Chairman of the EC, Dr Afari Gyan
We, citizens and voters, tend to see elections as political processes. And political processes they are indeed. But elections are more than just political processes; they are also legal processes. Elections are set in motion, as well as regulated, by law, and the conduct and outcome of an election must comport with the applicable legal rules and standards.
In Ghana, the two main state functionaries involved in the administration of our elections are the Electoral Commission (EC) and the courts of law. Our laws entrust the routine, day-to-day administration of elections and election related matters to the EC. But, under our Constitution and laws, if an aspect of an election is disputed, the aggrieved person is granted a right to press their claim before the courts, and it is for the courts to determine, based on the evidence, whether a violation has occurred that warrants a remedy.
We should, therefore, be careful not to misconstrue or mischaracterize the decision of the presidential candidate of the New Patriotic Party, Nana Akufo-Addo, to challenge the EC’s declared results in a court of law as an act of subversion. It is not. Court challenges are an integral and a necessary part of our country’s electoral process. An interested party who is aggrieved by the conduct or result of an election has a right, protected by the Constitution, to resort to the courts of law to vindicate his or her claim and seek appropriate relief.
I have heard it said that a court challenge by Mr. Akufo-Addo will not change the result. In all probability it won’t. But the mere fact that a court is unlikely to reverse or disturb the outcome of an election does not make a legal challenge unnecessary or wrong. To the contrary, not to challenge a disputed election when the aggrieved party believes they have credible evidence of wrongdoing is to make the EC unaccountable and a law unto itself. The EC is not above the law. It is tasked by law to administer our elections, and in doing so its actions and decisions are regulated by law. In the absence of law, the EC would become "prosecutor, jury, judge, and executioner," all rolled into one. Our Constitution rightly does not permit or countenance such despotism.
Even if a court challenge is unlikely to reverse the outcome of the election, it is still good and sufficient if an aggrieved person can prove in a court of law that, certain acts or omissions of the EC and its officials in the conduct of the election were improper and unlawful. If that can be established by competent evidence in a court of law, it would be an important step in holding the EC and its officials accountable under law and, thus, help to improve the future organization and conduct of elections in Ghana.
It is dangerous for us to fall into the trap of thinking that once the EC has declared a winner in an election, whether presidential or parliamentary, its acts and omissions in the conduct of the election should never be challenged. That would turn our democracy over to the Electoral Commission, not the people, as the ultimate kingmakers.
We should not make the EC and its officials into tin gods. They are not. They are ordinary human beings. Like we all, they are capable of error, of ineptitude, of bias, and of misconduct. In fact, our Constitution and laws anticipate and assume such human fallibility. It is for this reason that the Constitution makes provision for an aggrieved person to go to a Court of Law with competent evidence if they allege that the EC and its officials have acted improperly or unlawfully in the performance of their duties.
The political aspect of the December 2012 election is indeed over. But the legal aspect need not come to an end. The defeated NPP presidential candidate and his lawyers may not be able to establish with the evidence at their disposal that the election was wrongfully decided in favor of their rival candidate. Still, if all they are able to prove, based on the evidence, is that the EC or its officials acted wrongfully or unlawfully in the discharge of any aspect of their duties, that fact alone would be helpful to the progress of our democracy and the Rule of Law.
In fact, I would go further to say that, an aggrieved party who has credible evidence of misconduct, negligence or illegality on the part of the EC in the course of an election is morally obligated to press his or her claim in Court. We also, as a nation, are entitled to that knowledge so that, at a minimum, we can put in place appropriate remedies and correctives for the future. And if it is established by the court that an official of the EC broke the law, then that official, too, can be sanctioned appropriately, in accordance with law.
For me, then, this business of an election being challenged in court is about one thing and one thing only: Accountability. Specifically, it is about making sure that the EC understands that it is a body subject to law, and that in carrying out the duties entrusted to it by law its officials are legally accountable for their acts and omissions. To do less is to allow the EC and its officials to place themselves above the law and beyond the reach of accountability.
Like any candidate in an election, Mr. Akufo-Addo has a constitutionally guaranteed right to go to Court if he has reason to feel aggrieved. The law does not require a losing candidate to concede defeat. That is only a political courtesy, which, when rendered, indicates the candidate’s acknowledgment that the election has come to a decisive and incontrovertible end. When a candidate disputes aspects of an election on legal grounds, however, he should be left free to pursue his legal recourse.
Mr. Akufo-Addo has chosen the legal option. Let us respect this right to do so. In fact, let us commend him for using the legal recourse and no other. More important, let us appreciate the larger principle at stake here: The Electoral Commission is NOT above the law; accordingly, its performance in the conduct of an election must, at all times, be in accordance with the law.
Let us leave this matter of the disputed election to Mr. Akufo-Addo and the Courts. Hopefully, we will not have to wait weeks, months or years to hear back from the Judges.
H. Kwasi Prempeh
December 11, 2012