Tarzan asks: Are we better prepared for a disputed electoral outcome?  

After the 2012 elections, I hosted a special four-part series of my Tarzan’s Take television show under the theme “Beyond the Verdict”. The 2nd programme, titled “Never Again: Electoral Reforms & Constitutional Changes’, focused on the necessary reforms and legal changes that were needed to ensure that the outcome of future elections, especially the inauguration of the incoming President, would only occur after all the due processes involving any legal challenges had been decided.

 

Fortunately for us, there had been recent elections in Kenya whose outcomes had been petitioned and whose procedure for resolution provided a very good contrast to our own and perhaps suggested a way forward for us for the future.

When Raila Odinga petitioned the declaration of Uhuru Kenyatta as winner of Kenya’s Presidential elections, the action was started and disposed of in the middle of our own petition.  Many Ghanaians started to wonder what had gone wrong with our own efforts.

After all, the Kenyan case started long after our own and more importantly, the outcome was decided before the swearing in of Uhuru Kenyatta as the new President.

The Kenya case was decided in 21 working days whilst Ghana lasted for eight months. Our President, the legitimacy of whose election was being challenged, was sworn in within 10 days of the formal filing of the Petition by his Opponent, and a full four months before the formal hearing of the case commenced.

At the core of the Petitioner’s case was the claim that there had been several infractions of law and omissions of administrative procedures which, if accepted as proven by the Supreme Court, would uphold the case for overturning the declaration of John Mahama as President in favour of Nana Akufo Addo.

As the hearing of the Petition unfolded, the substance of the case was amplified and added to by many seemingly serious breaches and deliberate misconduct by election officials which amounted to collusion to subvert the will of the people as expressed at the ballot box on December 7, 2012.

Thus it was that long before the Supreme Court announced its verdict, the chorus of “WE NEED CHANGES TO OUR ELECTORAL LAWS” began to be shouted from the rafters by the participants to the dispute, their very loud and partisan supporters, and even the non committed spectators who still had a stake in the outcome of the case.

Since the verdict was announced on August 29, 2013, many of the reforms for doing things better have been adopted by the Electoral Commission and the political parties. Principal amongst these is the proposal currently before Parliament, to bring forward the election date by a month, and from December 7 to the first Monday in November, which happens to be on 7th this year.

Unfortunately, welcome as the reforms are, we have still not tackled the core question of “Should we swear in a President ahead of the conclusion of a challenge to the legitimacy of the election?” But in doing so, we need to be mindful of the danger of putting expediency ahead of thoroughness in the desire to shorten the process. “THE WHEEL OF JUSTICE GRINDS SLOWLY” it is said and we will do well to keep the echoes of “WE WANT JUSTICE” in the inner recesses of our ears at all times.

As far as I am concerned, determining the above matter is a bigger priority for Ghana’s Judiciary to tackle than spending their considerable energies on whether the voters register for the 2016 election is bloated or not; and how we should go about getting a credible register .

That the register is bloated is a ‘no brainer’ fact. Every voters register used in public elections in Ghana’s 4th Republic has been bloated. Yet, the outcome of all public elections, with the exception of the 2012 Presidential, have been accepted and implemented. Therefore, I see very little point in seeking a declaration that the current register is bloated, as is to be decided this coming Thursday.

The Supreme Court is also being asked to endorse a particular approach to getting a so called credible register. This relief I suggest does not lie in the gift of the court to grant given the strict constitutional stipulation about the independence of both the Judiciary and the Electoral Commission in the performance of their duties.

If we are not careful about how we handle this ‘credible register’ issue, we could cause very serious infractions to the timetable that has been laid out to bring this year’s elections forward by a month so that we may have enough time to deal with the post-election issues of possible challenge and transition.

The bald fact is that nobody can prescribe a perfectly credible register for the election; not here in Ghana or anywhere else. What we can hope for is that on Election Day, whatever legitimate votes are cast and for which candidates are the results that are declared.

The discussion on my programme was inconclusive. Justice VCRAC Crabbe, Chair of the infamous recent commission, was firmly of the view that we should not seek to set a timetable for dealing with petitions. On the other hand, the now Lordship Gabriel Pwamang held a contrary view that we should deal with any challenges ahead of the inauguration of the next President. Having been a member of the Constitutional Review Committee, he explained that this was the rationale for their proposition to bring forward the election date.

As at now, a bill to amend the constitution to allow for early elections is before the House.  Alas, even though the Chief Justice has set up a Committee to deal with this year’s elections, we do not have an  answer to the vexed question of “do we declare before we exhaust a petition as is done now”, or “Do we exhaust a petition before declaring a winner? as seems to be the preference for most Ghanaians.

Lest we forget, Isaac Amoo was declared the winner of the 1996 Ayawaso West Wuogon Parliamentary election one week before the Parliament he was supposed to have sat in was dissolved in 2000. Also as far as I have been able to research, no petition after the inauguration of a President has ever been successful in Africa or elsewhere.

Therefore, I would humbly suggest that the most important contribution our Judiciary can make to bringing sanity to our electoral process will be to focus its energies to decide that we will resolve all electoral petitions and related issues ahead of declaration of winners, and most importantly setting a timetable for this that fits into the agreed revised schedule.

 

The writer, Dr Charles Wereko-Brobby is the Chief Policy Analyst at GIPPO and can be reached via Email: tarzan@eyetarzan.org or Twitter; @eyetarzan