By Dr. Samuel Adjei Sarfo
The outcome of the present election petition should not be a matter of mystery to those who follow the philosophy of jurisprudence. What are the petitioners’ claim? They seek two specific declaratory reliefs: (i) that John Mahama was not validly elected President of the Republic of Ghana; (ii) that Nana Akufo Addo rather was validly elected President of the Republic of Ghana. They are imputing that the election was rigged through a systematic connivance between the Electoral Commission and the National Democratic Congress candidate who is the current President John Mahama.
The venerable Professor Kwaku Asare thinks that the court will address the issue using this methodology: First, the Court must decide whether there were irregularities, malpractices, omissions and statutory violations (IMOV) in the conduct of the elections as well as the counting and collation of the ballots. Second, if the Court finds IMOV, it must next determine whether they were of such magnitude as to invalidate the declaration of John Mahama as the President of the country. Third, if the Court finds that John Mahama was not validly elected, it must determine whether Nana Addo was validly elected. ( See Kwaku S. Asare: “ What Should Happen When the Court Speaks”, Ghanaweb Feature Article of July 20, 2013)
. The foregoing should put Nana Akufo Addo in a stronger position to win his petition, but it is doubtful if any such verdict based on the above approach will bring justice. Therefore this writer begs to differ and proffers the following steps as the court’s most logical process of decision making:
1. The writer agrees with Prof. Asare that first, the court must decide whether there were irregularities, malpractices, omissions and statutory violations (IMOV) in the conduct of the elections as well as the counting and collation of the ballots.
2. But this writer believes also that the court will then proceed to answer the question as to whether the government or its agents set in motion a well-conducted maneuver to steal the elections, or whether individual wrong-doers, acting on their independent instincts and initiatives, worked to sway the results in favor of Mr. Mahama. This is the mens rea requirement which will justify any outcome disfavoring the government. After all, we can hold the government responsible only if it used its powerful machinery to rig the elections. But so far, this part was not even argued by the petitioners……No culpability can be ascribed to the government and no legal consequences will accrue without the showing of systematic rigging engineered by the government..
3. If the government engineered the rigging, the analyses will continue to 3, 4, and 5, and the court must next determine whether the rigging was of such magnitude as to invalidate the declaration of John Mahama as the President of the country. But the catch here is the determination itself. In determining the magnitude of any rigging, the court must review the entire record of the elections from all four corners of the country and determine that no rigging occurred in the areas where Akufo Addo won, and that all the rigging occurred in the areas where Mahama won. To achieve this, the court must do the math of how the advantage gained by the irregularities in Akufo Addo’s constituencies, if subtracted from his total votes, will still keep him in play for the presidency. It is my humble opinion that this is a judicially unmanageable process for which the Supreme Court of Ghana is not resourced enough to undertake.
Thus, it will be naïve to suggest that a finding of rigging in the voting process in one area alone can answer the larger question as to whether the whole elections or part thereof should be annulled. All other areas should be examined for evidence of rigging to balance the equities to determine whether it changes the outcome. In other words, engaging in all the pink sheet palava and the collection and collation of results will have nothing to do with anything. At best, it might well serve as a basis for the improvement of future elections, something that can be more simply achieved by a Commission of Inquiry.
4. Even if there is a finding of electoral fraud, that by itself will not automatically lead to the annulment of the ballot. It merely takes us to the next step which is to take judicial notice of the awesome effects of administrative power as asserted in one of the most important principles in administrative law, established by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The case raised the issue of how courts should treat agency interpretations of statutes that mandated that agency to take some action. The Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable. The rule of law in this case is that great deference is taken to an administrative body’s implementation of its functions, given that an administrative body like the Electoral Commission of Ghana is vested with constitutional powers to carry into being its purposes and thus is the master of its functions and operations and specialized in its work. Also, given the history and record of this particular Commission, it beats my imagination how someone can allege the level of impropriety that will make the court annul its decision. Thus the court will simply defer to the conclusions of the Electoral Commission and find it to be reasonable under the circumstances.
5. Finally, the court will not lose sight of its prudential powers, which should enable it to test the mood of the nation and to customize its decision to suit its best interest. The court, as an institution, does not exist in a vacuum. It exists for the purposes of advancing national progress, securing the freedoms and liberties of the people and vouchsafing the security and stability of the whole nation……This profound duty obliges it to make the kind of decision that will guarantee homeostasis within the body politic. The court, as the weakest branch of government looks to its own survival as an institution and will not engage in decisions which it cannot enforce, and which can threaten its very existence or the existence of the whole country.
Given all the above, it is the considered opinion of this writer that the Supreme Court of Ghana will confirm Mr. Mahama as the winner of the 2012 elections. This will not take away from the courage of those who took up the challenge to go to court, and whose work posterity will long remember as having strengthened the foundations of our nascent democracy.
Samuel Adjei Sarfo, Doctor of Law, is a General Legal Practitioner resident in Austin, Texas. You can email him at [email protected]