The Kenyan Supreme Court has acted with the speed of lightening to determine the outcome of the election crisis by ruling to uphold the results of last month’s general elections. They have ruled broadly that the elections were free and fair and that Uhuru Kenyatta was duly elected after reviewing recounts from 22 polling stations. The Independent Electoral and Boundaries Commission (IEBC) in Kenya had admitted the fact that there were technical failures with their electronic voter ID system and the vote counting mechanism, but insisted that the vote was credible.
The decision by the Kenyan Supreme Court has led many Ghanaian political pundits beginning to think that the decision will act as a precedent for the current petition pending in our Supreme Court. Though the similarities are clear, in so far as they both sought to overturn an election declaration that is where it ends. The contents of the two and the attitudes of the two courts and the parties in the matters are so different.
In the Kenyan situation, the allegation involved some 80,000 votes that were allegedly miscounted over 22 polling stations. This could therefore be determined in just hours with a review of recounts. Uhuru Kenyatta did not panic in the matter because he believed in the strength of his win and therefore was prepared to cooperate with the court to establish his legitimacy. He did not ask his political party The National Alliance Party to file a joinder. He did not ask to bring 22 witnesses to represent each contested polling station results.
The Independent Electoral and Boundary Commission (IEBC) did not play the ostrich and ask for “further and better particulars” of information which is entirely within their domain. The Supreme Court understood the issue at stake and realised that the Kenyan peace depended on the speed, alacrity and transparency with which it deals with this matter and kept faith with the Kenyan people. The Chief Justice himself, Justice Willy Mutunga took a personal interest in the matter, sat on the matter and delivered a decision which goes a long way to serve as constitutional milestone in Kenya.
The Ghanaian situation is so starkly different. Our Supreme Court is treating the matter as normal business. The Chief Justice Mrs Georgina Wood, decided for reasons best known to her not to sit on the matter. She lost an opportunity to write her name in Ghana’s legal and constitutional history, giving that chance to Justice Atuguba. The manner in which the Court has treated preliminary application has not been in the manner that the Chief Justice herself seemed to suggest that she had set a plan in motion to deal with elections petition expeditiously.
Any application, no matter how frivolous and vexatious, is given at least seven clear days to fester by the court before determinations are made on it. This has made it a field day for anybody willing to slow down the already snail-paced process to do so. The court seems to be driven by the will of the lawyers rather than the Rules of the Supreme Court. The approach of the court in Ghana is a far cry from that of Kenya which showed itself as a serious supreme court that knows that the peace of the nation depends on it.
The next difference is the weight of the evidence.
While Kenya sought to overturn the votes with a dispute of 80,000 votes in 22 polling stations, in Ghana the petitioners are seeking to overturn over 2 million votes spread over 11,000 polling stations. This is far more serious and would take days, if not weeks to review. While the Kenyan situation could be corrected with recounting, the Ghanaian situation is allegedly a carefully planned manipulation of documents to support votes that either did not exist or grossly added to.
The other difference is the panic of the respondents in this matter. It started with 4,800 and to 11,000 witnesses to be called by the 1st Respondent (Prez declared), then his invitation to his party NDC to join as 3rd Respondents. Then in a slap-on-the-face attempt by the respondents to insult the intelligence of the court, they managed to manufacture 9 joinder applications from some no-existent NDC sympathisers to further delay the proceedings. These are all attempts to weigh down the case because of the fear of the outcome. Then the 1st, 2nd and 3rd respondents asked the court at different times (typically) for “further and better particulars” of the evidence the petitioners intend to rely on.
Whereas the petitioners have typically complied with all the requirements and orders of the court with speed, the respondents in a typical delay fashion, not treated the court order in a like manner. To this day, one month on, the 2nd respondent has not provided the court with the further and better particulars of over 241,000 foreign registered voters.
Another difference in the Kenyans case was the attitude of the lawyers for the parties involves, carried through their applications, making it highly commendable. In the case of Ghana, the attempt by the lawyers to slow down the proceedings is unprecedented. There seems to be a false belief that every day the hearing is delayed or postponed, it goes to show how sharp some lawyers are. This is nothing but the delaying of the inevitable that appears to be the lawyers’ stock-in-trade. But then one cannot blame them because if 9 Supreme Court judges cannot determine a basic issue as summons for direction and pass on that responsibility to the squabbling lawyers to do that, then what will be the outcome and what should we expect – more delays?
So what do we make of the two cases, the Kenya’s and Ghana’s? In Kenya honest parties to the case respected the sanctity of the law, and the Supreme Court lived to its legal tenet, thus, “justice delayed is justice denied”. They approached the case with professionalism and even though they had relatively narrower issues to determine. In Ghana, crafty, hardened, determined and unscrupulous respondents are manipulating a Supreme Court that has not yet realised its fundamental responsibility as the Superior Court of Judicature of the land, the Nation’s ultimate governance, Freedom, Justice and Peace are in the palm of their hands.
Ghana is not indeed Kenya, the cases are not the same but then does the Supreme Court of Ghana realise that? We wait to see!!