Mahama’s Woes Of 100 Days, All Eyes On Court

Gabby Asare Otchere Darko

Gabby Asare Otchere Darko

It is difficult to look at John Mahama’s 100 days in isolation. He was Vice President from January 2009 and ‘caretaker’ President from July 2012 so for them to blame his woeful performance on the disruption of the presidential petition (as one of his ministers sought to do on radio Saturday) is only to concede effectively that he can’t be trusted to lead in periods of crisis.

President Mahama gave 152 policy directives to be implemented from September-December 2012.

The results from those directives ought to have been apparent by now. But are they?

Let me mention just a few of them here (in his own words):

(1)  With the completion of the migration and payment of arrears under the Single Spine Pay Policy (SSPP) by the end of the year, I have directed the Minister of Finance to recommend short and medium-term measures to restore the balance among government expenditures on personal emoluments, goods and services, and capital and infrastructure development that is consonant with our middle income status.

(2)  I am directing the Fair Wages and Salaries Commission to take the remaining steps towards completion of the single spine salary structure by the end of this year.

(3)  I am directing the Ministry of Employment and Social Welfare to provide my office with a comprehensive list of all job-creation initiatives that are scattered all over the government system.

(4)  I have directed that an Inter-Ministerial committee chaired by the Minister of Energy must, with immediate effect, engage the critical consumers of electricity, in particular, health and water supply facilities and key private industry establishments to implement measures that will ensure that the nation’s strategic services and industry are not unduly disrupted.

Instead of results, what we saw at the end of the year was the highest budget deficit ever on record, 12.1%, or GH¢8.7 billion and a nation that appeared to be suffering in relative silence – a very Ghanaian syndrome.

Much of this overspending took place in the last four months of 2012 and was directly influenced by electoral considerations. So much so that government chose to give more money than it budgeted for, for vote-catching programmes like MASLOC (small loans to the favoured), free laptops that were not budgeted for, etc, and left unpaid arrears and agreed emoluments for workers. It was a simple matter of “we must win at all cost.” The end result is this spate of strikes, eight from my count, and the stifling economic hardships that people face in a jobless Ghana.

The recklessness with which the national coffers were depleted last year cannot be washed away by simply throwing out figures to the parliamentary finance committee in the hope that they will add up.

GH¢15 million for Guinea Fowl project and GH¢33 million for afforestation in the North are examples of this. There are tractors that were supposed to be purchased with funds released from the treasury but where are they and at what cost?

It has been 100 days of leadership confusion and without clarity as to which direction the President is taking the country. It seems clear that the job is weightier than the Mahama muscles can bear. Not to worry, the Supreme Court may come to his rescue.

All Eyes On The Supreme Court 

The decision by the Chief Justice to allow television cameras to cover the presidential election has been greeted by all, including those who opposed it as a good move. On April 2, when Philip Addison, the lead counsel for the petitioners, pleaded with the court to televise the hearing, all three respondents (John Mahama, the Electoral Commission and the National Democratic Congress) opposed it. It was interesting to hear counsel Tony Lithur (“on our part, we welcome coverage”) and Tsatsu Tsikata (“We not only heartily welcome this… this precedent can also serve as a model for other equally important cases to receive coverage”) making a clear volte facie before the cameras and even asking for CNN, BBC and Al Jazeera to be also allowed to cover!

All across the country, in villages, towns and cities, in offices, at the ministries, in drinking bars, restaurants and lorry stations, people either have their ears glued to radio sets or their eyes/ears on television sets. It can be roughly estimated that more than seven million people in Ghana watched or listened to at least parts of second petitioner, Dr Mahamudu Bawumia’s testimony last Wednesday. This, by far, makes it the most followed television event ever. It may only be comparable to Ghana reaching the semi finals of the World Cup in 2014.

The overwhelming public following of the TV/radio coverage is the clearest expression yet of how important this case is to the nation. And the Supreme Court has been vindicated for taking this unprecedented decision in the national interest.

Moreover, this case is now receiving extensive international interest and it is more so because of the unalloyed access to the court proceedings. I have been receiving messages from associates in West Africa and beyond from people who are keenly following this case. Never in Africa has a presidential petition succeeded, but from my analysis of case law, no presidential petition has involved the volume of documents, polling station results and to have this inordinate percentage (some 45%) of results being in dispute.  It is the mother of all presidential petitions.

The chequered integrity of elections in Africa and, ultimately, the destiny of a continent’s democracy and genuine stability for development are on trial in Accra today. Our judges have a responsibility which primarily goes to the heart of the integrity of our democracy and, by extension, Africa’s. The role that Ghana played in the independence struggle of the 20th century has now shifted to the struggle for credible elections in Africa and, once again, the burden is on Ghana, to lead the way.

To use Dr Afari-Gyan’s words on December 9, “the name of the game is evidence.” The evidence so far is that elections in Africa are facing some of the very problems that elections in Britain, US and elsewhere faced in their initial stages and their democracies survived and developed to the extent where the issue of instability is not even in their governance lexicon today. We can also get there and we must get there and we will get there and this can help us get there.

As we said all along, live coverage will blunt the weapons of propaganda mongers to spin the case into some dizzy heights of potential instability. So far live coverage serves as the best move in preparing the nation to accept the outcome of the court case.

It also emboldens the court to give a decision that is just without any other consideration, like the consequences of disturbing the status quo because it can be presumed to be also in the eyes of the people of Ghana.

Nine months ago, Ghana received international praise for the smooth transition that occurred after the death of President John Mills. His passing did not disturb the status quo. A man that Ghanaians had not elected became president and the people accepted it without a fuss because that is what is prescribed by the Constitution of the Republic. Article 60(9) of the 1992 Constitution gives the Chief Justice the powers to administer the oath of office for the Vice President to become President in the event of the President dying in office. That same constitution at Article 64(2) gives the Supreme Court the powers to make a declaration that the “election of the President is not valid”.

Expediting Hearing

The Supreme Court has a duty to avoid unnecessary delays. The Rules guiding this presidential election petition are contained in CI 74. It reads under Rule 69C (4) that “the Court shall inquire into and determine the Petition expeditiously and shall give its decision not later that fifteen days from the close of hearing.” 

We all saw that it took the second petitioner, Dr Bawumia less than eight hours (over one and a half days of sitting) to present the petitioners’ main case, which now involves 11,138 pink sheets (records of election results) from 11,138 polling stations.

On the contrary, the 1st respondent’s counsel, Tony Lithur, took five hours to cross-examine Dr Bawumia on some 35 pink sheets, which he showed successfully carried duplicate exhibit numbers. Dr Bawumia insists that the error was one of packaging and does not mean that there is any double counting to reach the figure of 11,138 pieces of evidence.

It was a most tedious monotony and adequation ever to be endured on telly and probably by our Supreme Court. The court on Friday, 19th April, decided that henceforth in “order to expedite the hearing of the petition” counsel for the 1st respondent must list out what is left of the pink sheets identified by him in that particular manner of his cross examination of Dr Bawumia which he claims “were duplicated, in their mode and manner of generation and extent of their use by the petitioners for the purposes of proof of their petition” and that the “said list should be electronically served forthwith by counsel for the 1st respondent on all other parties.”

Clearly, the court has set the mode of presenting evidence and cross-examination which in a way designed to expedite the case. Even under normal trials, the court has a duty to control witnesses and the testimony they give in court to ensure that what goes on record is relevant and its probative value outweighs all other factors including prejudice.

Section 51(2) of the Evidence Act, 1975 (NRCD 323) states that all relevant evidence is admissible and that “no evidence is admissible except relevant evidence.” – Section 51(3).

But this does not mean that because evidence, such as the duplication of submission of pink sheets, is relevant evidence, the court has no choice than to admit same in any such selfsame manner. The court in this instance has acted against the undue delay that “needless presentation of cumulative evidence” can cause. 

Section 52 of NRCD 323 is emphatic on this point: “The court in its discretion may exclude relevant evidence if the probative value of the evidence is substantially outweighed by (a) considerations of undue delay, waste of time, or needless presentation of cumulative evidence; or (b) the risk that admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues.”

Fundamentally, the court is seized with the powers to control how cross-examinations are conducted. Section 69 of NRCD 323 states, “The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (a) make the interrogation and presentation as rapid, as distinct, and as readily understandable as may be, and (b) protect witnesses from being unduly intimidated, harassed or embarrassed.”

The duplications have been admitted but with the insistence that the error is one of packaging and does not affect the analysis that went into the evidence presented and the number of votes contested. Thus, even if there are errors do they affect the evidence presented? That is the overarching issue.

Take one of the categories for instance. Even with the reduced numbers, the petitioners insist that over-voting, for example, took place in a total of 1,826 polling stations and the total number of votes to be annulled is 791,423. They go on to state further that in 62 of these polling stations, total votes in the ballot box exceeded the voters register (per the pink sheet).

Also, that in many cases a look at the record of total votes cast (including rejected ballots) on the pink sheet hid the evidence of over voting. In these cases, it was only after adding up the votes for each candidate and the rejected ballots that evidence of over-voting is revealed.

So when all the errors are said and done, will this evidence of over-voting stand undented? We must remember that just 154,000 off John Mahama’s votes means no candidate received more than the mandatory 50% of votes to be declared an outright winner. It is this material fact which the respondents should focus on  attacking with numbers first before they even get to tackling the claim that Nana Akufo-Addo, the 1st petitioner, must be declared as the validly elected president.

 By Gabby Asare Otchere-Darko