Trying Times Ahead for John Mahama - CASE COMMENTARY AND ANALYSIS

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Parent Category: Justice & Security

Created on Sunday, 05 May 2013 00:00

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CASE COMMENTARY AND ANALYSIS

The election petition challenging the December 2012 presidential authority of John Dramani Mahama of the ruling National Democratic Congress (NDC), began substantively, on Monday, 16 April 2013, at the Supreme Court of Ghana, Accra, with Justice Mr William A. Atuguba; presiding. The remaining eight (8) Supreme Court Justices on the panel are as follows: Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr Justice P. Baffoe-Bonnie, Mr Justice N.S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo. The Law Lords are to consider the following: Whether or not there were statutory violations, omissions, irregularities and malpractices in the conduct of the elections held on December 7 and 8, 2012, and if yes, whether or not these violations, omissions, irregularities and malpractices affected the outcome of the elections.

Both the Article 64 of the 1992 [Fourth] Republican Constitution of Ghana and the Supreme Court (Amendment) Rules, 2012 (C.I. 74), particularly Section 68, provide that after a period of twenty one (21) days after the declaration of election result, a citizen of Ghana can challenge in the Supreme Court the validity of the result so declared or being contested, if he or she so desires, by filing a petition in the Registry of the Supreme Court to that effect... Accordingly; on 28th day of December 2012, Nana Addo Dankwa Akufo-Addo, Dr. Mahamadu Bawumia and Jake Otanka Obetsebi-Lamptey, of the NPP, availed themselves challenging the 9th December 2012 declaration of John Dramani Mahama, as president-elect. Many are those who still argue that legally, the presidency wields some sort of immunity and therefore, President John Mahama, cannot be cited in any legal proceeding while in office.

So is the NPP’s petition against the President [first respondent], an error of law? Justice Atuguba states no. And the President’s counsels seem to be satisfied with the learned Justice’s position and accordingly, are on the crusade of defending the Electoral Commission on what they describe as “transposition and administrative errors” which substantively, appear to open up the presidency to a reclaim as administrative or procedural errors of a public officer or institution are not immune from judicial review. By virtue of Article 57 “Clause 5 of the 1992 Constitution, we could submit that the President; “while he is in office, could not be liable to any civil or criminal proceedings in any court” in the Republic of Ghana. I think this angle worth looking at but not the ongoing focus on administrative errors.

From the perspective of constitutional and administrative lawyer, an error of law is where the decision-maker has applied the wrong law on the facts of the case before him/her or though, s/he had the relevant law correct, its application and/or interpretation had been wrong. Error of law is a ground for judicial review both at common law and as a statutory ground. According to Enright, Christopher (2012), a simple and natural meaning of the phrase ‘error of law’ is that the decision-maker has made an error when interpreting law in the course of making the decision and that there are three aspects to the notion that an error of law is an error of interpretation. “One is the nature of the error, which is simple in principle. The other two aspects involve questions for which there are not simple and direct answers– where the error should be located and whether the error can be covert as well a Nature of an Error.”