Ghana:The Court Lowers the Curtain-Africa Confidential

The judges’ finding for President Mahama raises as many questions as it solves but the focus will shift quickly to economic matters
The final act lasted just 20 minutes. That is how long Justice William Atuguba, Chairman of the nine-member Supreme Court panel, spent on 29 August on delivering the judges’ ruling in favour of President John Mahama. It followed eight of argument over the legitimacy of last December’s elections (AC Vol 54 No 15, The vote on trial & How the parties the judges).
Politicians, , journalists and curious citizens had packed out the Supreme Court in Accra since seven in the morning, convinced that history was in the making. For an election dispute with far-reaching implications for democratic politics in Ghana and the rest of Africa, Justice Atuguba’s announcement at just after one o’clock seemed an anti-climax.
It may have been that Atuguba, who is no showman, wanted to play down the moment. His fellow judges looked relieved to see the end of a case which had made them the focus of political sniping and national attention. Three days after the judgement, Kofi Annan, the former United Nations Secretary General, weighed in with a call for electoral reform to tackle the complaints raised in the case.
The ubiquitous peace groups which are growing in influence among African civic activists are said to have raised over US$300,000 to campaign for Ghanaians to accept the election ruling without rancour. Peace posters were liberally pasted around the main cities and peace jingles rang out incessantly on local radio . The United States Embassy issued a security warning for judgement day but the market view of Ghana as a stable and relatively successful economy hardly skipped a beat.
The politicians saw it differently. The petitioners from the opposition New Patriotic Party, who had been confident of victory until a day before the judgement, were infuriated by a verdict which they said overrode the constitution and electoral law. The NPP had spent over $2 million and much of its political energy this year on the case.
This was far from a total political loss for the NPP: it had persuaded four of the nine judges to side with it on three of its claims about the elections. The court case may have helped to dissipate some of the anger of those NPP supporters who felt the 2012 elections had been riddled with fraud.
The judges’ deliberations were broadcast live on television while partisan commentators held forth on radio talk shows, so the Supreme Court case became a kind of political mobilisation. Both sides tried to fire up their supporters as their legal counsel embarked on lengthy cross-examinations.
Televising the court proceedings gave the NPP an unprecedented chance to present its critique of the election to a audience, despite the arcane legal language. The case may also have boosted the standing of lawyers as they argued over a matter of such importance to so many people. Despite the ultimate failure of the petition, it will encourage others to bring petitions in . For NPP activists, their counsel’s grilling of the Chairman of the Electoral Commission, Kwadwo Afari-Gyan, was the high point.
The NPP presidential candidate and first petitioner, Nana Addo Dankwa Akufo-Addo, won cross-party acclaim for quickly accepting the ruling and announcing that the party would not seek a review of the ruling so that the country could move on: ‘Everything in my bones, my upbringing, and in I have done with my life thus far makes it imperative that I accept a decision made by the highest court of this land, however much I may dislike or disagree with it.’
Akufo-Addo’s concession and his call to congratulate Mahama doubtless helped to calm his supporters. By 2 September, however, NPP officials were suggesting that the party’s second and third petitioners might still seek a review of the ruling.
Evidently expecting victory, the respondents from the governing National Democratic Congress (NDC) were dressed in celebratory white and waved handkerchiefs in court after the verdict. Mahama’s position within the party has unquestionably been strengthened. Speaking on national TV, the President added his weight to the calls for unity, throwing in a quotation from the spiritual founder of the NPP, JB Danquah, for good .
Mahama’s government has been bound up in this case for eight despite its efforts to give an impression of business as usual. Although the 29 August judgement settles the controversy officially, the aftermath of the ruling will rumble on.
The release of 588 pages of the final judgements on the case will spark further debate on the elections and perhaps reinforce calls for electoral reform. Although Justice Atuguba and Justice Jones Dotse voted against the petitioners, they both included some proposals for electoral reform in their judgements. The judgements of two of the so-called ‘swing judges’ – Paul Baffoe-Bonnie and Nasiru Sulemana ‘Sulley’ Gbadegbe – will come under particular scrutiny.
The panel was split on the three serious claims – over-voting, the absence of the presiding officers’ signatures on polling station returns and the failure of the biometric voting machines. All nine judges unanimously rejected the petitioners’ claims about duplicate serial numbers on the polling station returns, duplicate station codes and unknown .
To draw a parallel between Ghana’s election case in 2013 and the USA’s case in 2000, the ‘pink sheets’ – the polling-station results sheets – were Ghana’s equivalent of the US ‘hanging chads’. The NPP had based its case on proving that the management of the pink sheets had broken electoral law and necessarily invalidated all the votes that they represented.
Initially, the NPP argument had the advantage of relative simplicity. It aimed to show simply that tens of thousands of electoral violations had been committed amid widespread mismanagement, not that there was any conspiracy by the NDC or Electoral Commission to fix the vote, although many NPP stalwarts believe this is exactly happened.
The logic was that if the petitioners could show such widespread breaches of electoral law, they could undermine the credibility of the entire elections in both the minds of the judges and the wider public. This tactic faced two major hurdles: firstly, the sheer logistical task of gathering enough pink sheets to prove these points; secondly, the interpretation of the electoral law and the implications of invalidating millions of votes.
As the NPP had just ten days to prepare its evidence, it had to produce detailed analysis of 1,000 polling station returns each day and then find a way to compile these data sets and produce the 13 different bundles of evidence (amounting to over 400,000 sheets of paper) that the Court demanded. That would have been a testing operation for either of the USA’s two main parties but given the NPP’s limited resources, the demands stretched the party’s team beyond the limit. Knowing this, the NDC’s legal team initially concentrated its efforts on pointing to flaws in the NPP’s collation of evidence until finally an international firm of accountants, KPMG, was called in to audit the polling returns that the NPP had submitted.
Certainly the NPP’s target of collating evidence from 11,000 of 26,000 polling proved too ambitious and gave the NDC’s lawyers several chances to pick holes in the presentation of the case. NDC counsel Tsatsu Tsikata’s cross-examination of Mahamudu Bawumia, Akufo-Addo’s running mate, on the pink sheet serial numbers turned into a feat of physical endurance for both men. In a rare moment of levity, Bawumia invited Tsikata to join the petitioners.
Counter-attacking, the NDC’s lawyers hugely irritated their NPP counterparts by directing their fire at the arithmetical issues. This also helped to divert attention from a disastrous courtroom performance by Electoral Commission Chairman Afari-Gyan. Then came the interpretation of the electoral law, on which the judges seemed genuinely at odds.
Much legal and political dissection of the judgements and their significance lies ahead, as do fresh demands for electoral reform. If that improves the political climate and leads to less contentious elections in 2016, the eight of courtroom argument will have been worth it.

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