Are we better prepared for a disputed electoral outcome?, Tazan asked

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After the 2012 elections, I hosted a special
four-part series of my Tarzan’s Take television
show under the theme “Beyond the Verdict”.
The 2nd programme, titled “Never Again:
Electoral Reforms & Constitutional Changes’,
focused on the necessary reforms and legal
changes that were needed to ensure that the
outcome of future elections, especially the
inauguration of the incoming President, would
only occur after all the due processes involving
any legal challenges had been decided.
Fortunately for us, there had been recent
elections in Kenya whose outcomes had been
petitioned and whose procedure for resolution
provided a very good contrast to our own and
perhaps suggested a way forward for us for
the future.
When Raila Odinga petitioned the declaration
of Uhuru Kenyatta as winner of Kenya’s
Presidential elections, the action was started
and disposed of in the middle of our own
petition. Many Ghanaians started to wonder
what had gone wrong with our own efforts.
After all, the Kenyan case started long after
our own and more importantly, the outcome
was decided before the swearing in of Uhuru
Kenyatta as the new President.
The Kenya case was decided in 21 working days
whilst Ghana lasted for eight months.
Our President, the legitimacy of whose election
was being challenged, was sworn in within 10
days of the formal filing of the Petition by his
Opponent, and a full four months before the
formal hearing of the case commenced.
At the core of the Petitioner’s case was the
claim that there had been several infractions of
law and omissions of administrative
procedures which, if accepted as proven by the
Supreme Court, would uphold the case for
overturning the declaration of John Mahama as
President in favour of Nana Akufo Addo.
As the hearing of the Petition unfolded, the
substance of the case was amplified and added
to by many seemingly serious breaches and
deliberate misconduct by election officials
which amounted to collusion to subvert the
will of the people as expressed at the ballot
box on December 7, 2012.
Thus it was that long before the Supreme Court
announced its verdict, the chorus of “WE NEED
CHANGES TO OUR ELECTORAL LAWS” began to
be shouted from the rafters by the
participants to the dispute, their very loud and
partisan supporters, and even the non-
committed spectators who still had a stake in
the outcome of the case.
Since the verdict was announced on August 29,
2013, many of the reforms for doing things
better have been adopted by the Electoral
Commission and the political parties.
Principal amongst these is the proposal
currently before Parliament, to bring forward
the election date by a month, and from
December 7 to the first Monday in November,
which happens to be on 7th this year.
Unfortunately, welcome as the reforms are, we
have still not tackled the core question of
“Should we swear in a President ahead of the
conclusion of a challenge to the legitimacy of
the election?”
But in doing so, we need to be mindful of the
danger of putting expediency ahead of
thoroughness in the desire to shorten the
process.
“THE WHEEL OF JUSTICE GRINDS SLOWLY” it is
said and we will do well to keep the echoes of
“WE WANT JUSTICE” in the inner recesses of
our ears at all times.
As far as I am concerned, determining the
above matter is a bigger priority for Ghana’s
Judiciary to tackle than spending their
considerable energies on whether the voters
register for the 2016 election is bloated or
not; and how we should go about getting a
credible register .
That the register is bloated is a ‘no brainer’
fact. Every voters register used in public
elections in Ghana’s 4th Republic has been
bloated.
Yet, the outcome of all public elections, with
the exception of the 2012 Presidential, have
been accepted and implemented.
Therefore, I see very little point in seeking a
declaration that the current register is bloated,
as is to be decided this coming Thursday.
The Supreme Court is also being asked to
endorse a particular approach to getting a so
called credible register. This relief I suggest
does not lie in the gift of the court to grant
given the strict constitutional stipulation about
the independence of both the Judiciary and the
Electoral Commission in the performance of
their duties.
If we are not careful about how we handle this
‘credible register’ issue, we could cause very
serious infractions to the timetable that has
been laid out to bring this year’s elections
forward by a month so that we may have
enough time to deal with the post-election
issues of possible challenge and transition.
The bald fact is that nobody can prescribe a
perfectly credible register for the election; not
here in Ghana or anywhere else. What we can
hope for is that on Election Day, whatever
legitimate votes are cast and for which
candidates are the results that are declared.
The discussion on my programme was
inconclusive. Justice VCRAC Crabbe, Chair of
the infamous recent commission, was firmly of
the view that we should not seek to set a
timetable for dealing with petitions.
On the other hand, the now Lordship Gabriel
Pwamang held a contrary view that we should
deal with any challenges ahead of the
inauguration of the next President.
Having been a member of the Constitutional
Review Committee, he explained that this was
the rationale for their proposition to bring
forward the election date.
As at now, a bill to amend the constitution to
allow for early elections is before the House.
Alas, even though the Chief Justice has set up a
Committee to deal with this year’s elections,
we do not have an answer to the vexed
question of “do we declare before we exhaust
a petition as is done now”, or “Do we exhaust
a petition before declaring a winner? As seems
to be the preference for most Ghanaians.
Lest we forget, Isaac Amoo was declared the
winner of the 1996 Ayawaso West Wuogon
Parliamentary election one week before the
Parliament he was supposed to have sat in was
dissolved in 2000.
Also as far as I have been able to research, no
petition after the inauguration of a President
has ever been successful in Africa or
elsewhere.
Therefore, I would humbly suggest that the
most important contribution our Judiciary can
make to bringing sanity to our electoral
process will be to focus its energies to decide
that we will resolve all electoral petitions and
related issues ahead of declaration of winners,
and most importantly setting a timetable for
this that fits into the agreed revised schedule.

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