SC Verdict Exposed “Polarised” Bench

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Created on Thursday, 12 September 2013 00:00

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SC Verdict Exposed “Polarised” Bench

A Ghanaian Professor of Economics at the American University and an associate scholar at the Foreign Policy Research Institute, George Ayittey, says the recent Supreme Court verdict on the election petition case, exposed the polarity of the Justices at the apex Court.

In an article titled: “A ruling not in the supreme interest of the Nation”, the Ghanaian Economist said: “But, alas, the ruling showed that the Supreme Court itself is as deeply polarised as the nation”.

He said: “Unfortunately, the August 29 ruling serves short-term political interest but not the supreme national interest”.

The Court, on August 29, 2013 unanimously dismissed three of the six pleadings of the Petitioners. The nine-member Bench however split, by a 5-4 majority, on each of the three other pleadings.

Prof. Ayittey says the split decision the “three most cardinal elements” of the electoral rules: Biometric verification, over-voting and signatures of presiding officers, betrayed the polarized nature of the Bench.

Below is the full article of Prof George Ayittey

A ruling not in the supreme interest of the Nation

In a 5-4 ruling, the nine-panel Justices of Ghana’s Supreme Court on August 29 dismissed the petition filed by the NPP, challenging the validity of the Dec 7, 2012 presidential election won by the current president, John Mahama.

Nana Akuffo-Addo, the opposition New Patriotic Party (NPP) challenger and petitioner called the president to concede defeat and congratulated him. He also called on his supporters to accept the verdict, though he disagreed with it, and later announced that he was going to take some time off politics to rest. Thus comes to a peaceful end an 8-month litigation saga that has gripped the nation. It sends a powerful message to the rest of Africa and cements Ghana’s reputation as a model democracy.

Naturally, not all will be pleased with the verdict but all participants in this saga deserve a good round of applause in the way they comported themselves. The people, who displayed a high sense of political maturity and a tremendous amount of self-restraint and discipline, remained calm and peaceful throughout the entire ordeal. Recall that an election dispute and court challenge plunged our neighboring country, Ivory Coast, into violence and civil war in November 2010.

The stakes were also high in Ghana but the people distinguished themselves. Nana Akufo-Addo earned plaudits for being an eminent statesman, accepting the verdict and urging his supporters to abide by it. The Supreme Court Justices who deliberated on the petition, must also be commended for the high degree of transparency they allowed into the proceedings by permitting live radio and television broadcasts – a level of transparency never seen in Africa before.

Naturally, the ruling will not end all debates and disagreements. To be sure, they will rage on for some time to come – no matter which way the SC had ruled. Obviously, both parties – the NDC and the NPP – expected the Justices to rule in their favor and one side was bound to lose. But in all this kerfuffle, it is important to distinguish between short-term partisan interest and long-term national interest. The national interest is supreme and should trump partisan interests.

Political parties come and go but Ghana, as a nation, endures. Unfortunately, the August 29 ruling serves short-term political interest but not the supreme national interest. As such, there is still unfinished business to accomplish. It would have made little difference if the Justices had ruled the other way, i.e. in favor of the petition.

I would have preferred, not a re-run but a re-vote of both the presidential and parliamentary elections in a year’s time to allow vital reforms at the EC to be carried out. The parliamentary elections were beset with irregularities too. Currently, there are 38 challenges in the courts. It would have served the national interest if the SC had kicked the issue back to EC to fix its own problems.

To be fair, the Justices faced a formidable task and were caught between a rock and a hard place. The Constitution gave them little leeway or room to maneuver. It only authorized them to adjudicate on the petition and rule on the validity of the election of the president. They could either uphold or annul it – a very limiting choice.

Ruling either way was bound to displease half the electorate. But knowing this reality should have necessitated thinking outside the narrow Constitutional box by referring the issue back to the EC. As it stands now, the ruling will have some blowback. It will cost the Justices some loss of credibility as they have inserted themselves knee-deep into the political imbroglio. Further, in their precedent-setting ruling, they have thrown their doors wide open to adjudicate all future electoral litigation.

The ruling does not serve the national interest on several fronts. First, the nation was hungering for peace and unity. As such, any sort of “compromise” ruling would have brought the nation together. After the December elections and prior to the Supreme Court ruling, the country was bitterly polarized. Indeed, there was a constant drumbeat of calls and exhortations for peace and unity broadcast on the radio, television and the print media. In fact, two days before the ruling, there was a football match, dubbed "Peace Match 2013," whose purpose was to show unity and help cool tensions. One therefore expected a ruling that would echo this sentiment and bring Ghanaians together.

But, alas, the ruling showed that the Supreme Court itself is as deeply polarized as the nation. Even worse, the announcement of the verdict itself was bungled. There was an inexplicable 4-hour delay in announcing the verdict, fueling speculation that something fishy was going on behind the scenes. Then Justice Atuguba announced a 6-3 verdict dismissing the petition. A day later, the verdict was changed to 5-4. Honestly, this kind of flip flop does not inspire confidence in the Supreme Court and makes it look like a clone of the Electoral Commission. Imagine the Justices, ruling on a petition challenging an election vote count when they themselves couldn’t even get their own 9-vote count correct.

Second, the ruling leaves the electoral rules in a massive state of confusion. There were 6 specific grievances on the petition sheet:

• Duplicate serial numbers

• Over-voting

• Voting without biometric verification,

• Duplicate Polling Station Code

• Unknown Pooling Stations

• No Signature of Presiding Officer

There was no unanimous ruling on the three most cardinal elements of the electoral rules: Biometric verification, over-voting and signatures of presiding officers.

An electoral rule accepted by all parties was that no one should be allowed to vote without biometric verification. NBNV was the slogan accepted by all parties..Another electoral rule related to over-voting, where the number of votes cast exceeded the number of registered voters. Still another electoral rule is the polling station results must be certified with the signature of the presiding officer. None of the three was unanimously upheld.

The implications are disturbing and serious. An electoral rule is a rule that must be enforced at all times when there is an election. But the Justices seem to be saying that, in their opinion, biometric verification is at the mercy of the discretion of the Electoral Commissioner. Sometimes he can enforce it; sometimes he can ignore it. This is unacceptable.

If biometric verification is not that important then why did Ghana spend nearly $75 million and went through all that trouble for the biometric registration – even at the cost of some lives - if it was not going to be used in the election? More importantly, biometric verification is not an issue on which Justices express an opinion. It is an electoral law that must be upheld by them! Ditto for over-voting and lack of signatures of returning officers.

The situation is akin to boarding a taxi and asking the driver how his car performs and he replies thus: “Ah Master, hmmm, the car generally runs well but sometimes the brakes catch; sometimes they don’t.” Would you take that taxi or get down and hail another? Obviously, the average person would want to sit in a taxi whose brakes catch. But the brakes of the Electoral Commission seldom catch all the time.

Third and far more serious, the Justices squandered a golden opportunity to get the EC’s brakes fixed by calling for electoral reforms. It is an open secret that the EC inspires little confidence in Ghanaians. Since its inception in 1992, it has been plagued with numerous problems. Every election it has conducted since then – with the possible exception of 2000 -- has been greeted with allegations of fraud and irregularities:

For the 1992 elections, the voter registry was riddled with inaccuracies. "The total number of registered voters in Ghana listed at 8,410,990 was deemed improbable, given an estimated population of 16 million, of whom half were under 15 years of age,” according the International Foundation of Electoral Systems (IFES), which did a pre-election study in 1992. An estimated one million erroneous entries were padded on to the list.

The list suffered from multiple entries, inconsistent name order, failure to record corrections, and ghost entries. No attempt was made to purge the list of voters deceased since 1987. A recommendation to reregister all eligible voters was ignored and only two months were allowed for campaigning. The opposition participated in the presidential election, which they claimed was rigged, and boycotted the subsequent parliamentary elections, resulting in a de facto one-party parliament.

For the 1996 elections, IFES claimed that it registered 9.1 million voters, or 90 percent of those eligible. But IFES could not give the total population figure for Ghana. If half of Ghana's population was under the age of 15, and there were 9.1 million registered voters, then its population would be between 18 million and 22 million. Yet its 1992 population was 16 million. The growth rate would have to be an astonishing 6 or 7 percent for the population to have grown so much in four years. (Ghana's population rate of growth was around 3.2 percent).

The source of the problem was the projections of voting age population provided by the Statistical Service, a government agency. Its 1 September 1995 projection of the voting age population was 2 million higher than that on 1 July 1995. In other words, within two months, the Statistical Service suddenly realized that a whopping 2 million more people could vote in Ghana. According to IFES, the Statistical Service could not explain this 24 percent increase in estimated voting age population. Needless to say, the voters' register also was inflated, and most of the flaws in the 1992 elections were repeated for 1996:

• Ghanaians living abroad continued to be disenfranchised. They send home about $10 billion a year in remittances, which helps the economy. You want their money but their votes?

• The registration period was shortened to two weeks (1 15 October), despite Ghana's Interim National Electoral Commission's own estimate of three months back in 1992.

• Aliens were registered to vote exactly the same problem noted in the 1992 IFES Report.

• Large quantities of fake registration papers were discovered.

• The deputy electoral commissioner David Akanga reported over 2 million registration papers missing, although he later retracted this statement.

• The names of thousands of registered voters in opposition strongholds were deleted from the register; in other areas names had been inserted.

• Capricious shortening of the registration period to two weeks (Oct 1-15), despite the INEC's own estimate of 3 months back in 1992.

• Reports of aliens being registered to vote -- exactly the same problem noted in your 1992 Report: "There were reports that several people registered and casting ballots were not Ghanaian citizens" (Free Press, Sept 20-26, 1995).

• Discovery of large quantities of fake registration papers: "Tension has been aggravated by the surfacing of fake registration cards in various parts of the country," The Ghanaian Chronicle, Sept 25-28, 1995; p.5).

• Over 2 million registration papers were reported missing by the Deputy Electoral Commissioner, David Akanga, although he later retracted this statement.

In May 1996 when a copy of the Voters Register for Sunyani East Constituency was examined, it was found that:

"In several constituencies considered to be opposition strongholds, the names of thousands of voters who duly registered had been deleted from the register whilst in other areas, the register had been bloated with the insertion of strange names" (Free Press, May 10-14, 1996; p.6).

Among those names were: "Tamanja Gfaddcbb," "Mmm Nn Tss," "Wa CD NMMM," "Njoli Kiw Di" and "TGMGGFAGBEGENDAN." I have never come across Ghanaians with such names in my entire life!

The 1996 election campaign was marred by violence at Tamale, Kyebi, Bibiani, Sabon Zongo in Accra, East Sraha in Tema, Offinso, Assisiwa, Peninpa, and Old Tafo. "In all these the NDC was the aggressor. Yet no arrests were effected," complained the Free Press (6-12 December 1996, 12). And 11 hours before Kufuor held a rally at Jackson Park in Kumasi, explosives were set off at regular intervals, leaving two large craters in it (Ghanaian Chronicle, 4 December 1996).

"A number of Ghanaians have expressed outrage over the results of the presidential and parliamentary elections released so far by the Electoral Commission and accused Ewes of having exposed their inward-lookingness. They have vowed not to vote in any future elections if the voting pattern of Ghanaians remain the same...

Mr. Edusei Jnr., said that the behavior of some Ghanaians as regards choosing of the right person to lead them makes it difficult for open-minded citizens to vote next time around when there is general elections. "After all, they know that even if the right man is there, he will not be chosen." Madam Ama Mensah, a trader of Obuasi Central Market and a host of other tomato sellers in the market emphatically said in their remarks that they would never vote again in their lives because they had come to realize that truth does not matter in Ghana politics" (Free Press, Dec 13-19, 1996; p.6).

Most appalling was the way the Electoral Commission handled the 2010 District Assembly elections. Dates were announced and then changed; ballot papers did not arrive on time, necessitating postponement in 8 regions. Massive confusion reigned, which prompted the government to set up a Commission to investigate the difficulties the EC was encountering.

Some voters the Daily Graphic interviewed said the situation had made the whole exercise confusing and that it was likely to kill voters’ enthusiasm and willingness to vote. “One such voter, Mr Tetteh Mensah, told the Daily Graphic at Kaneshie that he travelled from Agona Swedru in the Central Region to Accra to vote but had to go back since he was expected to report for duty, the day voters in the Greater Accra were finally expected to vote”(Click here)

The Electoral Commissioner even apologized to the nation. When contacted, the Local Government Minister, Mr Joseph Yieleh Chireh, appealed to Ghanaians to bear with the EC to enable it to carry through the ongoing local level elections.

Mr Chireh, who said he was returning from his home town in the Upper West Region after voting, said what was going on as far as the elections were concerned was regrettable and urged the electorate to exercise patience and support the EC to discharge its mandate. He explained that the EC needed to carry out the exercise at all cost because any postponement would affect the commission’s preparations towards the next general election scheduled for December 2012.

Evidently, the EC’s brakes didn’t “catch” in 2012. It was not adequately prepared for the 2012 elections. Ballot papers did not arrive on time, necessitating and extension of the voting period. Biometric machines broke down, etc. Another round of complaints about irregularities and a petition to the Supreme Court. Will the EC’s brakes “catch” in 2016? Are we, as a nation, going to go through all that tension, saga and complaints about irregularities again in 2016?

Fifty-six years after independence, we act like children playing with fire. I must warn that the destruction of an African country – regardless of the ideology, religion or ethnicity of the leader - always begins with a dispute over the electoral process. Our next door neighbor, Ivory Coast, descended into chaos, savage civil war and carnage following a dispute over the Nov 2010 elections, We dodged the bullet this time around but will we in 2016? What if the losing candidate in 2016 decides not to go to the Supreme Court because it is politically biased and chooses to go to the streets or the bush?

It is imperative to clean up the electoral process and make electoral irregularities a thing of the past. Kofi Annan has called for electoral reforms. The Justices at the SC should have echoed this call. It is now left to the president or Parliament to set up a bipartisan commission to clean up the Electoral Commission: The voters’ register needs to be cleaned up, minors purged from the register and electoral rules strictly enforced. Failure to do so will guarantee that the same difficulties experienced with the Dec 2012 elections will come back to haunt us in 2016.

And while we are at it reforming the Electoral Commission, we should remember that other state institutions have also become politicized and dysfunctional. They too need to be reformed. Ghana has no future if we cannot uphold and enforce the rule of law. Need an example? What happened to Alfred Woyome? Scratching your head?

**George Ayittey is Professor at American University and an associate scholar at the Foreign Policy Research Institute. He is a Ghanaian Economist, Author and President of the "Free Africa Foundation" in Washington DC, where he is based.