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01.05.2016 Feature Article

Kudos To The Ford Foundation For A Magnificent Report On The Ghana Supreme Court's Decision On The 2012 Presidential Election (1)

Kudos To The Ford Foundation For A Magnificent Report On The Ghana Supreme Court's Decision On The 2012 Presidential Election 1
01.05.2016 LISTEN

Democracy, it has been observed, is not the best system of government in the world. Yet – paradoxically – there is none better than it that is known to man!

Democracy is such a difficult bird to catch because it depends on a great number of institutions in the body politic to succeed in its task of providing a country with what Abraham Lincoln, in the Gettysburg Address of 1863, eloquently described as -- “government of the people by the people for the people.”

Government of the people means a government voted for by the people. But there can be election disputes after a people have voted. What happens then? Is a government that is put into power by a country's Supreme Court a “government of the people”?

The answer to that question is “yes and no”. Yes, because, if the judges on the Supreme Court are incorruptible as well as erudite, they will reaffirm the decision the people made at the polls.

But if they are corrupt or “dense” as far as knowledge of the law is concerned, they will come to the wrong decision and impose on a country, a government that it did not vote for. And the notion that judges are as clean as a whistle has been blown sky-high by the revelations of Anas Aremeyaw Anas.

Apart from that, doesn't someone have to nominate judges? If yes, doesn't that nomination process encompass considerations that are patently political?

Right now, for instance, President Barack Obama is fighting the US Congress to t get his nominee for a Supreme Court judge to replace the deceased Justice Scalia confirmed by the Congress. Both the President and the Congress are less interested in the legal brilliance – or otherwise – of the nominee than in his political philosophy. And for a very good reason – a lot of laws that could have improved the lives of millions of Americans are routinely struck down by conservative Supreme Court judges who don't want to disturb the status quo.

Yet over here, we are supposed to take it for granted that judges are somehow immune to political bias. We bought into that notion from the British, of course, In Britain, judges are supposed to be immune from all political and social biases, although, if you pry deeper, you will find that many of the judges went to Oxford or Cambridge University and that most of them are white males.

Even though not all our judges and magistrates have been to Oxford and Cambridge or Harvard, their judgements often point to a bias in favour of the rich and against the poor.

That we must not take the judicial system for granted, where politics are involved, has been brilliantly elucidated by a study commissioned by the Ford Foundation into the judicial process that led to Mr John Dramani Mahama being declared president of Ghana in August 2013. The study is called The Burdens of Democracy In Africa and uses the Ghana case as the basis of a discussion of how Supreme Courts often reverse the people's verdict and impose that of the nine or more judges who sit on election petitions, on the millions of voters in a country.

The study was carried out by a Nigerian lawyer called Bamidele Aturu, a former prisoner of conscience under military rule, who is described as “one of the most outstanding lawyers of his generation and .... an expert in election dispute resolution and electoral litigation in Nigeria.”

Mr Aturu undertook the project and prepared a Report at the request of the Ford Foundation. Tragically, in July 2014, long after completing the Report and while it was in the process of being prepared for publication, Mr. Aturu died suddenly at the untimely age of 49. Thus, the Report is a sort of political bequestby him to the people of Ghana, and ultimately, to the people of Africa.

In a Foreword to the Report, Dr Chidi Anselm Odinkalu, Chair, Governing Council, National Human Rights Commission of Nigeria in Abuja, wrote:

QUOTE: “Votes settle elections. Ordinarily, the votes that should matterare those of the citizens. [Bu7t] though indeed cast by citizens, the votes that decide elections for the highest offices in many African countries are no longer cast on voting day or in the polling units. They are not even votes that can be counted or administered by the Election Management Bodies (EMBs), howsoever called.

The decisive votes are increasingly cast by mostly men and a few women who sit as judges in Supreme Courts after hearing arguments from highly prized and paid lawyers in rooms or miniature halls to which most citizens don’t have access. This development fundamentally changes the nature of the election as a mechanism for deciding who exercises power in our countries as well as theories of politics founded on it.

“To begin with, candidates for elections must prepare for two campaigns: a campaign that culminates in the popular ballot, which then relocates to the courts for ultimate resolution by a judicial verdict. For candidates, political parties and other participants in the electoral process, this is very expensive materially and emotionally. Most opposition candidates lack the resources to match incumbents in this contest.

“The legitimacy that comes from these judicial outcomes is artificial.As such, they foster political instability,emasculate citizenship as the site and source of sovereignty in the political system, prolong the divisions and passions from electoral contests, and tarnish the institutional credibility of the judicial process. The rising trend of relocating high level electoral contests for resolution to the court rooms removes the element of indeterminacyfrom the outcome of elections. This element of indeterminacy in elections comes in substantial part from the contemporaneous exercise of the franchise in multiple locations on the same day.

“No one can control, dictate or predict the outcome of such an exercise. Courts can be gamed, however, and their outcomes can be easily influenced in a lot of countries where the judiciary lacks independence. This also masculinizes the vote because most Supreme Courts in Africa have in-built male majorities, with only a smattering of female judges. By contrast, women vote more than men in most African elections. Relatedly, the franchise in a general election is inherent in citizenship. By contrast, the vote of a judge of the highest court is [only] dependent, first, on their beingappointed as a judge and then, on being chosen as a member of the panel or bench to sit on the case.

“The threshold appointment is an executive act; the latter occurs in the discretion of the head of the court – also an executive appointee – howsoever designated. It is a privilege. Notwithstanding how much doctrines of independence of the judiciary may mask it, he reality is that judges are not immune to pressures in high stakes political cases, such as when deciding who should or should not become the President. Therefore, when the judiciary sits to decide who the President could be, there must be legitimate questions as to whether the contest is fair and the field level between the incumbent and those who challenge him or her.

“In this Report, Bamidele Aturu demonstrates that these fears are justified. To prepare it, he attended and observed the proceedings of the Supreme Court of Ghana during the half-year-long judicial determination of the outcome of the presidential election of December 2012, which was finally decided in August 2013. The Report, however, undertakes a comparative analysis of the jurisprudence from high level election disputes in six African countries, namely: Ghana, Kenya, Nigeria, Uganda, Zambia, and Zimbabwe. It calls in aid additional jurisprudence from the United Kingdom and the United States of America.

“The resulting analysis is at once highly intricate, compelling, sometimes even galling. It is also both respectful of high judicial office and irreverent. This report explodes many myths about election dispute resolution. Some of the nuggets that emerge verge on the incredulous and make the outcomes of some of the cases discussed look manifestly crooked.For instance, when it gave its decision on 29 August 2013, Ghana’s nine-judge Supreme Court announced a 6-3 split in favour of the incumbent. The day after, this was corrected to 5-4, still in favour of the incumbent. This Report, however, shows as a fact that at least five of the Justices voted in favour of the petitioners and against the incumbent. So, did the loser emerge as winner? UNQUOTE

(To be contd.)

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