Ghana: Which Way Out for the Election Petition in Ghana?

On July 17th, 2013 the substantive hearing of the 2012 presidential election petition came to a close at the Supreme Court of Ghana three months after it commenced on April 17th, 2013. This petition challenging the 2012 presidential election results was filed by flag bearer of the New Patriotic Party (NPP), Nana Addo Danquah Akuffo Addo, his vice presidential candidate, Dr. Mamudu Bawumia, and party Chairman, Jake Obestsebi Lamptey.

On December 7th, 2012, Ghanaians thronged to polling stations to cast their votes in a presidential and parliamentary plebiscite. On December 9th, the chairman of the electoral commission, Dr. Afari Gyan, declared John Dramani Mahama as first round winner with 50.70% of total votes cast and Nana Akuffo Addo second with 47.74% of total votes cast.

This declaration was gazzetted on 11th December in line with Constitutional Instrument (C.I. 80). It is worth noting that John Dramani Mahama was elected as the incumbent National Democratic Congress (NDC) presidential candidate after the demise president John Evans Attah Mills. Foreign and domestic media declared the election free and fair.

On December 28th, 2013, the three petitioners aforementioned filed a petition at the highest court of the land challenging the validity of the election results. The petitioners prayed the apex court to declare that Mahama was not elected president, that Nana Akuffo Addo was rather validly elected and consequential orders as the court may deem necessary.

The validity of the election was challenged under Article 64 (1) of the 1992 constitution, which allows Ghanaian citizens to challenge the validity of the election within twenty-one days of the days after declaration of results.

Several interlocutory issues cropped up prior to the commencement of the substantive hearing. Initially the petitioners named Electoral Commission and John Mahama as the respondents, however, on January 2nd, 2013, the NDC filed to join the case as respondents.

According to Abraham Amaliba, a member of the NDC legal team, NDC's desire to join as respondents was because Mahama won on the party's platform and therefore whatever happened to Mahama had a direct bearing on the NDC.

On January 31st 2012, the court granted the joinder application by the NDC and John Mahama became the first respondent, the EC became the second respondent and NDC the third respondent represented by Tony Lithur, James Quashie Idun and Tsatsu Tsikata respectively. Philip Addison represented the petitioners.

Another interlocutory issue that reared its head was the opposition to the composition of the nine justices empanelled by the chief justice, Georgina Wood, to hear the case. The petitioners opposed the inclusion of the presiding judge, Justice Atugubah, on the grounds that his nephew Raymond Atugubah had been appointed by the president elect, John Dramani Mahama, as executive secretary to the presidency. On January 11th, 2013, the petitioners withdrew their objection to the constitution of the panel.

The case of the petitioners was that there were gross operational inefficiencies like irregularities, malpractices, omissions, and statutory violations in the December 7th 2012 elections. According to the petitioners, these operational inefficiencies led to over-voting, voting without biometric verification, unsigned pink sheets by presiding officers, and duplicate pink sheets at 10,119 polling stations.

According to the petitioners this led to about 2.6 million illegal votes to president Mahama. If this 2.6 million illegal votes are nullified from Mahama's declared 5.6 million votes, the results will represent less than fifty percent votes which is less than the fifty plus one percent mandated by the constitution to win first round touchdown.

On the other hand Nana Akuffo Addo's votes would be downsized to about 1.3 million votes resulting 56.85 percent of total votes cast, which is more than enough to secure a win.

The case of the respondents was that none of the categories under the gross operational inefficiencies in the 2012 elections rises to the level of errors subtantial substantial enough to warrant annullment of the results.

According to the respondents, the petitioners deliberately used duplicate pink sheets in their court exhibits to mislead the court. The star witnes for the petitioners was Dr. Mahmudu Bawumia. The chairman of the electoral commission, Dr. Afari Gyan, testified on behalf of the EC and Asiedu Nketia, NDC party secretary testified for president Mahama and the NDC.

The Supreme Court is set to issue its ruling on August 29th, 2013. The issues before the court are:

Whether there were irregularities, malpractices, omissions and statutory violation in the December 2012 elections.

Whether these irregularities, malpractices, omissions, and statutory violations were substantial enough to affect the election results.

As it stands, the nine justices have to look at the evidence before them and analyze the arguments to arrive at one of four choices in their final decision:

Maintain the status quo with John Dramani Mahama as president.

Declare Nana Akuffo Addo president.

Order a run-off between Nana Akuffo Addo and John Dramani Mahama.

Order a re-run of the entire election

The justices have their work cut out for them. They have a daunting task ahead of them given that no court, at least on the African continent, has overturned the results of a presidential election.

How the court will decide is a real toss up at this juncture. The opportunity has presented itself for Ghana to demonstrate that it is the shining beacon of democracy on the African continent. No matter how the court decides Ghanaians must do whatever it takes to accept the Supreme Court verdict in good faith. It is gratifying to note that President John Mahama and Nana Akuffo Addo have agreed to accept the courts decision.

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