Imagine what would happen to our electoral system if in future every presidential election ends at the Supreme Court. Before I go on, permit me to make a brief contrast between the 2012 election and 2020 Presidential Electoral petitions. From my perspective, while the 2012 petition exposed several weaknesses in the electoral processes and caused fundamental reforms of the process, the 2020 petition was nothing short of electoral ‘witch-hunting’ and predictably turned out to be a classic case of waste of time, resource and valuable man-hours.
I arrived at this conclusion based on what transpired at the two hearings. While the 2012 petitioners presented more than 10,000 pink sheets as source documents to plead with the Supreme court, the 2020 petitioners went to court with no pink sheets to justify why they were calling for nullification of the results and a re-run of elections. Surprisingly, the key witness of the petitioner, Mr. Johnson Asiedu Nketia, only presented a few ‘samples’ out of the 38,000 polling centres to argue his case. Seriously, a case of such magnitude and political ramifications cannot be won based on ‘samples’.
From the outset of the results’ declaration on January 9, 2021, the main contender, the National Democratic Congress (NDC), failed to offer any convincing argument to support the wild claim that its Presidential candidate, John Dramani Mahama, won the Presidential poll. While the Electoral Commission was yet to declare the confirmed results, various leaders of the NDC took turns to propagate unsubstantiated information about their win. The first claim was that John Dramani Mahama had won convincingly and was ready to form the next government. Some party officials, using a typical ‘doublespeak’ strategy, addressed their candidate as ‘the President elect’. They then mounted pressure on their main opponent, President Akufo-Addo, to concede defeat and congratulate his opponent. Ironically, Mr. Dramani Mahama is yet to congratulate the winner.
Based on this false hope, scores of supporters invaded the streets of Accra to protest against what their leaders described as attempts by the Electoral Commission’s Chairperson, Mrs. Jean Adukwei Mensah, “to change the mandate of the people’. So incensed were the NDC supporters that even when the eventual winner was declared with (51.59 %) against the loser (47.36%), they yelled “Mahama afa” (Mahama has taken it). The attitude of the supporters was largely based on the false information they were fed with. After inciting their supporters to embark on street riots, the NDC eventually went to court as a last resort. In fact, going to court remains the first option for every election dispute as part of our electoral arrangements. As to why the opposition exercised the first option last, it is difficult to understand.
The substance of the case
As stated earlier, the petitioner shifted his position from being the outright winner to no-winner and finally to a drawn game. Curiously, the demand for a re-run of the election became the thrust of the 2020 election petition. But when the hearing commenced, the three key witnesses based their statements on the unconstitutionality of the elections’ declaration – and no longer about the initial uproar over validity of the results. In fact, from my layman’s point of view, I found it difficult to make any sense out of what constituted unconstitutionality of the election results, simply because the first respondent transposed the total votes cast with the total valid votes cast.
Not even a correction of the transposed figures in a press release the following day assuaged the fears of the petitioner that the election was free and fair. Mr. Asiedu Nketia’s bold statement that they were not in court to contest validity of the results but their declaration unmasked the real reason behind the petition. This explains why he (Nketia) came to court with samples, rather than having copies of pink sheets to argue their case for a re-run. As for the two other witnesses of the petitioner – Dr. Kpesah Whyte and Rojo Mettle Nunoo – the Supreme Court rightly described them as “fanciful witnesses”, because they added nothing to legal and common knowledge.
If indeed the petitioner and his witnesses did not go to court to challenge the validity of results, what was the real motivation for the petition? Conceivably, the petitioner and his witnesses sought to settle scores with the Chairperson of the Electoral Commission, Mrs. Jean Adukwei Mensah. From the start of the court hearing to the conclusion, every action and argument of counsel and witnesses for the petitioner pointed to one noticeable agenda – to use the petition to build a case of possible incompetence or unconstitutional conduct against Mrs. Jean Mensah; and with that to start a case of impeachment against her. The case was more targetted at Mrs. Mensah as an individual and not the Electoral Commission as an institution, on whose behalf she played the role of returning officer.
The spirited attempt by Counsel of the petitioner to compel Mrs. Mensah into the box as an adverse witness attests to my assertion that the petition was more of a ‘witch-hunting’ exercise’. I heard the Supreme Court judges repeatedly reminding Counsel for petitioner that there is no legal basis in any jurisprudence whereby anyone can be compelled to be a witness against the grain. It became clear from the ruling of the eminent judges that a case can only be won based on the strength of the petitioner, and not on the weaknesses or flaws of the respondent’s statements. In short, the NDC went to court without documentary evidence and wanted the Supreme Court to help it to use Jean Mensah as an adverse witness to prove its case. Small wonder that Mr. John Dramani Mahama used his entire response to the verdict to lament on why the Supreme Court failed to compel Mrs. Jean Mensah to testify.
Unlike in 2012 when the petitioner (Dr. Mahamudu Bawumia) mounted the witness box to justify their case, in 2020 the petitioner only used witnesses. The most legitimate question then is: if the petitioner did not mount the witness box in 2020, what compelled the first respondent to mount the witness box? The other question is: why has Mrs. Jean Mensah become such a ‘nagging headache’ or an ‘unruly boil’ for the NDC that must be lanced at all cost?
Perhaps, the NDC might have come to the realisation that with Jean Mensah in the seat as Electoral Commissioner, their chances of winning the presidency would remain a wishful dream. The search for an equivalent justification for the impeachment of Mrs. Jean Mensah, like Mrs. Charlotte Osei, is not worth pursuing. For this reason, I urge the NDC to abandon its agenda against Mrs. Jean Mensah and respect the Supreme Court’s unanimous ruling. The lack of evidence for the petitioner’s case was so glaring that the petitioners should not use anyone as a scapegoat – not Jean Mensah and certainly not the Supreme Court justices.
Response to the rulings
In 2013 when the Supreme Court delivered its (5-4) controversial ruling, the second respondent, Nana Addo Dankwa Akufo-Addo, demonstrated statesmanlike conduct that soothed the pain of his party supporters and allayed the fears of those who feared Ghana could go sliding down the slope after the ruling. Nana Akufo-Addo indicated that though he disagreed with the Supreme Court’s verdict, he accepted it. “I accept that what the Supreme Court said brings to finality the election dispute. Everything in my bones, whatever I have done with my life makes it imperative that I accept the decision in the interest of Ghana. I am saddened by the verdict, and I know that many of our supporters are saddened too; however, for the sake of our country we must embark on a path that builds rather than what destroys.”
Nana Addo subsequently called President John Dramani Mahama and congratulated him. The late Vice President, Mr. Amissah Arthur, in an interview with the media confirmed that Nana Akufo-Addo indeed called and congratulated then President John Dramani Mahama. Mr. Arthur is on record as thanking Nana Akufo-Addo for demonstrating maturity and conceding defeat. Someone should tell John Dramani Mahama to respect the electorate, demonstrate true statesmanship and congratulate President Nana Addo Dankwa Akufo-Addo.
Conversely, after the Supreme Court ruling on March 4, 2021, ex-President John Dramani Mahama’s response was pregnant with a calculated plan to run-down the Electoral Commission’s Chairperson and the Supreme Court of Ghana. The ex-president said Ghanaians were hoping to hear Mrs. Mensah testify and “many Ghanaians were baffled by the refusal of Mrs. Jean Mensah to be held accountable. The refusal of this chairperson is in sharp contrast to the readiness of with which Dr. Afari Gyan testified in the 2013 petition. The refusal of Mrs. Jean Mensah to testify is a very bad precedence for the future”, he warned.
He said failure to compel Mrs. Jean Mensah to testify “leaves an embarrassing stain not only on justice delivery, but on Ghana’s electoral system. Her refusal to account to Ghanaians further sets a worrying precedent, and I do really worry about this dangerous precedent that may allow other heads of state institutions to adopt the approach of opacity and non-accountability in their work – just because they know that they can be protected by unconvincing interpretations of our laws to shield them from scrutiny”.
Attacks on institutions
As I indicated earlier, the petitioner’s action was calculated at turning public anger against the two state institutions – the EC and the Supreme Court, and the above statement supports my assertion. Mr. Mahama shrouded his attack on the Supreme Court in his interpretation of Article 125 (1) of the 1992 Constitution, by which he states that “justice emanates from the people and shall be administered in the name of the judiciary, which shall be independent” – perhaps, suggesting that the Supreme Court is not independent. “I believe that law shall not be an instrument for partisan politics,” he added.
Mr. Mahama’s posture against the Supreme Court probably prepared the ground for members of Parliament in his party to jeer at the Chief Justice and other justices during the recent State of the Nation Address. Undoubtedly, the attacks on state institutions because decisions did not go the way one political party anticipated is a threat to our democracy and our quest to build strong institutions. While the Judiciary has the Constitutional arrangements to protect itself from politically motivated attacks, the Electoral Commission needs support from all Ghanaians.
The institution of an Electoral Commission must be protected by all stakeholders if we are to collectively grow our democracy to the next level. Ghana has been identified in West Africa as the most stable democracy largely due to electoral reforms the Electoral Commission has embraced over the years. In fact, the dangerous precedent in our democratisation journey is not the 2020 presidential results, neither is it the Supreme Court verdict on the 2020 election petition; it is the calculated and politically motivated attacks on state institutions like the EC and Supreme Court, which are critical to our electoral management system.
(***The writer is a Development and Communications Management Specialist, and a Social Justice Advocate. All views expressed in this article are my personal views and do not represent those of any organisation(s). (Email: [email protected]. Mobile: 0202642504/0243327586