Posted: Saturday 19th January 2013 at 0:09 am

The Curious Case of the First Respondent.

Feature Article of Friday, 18 January 2013

Columnist: Rii, Jedd

As the post election saga rages, some, mostly domiciled abroad have predicated that the Ghana constitution is flawed and does not meet the requirements of the lawsuit by the New Patriotic Party [NPP], in their challenge to the validity of the 2012 Presidential election. This is because of the unique position of the first respondent.

There is nothing wrong with the Ghana Constitution. It is the failure by some to understand it, that is the problem. The Ghana constitution is fine.

A new development, is the attempt by the New Democratic Congress [NDC] to annex itself to the lawsuit, in solidarity to the president. The logic of this is esoteric, but it is the first time that I have heard anyone jump out with a “Sue Me” placard round its neck, just asking to be sued. The perceived wisdom is, never get tangled in a lawsuit and if you find yourself in one, strive to get out as fast as possible.

It is strange that counsel will advice a client to undertake such a bid, as if it was recommending a trip to a jamboree. Such a charade can be construed to mean, the NDC admits, it may or may not have been complicit in the matters being contested and that is as good an admission of guilt. Their latest attempt will not help the expedition of the case and it will not impart any clarity to it. Besides you cannot compel someone to sue you. It is increasingly becoming clear that the reason for naming the first respondent, is disastrously being misconstrued.

The scenario may have been the same for the NPP. Snippets of information suggest, that the party for reasons, none other than being asked to name Mr Mahama as a respondent of the dispute, felt obliged to build a case against him. There was no need for that, because Mr Mahama, by virtue of his position, had been deemed by the law as a party who stood to loose if the suit was successful. There was already a prima facie case against him.

Readers who followed earlier expositions would remember the three stages of the court process.

At the onset of proceedings, the court will seek and put together, all the elements that it will require to dispose [finish] off the case. Since the ramifications of such a discourse can have a serious effect on the stability of the nation, it is very important, the outcome is conveyed directly to the people who are likely to influence it; the two contesting candidates.

The first respondent in this case, is the person whom following the elections, occupies the office of the president, as a result of the plaintiffs assertion that the elections were rigged. It was not necessary that he had to be part in rigging the election. It also does not necessarily mean that you have to find something against him. There was already a prima facie case against him because he was in the position [as president] which is the subject of the suit.

It was only necessary at the end of proceedings for The Chief Justice, Mrs Theodora Wood to get the two parties together and tell them who won or lost and issue a warning or endorsement to the relevant party. The first respondent was only going to be an active participant at the end of proceedings. Counsel should have worked it out, because Mr Mahama was in a unique position of being a president and it stood to reason that he was covered by the constitution against a lawsuit.

The curious case of the First Respondent is turning out to be a poisoned chalice.

In the case of the NDC, it is likely that the court will simply strike out its bid, for having no merit because of reasons mentioned, but largely because it is certain that Mr Mahama will not be subject of a suit. The law just does not permit that at the moment. For the NPP on the other hand, it will mean the difference between, being given a swift exit out of court or being allowed to pursue its primary objective of contention.

Unless they have strong and incontrovertible evidence against the president, Mr Akuffo Addo and his team, must jettison any attempt to implicate Mr Mahama directly and simply state the prima facie case [or not] that he occupies an office by default as a direct result of acts or omissions by the second respondent. If they do not have any such evidence, and they fail to implement this quickly, they might not be able to give their supporters the best chance of setting out their case [if they hold evidence of actual rigging]. They have a duty to represent the party and their supporters and do so properly.

The gauntlet has been dropped and it is now a showdown. If they blink, they lose.

Jed Rii

Link: [email protected]

Coming up: How the Elephant Squares Up.

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