Opinions Tue, 27 Aug 2013

Countdown to Judgement Day (Part III)

By Dr. Michael J.K. Bokor

Item Three: The Supreme Court’s Verdict

As we inch toward August 29 for the Supreme Court’s verdict on the NPP’s petition challenging the legitimate victory of President Mahama at Election 2012, we hear pronouncements from across the political divide that the verdict will be determined in one of the following ways: a unanimous verdict, an 8:1 or 7:2 or 6:3 majority decision (thanks to Sam Okudzeto). But there is also a 5:4 possibility.

A unanimous decision means that all the 9 judges will take one common position to conclusively determine the winner or loser. Will this consensus be difficult to attain? Not so, if all the judges believe in the relevance of the franchise and the outcome of the kind of free, fair, and transparent elections that took place on December 7 and 8, 2012. Nothing creates any doubt about the genuineness of the polls and the results therefrom. So, why shouldn’t unanimity be the highest expectation?

The majority decision (whether based on a ratio of 8:1 or 7:2 or 6:3 or 5:4) will raise eyebrows but exhaustively end the litigation. What will be left open is why there will be a majority and minority position on such a simple and straightforward matter: that elections are won at the polls when votes are cast, counted, certified, and announced as the true reflection of the electorate’s political will and not in the dark chamber of the Supreme Court on the basis of clerical errors and indeterminable factors (such as why the Presiding Officers failed to sign the pink sheets). Other grievances on serial numbers and over-voting or voting without biometric verification are purely absurd and not worth considering at all.

I have the strong conviction that the NPP petitioners will lose the case and choose the review method only to be given another lethal blow to dim their political light, even for Election 2016.

As Okudzeto put it, if the loser is to go for a review, only two justices will be added to the nine; and it is unlikely that the decision will be overturned. I have no objection to this opinion because once the Supreme Court gives its ruling on the matter, no amount of witchery or prayers can force it to reverse it.

Rather preposterously, though, it is the NPP camp hat has settled on either a 7:2 or 6:3 majority option to make it the winner, basing the choice on what is considered to be the “water-tight evidence” adduced during proceedings. Some unspoken words hint that the “9” will come from the NPP sympathizers among the 9-member panel. But that is their own cup of tea.

The NPP followers are misconstruing talks from the NDC camp regarding “the winner-takes-all” syndrome as an admission of loss and that the NDC might be seeking to cool tempers to be accommodated by a winning NPP. Others claim that Hassan Ayariga of the PNC and other opposition members paid a visit to Akufo-Addo, indicating that they have foreseen a positive change in his political fate, come August 29.

On the other hand, President Mahama and the NDC camp are optimistic of victory but haven’t said by what margin nor are they bothered by the claims of the NPP petitioners and their followers.

Now, here is the main issue: Of course, in law, opinions differ, which is why some are claiming that the verdict will be by a majority decision.

What will be interesting to know is which judge will root for the petitioners and why and which for President Mahama, the Electoral Commission, and the NDC, and why.

If the judges don’t want to undermine the electoral process, they should be guided by principles on what constitutes voting/franchise and why that franchise is an integral part of the democratic process. What it means is that it is votes that matter, not technicalities woven around pink sheets.

Obviously, the votes cast, counted, and announced by the EC were not passed through the pink sheets first. The collation forms that were aggregated and the outcome of the elections known, certified, and released by Dr. Afari Gyan preceded the entries to be made in the pink sheets. So, what is the justification for the petitioners’ turning to the pink sheets and not the collation forms or the primary evidence of voting (the ballot papers) to fight their case? And is that what will appeal to the conscience of the Supreme Court judges to root for them?

In a democracy, nothing is more sacred than the ballot paper and the opportunity given voters to exercise their franchise. The electoral decisions made by the voters translated into the choices that they made when they voted. They had nothing to do with clerical issues as evidently present in the entries to be made in the pink sheets by the Presiding Officers.

In the case of Election 2012, one outstanding positive aspect was the signing of the pink sheets by the polling agents representing the various contestants. By that singular act, they endorsed the outcome of the elections at each polling station. Endorsing the results means accepting it as a fait accompli—a true reflection of the political will of the electorate. Whoever doubts this endorsement is a threat to be written off like a bad debt, not pampered or encouraged to poison public opinion and threaten national stability.

So, if any judge thinks otherwise and agrees with the NPP petitioners, what will he/she be doing but supporting a wrong move based on mere technicalities as against the actual primary element that determines the outcome of elections.

We are suggesting that the failure of Presiding Officers to sign pink sheets, for instance, is a mere administrative lapse that has no impact on the actual event—the voting that took place on December 7 and 8, 2012, and its outcome. Thus, if a judge sides with the NPP, using this transpositional errors or clerical lapses as a justification, he/she will be helping to set a nasty precedent that is detrimental to future elections: a disgruntled Presiding Officer whose preferred candidate loses the elections at the polling station will simply refuse or fail to sign the pink sheet and create favourable grounds for that lapse to be used by malcontents seeking to overturn the outcome of the elections in court. Future elections will, therefore, stand endangered. Is that what Ghana needs?

It will be very intriguing to know which judges will support which side in this petition. That is why we will insist that we be given full details on how the judges individually approached the matter. They will have their pre-August 29 conference and give opinions to support whatever stance they take. In declaring the verdict, we should be told the position taken by each judge and why. That way, we can interpret issues better. Obviously, some career-challenging instances abound in the handling of this petition!!

Another angle to the expectations regarding the verdict is that there are three possibilities:

1. A declaration that President Mahama was validly elected at Election 2012 (retention of the status quo);

2. An annulment of the so-called over 4 million votes cited by the petitioners as being in contention and a declaration of Akufo-Addo as President in consequence; and

3. A declaration that the elections lacked credibility and an order for a re-run or that even after some annulments, neither President Mahama nor Akufo-Addo can have the required quantum of votes to be declared the winner of the 2012 Presidential elections and, therefore, a re-run of the elections should be done.

I am convinced that the first option will prevail. The demand for over 4 million votes to be annulled to put Akufo-Addo at the Presidency will be disregarded by the Supreme Court because it is made in bad faith and is an insult to the electorate. The reality on voting day runs counter to this self-serving demand. How can so many people be disenfranchised just because of clerical errors by Presiding Officers or unsubstantiated allegations of over-voting or voting without biometric verification?

Option 3 is not only absurd but ill-conceived. Who will conduct the re-run? This very Electoral Commission that the petitioners have sought to discredit? Will the Supreme Court judges be so unintelligent and muddled in their thinking to impose this burden on the EC? Or will they ask that the current crop of EC officials be replaced with others before being tasked to conduct “credible elections” in this case of re-run?

What, then, will be the time-frame for such a re-run? And who will be ruling the country while this preparation goes on? The Speaker of Parliament? He isn’t qualified in this circumstance. The Chief Justice? Inconceivable because she has no locus!! So, the country will be left acephalous (without a head)? Why will the judges be so stupid to go that way?

I invite you to read this article: http://opinion.myjoyonline.com/pages/comment/201308/111810.php

You see, the demerits far outweigh any merit that such an option may entail. There will be no re-run.

So, the obvious expectation—based on incontrovertible fact that he genuinely won the free, fair, and transparent 2012 elections as declared and reinforced during the proceedings by the EC—is that the incumbent John Mahama will be retained in office and given a free hand to rule the country as he has already been doing. He has already consolidated his grips on power and will not be easy to divest of that power and authority.

In effect, then, the NPP’s petition will end up as a futile exercise in legal acrobatics and political jingoism. Votes cast at the polls determine the fate of candidates, not clerical lapses as is being traced to pink sheets gathered from only the strongholds of the NDC where President Mahama won, excluding any from the NPP’s strongholds, where Akufo-Addo won.

What sort of jaundiced approach to justice and equity is this? And to imagine that the petitioners skewed their so-called pink sheets evidence, basing their (mis)calculations on less than half of the total number of polling stations that took part in Election 2012!! How representative is that evidence? The petition is just for academic purposes and won’t change anything regarding the administration of the country.

We are even not talking about the handicap facing Akufo-Addo, assuming that the Supreme Court is even favouring him as the winner. With the NPP’s minority in Parliament, how will he hope to accomplish anything, especially if it has to be handled in conjunction with the Legislature? Will this kind of situation help the country to move forward? I don’t think so, which is why it will be catastrophic to either annul the over 4 million votes cited by the petitioners to put Akufo-Addo in office. Hoodoo!!!

I shall return…

• E-mail: mjbokor@yahoo.com

Columnist: Bokor, Michael J. K.