Kudos To The Ford Foundation For Its Report On The Ghana Supreme Court Decision On The Presidential Election Of 2012 (3) – Series Concluded

So much interest has been expressed in the Report on the Ghana election petition case of 2012 by the late Mr Bamidele Aturu of Nigeria (who was commissioned by the Ford Foundation to prepare the Report) that I would have liked to present further discussions of it. But unfortunately, I have to end my treatment of the Report this week.

However, I am happy to refer those who want to see the Report in greater detail to the Ford Foundation office in Lagos, Nigeria, for:

THE BURDENS OF DEMOCRACY IN AFRICA How the Courts Sustain Presidential Elections – A Case Study of the Judgement of the Supreme Court of Ghana on the 2012 Presidential Election By Bamidele Aturu ISBN: 978-978-944-519-6 First published in 2014 by RADI8 LIMITED for THE FORD FOUNDATION, Ten, 105 Close, Banana Island, Ikoyi, Lagos, Nigeria.

Mr Aturu has done not only Ghana but Africa a great service by not just reporting on the Ghana election petition, but also, looking at the way the Ghana Supreme Court treated the petition in relation to similar cases in Uganda, Kenya Nigeria, Zimbabwe and Zambia. Some of the cases adjudicated upon by these apex courts include Anderson Kambala Mazoka v Mwanawasa; Akashambatwa Lewanika & Ors v Fredrick Chiluba; Abubakar v Yar’ Adua; Buhari v Obasanjo; Ibrahim v Shagari; and Besigye v Museveni & Electoral Commission of Uganda.

Judges in Africa Mr Aturu observes, “have devoted their forensic energies to shifting the burden of proof to petitioners.” But the time may be ripe for them and all other stakeholders to begin to look more closely at “other burdens that impact on the future of democracy in Africa.”

Mr Aturu examines, of course, the conclusions each Judge came to on the reliefs sought by the petitioners, and notes the bizarre fact that the Supreme Court first announced that there had been a 6-3 judgement in favour of Mr John Dramani Mahama, only to correct it later to 5-4. And, as stated before, he comes to the conclusion himself, in agreement with Mr Sam Okudzeto, that the 5-4 was also wrong and that in fact, the loser was turned by the Supreme Court's errors, into the winner.

Now, what can be learnt from this? “The predisposition or tendency of African Supreme Courts is to sustain presidential elections. It is evident from the Ghanaian Supreme Court case and an analysis of relevant and comparable cases from African countries that the courts saddled with the settlement of post-election disputes in presidential elections labour under complex burdens of history, doctrine, expectation, evidence, and context.”

acoording to Mr Aturu, two of the judges in the Ghana case under summarized their perspective of what the attitude of courts should be to public elections. Justice William Atuguba, who presided, stated at page 40 of the judgment thus: “The judiciary in Ghana, like its counterparts in other jurisdictions, does not readily invalidate a public election but often strives in the public interest, to sustain it.”

Justice Adinyira, more or less, concurred with this perspective, saying: “Courts usually apply the election code to protect—not defeat—the right to vote. Public policy favours salvaging the election and giving effect to the voter’s intent, if possible.”

Mr Aturu makes the point that “the choice of words by the two justices, particularly Atuguba, shows an overwhelming predisposition on the part of the “majority of the court” to sustain the outcome of the election. In fairness to the judges, they are not alone in this thinking or attitude as it seems to be the trend in Africa. While most of the decisions by other African supreme courts may not be as categorical as the learned justice put it, the truth of the matter is that by relying on the presumption of regularity, they all set the bar very high for petitioners”

Of course,it would be erroneous to claim, on the basis of a few comments by judges in one case in Africa, that judges sustain presidential elections in Africa, “irrespective of electoral irregularities” But such comments nevertheless indicate the need for more rigorous research and studies on other non-judicial factors that may be relevant to an understanding of the decisions of the judges.

Mr Aturu points out that “none of the celebrated petitions against presidential elections in Africa has ever been upheld. For example, in the Nigerian case of Buhari v Obasanjo, [which was] relied upon in the Ghana decision, the Supreme Court [of Nigeria] held [that] once the Electoral C omission announces the result of an election, it is presumed correct and authentic and the petitioner who alleges the opposite, must offer clear and positive proof that the result is incorrect and not authentic.

In the same vein, the Supreme Court of Kenya in Raila Odinga v The Independent Electoral and Boundaries Commission & Others, relying on some Nigerian authorities. referred to a long-standing common law approach in respect of alleged irregularity in the acts of public bodies: 'Omnia Praesumuntur rite et solemniter esse acta': all acts are presumed to have been done rightly and regularly.

“So, the petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.” But while it is easy to understand and, in many cases, accept that not every trifle act of non-compliance with the provisions of an electoral statute would warrant the nullification of a pubilc election, “it is controversial, nonetheless, to say that the court should strive to sustain or salvage an election, as suggested by Atuguba, and to claim that this is always in the public interest.” But what should be the public interest in an election? Should not the public be interested in seeing that the laws of a country and the principles globally recognized as enhancing free and fair elections are not violated by election bodies? Second, what exactly is the role of the judiciary in the resolution of election disputes? Can the judiciary exceed its traditional role of interpreting election laws and stray into taking other factors into consideration in determining election petitions? Is it really the business of the court to uphold the result of an election?(Mr Aturu asks.)In his view, “it is not their business to rescue any election. They are to determine cases before them in accordance with the law.” There is a need, Mr Aturu warns, to do all that is possible to professionalize African electoral bodies,and ensure their independence and neutrality, especially through statutory mechanisms. This will remove, at the very least, one of the sources of the burdens on democracy in Africa. “Africa, must move in the direction of organizing credible elections that require no salvaging,” Mr Aturu writes.

24 MAY 2016 marks the 10^th anniversary of the death of Professor ALBERT ADU BOAHEN, who denounced “The Culture of Silence” in Ghana in 1988 and helped to set Ghana on the path of constitutional rule, which has allowed us all to enjoy a democratic form of government. To mark the occasion, there will be LECTURES and cultural events in Accra. I shall give my readers the detailed programme next week.