WHY JOHN MAHAMA IS ASKING SUPREME COURT TO ORDER FOR RUNOFF INSTEAD OF ASKING FOR HIM TO BE DECLARED WINNER OF THE 2020 ELECTIONS
It cannot be gainsaid that the reliefs sought by petitioners in 2012 election petition are not ‘pari materia’ with the reliefs being sought by the petitioner in 2020. However, the outcome of the novel 2012 election petition laid down what I called the thinking of the Supreme Court when it comes to Election Petitions. All nine Justices of the Supreme Court in their respective judgements in 2012 concluded, though purposively, that the apex court of the land would not declare another candidate winner of an election other than the candidate the Electoral Commission had declared winner. In 2012, the court affirmed the EC’s declaration of John Mahama as winner, of course with a slim margin of 5:4. This is not to say the Supreme Court has no power to do that, but based on the outcome of the 2012 election petition, it is almost a known norm for now that the Supreme Court will prefer voters choose their own President other than the Court relying on legal principles to do it on their behalf.
The Supreme Court might have adopted or taken this position based on the respect it has for individual’s right to vote and to make a candid choice on who governs this country. In other words the Supreme Court is saying everybody’s vote must count. So you would realized that even the four Justices who upheld Nana Akufo Addo and his colleagues’ argument in 2012, declined to annull over three million votes and declare the latter winner of the election instead of John Mahama who was declared by the EC as winner. What the four Justices did in 2012 was to acquiesce to the existence of infractions as alleged by the petitioners but declined the invitation to annul same and declare the beneficiary of the annulment as winner of the elections. This was contrary to Nana Akufo Addo and his colleagues’ request that votes from the affected areas totalling over three million should be canceled for him to be declared winner. For instance, where the four Justices, in their dissenting opinion, agreed with the petitioners in 2012 that votes obtained by candidates on an unsigned pinksheets by presiding officers should be annulled, they rejected the petitioners plea that after the annulment, the figures should be re-collated and the petitioners declared winner. The court preferred voters from such areas be given another opportunity to make an input into who leads the country and the rules governing elections adhered to.
From this, it was clear that the Ghana Supreme Court flashed the hazard light on potential petitioners who, after losing election, will rely on infractions to get votes cancelled for them to be declared winners. The language the Supreme Court spoke which many have still not gotten was, if a petitioner alleged infractions, the best it could do was to cancel votes from those areas and call for rerun of the affected areas. This, as pointed earlier, was to give people the opportunity to speak through the ballot themselves and not the Supreme Court doing that on their behalf. In 2012, Nana Akufo Addo wanted the Supreme Court to declare him winner but in 2020, President Mahama is not looking towards that direction but a runoff to give voters the choice to decide the winner.
In fact, two groundbreaking decisions of courts on election petitions on the African continent in recent time support this observation that the courts prefer rerun instead of declaring the petitioner winner of the election. The constitutional court of Malawi in 2019 invalidated a controversial re-election of president Peter Mutharika; and in 2017 the Kenyan supreme court also invalidated the re-election of president Uhuru Kenyatta. In both cases, the decision was final and required a RERUN (emphasis is mine). Both courts invalidated the results as declared by the EC all right as the petitioners requested, but declined to declare the opposition leader winner of the election and instead directed that the voters be given another opportunity to vote. This is a nascent trend that has emerged on the African continent. In the case of Malawi, when the court ordered for the rerun, the main Opposition leader beat the sitting President who was earlier declared winner by the EC.
The posturing of the Ghanaian Supreme Court coupled with the trend on the continent, probably, explains why lawyers of President John Mahama are not praying the Supreme Court to declare Jean Mensah’s declaration unconstitutional, order for recalculation or re-collation of the results and declare Mr Mahama winner instead of President Akufo Addo. President Mahama is simply telling the court that set aside the declaration and give the voters the opportunity to take a firm decision on him and President Akufo Addo since none of them got the Constitutionally required 50%+1. Put differently, President Mahama is telling the Court to order for runoff between him and President Akufo Addo since none of them got the required number of votes to be declared President elect. This request falls in line with the thinking of the court and the trend that has emerged on the continent when it comes to election petition.
So far, no court on the continent has cancelled elections and declared the petitioner winner. What the courts have done so far was to either order for rerun of the elections or affirm the validity of the winner as declared by the EC. In the case of John Mahama, he weighed available options and concluded that instead of asking the Supreme Court to set aside the EC’s declaration and declare him winner (based on annulment of padded votes, over voting etc) which the Supreme Court had indicated it’s unreadiness to do, then he would ask the court to order for runoff after setting aside the declaration, a practice the Supreme Court and other higher courts on the continent have extreme likeness for.
The likelihood of Mr Mahama overturning the verdict at the Supreme Court would have been looking foggy if he had asked the Supreme Court to declare him winner of the election. It would have been like a child asking his father to order his brother to give him the only football he bought for both of them and declare him the owner of the football when he knew his father, in the spirit of fairness, had indicated his unwillingness in the past to do so. This boy, knowing the thinking of his father, rather asked him to order his brother to make the ball available anytime he wanted to play it. The boy opted for the second option because he knew his father would be more than willing to make such declaration with ease. In this ‘game’, you go for what the court is most likely to grant you with ease and not what the court is not likely to grant. Of course, the court could make consequential orders for runoff even if John Mahama has not requested for it, but it is prudent to beat the middle of the drum instead of its sides.
Some have argued that President Mahama abandoned his earlier claim that he won the election but due to padding of votes and other other infractions, the EC declared President Akufo Addo winner instead of him. Some have even said President Mahama did not provide any evidence of vote padding as alleged by his Party. Those arguing along this line, with the greatest of respect, have not read President Mahama’s petition to the Supreme Court. The petitioner stated categorically in paragraphs 30 and 31 that he has filed exhibits proving allegations of vote padding and wrong calculations. The petitioner could have relied on that alone and ask the Supreme Court to deduct the padded figures from President Akufo Addo’s number and declare him winner, ie if the votes are substantial enough to overturn the verdict, but he chose otherwise.
The lawyers probably did not travel that path because of the Supreme Court’s posturing when it comes to annulling votes and declaring another candidate winner. So the best thing to do was to seek relief inline with the thinking of the Court, i.e. rerun (in this case runoff) – giving voters another opportunity to choose their leaders and not the court doing it for them. It is significant to point out that Mr Mahama, before the polls, indicated that he would not accept results of a flawed election. This presupposes that even if he was the winner of flawed election, he would not accept the verdict. This posturing could also possibly inform his decision not to have asked the Court to declare him winner after setting aside the declaration. He perhaps does not want to be a beneficiary of an election that breaches the supreme law of the land. Mr Mahama is asking to be done what the court has indicated its willingness to do and not what it had indicated it’s unwillingness to do.
NB – I take full responsibility for the views expressed therein and any typos/mistakes spotted.
Amorse Blessing Amos
Deputy Greater Accra Regional Youth Organizer