2020 Presidential Election Petition: We will not bow to blackmail!

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“This petition was brought under Article 64(1) of the 1992 Constitution,” Supreme Court Ruling, 11 February 2021, Yeboah (CJ) (Presiding).

Article 64 (1) of the 1992 Constitution reads:
“The validity of the election of the President may be challenged only by a citizen of Ghana who may present a petition for the purpose to the Supreme Court within twenty-one days after the declaration of the result of the election in respect of which the petition is presented.”

What are the legal processes, practices and procedures required for challenging the election of a President? The answer is in the same Article of the 1992 Constitution. Article 64(3) provides that:

“The Rules of Court Committee shall, by constitutional instrument, make rules of court for the practice and procedure for petitions to the Supreme Court challenging the election of a President.”

How, therefore, can a Petitioner come to the Supreme Court under Article 64(1) of the 1992 Constitution, but when Their Lordships apply the spirit and letter of Article 64(3) and thus rely on Rules of Court and Statute (such as C.I. 16, as amended by C.I. 74 and C.I. 99, and Evidence Act, 1975 NRCD 323) to determine and dismiss motions that do not meet the standards of the law, then all hell break loose among constitutional lawyers, social commentators and Civil Society Organisations?

As an unlearned person, I feel particularly scandalised by the suggestions from constitutional lawyers that somehow, there is nothing wrong for an election petition to be filed under a Constitutional provision but there is everything wrong for the Supreme Court to then insist that, “our jurisdiction invoked in this election petition is a limited jurisdiction clearly circumscribed by law. We do not intend to extend our mandate beyond what the law requires of us in such petitions brought under article 64(1) challenging the validity of the election of a President.”

I feel even more scandalized by the suggestion that the posture of the Supreme Court could lead to a situation where in future, supporters of a losing presidential candidate would resort to violence rather than allow their candidate to seek redress at the Supreme Court. Really? Are we stooping so low to blackmail? Are we being asked to treat the Petitioner as a spoilt kid who must be showered with candies otherwise he would throw tantrums and resort to violence to destroy every breakable in the house? I mean, this suggestion must rather hurt the reputation and ego of legal luminary, Mr. Tsatsu Tsikata, who has been dubbed by his admirers as “The Law”. How can a lawyer of his standing be expected to get pampered by the Supreme Court when he fails to live up to the standards of the law applicable to election petition brought under Article 64(1)?

Another suggestion that has been made is that it will not hurt anybody for the Supreme Court to ignore Article 64(3) and just use its discretion to force the EC Chairperson to testify, against the rules and statute, to satisfy a certain public opinion and a certain progressive election petition jurisprudence. We are told that even if that could lead to a situation where once in every 4 years we may have one ridiculous election petition filed at the Supreme Court, that that would be better than losers in the current election petition losing faith in the judicial process (i.e., the Supreme Court). It is being argued further that such a ridiculous petition would be dismissed anyway by the Supreme Court.

First off, there is a Petitioner and there are Respondents in this election petition. Regardless of the so-called public interest that would be served by the proposal being espoused, the Respondents also have an equal right to ‘Justice’. Any suggestion that the Respondents’ right to justice must be sacrificed for the benefit of the Petitioner and to satisfy some public opinion and progressive election petition jurisprudence, is grossly misplaced and unfair. Secondly, what is the guarantee that supporters of a future Petitioner who presents a ridiculous petition to the Supreme Court, would also not hold the country to ransom by insisting that, regardless of how ridiculous the petition may be, the Supreme Court could not dismiss the petition, failing which they would destroy the country? And by the way, if the current Petitioner cannot prove his case at the close of same, how different is his petition from any other in the future, if the Supreme Court must bend backwards to accommodate his motions when such motions do not meet the standards of the law?

In any case, someone should tell me: since when was justice dispensed in Ghana based on public opinion? Below is one of the decided cases on how justice is dispensed in Ghana. In BONSU v BONSU, Taylor J (as he then was):

“There is always a real danger when vague ideas of justice undefined by statute or case law are propounded and brandished like a cure-all magic wand – without appreciating the actual position, namely, that the true legal notions of justice are circumscribed by the demands of the law and that in this court we administer justice according to three and only three yardsticks: statute, case law or our well-defined practice.”

I have no doubt there would be electoral reforms and new constitutional instruments regulating future presidential elections and election petitions in Ghana, following lessons from the 2020 presidential election and the current election petition. We should however not allow anybody to hold the country to ransom, when they fail to meet the standards of the law in prosecuting their election petition. The name of the game is evidence, and he who alleges must prove. Nothing primitive or non-progressive about that. It is that simple!

Kwaku Antwi-Boasiako, Accra
February 13, 2021

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