highly prized and paid lawyers in rooms or miniature halls to which most citizens don’t have access… …To begin with, candidates for elections must prepare for two campaigns: a campaign that culminates in the popular ballot, which then relocates to the courts for ultimate resolution by a judiciary verdict …Most opposition candidates lack the resources to match incumbents in this contest. The legitimacy that comes from these judiciary outcome is artificial. As such, they foster political instability, emasculate citizenship as the site and source of sovereignty in the political system, prolong the divisions and passions from electoral contests, and tarnish the institutional credibility of the judicial process.” … “Notwithstanding how much doctrines of independence of the judiciary may mask it, the reality is that judges are not immune to pressures in high stakes with the cases, such as when deciding who should or should not become the president. Therefore, when the judiciary sits to decide who the President could be, there must be legitimate questions as to whether the contest is fair and the field level between the incumbent and those who challenge him or her…” He continues: “For instance, when it gave its decision on 29 August 2013, the nine-judge Supreme Court panel announced a 6-3 split in favor of the incumbent. The day after, this was corrected to 5-4, still in favor of the incumbent. This report, however, shows as a fact that at least five of the justices voted in favor of the petitioners and against the incumbent (emphasis added). So, did the loser emerge as winner?” Dr. Odinkalu posits that because “[T]he people are central to the process of building a democratic political culture” it is imperative that civil society organizations are given the support and encouragement needed to carry out their duties.” In a Preface to the Report,
Mr. Aturu highlighted the importance of the courts in consolidating democracy, and that decisions handed down by the courts must be thoroughly analyzed for lessons to be learned out of them by key stakeholders. He points out that the main aim of the Report is to contribute to the ongoing democratic dispensation in Africa and to facilitate an understanding of the apex courts. Mr. Aturu introduces the Report by pointing out the two main reliefs for the petition: a. John Dramani Mahama was not validly elected president of the Republic of Ghana, and b. Nana Addo Dankwa Akufo-Addo was the validly elected president of the Republic of Ghana; and the six main complaints against the elections, namely: a. over-voting in flagrant breach of the fundamental constitutional principle of universal adult suffrage, to wit; one person one vote; b. Voting without biometric verification; c. Absence of signatures of presiding offices on the results (pink) sheets; d. Duplicate serial numbers, that is occurrence of the same serial numbers on pink sheets for different polling stations; e. Duplicate polling station codes, that is occurrence of different results/pink sheets for polling stations with the same polling station codes; f. Unknown polling stations, that is, results recorded for putting stations which were not part of the list of 26,002 polling stations provided by the Electoral Commission.
Mr. Aturu then delves into the main body of the Report with a rhetorical question headline: The court’s decision? In the judgment under consideration, for example, while Justice Atuguba delivered a 50-page opinion, Justice Dotse’s opinion was 220 pages. Also, while Justice Atuguba reported that the Court in conference concluded that the complaint “did not relate to matters that could have any substantial effect on the declared results,” Justice Dotse, regardless of his conclusion that the malpractice was “statistically insignificant ” and that “it will not affect the result” gave the impression in another portion of his opinion that he did not sanction the deduction of votes affected by duplication of polling stations codes only to “prevent double count ” as he had already deducted the vote in the affected polling stations under another head of complaint, namely failure of presiding officers to sign the pink sheets. Nothing stops lawyers in the future from latching on to the phrase “to prevent double count” in a later case to distinguish the case from the one that may be under litigation by arguing that if the votes affected by duplication of polling station codes had not been deducted under another head, Justice Dotse would have had no difficulty in doing so. Mr. Aturu then takes the decisions of the judges “verbatim and seriatim, that is, in their own words and the order delivered.” Justice Atuguba: “But in the end I am driven by the sheer justice of this case which hinges much on technicalities of the pink sheet, to dismiss the same subject to the useful electoral reforms it has exposed as necessary to enhance the transparency of the electoral process of Ghana.” Without doubt, this is a categorical dismissal of the claims of the petitioner. Justice Ansah: “I make the following conclusions and directions: 1.That the Relief that a declaration be made that Mr. John Dramani Mahama was not validly elected the president of Ghana, is hereby granted; 2.That a declaration be made that Nana Akufo-Addo be declared the candidate who was validly elected President of Ghana, is also refused. 3.The Consequential order I make is that the E.C. conducts a rerun of the presidential elections for the two leading candidates, Mr. John Dramani Mahama and Nana AkufoAddo, in all the polling stations affected and indicated in the petition and its supporting documents, forthwith.” The petition succeeds in parts as far as this justice is concerned. His order is that a rerun of the election be conducted between the two leading candidates in all the polling stations affected by irregularities in the disputed election. Justice Adinyinra: I accordingly hold that John Dramani Mahama was validly elected as the president of Ghana. I will also dismiss the petition. Clearly, this is also a dismissal of the petition. Justice Owusu: “The number of votes annulled for the three irregularities and violations of over voting, voting without biometric verification will negatively impact on the result declared by the 2nd Respondent having regard to the votes margin between the 1st petitioner and the 1st respondent. If the invalid votes are deducted from the votes of the two, the 1st respondent who was declared winner on 50.7% of the votes cast will not cross the threshold of 50% +1.
For this reason, I will and hereby declare that the first respondent was not validly declared winner of the 2012 presidential election. The first relief of the petitioners is hereby granted. The 2nd relief for a Declaration that Nana Addo Dankwa Akufo-Addo the 1st petitioner herein rather was validly elected president of the Republic of Ghana, cannot be granted because of the order for re-running the election in polling stations where the votes are to be annulled. The 3rd relief has been granted in the polling stations where the elections is to be re-run.” The petition succeeds in parts. The petition also succeeds in part with Justice Owusu ordering a rerun of the election to be conducted in some polling stations where the learned justice held that irregularities took place. Justice Dotse: The petitioner’s relief (i) will therefore be granted in respect of the No Presiding Officer Signature Category in terms of my decision as is contained in the main body of the judgment. Similarly, the petitioners would be deemed to be successful in respect of their relief one in the over-voting category in terms as shall be determined using the road map as indicated in the main body on the judgment during the audit of the affected pink sheets. Relief two is however accordingly dismissed. In respect of relief three, and in view of my decision in the over voting and no presiding officer signature category, and subject also to the total tally of votes in these two categories that the audit shall disclose, where the total tally of votes in the said category, reduces the total votes attributed to the 1st Respondent to fall below the 50% plus one percentage, then in that case in line with constitutional provisions 63 (3) I will direct that there should be a rerun of the presidential elections in only the affected stations between the 1st petitioner and 1st respondent. Subject to the above decision, the petitioners’ claims stand dismissed.
It should be remembered that relief 1 granted by the learned justice is that ‘John Dramani Mahama was not validly elected President of the Republic Ghana.” Justice Anin-Yeboah: I would therefore grant the relief (i) in view of the evidence led and decline to grant relief (ii). I, however, as consequential order, order the second respondent to organize an election to elect a president as I cannot rely on an election which was seriously fraught with all the malpractices, irregularities and statutory violations in this petition to declare the first national as having been duly elected. Justice Anin-Yeboah ordered that a fresh election as distinct from a rerun, either generally or in the polling stations where irregularities occurred. Justice Baffour-Bonnie: 1. I dismiss the petitioners claim to annul the votes on account of claim of duplicate serial numbers as frivolous 2. I dismiss the petitioners claim that votes should be declared invalid on account of the non-signing by the presiding officer. To disenfranchise hundreds of thousands of voters (through no fault of theirs) because a presiding officer fails to sign will not have place in modern democratic governance. 3. I uphold the principle that once over voting is detected in the polling station the elections there are compromised and should be canceled but the voters there should be given a second chance to cast their votes. However, I find that in view of the admissions made by the second petitioner with regard to some pink sheets and the many clerical errors, I find that the number of pink sheets affected in this category has so reduced that the votes affected are not too significant to make any impact even if they are cancelled. I dismiss the claim on this ground too. 4. I hold that the petitioners have discharged the burden of proof on them that voting took place in some polling stations without prior biometric verification. This was discriminatory since other persons had been turned away for the inability to be verified. All those stations affected by this phenomenon should have their votes cancelled and the voters given a second chance to vote again. Justice Baffoe-Bonnie unequivocally held that votes in stations where some voters were not biometrically verified should be canceled and another opportunity given to all voters in those stations to vote again. Justice Gbadegbe: I am unable to yield to the reliefs set out in the petitioners’ demands before us and proceed to dismiss same.
In the result, the declaration under the other hand and signature of the Chairman of the Electoral Commission dated 9 December 2012 and numbered as CI 80 is hereby declared valid. This, also, is a clear dismissal of the petition in its entirety. Justice Akoto-Bamfo: For the foregoing reasons I would dismiss the petition in its entirety. I must say that on paper, we seem to have a transparent electoral system which has evolved over the years. This justice also clearly dismisses the petition in its entirety. Mr. Aturu continues by again asking: What then is the decision of the Supreme Court of Ghana on the disputed 2012 presidential election? As can be seen from the excerpts of the opinions of the learned justices four of them (emphasis added) dismissed the petition. Those judges are Atuguba, Adinyira, Gbadegbe, and Akoto-Bamfo. It would appear that the majority of the court did not dismiss the petition (emphasis added) and granted the claims in parts. Justice Ansah held that a rerun be conducted by the electoral commission between the two leading contestants; Justice Owusu directed that there should be a rerun in polling stations where there were irregularities and categorically granted the declaration that Mr. John Mahama was not validly elected as the president of Ghana; Justice Dotse nullified all the votes on the pink sheets that were not signed by the presiding officers and in all the polling stations where over voting was established, directing also that a tally of the votes be taken and if any of the candidates failed to meet their constitutional requirement then a rerun was to be conducted in the affected polling stations; Justice AninYeboah unambiguously ordered a fresh election in view of the irregularities which he said he could not condone; and Justice Baffoe-Bonnie held that all the votes in polling stations where some people voted without biometric verification were to be cancelled and voters be allowed to vote afresh in those stations. It appears that the minority decision of four out of nine justices was curiously accepted as the decision of the Supreme Court of Ghana in respect of the election. How this came about and the swiftness with which the “decision” was accepted by the parties is somewhat surprising (emphasis added). Of course, the petitioners might have been guided by a desire “give peace a chance” and not to “overheat the system” or prolong public anxiety over the future of democracy in Ghana. But serious questions arise. For example: Is there a burden on judges and parties to reduce tension in the polity even if that translates to overlooking transgressions of the law and of popular will? Is this in itself a defensible burden for the Democratic project in Africa? Judges in Africa, as we shall soon see, have devoted their forensic energies to shifting the burden of proof to petitioners. The time may be ripe for them and all other stakeholders to begin to look more closely at other burdens that impact on the future of democracy in Africa. Some of the questions above are outside the scope of the Report, nevertheless, it is necessary to figure out the underpinning philosophy of what has been accepted as the majority decision of the court. It may well be that that philosophy holds the key to understanding the predisposition or tendency of African Supreme Courts to sustain presidential elections. Justice Atuguba, who presided, stated at page 40 of the judgment thus: “The judiciary in Ghana, like its counterparts in other jurisdictions, does not (emphasis added) readily invalidate a public election but often strives in the public interest, to sustain it.” Justice Adinyinra, more or less, concurred with this perspective. In her opinion, “Courts usually apply the election code to protect – not defeat the right to vote. Public policy favors salvaging the election (emphasis added)and giving effect to the voter’s intent, if possible.” “The choice of words by the two justices, particularly Atuguba, shows an overwhelming predisposition on the part of the “majority of the court” to sustain the outcome of the election. It is controversial, nonetheless, to say that the court should strive to sustain or salvage an election, as suggested by Atuguba, and to claim that this is always in the public interest (emphasis added). This has doubtless raised a number of issues. First, what should be in the public interest in an election? Should not the public be interested in seeing that the laws of a country and the principles globally recognized as enhancing free and fair elections are not violated by election bodies? Second, what exactly is the rule of the judiciary in the resolution of election disputes? Can the judiciary exceed its traditional role of interpreting election laws and stray into taking other factors into consideration in determining election petitions? Is it really the business of the court, strictly speaking, to uphold the result of an election? Do we need to reform our electoral laws in a manner that would give clear guidelines to the courts as to the nature or kinds of acts of non-compliance that should warrant nullification of election results and those which should not? Generally, due to the doctrine of judicial avoidance, courts in common law countries refuse to determine political questions as they are said to be non-justifiable. It is therefore risky for them to strive to salvage elections as the word “salvage” means to rescue, whereas it is not their business to rescue election (emphasis added). They are to determine cases before them in accordance with the law. Africa must move in the direction of organizing credible elections that require no salvaging. African courts would appear to have charted a unique approach regarding how a petitioner can successfully discharge the burden of proof in order to have an election nullified. The approach, based on the interpretation of relevant statutes, is that for an election to be nullified the petitioner has two hurdles to scale. First, the petitioner has a duty to establish by credible evidence that there had been substantial arts of non-compliance with the provisions of the Constitution or of the electoral law. After scaling the first hurdle, the petitioner then has to show that the proven acts of non-compliance materially affected the result of the election.
The Supreme Court of Ghana left no one in doubt that it prefers the approach which requires the petitioner not only to establish acts of non-compliance with the provisions of the law but also that the acts of non-compliance materially affected the result of the elections. At the outset it formulated the two issues for determination in line with this dormant approach. It is therefore not surprising that all the justices took that approach for granted.”
Credit: The Ford Foundation Bamidele Aturu esq. was a former prisoner of conscious under military rule and one of the most outstanding lawyers of his generation. He was an expert in election dispute resolution and electoral litigation in Nigeria. Mr. Aturu died July 2014 at age 49.