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Trying Times Ahead for John Mahama - GROUNDS FOR JUDICIAL REVIEW


Photo Reporting: Dr Bawumia with Pink-Sheets?In the words of Lord Dipplock, illegality as a ground for judicial review means that the decision-maker [Here, the EC or Dr Kwadwo Afari-Gyan], must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is a question to be decided in the event of dispute by judges. This would mean that when a power vested in a decision-maker is exceeded, acts done in excess of the power are invalid as being ultra vires (substantive ultra vires). In Bromley Council v Greater London Council (1983), it was held that where a local council, whose power is derived from statute, acts outside the scope of that authority, then it will certainly be acting illegally. Another area of concern had been where the approach of the decision-maker appears irrational within the meaning of the word or what Lord Diplock referred to as Wednesbury unreasonableness in the GCHQ Case.

In Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) the Court of Appeal held that a court could interfere with a decision that was 'so unreasonable that no reasonable authority could ever have come to it'. It is contended that the EC Chairman Dr Kwadwo Afari-Gyan had stated before the 2012 general elections that even if one vote was detected to have been in excess of the number of ballot papers issued, the results of that polling station would be annulled. In the words of Dr Bawumia, this decision was indeed implemented in polling stations such as Arabic Primary School in the Upper West Akyem constituency, as well as another polling station in the Tano North constituency. How reasonable was this decision, where the EC itself, could have yes, the capacity to weed out “faked ballot papers”?

It appears unreasonable for the entire voters to forfeit their votes cast, just because someone out there managed to subvert the process. In the GCHQ Case, Lord Diplock said that Wednesbury unreasonableness “applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” Justice Baffoe Bonnie- a panel member on the election case, had for example, inquired from Dr Bawumia, if he was suggesting to the Supreme Court to go ahead to annul the figures in all the affected polling stations merely because some people had voted without verification. This perhaps, suggests the judge’s concerns about this particular pleading. Wednesbury unreasonableness had been used in the cases of Strictland v Hayes Borough Council (1896); and R v Derbyshire County Council, ex parte The Times (1990) to prevent powers from being abused by, for example, exercising a discretion for an improper purpose or without taking into account all relevant considerations.

Having considered that, we now come to procedural impropriety as a ground for judicial review. This according to Lord Dipplock, covers the failure by the decision-maker to observe procedural rules that are expressly laid down in the legislation by which its jurisdiction is conferred, or a failure to observe basic rules of natural justice, or a failure to act with procedural fairness (procedural ultra vires). An example of procedural rules not being followed is: Aylesbury Mushroom Case (1972). For instance, if the rule is that before an election is held, the Electoral Commission shall provide all political parties with the updated voters’ register showing the list of all potential eligible voters, then the EC’s failure to do so might open itself to procedural impropriety, a breach of natural justice and judicial review.

Assuming these prepositions are legally true then the obvious question could be that why the counsels of the three respondents are relentlessly, seeking to suggest in their cross-examinations of the NPP’s Star Witness Dr Mahmoud Bawumia that “to err is human” and arguably so, President John Mahama, ought not to be punished for constitutional and administrative wrongdoings of Dr Kwadwo Afari-Gyan and his non-politically-affiliated EC? On 17 April 2013, Dr Mahamamudu Bawumia, began his evidence-in-chief with NPP lead counsel Philip Addison, alluding that the 2012 presidential election was characterized by irregularities, statutory and constitutional violations and malpractices leading to illegal votes of some 3,924,844 votes collated and counted by the EC in favour of the then candidate John Dramani Mahama and therefore, pleaded with the Supreme Court of Ghana to annul what he describes as illegal votes, which if expunged from the declared result, would leave the then president-elect and now the sitting president, with 41.96% of the valid votes, while his main petitioner and NPP 2012 flag-bearer, Nana Addo-Dankwa Akufo-Addo, settles at 56.65%.

NPP lead counsel Philip AddisonBut are these errors of law or errors of fact? In distinguishing Errors of Law from Errors of Fact, Enright, writes that an error in adjudicative decision making is basically either an error of law or an error of fact. “Lawyers therefore have to classify an error in decision-making as one or the other. If it is an error of fact it does not fall within the ground of review. If it is an error of law then it subject to review. There must be an error, there must be a law and there must be a relationship between the error and the law... It is, however, far from clear as to what is the necessary relationship between an error and law to constitute an error ‘of’ law. The solution is to interpret the word ‘of’”. For the sake of this article, we assume that NVNV has two meanings- Meaning 1 and Meaning 2. We also assume that Dr Afari-Gyan decided that Meaning 1 is the legally correct meaning. However, a review court, decides that Meaning 2 is legally correct. If so, then the EC- has made an error of interpretation in deciding that Meaning 1 and not Meaning 2, was the legally correct meaning of that ambiguous provision.

In making argument for No-Verification-No-Note(NVNV) to mean having gone through all the processes of verification- having your Voter ID to hand; being personally checked against the records from which your personal data (voters’ register) are held and finally, the requirement of having to put your finger on the Biometric Verification Machine to establish your true identity at the polling station as having not yet voted, some colleagues reminded us that a simple Voter ID and personal identification at the polling station, settle all the bio-data requirements. That with your Ghanaian Passport, you should be able to vote and therefore, there could be no case to answer if some voters failed to be biometrically verified. Yes. But was the addition of biometric machine in the voting process not agitated for to check double-voting and to be able to distinguish identical twins from one another with their finger-prints?



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