Posted on: www.dailyguideghana.com
By
William Yaw Owusu
Thursday, October 10, 2013
A founding Dean at the Faculty of Law, GIMPA Prof
Kwame Frimpong says the judgement delivered by the nine Supreme Court justices
in the just-concluded Presidential Election Petition has taken Ghana back to
the Stone Age.
“Unfortunately this case has set us so many years
back maybe even to the stone age,” he said 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.
Using a Biblical analogy Prof. Frimpong asked “is
the judgement giving life to Ghana in terms of advancing our democracy or is it
bringing us to a dead end of our democratic aspiration?”
The
Impunity
He said the critical issue to ask “is whether we
endorse illegality or we take a firm position against any system of impunity
that has plagued this nation over the years.”
“Why is the EC boss emboldened to make statements
like ‘Go to court’ if he doesn’t believe that at the end of the day the end
would justify the needs. My concern about this judgement is the fact that now
if you read the judgments particularly of Atuguba and Adinyira JJSC putting too
much faith in polling agents, shifting the burden of responsibility unto them
that they should have exercised scrutiny over the voting, is that their role?”
He said that “what we are discovering is that it
does not matter and at the end of the day all that we need is that the results
are declared and if you are not comfortable go to court and if you go to court
nothing! Because your polling agent didn’t do his work.
“Are we advocating the very thing we are trying to
prevent? That at the end of the day let us decide at the polling station
whether you will win or not and it is a very dangerous thing for Ghana and we
condemn it with all our strength and
might.”
Everybody
Confused
He said that the decision of the court had left many
including practicing and aspiring lawyers confused saying “even a Year 1
student could tell me he did not understand the judgement.”
“There are so many flaws in the judgments. When I
read them I was confused to be honest, adding “the difficulty we are all facing
is whether this judgement has enhanced our understanding of democracy. Whether
it has established a credible situation which we can build on our desire to
have free and fair election?”
On
Atuguba
He said Justice Atuguba’s judgement did not advance
constitutionalism explaining “If you read Atuguba’s judgement you notice that
it has a critical weakness with due respect to him...There are so many
contradictions, it is incoherent. There are so many serious quotations. That is
beautiful but they are not advancing constitutionalism.”
“When you are dealing with interpretation of a
constitution, the supreme law of the land is ideal to also look for authorities
of similar constitutions to buttress your case and not relying on criminal law,
company law cases they are not of relevance.”
Adinyira’s
Judgement
Prof Frimpong said that “If you look at the
judgement by Justice Adinyira, you notice that almost half of her work was
devoted to the role of the polling agent which I don’t think is very important
because of the mandatory requirement on them.”
He said one ‘finest’ statement came from Justice
Anin Yeboah where the judge cautioned the court about over reliance on foreign judgments
adding “when you quote extensively from any jurisdiction and without
necessarily doing a serious analysis and
therefore you draw the conclusion that is to adjudicate a case in Ghana, it is
wrong and we should not endorse that.”
On the claims of over-voting, voting without
biometric verification and the absence of signatures of some of the Presiding
Officers, Prof. Frimpong said “it is a simple mathematical issue.”
“Has there been over voting? Did people vote without
prior biometric verification? Did some of the presiding officers not sign the
pink sheets?” he asked.
Duration
of Trial
He said the referee (KPMG) gave the court the
figures involved in each category adding “I am wondering why it took the court
eight months to decide. Couldn’t the case have been dealt with maybe within one
month if they chose to? I think it was unnecessary for the long duration.”
Annulment
of votes
“What seems to have been a major flaw throughout the
judgement was the fact that they are saying even though irregularities took
place, if we allow the irregularity to be used to annul the results, it will
amount to disenfranchising Ghanaians against article 42.”
“Let me make it very clear…you disenfranchise when
you make sure that he/she does not have a right to vote. When you annul, it
does not necessarily amount to disenfranchisement. You are merely declaring
that legal procedures have not been complied with…Otherwise, any provision which
requires a particular practice in order to vote amounts to disenfranchisement.”
“If you look at the nature of the right to vote,
then we don’t have to have any law…you just wake up and go out there to vote.
We need regulations based on the same constitution before you can vote.”
“I don’t think the court is right when they are
saying that by necessarily declaring any infringement null and void of the
constitutional provision amounts to infringement of Article 42.”
SHALL
being Mandatory
“As it has been said, the presiding officer shall
sign. He is the one with the mandate to ensure credible election.
“What about Presiding Officers failing to sign. The
interesting thing is that they are trying to tell us that if you don’t sign it
doesn’t mean anything then what is the need of the signature basis of the SHALL
requirement. SHALL is mandatory and MAY is empowering but permissive.”
“Once you are mandated to sign, then it is a
requirement for establishment of the credible voting and if that has not taken
place then there is no election which is valid and it should be cancelled.”
Voting
without biometric
On voting without biometric verification Prof
Frimpong said it was an established requirement agreed by all the parties
adding At the same time we are being told that even if there was no biometric
verification it did not matter.
“Why did we make laid down procedures for purposes
of elections in the country if those procedures did not mean anything?”
“I would advise strongly that for purposes of all
future elections to be credible, transparent and to be legitimate, we need to
go back to the drawing table and ensure that all those rules and regulations
are complied with.”
The
dilema
He said “my main worry is that assuming for the
purposes of this discussion, if those flaws emerged, where do we go after this
case? I wonder whether the judges took this into consideration in their
judgement.”
He advocated for a constitutional court modeled
along what pertains in South Africa “because we relied on the Supreme Court
judges who seem not to have sufficient knowledge about constitutionalism.”
Above
the constitution
He said that no one can claim to be above the
constitution but a careful analysis of the judgment appeared to contradict the claim.
“If you watch this particular judgement, indirectly
some of the judges are trying to say that they can declare some of the
constitutional provisions invalid and so they are above the constitution.”
He also said that if you look at the judgement critically
“they inadvertently gave it to the petitioners but they didn’t admit it.”
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