GHANA’S POLICY ON THE IVORIAN CRISIS (PART THREE): SAVING GBAGBO’S PRESIDENCY WITH THE LANGUAGE OF DIPLOMACY
BY SAMUEL ADJEI SARFO
As between the results announced by the Independent Electoral Commission and the Constitutional Council, which has legal validity for international laws in general and the Ivorian laws in particular? In coming to any conclusion, we have to scrutinize the nature of the powers and authority granted to the Constitutional Council and the procedures it used to reach its findings of facts and conclusions of law.
As a general rule, the authority for any legal body’s decision must lie in the simple commonsensical fact that it is logical and in line with both national and international laws. Such a decision must also be impartially made to advance the cause of human justice and fairness. Besides, any legal authority must have its established protocols and procedures through which it can assert the substance of its power; howbeit in all instances, form must not be upheld over substance. An administrative body’s decision (read an electoral commission’s decision) has a lot of deference with a reviewing legal entity and cannot just be dismissed merely on procedural grounds without material or harmful error. Even if it is proved by clear and convincing evidence that an administrative body erred in its decision, the error is sufficient to vitiate its conclusions only to the extent the error affected an outcome, and the error cannot be an excuse to obviate every aspect of an administrative body’s decision. Finally an administrative body’s decision is neither affected by the geographic space and time wherein it was announced, unless an agreement clearly stipulates that space and time are of the essence.
In the face of these settled rules and as between the electoral commission’s announcement and the constitutional court’s invalidation and recalculation of the electoral results, which declaration must be given credence? The electoral commission had the mandate to conduct the elections and to declare the results within a certain timeframe. If it was not able to declare the results, then the mandate would fall on the Constitutional Council to declare the results. The first question to analyze is whether the Independent Electoral Commission’s failure to declare the results necessarily leads to the situation where the power automatically goes to the constitutional court to declare any result it likes. Certainly, the law does not contemplate such absurd consequences. In international jurisprudence, any timeframe given by any law is necessarily directional, not mandatory. It is repugnant to universal principles of law to make a timeframe an absolute bar to any cause or course of action. Even statutes of limitation never constitute any absolute bar. And in a matter such as the adult franchise in which the sovereignty of a people is defined, nobody can put an absolute premium on a timeline.
But we can even be generous here and concede without admitting that the timeline for announcing the results in the Ivorian elections barred the Electoral Commission from ever announcing it. Under this analysis, estoppel requirements lead to the same logical conclusion that the results are still valid as announced by the Independent Electoral Commission. Before the eyes of the whole world, the results sheets were ripped by a Gbagbo supporter when the commission attempted to announce it within the timeframe. By this very act, it follows that the Gbagbo faction cannot benefit from a delay that arose from the obstructions and obstacles posed by their very acts.
Yet we can still concede that the Constitutional Council indeed had the power to announce the results, or any results. Their action will still be beyond the scope of its inherent power. The Council is not supposed to re-analyze or invent new results; it is simply to formally ratify the results as submitted by the Independent Electoral Commission. Beyond this interpretive scope of the Council’s power, the law leads to an absurd consequence, since the power of the court will trump the will of the people. This will be in contradiction of the principle that true sovereignty lies in no court, but in the mass of the people. Here, the court struck down half a million votes! What evidentiary or procedural standard supported this arbitrary and disparate and desperate action? And wherein lies the power of the court to do this? Assuming that the court had such untrammeled power, how did it proceed to exercise it? How many witnesses were called? How many arguments were made? What universal due process standards were used in coming to a conclusion that affects the adult suffrage of the people of the Ivory Coast?
Even if all these questions were elegantly answered, the court’s decision will still be wrong if it offends public policy and the fundamental principles of justice and fairness known in civilized societies. And it does, given that the whole issue can be syllogistically summarized thus: a people went to the polls to elect a president under the aegis and mandate of the international community. The results were declared by a body mandated to do so and certified by the Nations’ Representative. Therefore the loser must accept the results as declared by the mandated authority and certified by the Nations’ representative.
Some attempts have been made by the Gbagbo faction to cite the case of Bush V. Gore, 531 U.S. 98 (2000) in precedential defense of their cause. The United States presidential elections are determined by electoral votes, not by popular votes. But the elections of the year 2000 was complicated by the question of who had the requisite electoral votes to win the presidency. As the final national results were tallied and before the Florida votes were declared, Bush had clearly won a total of 246 electoral votes, while Gore had won 255 votes. That meant that between the two contestants, whoever won the 25 electoral votes assigned to Florida would win the presidency. When the Florida votes were tallied, Bush was ahead by only 560 votes. Al Gore requested a hand recount of the Florida votes. On December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all "under-votes" (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court's decision. The U.S. Supreme Court granted review and issued the stay on December 9, 2000. It heard oral argument two days later. The questions presented were:
1. Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law?
2. Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?
Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam (unsigned) opinion held 5-4 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC Section 5). Unwilling to make broad precedents, the opinion limited its holding to the present case.
The fact in Bush v. Gore case is substantially distinguishable from the case at hand. In Bush v. Gore, there were no contested questions as to facts or procedure and there was no conflicting announcement by the Supreme Court as against the announcement by the mandated body in Florida. The legitimate body did announce the results, but a challenge was made to the court by Al Gore to recount votes in certain precincts since the results in those precincts were enough to affect the overall election results. The Supreme Court halted the recount, sustaining the votes as announced by the Florida Secretary of State, and handing victory to George Bush.
Here, in the Ivorian instance, there was no challenge by the parties to the Constitutional Council. There was no proximity in the percentages of the votes, and there was no quantum or quantifiable votes to easily bridge the gap of the winner (who had 54%) and the loser (who had 46%). The Council relied on a timeframe technicality to highjack the power to announce trumped up results. Based on a data concocted after cynically throwing out half a million Ouattara votes, the Council reached an absurd conclusion and handed a pyrrhic victory to Gbagbo. The court had insufficient or no procedure to offer the parties the chance to argue their case. The court did not rely on the legitimate statistics or proper procedures for the discernment of truth. It merely relied on an arbitrary power and pin-head technically to stifle the clear choice of the people and to award victory to Gbagbo.
But even the Bush v. Gore decision, in spite of its adherence to all the proper procedures of American jurisprudence, is too controversial and discredited, signaling the lowest point in American jurisprudence. The opinion itself impugns its precedential value by stating, “the per curiam opinion limited its holding to the present case”. Moreover, if upon impartial analysis, a decision is found to be inherently flawed, it must not serve as stare decisis in developing countries simply because it emanates from the pantheon of an American Supreme Court. Surely Laurent Gbagbo, who cut his milk teeth in politics by personifying the ideals of democracy, has a unique obligation to exemplify its model and blaze its trail. Again, the man who suffered the pain of having his victory annulled must be circumspect in dishing out the same fortune to another victor. The lessons inherent in the Bush v. Gore decision for Gbagbo ought rather be in the character of Al Gore who accepted defeat honorably although he was then the Vice President. Or in the Equal Protection guarantees inherent in the Fourteenth Amendment of the United States Constitution that individual ballots cannot be devalued by "later arbitrary and disparate treatment". Or that time {for announcement of election results} is inconsequential and of no essence when it comes to preserving the constitutional rights of a people.
But as a typical scoundrel of African politics, Laurent Gbagbo has chosen the low path to his political demise. As a rogue, he has used ethnocentrism to divide the country into immigrant Ivorians and Ivorian Ivorians. As an illiterate in the interpretive canons of law, he has resorted to slim-headed technicalities to claim his victory. As a dangerous dictator and traitor, he has blocked his nation’s ears against the protestations of the international community, using the state media as an apparatus of crass miseducation and misinformation. As a power maniac, he has surrounded himself with crooks and yes-men who are singing his favorite songs for him to dance out the shame of his nakedness. As a fraudster, he has gone back on his contractual obligations, second-guessing the decisions and conclusions of impartial judges whom he himself invited to adjudicate a solution to his country’s problems. As an eternal crook, he has used political gymnastics to the hilt, until he has been encircled by his own acrobatic lies……
Having thus thrown the gauntlet and thumbed his nose at the civilized world, Gbagbo has gone further to cast the issue as one to be viewed through an ideological prism of socialism and capitalism, and to be resolved through the fallacy of power-sharing. However, this is a clear case of someone who simply set aside the will of a people, wrapped himself in the trappings of power, and misled a mass of intellectually dishonest people into the catacombs of delusion. Moreover, as a historian, Gbagbo has ironically failed to learn from history. He has ignored the fact that the people demonstrated in the streets to bring him to power when another tried to cheat him out of his election victory. For these and many other reasons, Gbagbo has set the stage for a theater of war in the Ivory Coast, and those who call for restraint and peaceful resolution should rather direct their attention to this architect of war who, in one fell swoop, has dismantled his nation’s ship of peace through a blatant usurpation of the people’s sovereignty.
Indeed, only Gbagbo and his cohorts are oblivious of the odds against which they stand. As I write, French forces have gathered in Burkina Faso, and the pro-Ouattara rebels are rallying north of the country. The UN forces are working in tandem with rebel forces in Abidjan to provide support and protection for Ouattara's government. United Kingdom is ready to join the strike should the United Nations approve the use of force. The US and other powers are ready to provide logistics. There is discontent in the core of the Ivorian army. The country has no Air Force. Gbagbo is protected by his special forces who are ready to run any day. What remains is an incisive strike to blow up Gbagbo’s house of cards, and this is just a matter of time.
Thus only a spell of somnambulist’s diplomacy could let Ghana ignore all these tell-tale signs and to support a President whose time has come. In the end, Ghana will have nothing to gain but everything to lose. Under the inevitable Ouattara government, Ghana will take years to repair the damage done to her international image, and her credibility as a power broker in African affairs. Ghanaians in Ivory Coast will be viewed askance, and the people of the north will not forget Ghana’s lackadaisical attitude towards their plight in their time of extreme need. Ghana’s oil interest will also be subjected to the judgments of a hostile neighbor. And all this will come to pass because when it came time for the truth to be told for democracy to be sustained, President Mils and F.P. Rawlings decided that the best course of action is to prop up a failing dictator who is bent on stealing an election.
Samuel Adjei Sarfo lives in Houston, Texas. You can email him at [email protected]