Watching the Kenyan Election Dispute case on DSTV channel 413 on Thursday, 28th March between the hours of 13:00 and 16:00 GMT, it was really worrying and embarrassing that the Attorney General of Kenya could boast of the speed with which their case was travelling by citing Ghana’s snail slow pace of handling a similar petition – challenging the validity of the election of the President.
Kenyan Attorney General, Githu Muigai speaking; “As my Lords are aware, as we speak here today the Supreme Court of Ghana is sitting on the election dispute relating to their election which was undertaken in December and they are slower than we are and I think we should take a little credit for the sort of enthusiasm that this court has brought to a timeous disposal of this matter.”
The Kenyan A-G was allaying any fears of delay. I sighed with disappoint; Oh NO! What a shame, Ghana! This is what happens when your standards fall. You become a reference point for those accused of falling. It becomes easy and convenient to use you as a solace. How much less can we fall?
Unlike in their previous elections where disputes or challenges were settled by the sad option of bullets and machetes, the People of Kenya this year chose the prescribed channel of using the Court, taking a cue from Ghana’s opposition leader Nana Addo Dankwa Akufo Addo. When I began writing this piece, the petition was expeditiously being dealt with. Indeed on Saturday, 30th March, the Judges of the Supreme Court of Kenya pronounced judgement declaring the validity of the election of Uhuru Kenyatta as President of Kenya.
Ghana’s 2012 December polls for both Parliamentary Representation and Presidential Election came to a peaceful end not without issues and disputes. Notwithstanding these issues and disputes, President Elect, John Mahama, per the Electoral Commission’s declaration was sworn into Office on January 7, 2013 as required by Law pending the determination of the Presidential Petition filed at the Supreme Court challenging the validity of his election. The Petitioners drew their authority from Article 64 of the national Constitution which grants the Supreme Court the basis to make a pronouncement on the decision of the Electoral Commission as well as guarantees the running of government by the ‘embattled’ President.
The Kenyans may have a taken a cue from the law abiding path Ghana chose in handling their election dispute but they have overtaken us by taking the lead in dispensing with their challenge legally without any hitch. Kenya has now become an example Ghana has no option than to emulate.
In the Kenyan case, the bench was led by the Chief Justice himself. Strangely, our Chief Justice is missing in the Ghana case. Her Ladyship Georgina Wood has excused herself from a number of monumental cases namely; the challenge of the creation of new Districts and the creation of new Constituencies in addition to this Presidential Petition; to the shock of many a follower of the proceedings of the Supreme Court at least since 2009.
In this landmark case unprecedented, one would have expected the Head of the Judiciary to lead the Honourable Bench to decide on it. Madam Chief Justice, your absence on this bench is not in good taste with the majority of Ghanaians. Or is it the case of withdrawing from cases in response to the NDC Chairman’s threat of “many ways of killing the cat”? I do not want to believe that as the Arch Protector of the Law, Her Ladyship could be intimidated by such threats knowing very well the degree of her duty call. Whatever the cause of the Chief Justice’s action may be, her stay off these landmark cases is a dereliction of duty and classical shirk of responsibility. Never has there been such a situation in Ghana’s legal history. Even ailing Chief Justices were prepared to stand up to be counted.
The Chief Justice of the Kenya is not only sitting on the case himself, he has also led the Court to order for the live broadcast of proceedings in Court for the view of the general public on their National Television. If her ladyship has not been courageous enough to sit on this case, she can at least see to the live broadcast of the case on Ghana Television like we witness with the Public Accounts Committee’s sittings.
In Ghana, we still do know how long this case will travel and when it is actually starting. Our situation is even more pathetic because of the posturing and attitude the Supreme Court has adopted in entertaining delays. First it was the unnecessary allowance for the NDC as a different Party to join the matter in their own right because they sponsored the first respondent John Mahama. Subsequent to the allowance of their joinder application, all the NDC has been doing in court is to delay the commencement of the substantive petition and until the Courts stamps Authority, they have not indicated the readiness to stop.
Second, the Court instead of directing the conduct of the trial threw the option to feuding parties who have shown in court their unwillingness to agree on anything including disagreement itself. After more than two weeks of adjourning the case ‘sine die’ the counsel for the petitioners have written to the registrar of the court hinting the dead end of their meeting with the counsel for the respondents. Could this not have been avoided? Could we not have seen to the commencement of the trial proper? Even at the next hearing, one is uncertain whether or not we shall be told as to when this case is going to begin.
As much as it is worth commending our Judges for unanimously thrashing the frivolous joinder application by some mischievous NDC members, we must express our disgust at the snail slow pace at which they are grinding the wheels of justice. After all, it is also written that Justice Delayed is Justice Denied. It was in the spirit of this very maxim that they wrote to be enacted CI 74 to expeditiously deal with presidential petitions considering its urgent nature. So why must we be in the 4th month of a four year tenure and still be in court over the validity of who should execute a term?
We have no option than to take a cue from the Kenyans who obviously learnt from the needlessness of their warring past as well as the law abiding example chosen by Ghana. The delay tactics employed by the opponents of the petition is not celebrated at all by many a Ghanaian whose fears are in expression albeit in a muted majoring protest.
It is instructive to note that both her Ladyship Georgina T. Wood and Dr Afari Djan have their hands in the happenings in Kenya. Whereas Dr Afari Djan helped in the creation of the electoral reforms involving the use of Biometric Technology though Ghana had no experience in such, Mrs Wood also helped in crafting the legal reforms in adjudicating electoral disputes though she won’t have anything to do with that of her own home ground. The interesting twist here is simply that the Kenyans have shown that they can learn and learn really fast. We surely have a cue to take from Kenya.
We cannot overlook the hardworking staff of the Kenyan Judicial Service who worked tirelessly to expedite action in the hearing of the petition. On no occasion did the courts have to wander with the whereabouts of any document. There was not attempt by any court staff to hide any document. Ghana Judicial staff penned to help with the execution of this case must learn from their colleagues in Kenya. Nobody should attempt to remove or hide any of the filed applications or documents from the attention of the judges.
Of course the counsel representing the parties involved in the case generally conducted themselves very well. Each of them restrained themselves to the time allotted. They reduced the use of acrimonious and inflammatory non legal language. There was general decorum and surely it would be in the interest of peace for our lawyers to take a cue from their Kenyan colleagues. The laxity with which the court allowed the wearing of decent attire and not necessarily the traditional dress code of colonial legacy cannot equally be slipped over.
Considering the long hours expected to be spent in court, perhaps they (Judges and Lawyers alike) would be relieved of the stress of this unmodified colonial legacy which is very much not akin to our environment.
One interesting point that arose in the Kenyan case that struck me and I see recurring in our court was the point of law that; where the petitioner(s) showed that the breaches of the law in the conduct of the elections affected the general outcome of the election, the burden of proof shifted to the respondent(s) to show that such breaches did not affect the outcome.
In the end we should all remember that Kenya went through a similar if not the same experience of resolving a disputed presidential election in court without any degeneration into war or bloodshed. They have exhibited the spirit of oneness in deepening the democratic culture of Kenya. It is Kenya that has won. Not any particular individual or party. Ghana can do and bright better.
Is Ghana going to be like Kenya?
That is the debate on going pending the decision of the Supreme Court. How soon that is going to be, we are not sure. Since Ghana did not turn into Kenya when the late Prof Mills promised Kenya in 2008 while alive, I am not too sure Ghana will go Kenya after his death.
By: Kwabena Bomfeh Jnr (Member of Parliament [attempted], Kintampo North)