Technology Automobile Realestates © 2013 myjoyonline Mobile | Desktop Version | Privacy Policy Share this story: What others are reading Anybody who stands in Akufo-Addo’s way will die – NPP Chairman Kwabena Agyapong condemns Sir John, others NPP far from implosion - Akuffo Addo Revealed: Ministry of Sports never signed contracts with travel and tour agents for 2014 World Cup There is ‘deafening noise’ for Akufo-Addo to lead NPP - Hamid More in this stories Chief demands investigation into Bimbilla chief murder NHIA sensitizes staff on Ebola Agbogbloshie squatters accuse AMA of shirking responsibility Photos: Jefferson Sackey awarded Honorary Doctorate degree 37-year-old man shoots himself Gory Sunday as Kumasi road accident claims 21 lives Asantehene: We are in danger of misapplying multiparty system Speech delivered by Prof. H. Kwasi Prempeh at IMANI- OccupyGhana Forum On Electoral Reforms Pastor Chris, wife in messy divorce Death: the tragic story of a girl given to a guy for GHC5 Four Multimedia Group journalists win GJA Awards University teachers likely to call off strike next week – UTAG lawyer hints Curfew imposed on Alavanyo, Nkonya communities Tigo supports 19th Ghana Journalists Awards Police begin investigation into Kotobabi shooting that claimed one life Speech delivered by Prof. H. Kwasi Prempeh at IMANI- OccupyGhana Forum On Electoral Reforms Professor H. Kwasi Prempeh delivered an illuminating speech an IMANI-Ghana-orgnaised forum on electoral reform Friday exposing flaws in the Supreme Court verdict on the election petition last year. Read the full speech below: Ghana’s much-touted reputation as an exemplary democracy in Africa is tied not so much to how well we govern—Heaven knows we govern rather poorly— but to how well we choose and change government through periodic elections. It is indeed our record, established since 2000, of orderly and relatively peaceful elections and seamless party turnover and succession in government that has put us on the map as a democracy success story in contemporary Africa. Our last two general elections have, however, tested our capacity to hold on to even that reputation. As our two main rival parties have become roughly equally matched in their national electoral strength, our quadrennial presidential and parliamentary elections have become increasingly fiercely, and often nastily, contested, with only a thin margin and vote tally separating the declared winner from the runner-up in the presidential ballot. The closeness of the results in our presidential elections not only raises the prospect that the initially-announced result would be disputed and challenged by the purported loser, it also increases the incentives for ‘cheating’ and election malpractice by the rival parties, as they each try to maximize their vote harvest in their by and large ethnically-skewed strongholds. Indeed, a well-respected and perceptive student and scholar of African politics who has written on Ghana, Paul Nugent, writing with two co- authors in the aftermath of the 2008 elections, has expressed worry that, “Electoral malpractice and vote rigging along ethnic lines in Ghanas virtual two-party system could gain a decisive importance as a third force which could tip the balance in future elections.” Nugent, et al. see this as “a dangerous time bomb . . . which could explode in future elections.” We Ghanaians, of course, believe ourselves to be an exceptional people. So, for example, to concerns about our likely vulnerability to the “oil curse,” we respond by drawing distinctions between us and Nigerians. “We are not Nigeria,” is how one Big Man interviewed in an international news story on Ghana’s oil put it. We see similar attitudes and expressions of Ghanaian Exceptionalism with regard to the potential for election violence on more than a local scale. “We are not Kenya”. “We are not Ivory Coast”. But are we really that exceptional? Interestingly, both Kenya and La Cote d’Ivoire, being countries that, unlike us, did not have a history of military coups or military regimes, arguably had better postcolonial credentials as stable and peaceful countries than we. Yet, we all saw how rapidly the two countries descended into violent internecine conflict over a badly- conducted and hotly disputed presidential election. National myths have their uses. The myth that we Ghanaians are an exceptionally peaceable people who will not war over a disputed election is perhaps a useful myth. By believing it to be true, we may well invest it with the power of a self-fulfilling prophecy, especially given how very much we cherish our international image as a peaceful nation. But, of course, a national myth, such as the myth that we are peaceeable people, may have its downside too. For instance, it may cause us to be complacent and live in denial, even in the face of what could be a looming danger. What, then, must we do now and soon to safeguard the integrity of our elections and democracy and inoculate ourselves against the dangers I have alluded to. Since this forum is billed as a discussion of the status of so-called reforms recommended by the Supreme Court majority at the conclusion of the presidential petition case, I would like to begin with that judgment of the Supreme Court. The Supreme Court decision in the 2013 Presidential Election Petition performed one important function associated with litigation: It settled finally the dispute between the parties over the declared result in the 2012 presidential election. But a court judgment, especially the judgment of a country’s apex court, must perform another very important function, this one more forward-looking in nature than the settlement of the dispute before it. The judgment of a Supreme Court also functions as law. And if it is to serve that function well, a court judgment must provide sufficient guidance and clarity so that persons in the same position as the parties that appeared before the court would know how to organize and conduct themselves and their affairs if faced with the same or similar situation in the future. In other words, when the Petitioners and Respondents and everyone else affected by the judgment of the Supreme Court in the Presidential Petition case read that judgment, they must be able to discern from it, perhaps with the assistance of counsel, what things they may or may not do next time there is an election and how they must or must not do the things they must do in the course of that election. Viewed this way, that is, in terms of its function as law in a forward-looking sense, the majority judgment in the 2013 Presidential Petition case is, regrettably, of dubious value. In fact, one of our leading constitutional law academics raised doubts about the pedagogical value of that judgment shortly after it was delivered. But beyond its apparent pedagogical uselessness for teachers and students of constitutional law, the judgment of the Supreme Court did little to bring certainty or clarity in how our elections must be conducted or even in how to mount a successful challenge in court in the event of a disputed election. Are presiding officers legally bound to sign the Pink Sheet? Or is the obligation imposed by the letter of the Constitution now optional or void? Can legal consequence of any kind follow the failure of a presiding officer to sign a Pink Sheet? What, if any, departure from the law by the EC or by any of its officers would constitute grounds for challenging the validity of an election result? What must a Petitioner show, in terms of the kind and quantum of evidence, in order to be successful in a judicial challenge to a declared election result? Is a re-run of the election between the contending parties the only permissible remedy in a presidential petition, or may the court order less drastic remedies like a recount or a revote in a named polling station or constituency? These are the sorts of questions about an election or an election petition that parties and candidates and their lawyers would wish to know in advance of a future election. Unfortunately, these are precisely the questions the Supreme Court majority judgment in the 2013 Presidential Petition Case failed to answer. Instead, the Judgments of the majority in that case have left us with more questions than answers, creating more uncertainty about the legal standards for conducting a valid presidential election in Ghana or for successfully challenging the validity of a declared result. Such uncertainty, as well as the lingering perception, following the 2013 Presidential Election Petition, that a judicial challenge to a presidential election result has inherently poor prospects of success, does not bode well for the peaceful, lawful, and orderly conduct of elections in Ghana. Instead of giving us clarity and certainty on the law of elections and election petitions, what we got from the Supreme Court were some “recommendations”. And I suppose those recommendations have, in fact, been taken seriously by some, including by the organizers of this forum. Unfortunately, those recommendations are bereft of legal authority. When a court means to compel a party that is subject to its jurisdiction to take or refrain from taking certain actions, it proceeds by way an ORDER addressed to that party; it does not make “recommendations”. The Supreme Court’s recommendations in this case, then, are what lawyers would call mere dicta. They are
Posted on: Mon, 01 Sep 2014 16:36:06 +0000
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