OKUZDETO SLAMS ATUGUBA

Sam Okudzeto

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday, September 27, 2013

A veteran lawyer Sam Okudzeto has said after carefully analyzing the various judgments, the Supreme Court should have declared Nana Addo Dankwa Akufo-Addo and his co-petitioners winner in the recently-concluded Presidential Election Petition.

“My reading of this judgement is the fact that it was 5-4 rather in favour of the petitioners.

“How did the President (Atuguba JSC) come by the statistics of giving this 5-3 which came to 5-4 which I have seen that to be 5-4, the other way round. I did not know how that came about.” the veteran lawyer cum politician queried.

Mr. Okudzeto was a guest speaker at a symposium organized by Danquah Institute (DI), a media, research and policy analysis group  to review the Supreme Court’s decision of August 29 in the landmark Presidential election petition filed by New Patriotic Party (NPP) December 2012 presidential candidate Nana Akufo-Addo, his running mate Dr. Mahamudu Bawumia and the party’s Chairman Jake Otanka Obetsebi-Lamptey after the Electoral Commission through its Chairman Dr. Kwadwo Afari-Gyan declared National Democratic Congress (NDC) candidate John Dramani Mahama as President-elect.

The Analysis

Analyzing the issue on Wednesday night at the National Theatre in Accra to a packed audience, Mr. Okudzeto said he came up with the 5-3 and 5-4 conclusion because Justices Atuguba, Adinyirah, Gbadegbe and Akoto-Bamfo are supposed to have unanimously dismissed all the claims brought by the petitioners while Justices Ansah, Owusu and Anin Yeboah held that President Mahama was not duly elected per three of the claims.

According to him this means that four judges had ruled for Mr. Mahama whilst three had ruled that the President was not duly elected and asked that “What happened to the other two (Justices Dotse and Baffoe-Bonnie)? This is where the issue becomes dicey.”

He said that interestingly, the court set out two issues for determination which were (1) Whether or not there are statutory violations in the nature of omissions, irregularities and malpractices in the conduct of the Presidential Elections held on the 7th and 8th December 2012; and (2) Whether or not the said statutory violations, if any, affected the results of the election.

He noted, however, that when the judgement was delivered there was no indication that the two issues were addressed by the court in the various judgments’.

Dotse & Baffoe-Bonnie

He quoted portions of judgements of Justices Doste and Baffoe-Bonnie and said some of them were intriguing.

He said the ‘strange’ part of Justice Baffoe-Bonnie’s judgement on dismissing the petitioners claim that some pink sheets were unsigned by some Presiding Officer was that “he did not give any figure so the question to ask is how did he come by that conclusion?”

“Both Justices Dotse and Baffoe-Bonnie were asking votes to be cast in certain areas where these malpractices had occurred…some were calling it infractions. They have given all manner of names to them and we say an infraction is infraction no matter the vituperative etiquette you give to it. An error is an error no matter which way you put it.”

“More importantly, there is a fourth reason that Baffoe-Bonnie gave and this will intrigue you the more.”

He said the judge had held that the petitioner had been able to discharge the burden of proof that voting took place in some polling stations without prior biometric verification adding “The question now is that how did they come by the assumption that the petitioners lost the case…The judgement does not establish that.”

Mr. Okudzeto said he was surprised when the court decided that it was not going to allow the petitioners to use gadgets that would have assisted the judges to understand the figures quoted by the petitioners during the trial.

“I realized that some people are afraid of Mathematics and if you recollect, Dr Bawumia had wanted to use electronic gadgets to illustrate these things and they were rejected. I was astounded and shocked because this is the standard practice all over the globe now. We are in the technological age. You can’t understand. There is no way you can understand figures without getting it illustrated and since I am much older than they and I use electronic in everything that I do, why can’t they?.”

50 % Plus 1

“The constitution is very clear. It says that if a candidate does not obtain more than 50 per cent plus, the election must be re-run so you cannot say the election should be re-run in the affected areas. This is because once the 50 per cent plus was not attained, there should be a re-run of the whole election.”

“So I believe that at the time they were making those statements they had not properly addressed their minds to the constitutional provisions.”

SHALL as a provision

Mr. Okudzeto said that the ‘strangest’ part of all this is that those who gave judgement for the respondents spent so much time dwelling on the word SHALL when the issue of absence of signatures of Presiding Officers came into play.

 He said that Blacks Law dictionary widely accepted in the legal world gives meaning of the word SHALL to be mandatory and denotes obligation adding “It imputes a duty which may be enforced…it is inconsistent with the concept of discretion… it operates where public interest is involved.”

He said for instance that Justice Akoto-Bamfo actually agreed with the definition of SHALL in her judgement when she said it was mandatory since it was an entrenched provision but then when the time came for her to enforce it, “she went on an excursion.”

Justice Date-Bah

He said all the judges appeared to quote Prof Justice Date-Bah a distinguished retired Supreme Court judge’s literal approach to statutory and constitutional interpretation in their judgments because “they all got married to him in tort.”

“Prof Date-Bah says these days literal approach to statutory and constitutional interpretation is not recommended but the truth is that I think they went off the mark and I will tell you why I said so.”

“I have not been able to get a computer to make a count but I can tell you that in this Constitution, the word SHALL must have appeared about a million times and in each instance you see why it is so stated. It is because of our past history. I know what had happened and why it was important for this mandatory word to be in the constitution.

“The SHALL is mandatory and obligatory. It is not open to anybody to start talking about  purposeful view of the constitution because that only arises when there is an ambiguity. When the words of the constitution are clear. It is an error for anybody to interpret it to the contrary.”

Mr. Okudzeto said those who mocked or opposed the organization of the symposium did not know what they were doing adding “those who thought that what we are doing here today is an exercise in futility, let me remind them that it is not everybody who can discern what I have discerned and so many lawyers would have read the judgement without noticing these things. Therefore all of us are open to education all the time.”

He also commended DI for its efforts in deepening constitutional democracy in Ghana.