The Oliver Twist Bumbler: Law as “Predicament” for Political Progress

By Ivy King Afenuvor

Kenya’s Supreme Court justices, on the first of September, annulled its country’s recent hotly-contested election!

Ghana provides a preceding though not an exact example of the use of the courts to address the perceived and/or real ‘incorrections’ of the electoral process. Did the courts ran errant in their charge, as Kenyatta asserts, or were the courts the perfect prefects of the electoral errands that got stuck in the mud? The hoi polloi of Kenya largely stood by during the course of that legal due process; and now Liberia stands by (and for how long?).

You may recall past-President of Ghana John Mahama was a distinguished observer of Kenya’s 2017 election as now-President Akufo-Addo was the triumphant winner in Ghana’s late-2016 election; which was his second time around with Mahama as well as his third turn at the ballot box. The Johns had never been kind to Nana Addo, one may so say, until this victory, not forgetting that he went to duel with Mahama in the courts. 

Empowering Good Governance (a.k.a. Egg Mag) once visited this conundrum between passionate electioneering and dispassionate legal deliberation. We now publish (with minor edits) that article for the second time as a ‘not-so-kind’ reminder amidst Kenya’s and Liberia’s current electioneering quagmires.

Mr. Bumble was, understandably, very irritated when he made his statement. He had been accused of stealing jewellery belonging to Oliver’s mother; and, after making sure his wife had left the room, he responded: “It was all Mrs. Bumble.” We can all understand Mr Bumble’s frustration especially knowing as we do that he indeed did not steal the jewellery. But the law really can be an ass. It tells us an individual has the right to life and for that right to be protected; yet it reminds us in the same breathe that that right is not inviolable.

The law also tells us we have the right to privacy and the added right to protect that privacy but it also wants to determine the ins-and-outs of the carnal knowledge that is within and the niceties of the back-and-forth that occur within our bedrooms. Indeed, the law determines when LIFE begins – twenty-four weeks after fertilization in a mother’s womb.

The law also guarantees ‘my’ right to own property but tells me that I can be deprived of my property, my home; and by the State, nonetheless! Yes, an ass; the law, of principle, is as obstinate as an ass!

But the law is also reason. Reason unaffected by desire. Reason free from passion.

The 1992 Constitution of Ghana guarantees every citizen, eighteen years of age or above and of sound mind, the right to vote. Such a citizen is entitled to be registered as a voter for the purpose of public elections and referenda. In fulfilment of an eligible citizen’s right to vote, the Electoral Commission was set up with functions designed to compile a voters’ register as well as undertake the conduct and supervision of public elections and referenda, these among other roles and responsibilities.

Since the coming into force of the 1992 Constitution, the Electoral Commission (hereafter called the EC) has organized five parliamentary and presidential elections which have produced the Presidencies of Flt. Lt. J.J. Rawlings, John Agyekum Kuffuor, John Evans Atta Mills and the recently-declared winner of the 2012 General Elections, John Dramani Mahama.

Ghana’s EC has evolved appreciably since the early days of 1992 – from opaque ballot boxes to transparent ballot boxes; from voters’ registers without photographs to one with black-and-white photographs, to coloured photographs and on to biometric verification. The EC really has, in deed, improved by leaps and bounds. It is touted as one of the best Electoral Commissions in Africa and is generally credited by international election observers for organising free and fair elections.

No wonder it has and still is providing electoral consulting services to several African countries regarding the conduct of successful free and fair elections. But it cannot be said that all is well. The second runner up of the 2012 elections—and presidential candidate of the New Patriotic Party, in the name of Nana Addo Dankwa Akufo-Addo—begs to differ.

Nana vehemently believes that there has been a grand conspiracy to subvert the choice of the electorates in favour of the incumbent President John Dramani Mahama. And to prove this, he and his party have gone to court to challenge the declaration of John Mahama as the winner of the 2012 Presidential Elections.

The EC, in the exercise of the powers conferred on it by Article 51 of the Constitution, is given the charge to register voters and conduct public elections. Additionally, the EC is governed by the Public Elections Regulations of 2012 (C.I. 75). This Regulation provides for the following: [1] inter alia identification and verification of voters, [2] voting procedures, [3] rejected ballot papers and [4] the declaration and publication of election results. The EC insists it has done nothing wrong and asserts that all of its actions at the 26,000 polling stations have been consistent with provisions of the C.I. 75.

The Regulations stipulate that a candidate for parliamentary elections and presidential elections may appoint one polling agent—who invariably also doubles as a counting agent during the counting of the ballot papers—to attend to each polling station in the constituency for which the candidate is seeking election. Such an appointment is for the purpose of detecting impersonation and multiple voting and to certify that the poll was conducted in accordance with the law and the regulations.

Upon the counting of the ballots at the polling stations, the Presiding Officer, the candidates or their representatives and the polling or counting agent shall then sign a declaration in the presence of the Presiding Officer that announces the results of voting at the polling station.

However, in Regulation 44(2) it provides that “the non-attendance of the candidate or counting agent of the candidate at the time and place SHALL NOT invalidate the act or thing done” (emphasis mine). The “act” or “thing” includes the declaration of the winner at a polling station.

Regulation 30 provides that the Presiding Officer MAY require a person to provide a means of identification as determined by the Commission.  Sub-regulation (2) states “the voter shall go through a biometric verification process” as THE (again, emphasis is mine) means of identification and verification of voters.

From this verification means there shall be no derogation. At counting, a ballot paper shall be rejected on four grounds: [1] it does not bear the official mark of the Commission or [2] it is not thumb-printed by the voter to clearly identify the candidate for whom the vote was cast or [3] it is not thumb-printed at all or [4] it has on it a writing or mark by which the voter could easily be identified.

Upon the declaration and publication of election results—that is immediately after the results of the polling stations in the constituency have been given to a returning officer—the Returning Officer shall assemble the results, give public notice of the total number of votes cast for each candidate and publicly declare as elected in a parliamentary election the candidate who had the highest votes.

The Returning Officer shall then invite the counting agents of the candidate to sign the declaration that is detailed on the result form. And when all have signed a copy of this document it is posted at a constituency’s collation centre. The authority to declare publicly the parliamentary candidate with the highest votes lies with the Returning Officer, as the election of members of parliament is constituency based. The declaration of the presidential election is however different.

Each Returning Officer sends publicly declared results of the presidential election to the Chief Returning Officer in the person of the Chairman of the Electoral Commission. S/he then collates the figures and publicly declares the presidential candidate with the highest votes as the elected President.

Clearly, it is within the contemplation of C.I. 75 to include parties other than the agents of the Electoral Commission to staff the conduct of public elections, this all in the name of transparency, fairness and accountability, presumably. Where these parties are not satisfied with the process, especially in the conduct of the presidential elections, the Constitution provides in Clause (1) of Article 64 that the validity of the election may only be challenged by a citizen of Ghana. This citizen may present a petition for that purpose to the Supreme Court within twenty-one days after the declaration of an election’s results.

Given the above electoral governance technical specifications and their corresponding niceties, what portends for political wrangling as against legal rigour?  Of necessity, it is the LAW, however obstinate and reasonable. The law will have to be the arbiter of political wrangling such as of the sort that Ghana [and now Kenya] finds itself [themselves] mired in, the details and implications of Ghana’s which may be summarised as follows:

On the 28th January 2012 at 12:20pm the presidential candidate of the New Patriotic Party and his running mate, Nana Addo Dankwa Akufo-Addo and Dr. Mahamudu Bawumia respectively, plus the Chairman of the NPP, Jake Otanka Obetsebi-Lamptey (hereafter called the petitioners) filed a presidential election petition in the Supreme Court of Ghana. These individuals are challenging the validity of the election of John Dramani Mahama as President, pursuant to the presidential elections held on the 7^th and 8^th of December 2012. The petition has as John Dramani Mahama and the Electoral Commission as the first and second respondents respectively. Further yet, the Supreme Court went on to approve the National Democratic Party’s motion to join the petition, this now making for three respondents.

According to the petitioners, a sleight of hand had transmogrified the total number of registered votes from 14,031,680 to 14,158,890. The petitioners further state that the grounds for the challenge include flagrant violations of the statutory provisions and regulations governing the conduct of elections, such that they substantially affected the results that came to be declared by the Electoral Commission. The petitioners cite the following violations: [1] voting without prior biometric verification, [2] unsigned declaration forms and [3] over-voting at some polling stations. Among the 26,000 polling stations, 4,709 were points of systemic irregularities which saw 1,342,845 votes to be rendered invalid. The reliefs being sought by the petitioners include the following: [1] the annulment or the deduction of the above 1,342,845 votes from the total ballots cast and [2] for the Supreme Court to declare the NPP’s presidential candidate the validly elected President of Ghana.

The Chief Justice is the Head of the Judiciary and she who is responsible for the administration and supervision of the Judiciary is vested with the power to empanel the Court with not less than five Supreme Court Justices.  The Chief Justice shall preside at sittings of the Supreme Court and in her absence the most senior of the Justices of the Supreme Court as constituted shall preside.

Subject to the Constitution and any other enactment, the hearing of a petition shall take place in open court. The court shall inquire into and determine the petition expeditiously and shall give its decision no later than fifteen days from the close of the hearing.

In respect of this petition which is challenging the election of a President there shall be NO review of the decision of the Court. To one-and-all; agreed?