LMVCA: Supreme Court Must Not Allow Technicalities To Further Destroy Our Democracy

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Created on Friday, 14 June 2013 00:00

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LMVCA: Supreme Court Must Not Allow Technicalities To Further Destroy Our Democracy

Ladies and gentlemen of the press, thank you very much for attending upon our call at a rather very short notice. We have been encouraged by the level of interest you have been showing to every activity of ours.

As you are aware, tomorrow the Supreme Court will hear an application for a review filed by one of our leading members, Abu Ramadan, against the decision of the court in the Mornah case that a decision in an election petition is subject to a review and that it is unconstitutional for the courts to sit on a public holiday. We are confident of the merit in that review and pray that it succeeds.

We have a common cause to our motherland which is to ensure the sustainability of our democracy on the strong foundations of fairness and justice.

You would have noticed that since the election petition trial proper started on April 16, this multi-partisan group of young patriotic Ghanaians, Let My Vote Count Alliance, dedicated to protecting the legal and valid votes of the people against the various instruments of rigging, has been silent. We chose to be quiet for a very good reason: to allow the wheels of justice to pull Ghana's democracy back on track.

However, ladies and gentlemen of the press, we have called you here today, breaking our silence, because we are sensing very dangerous signals from the happenings at the Supreme Court which can't be left to continue without responsible comments. After all, Article 3 of the Constitution empowers we the citizens to take active steps to protect our constitution.

Fortunately, what we are witnessing is being seen also by millions of Ghanaians and many others around the world on radio, internet and television. To this we are grateful to the Chief Justice and the Supreme Court. We will commend all Ghanaians for their level of tolerance and maturity demonstrated since the challenge to the declaration of John Mahama as the President by Dr. Afari Gyan after the 2012 elections began. It is a journey very rare in our parts of the world. That after a disputed election like our last one, an aggrieved party takes to the court to seek redress on a continent so used to seeing weapons of destruction employed for the "resolution" of electoral disputes. It has led to the death of many and the displacement of many more. Ghana has been so far spared that violent path but we have a duty to ensure that the peace that has so far endured does not give way to anarchy. Only true justice can assure us of that desired outcome.

It is also not by magic or any special genetic makeup of the Ghanaian that we have peace. We believe the 2012 elections have not sent us into the abyss of instability and anarchy because of the confidence that the people have in securing justice through the legal system. This confidence must be protected and promoted by all.

It is, however, our genuine fear that the new strategy chosen by the respondents in the full glare of the public stands a very strong evil chance of sacrificing justice and therefore the pillars upon which our peace has been delicately built. With this we mean what we sense to be the new collective strategy of the 1st respondent (John Mahama), the 2nd respondent (the Electoral Commission), and the 3rd respondent (the National Democratic Congress) to use technicalities to deny the people of Ghana justice.

This strategy is to reduce this important election petition to be determined not by the substance of the thousands of evidence which the petitioners (Nana Akufo-Addo, Dr Mahamadu Bawumia and Jake Obetsebi-Lamptey) have brought for adjudication but the form by which those exhibits of evidence were filed and/or served on the respondents. It seems to millions of increasingly frustrated Ghanaians that the whole essence of this case about our democracy, our votes, our governance, is being forced down to how the evidence was packaged and served rather than what is contained in the evidence.

Our message to the court is simple: GHANAIANS ARE WATCHING!

The people would not allow the justice that they seek to be denied through the frivolous and vexatious instruments of technicalities like exhibit numbers whether they begin with four zeros or no zeros at all; whether the exhibit number takes us to a polling station in Techiman or Kpandai. This case is about what happened at polling stations across the country on December 7 and 8, 2012 and nothing less.

That is why the people are saying that the justices must therefore stamp their authority and stop this puppetry of technicalities orchestrated though the joint enterprise of lawyers for John Mahama and the NDC, using the lawyer for the Commission as the convenient, ever-willing instrument of such blatant, unpatriotic evil. People are beginning to see the three masters of technicalities as the Axis of Evil Against Justice!

Is it not ironic that the very people who set up People's Tribunals in the 1980s because they thought even the normal technicalities of due process were denying the people justice are now relying on technicalities to deny the nation a true and faithful trial into how the 2012 presidential race was ran?

We sense among the grassroots that the latest strategy of respondents alleging without proof that they have not been served with exhibits which petitioners want to cross-examine the chairman of the EC on is beginning to test the confidence that the people have in the judicial system.

Many people simply cannot understand why the judges cannot apply the rules and powers that they have to get respondents to let the court know exactly what exhibits they have or don't have. This is causing undue delay and the building of frustration among the people as respondents seemingly put all their eggs of victory into the basket of technicalities.

We are here today to call for calm. To ask the people to remain being patient. We will urge the people to remain calm and continue to put their faith in the competence of the petitioners' legal team and in the wisdom of the nine justices. We do not expect these experienced men and women, on whose shoulders the fate and destiny of our democracy now sit, to fail us. We will continue to pray for them that they muster the courage and principles of their office, the wisdom, the patriotism and responsibility to do what is right, just and fair.

But, we will also wish to remind us all that it was because of the people's frustration with technicalities that led the Kenyan Opposition to ignore the legal option in 2008, leading to the kind of violence which the world never thought could take place in one of Africa's most stable nations. If it happened in Kenya then it can happen in Ghana.

Kenya had its latest presidential election in March, a few months after ours last December. Theirs too was disputed but this time the aggrieved presidential candidate who earlier in 2008 avoided the use of the courts decided to try a peaceful option instead. Raila Odinga and the opposition in 2008 had no confidence in pursuing an election petition. This lack of confidence was very costly.

The 2010 constitution of Kenya ensured that the technicalities that frustrated earlier petitions and the delays that frustrated justice too were all dealt with. Even though the petitioners in Kenya can complain that they did not have enough time to put together their case, the rules of the game were all set before the game and any technicality that was applied was done in fairness and in accordance with the rules set to deliver substantive justice under the circumstances. That is why the decision of the court has been accepted by all and Kenya has now moved on.

Even before this trial started, some prominent Ghanaians, including Otchere-Darko, had written extensively on the dangers of technicalities and delays, drawing from the experiences of Kenya and Nigeria, for example. We need to remind ourselves of them.

Ghanaians need to understand why Kenya’s opposition ignored the legal option in January 2008. Then Raila Odinga made it clear that he did not trust the judges to handle the petition justly. Technicalities and delays had frustrated all previous attempts to seek redress in disputed elections in Kenya. Before Odinga, the only two presidential petitions in Kenya’s history had fallen on the double-edged sword of technicalities and delay.

Kenya’s first election petition case, Kenneth Stanley Njindo Matiba vs Daniel arap Moi, was from the 1992 contest, which many believed was rigged in favour of the incumbent, Moi. After long delays, the case was struck out because the petitioner, who became physically incapacitated at the time, gave his wife power of attorney to sign the petition papers on his behalf. So the court finally threw the case out because of form and not substance! It is the kind of technical challenge which the respondents are now seeking to entreat the Ghana court to focus on and ultimately deny the petitioners the reliefs that they seek. This is so obvious that it is not funny.

The Matiba case in Kenya was followed five years later by the case of Mwai Kibaki vs Daniel arap Moi. This case spent 2 years in the courtroom before it was thrown out on a technicality that President Moi was not personally served with the petition!

For Kenyans, loss of confidence in the judiciary over election petitions led to 1,300 dead and 600,000 others displaced from their homes.

Ghanaians should not think we are immune to this kind of thing. The ethnic configurations of Kenyan politics are, in shape and form, equally alive in Ghana, which like Kenya, took the multi-party route in 1992.

As if to confirm the saying that history always repeats itself and people don’t tend to learn from it, it is becoming increasingly clear that the respondents in our case in Ghana are also pushing the technicalities card. And this is what we believe is a dangerous precedent to be insisting on in this crucial case of our lifetime. What even worries us most is the appearance of the blessing of the court even as the respondents pursue this agenda of theirs. The court has given the respondents too much room with which they are beginning to stifle the entire process.

It is very frustrating even for those of us watching the proceedings on TV as the respondents hold the judges of the highest court and 25 million Ghanaians to ransom as they insist on not disclosing the quantity of pinksheets served them by bailiffs from the registry and yet will not allow their witnesses to answer questions on pinksheets they claim have not been served.

As a result, petitioners are helpless and even the Justices appear to be helpless because they appear to the people to be failing to stamp their authority on this deliberate negative strategy.

The recent developments in the court are sending the wrong signals that the court option as a resolution to electoral disputes may be a waste of time and resources. We do not wish Ghana to also travel the hard road that our East African neighbours did. It is a path that none of us should pray or wish for and that is why we are drawing the nation's attention to it.

Ghanaians are simply not prepared to see the interest of substantive justice giving way to technicalities. They would understand, for instance, if after the KPMG count of exhibits, it comes out that certain pinskheets were not served per the court order so petitioners can no longer rely on them. They would understand if the court found that indeed respondents were not served with certain exhibits and must be served and Dr Bawumia further cross-examined on them.

But what the people would NEVER accept is for evidence before the court to be ignored because they were not properly labelled or categorised.

At the crux of the difficulty is an issue of mislabelling and not a lack of evidence. To allow such straight forward, curable technical errors to deny the people justice would amount to a coup d'etat against the Constitution of the Republic. And, Article 3 of the Constitution gives citizens the authority to use every means possible to resist any attempt to overthrow the Constitution. We are, therefore, giving notice that LMVCA and all well-meaning Ghanaians would do just that if we are forced to do just that.

In the meantime, we will call on all Ghanaians to remain calm and expect nothing less than true substantive justice from the court. We continue to believe in the wisdom of the nine justices of the Supreme Court and will appeal to all our supporters to continue to have faith in the judicial system. But, we shall remain vigilant and not allow our democracy to be destroyed and for those who seek to do so to succeed.

Thank you and may God bless you all.

……signed……

David Boateng Asante

Sammy Awuku

Charles Owusu Abu Ramadan

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