9 January 2013

Ghana: NPP Petition to Supreme Court - Let Judgment Be Evidence-Based

Kumasi — A KUMASI-BASED private legal practitioner has pleaded with judges who would be empanelled to determine the New Patriot Party (NPP) petition to the Supreme Court to see it as national assignment and live up to expectation and deliver.

Lawyer Kwame Arhin noted that the Ghanaian judiciary has enjoyed some amount of independence, but the level of judicial independence will be highlighted the more, at this time that the Supreme Court is going to be confronted with this electoral case.

He has, therefore, urged such judges to see their appointment or selection as a "very big honor" and approach the task as a national assignment which demands the best of their qualities and capabilities.

The Electoral Commission on December 9, 2012, declared the results of the December 2012 polls for his Excellency John Dramani Mahama as the winner.

The New Patriotic Party, led by Nana Addo Dankwa Akufo-Addo claimed they had detected some foul play in the conduct of the elections, and as a result wanted the Electoral Commission to defer the declaration of the results so to enable them have their grievances redressed.

As a result, the NPP has taken the matter to the Supreme Court challenging the validity of the election of the President in accordance with Article 64 (1) of the 1992 national constitution.

But Kwame Arhin says with this case, the credibility and integrity of the Ghanaian Judiciary is going to be tested because "it is a very high profile case which determination calls for legal brains of the highest caliber.

"If the evidence is not there to support the allegation, the Judges should be bold to say so. On the other hand, if there is enough evidence to substantiate the allegation, they should be bold to say so. All we need is fair and sound judgment that can stand the test of time", he said.

He said the judgment, in the normal course of things, will open up a new chapter in the country's quest for a true democracy expressing his conviction that no matter which way the judgment goes it will be good for the development of our democracy and will as well serve as an eye-opener to other African countries.

"At the end of it all the saying that 'Law is the just intervention/ interference of the STATE in the INTERESTS and PASSIONS of humanity' would have been made manifest", he stressed.

Expressing his opinion on the "Judiciary and the promotion of Democracy in Ghana against the 2012 General elections as a test case", Lawyer Arhin, a one-time Ashanti Regional Chairman of the Public Tribunal in Kumasi said the judiciary is the bed-rock of democracy and national development, and it is expected to be insulated against the heat and tumbles of politics, as it pertains in Western democracies, such as the United States and Britain, among others.

He said whether or not the Ghanaian judiciary can live up to expectation would largely depend on the caliber of judges that are going to be empanelled.

Highlighting on the role of the Judiciary Lawyer Arhin said with this high profile case, Ghana is on the threshold of reaching yet another level of our democratic dispensation as Ghanaians look up to the courts in order to reach that goal.

Lawyer Arhin observed that a good decision in this case by the Supreme Court (judiciary) which is vested with the sole right of championing the rights of the people, could place Ghana on a higher pedestal in our quest for democracy and afford Ghana international repute.

Referring to a book by one time associate Justice in the United States Supreme Court, the late Benjamin N. Cardozo, Lawyer Arhin said even though the judge's power in matters of adjudication are enormous and can be subject to abuse, they must in pursuance of their duties be guided by what is termed as "judicial self-restraint" which stems from "dignity" and "honour" often associated with the calling of judges who are revered and dignified by the society.

He asked judges to see themselves as repositories of the law and justice and prayed that judges who have courage, good morals and possess analytical mind of the highest caliber are selected or appointed to handle this very high profile case.

Lawyer Arhin's concern is premised on the fact that by the stroke of the pen of the judge, children yet unborn may be made to suffer hardship, poverty and misery, while in the same vein, the stroke of the pen of the judge can bring happiness progress, peace and harmony.

Commenting on the efficacy of the Judgment of the Supreme Court with regards to the interpretation of the law as contained in Article 64 of the 1992 constitution, the Kumasi legal brain urged members of the public to see the constitution as the Fundamental or Supreme Law of the land from which all other statutes derive their source pointing out that the constitution makes provision for the appointment of the Electoral Commission and his staff. It also makes provision for the President, Vice President, etc.

Article 64 (1) states "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 in respect of which the petition is presented".

Article 64 (2) "A declaration by the Supreme Court that the election of the President is not valid shall be without prejudice to anything done by the President before the declaration."

Lawyer Arhin explained that by the constitutional provisions, the Electoral Commission cannot, by any stretch of imagination, be said to be the final arbiter in electoral processes because an aggrieved individual can have recourse to the Supreme Court to have his grievances redressed.

Quoting the late Lord Denning MR, Lawyer Arhin said "One cannot put something on nothing and expect it to stand," and stressed that the law is interpreted in order to correct and clear all uncertainties with the view to bringing out the real intentions of the legislator.

The lawyer explained further that if the Supreme Court finds something to the contrary that the declaration and election of His Excellency John Dramani Mahama as President is not valid, then by operation of law, he cannot be the President.

The concerned lawyer said by the simple definition of democracy thus "a government of the people, by the people, for the people", it is the citizens of a particular country who through the exercise of their franchise, decide who should rule or govern them, an inalienable right which cannot be taken away without just cause.

It means, therefore, that according to Lawyer Arhin, real sovereignty rests with the people and that any attempts to tamper with votes during elections is seen as a serious threat to democracy and same must seriously be resisted through due process and not violence.

Lawyer Arhin, who stated that he did not hold any brief for any political party, except that he was expressing his opinion as a Lawyer and a Human Rights activist, hoped there would not be any witch-hunting in the determination of the matter before the Supreme Court.

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