In DepthSoapboxDemocracy looks to Ghana's supreme court


Posted on Friday, 07 June 2013 11:10

Democracy looks to Ghana's supreme court

By Ken Ofori-Atta

Ken Ofori-Atta - Retired investment banker and chairman of Ghana’s DatabankThe case before the court will shape political competition across the continent and could lead to the first invalidation of the election of a sitting African president.


Counsel for 1st Respondent: I am suggesting to you that this is just a clear error on the part of the presiding officer?

2nd Petitioner: This is a clear illegality on the part of the 2nd respondent.

Justice Atuguba: You are saying that to get the total in the ballot box, you had to add what?

2nd Petitioner: The total valid votes plus the rejected ballot and that will get you the total ballots in the ballot box. In this case the total valid votes was 660, the rejected ballots was 7. So that will give you 667 votes in the ballot box. But the total number of ballots issued to voters to vote was 664 and this is why you have over voting, my lords.

Counsel for 1st Respondent: I am suggesting to you that it was simply because [the presiding officer] failed to add the rejected ballots. That is all.

2nd Petitioner: You and I were not there. We can only rely on the evidence on the face of the pinksheets and that suggests that there was over voting.

The above is from the cross-examination of Dr Mahamudu Bawumia, the 2nd petitioner in Ghana's presidential election petition, by Tony Lithur, lawyer for President John Mahama, whose election is being challenged. The second respondent is the Electoral Commission, which conducted the polls.

On December 28, 2012, an election petition was filed before the supreme court of Ghana, challenging the declared results of the December 7 and 8 presidential race. It was the first time that such a petition had been successfully filed before the court within the 21 days specified by the constitution of the republic.

An entire continent and its opposition parties are looking at the election petition in Ghana with keen interest

An attempt by the then opposition National Democratic Congress (NDC) to challenge the results of the presidential election in 2004, which was declared for the then incumbent President John Agyekum Kufuor, failed, reducing the NDC then to political platform statements denouncing the results of that election and warning against any electoral fraud in the future.

The 2012 election petition was filed by 3 petitioners, Nana Addo Dankwa Akufo-Addo, the 2012 presidential candidate of the main opposition party in Ghana, the New Patriotic Party (NPP), his running mate, Dr Mahamudu Bawumia, and Jake Obetsebi-Lamptey, chairman of the NPP.

10,995,262 valid votes were declared by the Electoral Commission (EC) on December 9, 2012, giving the incumbent, President John Dramani Mahama a 50.70% victory with 5,574,761 votes. Nana Akufo-Addo, his main challenger, received 5,248,898 votes, representing 47.79%, with the rest of the votes shared among six other candidates.

The  petitioners are asking the supreme court, which has exclusive jurisdiction in presidential election petitions in Ghana,  to annul 4,381,145 votes from 11,138 polling stations (out of 26,002 polling stations nationwide). They claim those votes were affected by six main categories of constitutional and statutory violations, malpractices, omissions and irregularities in various combinations. The annulments of these votes, if granted, would lead to the results being overturned in favour of Nana Akufo-Addo.

It would be a first in Africa for an elected president ( who has also been sworn into office) to be made to step down because of a challenge against the validity of his election. But, it would not be strange to Ghana's constitution which makes provisions for this and the petitioners are determined to make the point that only legal votes must count in elections in Ghana. A pressure group, Let My Vote Count Alliance, which draws its membership from five opposition parties, has been formed to drum home this point.

Already, Ghana's election petition is sending a strong message to African leaders against what appears to be the accepted convention that once you get away with whatever you do to win and the electoral body (Electoral Commission in Ghana) certifies your victory, your presidential tenure is secured until it expires. An entire continent and its opposition parties are looking at the election petition in Ghana with keen interest, and its potential impact on elections in Africa should not be underestimated.

The decision of the court when delivered would also not be lost on law courts in other parts of the continent, as it is expected to add significantly to the important jurisprudence of election petition cases in Africa's nascent democracies. For example, the election petition before Kenyan's supreme court, which unsuccessfully challenged Uhuru Kenyatta's victory, lacked something which the petitioners in Ghana have had in relative abundance: time.

In Kenya it was a race against time to file the petition and for the case to be disposed of within 3 weeks to pave way for the swearing in. In Ghana, the petitioners had 3 weeks to file and the case took four months of back and forth pre-trial sittings before hearing properly started on April 16. All sides of the dispute expect the case to take not longer than another two months before the court gives its final judgment.

100 days of excuses

President John Mahama was sworn into office on January 7 but, as he admits, it has been a challenging period. It is as if everything has come to a standstill as an entire nation awaits the nine-member supreme court panel to deliver its ruling.

The president's first 100 days was 'celebrated' with excuses from government officials. There has been one workers' strike after the other (from teachers to doctors), demanding salary arrears to be paid. The oil-producing country is still struggling from a yearlong disruption in electricity supply, and there is no clear programme to tackle unemployment in an economy that is reeling from the phenomenon of jobless growth.

Chief Justice Georgina Wood, inspired by Kenya's election petition hearing and after pressure form civil society groups and lawyers for the petitioners, allowed the hearing of this election petition to be telecast live. It is the first time television cameras have been allowed into a courtroom in Ghana and the impact has been phenomenal. The live media coverage has only confirmed how important this case is to Ghanaians, as it grips the attention of a nation divided in its acceptance of the legitimacy of its 'elected' leader.

Productivity is said to be suffering. Minister of Lands and Natural Resources, Inusah Fuseini, told a radio station that the election dispute "has affected the confidence of investors who want to come into this country. So if you are counting cost you must count all those things [and not only the live telecast]. We need to have a closure to the court case."

I feel that the country has been politically derisked given investor response to the issuance of Government Bonds, and the hoards of investors from the UK, Europe, America, China, Brazil and South Africa who are besieging the country. The seeming investor lethargy the Minister is sensing is more specifically due to government's indecisiveness in economic management and governance.

In a bid to shore up investor confidence, Ghana's Foreign Minister, Hannah Tetteh, has said, "Our elections have been challenged but they are being challenged in court, they are not being challenged in the streets and whatever is the outcome of the court's decision, we will all go along with it as political parties."

The case of the petitioners in the election dispute is mainly based on the facts and figures on the Statement of Poll and Declaration of Results Form, called pinksheets because of its colour. It is the primary evidence of election results in Ghana.

In several cases, in Nigeria, Zambia, Uganda, and recently Kenya, presidential election petitions have failed because the electoral violations found were held not to have been substantial enough to have materially affected the declared results.

The petitioners in Ghana confidently think otherwise. The fact that they were able to gather over 24,000 of the 26,002 pinksheets have helped them to present their case based purely on documentary evidence. By their analyses, removing the alleged illegal votes would add over 10 percentage points to the results declared for Nana Akufo-Addo and reduce John Mahama's share of the votes by a similar margin.

Out of the 4,381,145 votes which they want annulled, duplicate serial numbers account for 59.7%, representing 2,615,104 votes. It is the case of the petitioners that over 70% of all the infractions occurred on duplicated pinksheets, bearing same serial numbers, which they believe were deliberately printed to facilitate the gross malpractices that they are alleging.

Another 856,172 (19.5%) votes are being asked to be cancelled because voting was allowed to take place without the fingerprints of voters being biometrically verified as required by law. This law was passed to tackle the problem of multiple voting and impersonation in elections. Annulling votes in this category will take out 590,839 votes from candidate John Mahama and 245,771 from the runner-up.

International observers

Indeed, so close was the margin of Mr Mahama's disputed victory that reducing the president's share of the votes exclusively by 154,000 would mean that there was no clear winner in the December contest. This would automatically lead to a run-off because a presidential candidate must earn more than 50% of the total valid votes cast to win outright. For the opposition to succeed in having the court declare their candidate rather as the winner, the task is a little bigger, requiring a net annulment of some 324,000 votes from President John Mahama's share of the votes.

Another strong arm of their case appears to be the high number of votes which they claim were cast in excess of the number of ballot papers issued to voters. They have brought evidence of pinksheets to court suggesting that 791,423 (18.1%) of votes have to be annulled because of over-voting. Indeed, it is their case that a combination of the two categories of over-voting and voting without biometric verification alone would secure victory for Mr Akufo-Addo.

They are asking for a further 109,031 (2.5%) of votes to be annulled because the constitutional requirement that all pink sheets must be authenticated and certified by the signature of a presiding officer was not met. Presiding Officers did not sign the statement of declaration  - Pink Sheet. Also, they have accused the EC of allowing voting to take place in 22 unknown polling stations, where the allegation is that over 9,000 votes were illegally cast.

The evidence before the supreme court is also raising issues about the work of international observers in monitoring elections in Africa. "There were hiccups here and there, [which were] purely administrative, and once they were addressed, everything proceeded smoothly," says Pakalitha Mosisili, chairman of the observer group from the Commonwealth. "We have no hesitation in declaring the 2012 Ghana elections free and fair, transparent, and leading to a credible result."

General Olusegun Obasanjo, Head of the AU/ECOWAS group, also said, "This election is another block on the edifice of this country". The declared winner of the election, President Mahama, has, expectedly, declared his election "by far the most credible, transparent, free and fair since 1992."

International Observer groups must do more that simply patrol polling stations and declare free and fair elections in Africa. The poll process in Africa has evolved from obvious manipulations to sophisticated (mis)administrations. Hasty declarations usually serve incumbents to the detriment of the sovereign will of the people.

The crucial decision to challenge the election results in court rather than on the streets has shored up the democratic credentials of one of Ghana's foremost pro-democracy campaigners, Nana Akufo-Addo, who led the struggle against military dictatorship from the 1970s until 1992 when multiparty elections returned. As the candidate for the then ruling party in 2008, Mr Akufo-addo conceded defeat peacefully in an election that he lost by some 40,000, to Professor John Atta Mills, who subsequently died in office in July 2012.

What has become inherently clear is that public elections in Ghana will never be the same again regardless of the outcome of the ongoing trial. Ghana, once again, is seen to be charting new governance paths for Africa, this time, for that important next step of securing the democratic experiment on the continent by ensuring that election results truly reflect the majoritarian will of the people, nothing more, nothing less.

Elections, after all, should not be reduced to a competition to find who is best at rigging. To allow that to define democracy in Africa is to attack public confidence in it, damaging the very foundation of democracy in Africa, and leaving it vulnerable to the old malaise of instability and marauding adventurers.

The author is a retired investment banker and chairman of the Databank Group.



Subscriptions Digital EditionSubscriptions PrintEdition










Music & Film



Keep up to date with the latest from our network :


Connect with us