Election Petitions go beyond the normal cases we witness daily in court or read their outcomes in law reports. It is sui generis! Election petitions are, by their make and nature, direct attack on the integrity and efficiency of election management bodies such that when the latter does not defend it’s work well to clear all doubts in the minds of even it’s virulent critics, the consequences on subsequent elections are dire. Mistrust is one of the incurable blots an election petition plants in electorates when the election management body fails to adequately rebut all issues raised in an election petition.
For this reason, lawyers for election management bodies across the world mostly avoid employing legal technicalities to dispose off Election petitions even if such technicalities are grounded in law. In fact, the courts have mostly closed their minds to such shortcuts to deal with Election petitions. The courts do this not because such legal shortcuts are not, once again, grounded in law, but for the very simple reason that they want to get all parties and the general public satisfied with the outcome of the petition. The courts in such cases do not want a situation where the public will not have a feel of what actually transpired at places where they were not privileged to be for which reason the petitioner has raised issues by way of Election petition. No matter how frivolous and vexatious the Petitioner’s case is, the courts have allowed the process to flow without truncating it even if there was the need to do so. As pointed out earlier, the image of the election management body and the trust the public reposed in it are very paramount in deciding Election petitions.
It appears Ghana’s Supreme Court considered this and decided not to detract from same. This explained why when respondents in the ongoing Election petition raised preliminary objections that the petition does not disclose any cause of action, the court, instead of taking arguments from parties and settling it before either proceeding to hear the petition or ending it at it’s embryonic stage, decided to defer it’s ruling on same. Ordinarily, the court should have first ruled on the preliminary objection. A ruling on the preliminary objection would have indicated whether there was the need to go ahead with the case or throw it out. The latter would have mean that there would have been no need for witness statements and cross examinations.
In fact, the Respondents wanted the case thrown out without going into it. But the Court in it’s wisdom thought there was the need to satisfy the appetite of the public and save the image of the EC so it deferred ruling on the preliminary objection. For the 2nd Respondent, disposing off the petition at the preliminary stage would have been welcoming news for them. But for the 1st Respondent, though same would have been a pleasant news, but the image of the Commission would have been left buttered and badly punctured beyond redemption of the court had granted their wish. It was for this reason that lawyers for the 1st Respondent ought not to have thought of attempting to deploy shortcut legal strategies.
Whenever an election petition is initiated, it calls into question the work of the EC. Regardless of how frivolous and/or trivial the issues raised by the petition, it is always or almost a direct call on the EC to defend it’s work. No matter how you look at it, a section of the populace would have issues with the EC after every election. And an election petition gives the EC opportunity to satisfy those who needed answers to nagging issues before, during and after the election. You may argue that the EC owes nobody explanation so far it’s work meets the constitutional and statutory framework. But beyond these legal frameworks, there is a human conscience aspect that needs to be satisfied to keep the EC afloat as a fair and transparent arbiter.
It is for this reason that the submission by lawyers for the EC that they have no intention to call any witness after filing witness statement is injurious to the image of the EC and the integrity of Mrs Jean Mensah. The image of the EC is fast sinking, if it has not already sunk. Public confidence in the EC has dipped to a record low. It has become common to hear on the streets that the EC rigged election for Party A or B. In the case of Jean Mensah, the circumstances that led to her appointment and some unpopular decisions she took afterwards, have created serious credibility crisis for her. Before the election, there were many who never voted NDC in any election who were of the firm believe that she would not be a fair minded referee. This is the opportune time to redeem her image and restore the dignity of the EC by defending her work and put the petitioner and others questioning her work to shame.
Yes, technicalities MAY save her from mounting the witness box but would that answer the questions many have raised and save her from moving round armed military officers? I think Jean Mensah should be thankful to John Mahama for challenging the outcome of the election as it’s an opportunity for her to be heard loud and clear. If the petitioner has not provided any evidence to back his claims, mounting the witness box and exposing him will be of great benefit not only to the EC but Jean Mensah herself. And here, the Supreme Court itself also has some image cleansing exercise to conduct.
It is a fact that after the Anas Aremeyaw Anas expose on judicial corruption, public confidence in our justice system has ebbed. It is now common to hear on the streets the chorus that our judges decide cases based on the depth of a litigant’s pockets or the size of a litigant’s goat. In the case of the Supreme Court, President Akufo Addo’s unprecedented appointment of a number of alleged loyalists to the apex court has worsened matters. There are those who still believe that the President appointed his loyalists there to serve his interest in matters such as what we have before the court. Some decisions of the apex court in some political matters have been heavily criticized as having been based on political ‘hallelujahlism’ other than grounded in law. This has led to the constant vaunting of this provocative cliche that “if you know the law, I know the judges”.
There are those who still believe that the appointment of Jean Mensah and the stocking of the apex court was a grand scheme to rig the election and use the court to legitimize the rigging. Against the backdrop of this wild claims, I was particularly happy when the court deferred ruling on the preliminary objection raised by the Respondents. Assuming, for purposes of argument, that the court had upheld the arguments of the Respondents in respect of the preliminary objection, a section of the public would have gone to town that they have been vindicated.
The fact that the law allows you to do something does not mean doing that thing will resolve all issues. If the law says you cannot be compelled to give testimony, that does not mean you should stick to strick jacket legal principles and evade what will set you free by walking the street of Accra without military men following you. Mrs Jean Mensah will have herself to blame if she does not mount the witness box to defend her work. If she does not, what it then means is that nobody will have the mind of going to court to seek redress after any Election.
Political parties will now be licensed and convinced to invest in training vigilantes to protect the mandates of electorates than investing in training lawyers to protect the votes of electorates in our law courts. When this happens, polling stations, collation centres and EC’s strongroom in future elections will be extremely chaotic. Ghana has come of age and anything close to this must be avoided. And this can only be avoided if Jean Mensah and the Supreme Court look beyond legal principles and uphold the public interest test. The real test of our democracy rest with the seven Justices. Let’s see whether they will throw it to the dogs or they will keep it intact.
Amorse Blessing Amos
Deputy Greater Accra Regional Youth Organizer-NDC