PLEASE CAN SOMEONE BRING THIS TO THE ATTENTION OF JOHN BOADU AT THE ASEMPA FM STUDIO.#U DONT START ELECTION PETITION IN THE HIGH COURT# IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - A.D 2008 CORAM: AKUFFO, (PRESIDING), JSC BROBBEY, JSC DATE-BAH, JSC ANSAH, JSC ADINYIRA JSC SUIT NO. JS/6/2006 31ST JULY 2008 1. ROJO METTLE NUNOO 2. SQUADRON LEADER (RTD) CLEND SOWU PLAINTIFFS 3. KOFI PORTUPHY VERSUS THE ELECTORAL COMMISSION … DEFENDANT _____________________________________________________________________ JUDGMENT DR. DATE-BAH JSC: By an order of 18th June 2007, His Lordship Ofoe J., as he then was, referred the following for interpretation by the Supreme Court: i. “Whether or not upon a true and proper interpretation of Article 63(1) (sic) of the Constitution the defendant fully discharged the constitutional duty with the publication of the declaration of President Elect Instrument, 2004. ii. Whether or not upon a true and proper interpretation of Article 64(1) of the 1992 Constitution any citizen who was aggrieved by or dissatisfied with the declaration contained in the declaration of the President Elect Instrument, 2004, had 21 days within which to present a Petition to the Supreme Court in challenge of the declaration, and iii. Whether or not upon a true and proper interpretation of Article 64(1) of the 1992 Constitution, the plaintiffs are estopped from attempting now to challenged (sic) the validity of the President Election.” Statements of Case were filed by the plaintiffs and the defendant on these issues. The Attorney-General also, pursuant to an order of this Court, filed a statement of case. The plaintiffs’ case is basically that the promulgation by the defendant of the Constitutional Instrument entitled “Declaration of President Elect Instrument, 2004,” CI 49, dated December 10, 2004 was insufficient to discharge the defendant’s constitutional obligation under Article 63(9) of the Constitution. Article 63(9) provides that: “An instrument which – (a) is executed under the hand of the Chairman of the Electoral Commission and under the seal of the Commission; and (b) states that the person named in the instrument was declared elected as the President of Ghana at the election of the President, shall be prima facie evidence that the person named was so elected.” The Plaintiffs allege in their Statement of Case that they wrote to the defendant’s chairman in October 2005 to publish in the Ghana Gazette the full results of the December 2004 Presidential Elections. The Defendant replied that by the publication in the Ghana Gazette of the DECLARATION OF PRESIDENT ELECT INSTRUMENT, 2004, C.I.49, it had discharged its constitutional duties with regard to the declaration of the results of a Presidential Election. Not satisfied with this response, the Plaintiffs issued a Writ of Summons against the Defendant claiming the following reliefs: i. “A declaration that the Defendant is bound by law to publish in the Ghana gazette or in any manner permitted by law, the full, final and complete results of the Presidential Elections of December 7, 2004, including but not limited to, the details of the total votes cast in each constituency, the total valid votes cast, the total votes cast for each presidential candidate, the respective percentage votes, all gauged against the number of registered voters in the said constituency; ii. A further declaration that the failure, refusal or neglect of the Defendant to so publish the Presidential Elections of December 2004 is contrary to Article 45 of the Constitution 1992, section 2 of Act 451, the provisions of CI 15 and the Presidential Elections (Amendment) Act 1996 and therefore unlawful; iii. A further declaration that the Declaration of President Elect Instrument, 2004 to the extent that it was not supported by the full, final and complete results of the Presidential Elections of December 7, 2004 could not form the basis of the exercise of any right envisaged under the Constitution, 1992 in respect of, arising from or pursuant to the said declaration; iv. An order compelling the Defendant to publish the full and complete results of the Presidential Elections of December 7, 2004 in the Ghana Gazette or by any method permitted by law, and in the manner stated above or in previous Presidential Elections; v. A further order compelling the Defendant to furnish the Plaintiffs forthwith the details of the results from 21,005 polling stations from which the results of the Presidential Elections of December 7, 2004 were collated, showing for each polling station the following details: a. Total number of registered voters. b. Total number of voters. c. Total number of votes cast. d. Total number of valid votes counted. e. The distribution of valid votes cast among all the Presidential Candidate (sic). f. Total number of rejected ballots. g. The percentage valid votes for each Presidential Candidate. h. And the voter turn-out. vi. Further or other relief; vii. Costs.” At the Application for Directions stage of the proceedings that followed the initiation of this action, the Defendant set down the following additional issues for trial: (a) “Whether or not upon a true and proper interpretation of Article 63(9) of the 1992 Constitution the Defendant fully discharged its constitutional duty with the publication of the Declaration of President-Elect Instrument, 2004. (b) Whether or not upon a true and proper interpretation of Article 64(1) of the 1992 Constitution any citizen who was aggrieved by or dissatisfied with the declaration contained in the Declaration of President-Elect Instrument, 2004, had 21 days within which to present a petition to the Supreme Court in challenge of the declaration. (c) Whether or not upon a true and proper interpretation of Article 64(1) of the 1992 Constitution, the plaintiffs are stopped from attempting now to challenge the validity of the Presidential Election.” The Defendant applied to the High Court to have these issues referred to the Supreme Court for interpretation. When the High Court ruled against its application, the Defendant appealed against it and applied to the Supreme Court invoking its supervisory jurisdiction to stay proceedings in the High Court and to have the three issues identified above referred to the Court for interpretation. The Supreme Court ruled on May 24th 2006 that genuine issues of interpretation had been raised on the pleadings and therefore the three issues should be referred to it for interpretation. It was in obedience to this ruling of the Supreme Court that Ofoe J. made the order quoted at the beginning of this opinion. It is clear, if one compares that order to the three additional issues set out above, that there is a typographical error in the order, in that the reference to Article 63(1) in the first issue should be a reference to Article 63(9). On these facts, the learned and Honourable Attorney-General contended in his Statement of Case that this Court should address the second of the issues referred first, because if he succeeded in persuading the Court to decline jurisdiction as a consequence of his arguments on that issue, then the other two issues would fall away. The second issue calls for an interpretation of Article 64(1) which is in the following terms: “The validity of the election of the President may be challenged only by a citizen of Ghana who may present a petition for the purpose to the Supreme Court within twenty-one days after the declaration of the result of the election in respect of which the petition is presented.” The plaintiffs argue that their action is not an election petition because they are not seeking to challenge the validity of the election of the President. They only seek to challenge the validity of the defendant’s declaration, pursuant to Article 63(9), of the election of the President. Although it may look like dancing on the head of a pin, there is a distinction between the invalidity of the declaration by the defendant of the President Elect and the invalidity of the election of the President. If the plaintiffs succeed in demonstrating that the defendant’s declaration was invalid and therefore null and void, it would mean that there never was a declaration in respect of which time could begin to run. The twenty-one day time limit would therefore never have commenced. Accordingly, logically, the twenty-one day limitation period cannot apply to an action that seeks to establish the nullity of the declaration, as distinct from the invalidity of the election itself. It is best therefore to enter into the merits of the plaintiffs’ arguments regarding the validity of the declaration in order to respond to the first issue referred to this Court by the High Court. If the plaintiffs were to succeed in their contention on the first issue, although it would result in a declaration which in effect would mean that no President had been declared elected, it would not mean that the election itself of the President was invalid. The underlying election results could still be perfectly valid and the defendant’s responsibility would be to declare them in the proper form. The declaration would mean merely that a President had not yet been properly declared elected, without prejudice to the validity of the substantive election results themselves. In our view, therefore, the plaintiff’s action is not an election petition and the time limit specified in Article 64(1) does not apply to it. Having disposed of the second issue referred to this Court (which probably implies disposing of the third issue as well), let us now return to the first issue. Did the defendant discharge its constitutional duty with the publication of the “DECLARATION OF PRESIDENT-ELECT INSTRUMENT 2004” C.I.49? The contents of the instrument were as follows: “In exercise of the powers conferred on the Electoral Commission by Article 63(9) of the Constitution, this Instrument is hereby made.” MR. JOHN AGYEKUM KUFOUR the New Patriotic Party (NPP) presidential candidate having, in the Presidential election held on the 7th day of December 2004, pursuant to article 63(3) of the Constitution, obtained more than fifty percent of the valid votes cast, and is hereby declared the winner of the election. Given under my hand and seal in Accra, this Friday, the 10th day of December, 2004. DR. KWADWO AFARI-GYAN Chairman, Electoral Commission.” Was this form of the declaration constitutionally permissible, even if not desirable according the standards championed by the plaintiffs? For the reasons we are about to set out, we believe that this Instrument was a perfectly valid exercise of the powers conferred upon the Electoral Commission. In construing Article 63(9) of the Constitution, we have confined ourselves principally to the provisions of the Constitution. The plaintiffs, in their Statement of Case, rely on various Constitutional Instruments and Statutes. However, in our view, on a reference by the High Court, which is basically an invocation of the original jurisdiction of this Court, pursuant to Article 130 of the Constitution, the principal focus of the Court should be on the enforcement or interpretation of the Constitution. The crux of the plaintiffs’ view on how Article 63(9) is to be interpreted is outlined as follows in their Statement of Case: “The conduct of election is a continuous process which does not end with the counting of votes. It includes the declaration of the winner. The final declaration is what is contained in the gazette notification. Coming from the Defendant entrusted with the electoral process, the results of the elections should not only be, but be seen, to be credible, authentic and final, having been obtained from the polling stations through the constituencies to the Defendant. If these are borne in mind, this Honourable Court should find no difficulty in holding that a bare declaration that a candidate in a presidential election has been declared in gazette notification to have won the elections without the complete, authenticated and final basis for such declaration cannot constitute the proper discharge of the Defendant’s constitutional duty to conduct elections for the highest office in the country. The basis for such declaration should be published before or contemporaneously with the declaration of the elected President. This interpretation is in accord with the broad framework of the whole of the 1992 Constitution.” The Defendant, naturally, disagrees with this interpretation of Article 63(9) and submits that the Plaintiffs’ contention is not borne out by the language of Article 63(9). It contends that the words of Article 63(9) are clear and give no rise to ambiguity. It argues that the test for the validity of an instrument issued under Article 63(9) is set out in the very words of the provision: namely, it must be executed under the hand of the Chairman of the Defendant Commission, it must be under the seal of the said Commission and must state that the person named in it was declared elected as President. The Defendant invites this Court to apply a literal interpretation to Article 63(9). Our interpretation of the purpose of Article 63(9) in its context is that it is to enable the Electoral Commission to declare definitively who the winner of the presidential election is. That declaration is prima facie evidence of the due election of the candidate concerned. It can, of course, be rebutted by evidence to the contrary. The evidence for or against the declaration by the Commission need not be contained in the declaration itself. So long as the evidence has been duly generated by the Electoral Commission in accordance with its procedures, prescribed by the Constitution and statute, it is our view that a declaration by the Electoral Commission in the form made by its Chairman on 10th December 2004 is valid. The evidence on which the declaration is based need not be part of the declaration. The literal language of Article 63(9) does not require this and our view of the purpose of the provision does not require it either. It is enough that the evidence supporting the declaration is available in the public domain. Article 49 of the Constitution ensures that that evidence is available in the public domain. The article provides as follows: 1. “At any public election or referendum, voting shall be by secret ballot. 2. Immediately after the close of the poll, the presiding officer shall, in the presence of such of the candidates or their representatives and their polling agents as are present, proceed to count, at that polling station, the ballot papers of that station and record the votes cast in favour of each candidate or question. 3. The presiding officer, the candidates or their representatives and, in the case of a referendum, the parties contesting or their agents and the polling agents if any, shall then sign a declaration stating – a. The polling station; and b. The number of votes cast in favour of each candidate or question; And the presiding officer shall, there and then, announce the results of the voting at that polling station before communicating them to the returning officer. …” The affidavit of Mr. David Adeenze Kangah, the Deputy Chairman of the Defendant Commission, dated 14th July 2008, confirmed that the Defendant followed the prescriptions of Article 49 of the Constitution. He deposed to the facts that immediately after the counting of votes in the 2004 Presidential Elections, representatives of the political parties concerned were provided the detailed results at each polling station and certified the results. Next, at the collation centres at the constituency level, the collated results were provided to the representatives of the political parties and certified by them. Finally, the detailed results at the national level were provided at the Headquarters of the Defendant to and certified by representatives of the political parties, including the first and second plaintiffs in this suit. It should be noted in particular that Article 49(3) requires the announcement of the results of the voting at the polling stations before they are communicated to the returning officer. Such announcement has the effect of putting the results in the public domain. Observance of Article 49 means in effect that the Defendant Commission publishes at each polling station the results from that station. We do not therefore see the need to imply, as a condition of the validity of the declaration of the election of the President Elect, the added publication obligation that the Plaintiffs have argued for in this case. If the election system operated by the Defendant could not function without such a publication, we could have been persuaded to imply such a publication in order to make the system workable. Article 63(9) is language in a Constitution and consequently has to be interpreted liberally and flexibly to give effect to its underlying purpose. (See Tuffuor v Attorney-General [1980] GLR 637, Asare v Attorney-General [2003-2004] SCGLR 823 and Agyei Twum v Attorney General and Anor [2005-2006] SCGLR 732). However, we are not persuaded that the underlying purpose of Article 63(9) requires the implication sought by the Plaintiffs. While the information sought, if it can be practically and timeously published, nationally and contemporaneously with the declaration of the President Elect Instrument, may be desirable, its publication is, to our mind, not essential to the validity of the declaration. Accordingly, in our view, upon a true and proper interpretation of Article 63(9) of the Constitution, the Defendant fully discharged its constitutional duty with the publication of the Declaration of President Elect Instrument, 2004. The final issue referred to this Court for interpretation was whether upon a true and proper interpretation of Article 64(1) of the 1992 Constitution, the plaintiffs are estopped from attempting now to challenge the validity of the President Elect Instrument. The Defendant’s argument on this issue is that a challenge to the validity of any of the stages in the process of the election is a challenge to the validity of the election within the meaning of Article 64(1). The Defendant contends that the Plaintiffs should not be allowed, by subterfuge, to take their case away from the purview of Article 64(1) and to launch a challenge in the wrong forum to the election of the person named as president-elect in the Declaration of President-Elect Instrument, 2004, through dressing up their action as a normal suit in the High Court for declarations. However, it follows from the distinction that we have made above, in relation to the first issue, between the invalidity of the instrument embodying a declaration of a President-Elect and the invalidity of the substantive elections themselves that we are not persuaded by Defendant’s argument. Accordingly, although we agree with the Defendant that Article 64(1) would debar the Plaintiffs from challenging the validity of the Presidential Election more than 21 days after the declaration of a winner by the Defendant, we do not consider that the Plaintiffs’ action constitutes a challenge to the validity of the Presidential Election. In this view, we are in agreement with the earlier view expressed by our sister Wood JSC (as she then was) in The Republic v The High Court (Fast Track Division) Ex-parte The Electoral Commission [2005-2006] SCGLR 514 at p. 542 where she said that the plaintiffs’ case was not an election petition. She considered that they were mere potential petitioners who, depending on the outcome of their action, might take such action as they think fit. In conclusion, we would like to sum up our opinion on the reference made to this Court by the learned trial judge, His Lordship Ofoe J. (as he then was) as follows: Upon a true and proper interpretation of Article 63(9) of the Constitution, the defendant fully discharged its constitutional duty with the publication of the “DECLARATION OF PRESIDENT-ELECT INSTRUMENT 2004” (C.I.49). The expression of dissatisfaction (through a legal suit by the plaintiffs) with the form and contents of the said DECLARATION OF PRESIDENT-ELECT INSTRUMENT does not necessarily amount to a challenge of the Presidential Election itself. Accordingly, the time limit prescribed in Article 64(1) for a challenge to the validity of the election of a President does not apply to a challenge to the form and contents of the declaration, where such challenge is not intended to challenge the substantive election itself. The plaintiffs are accordingly not estopped or debarred from challenging the validity of the DECLARATION OF PRESIDENT-ELECT INSTRUMENT. Their challenge, however, fails on the merits. S. K. DATE-BAH JUSTICE OF THE SUPREME COURT S. A. B. AKUFFO (MS) JUSTICE OF THE SUPREME COURT S. A. BROBBEY JUSTICE OF THE SUPREME COURT J. ANSAH JUSTICE OF THE SUPREME COURT S. O. A. ADINYIRA (MRS) JUSTICE OF THE SUPREME COURT#IGNORANCE KILLS#
Posted on: Tue, 11 Jun 2013 17:30:27 +0000