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Newsflash

  • NDC RIGGING MACHINERY IN MOTION …. as DI raises red flags over suspicious NHIS registration numbers -

    Public policy and governance think tank, the Danquah Institute has expressed grave concern about the Electoral Commission's decision to register all persons in the country who, simply, are in possession of identity cards issued by the National Health Insurance Authority.

    At a press conference organised by DI last week, a fellow of the institute, Mr. Boakye Agyarko, explained that “one of the objects of the National Health Insurance Authority” as captured on the NHIA’s website which states that “persons not resident in the country but who are on a visit to this country” can obtain NHIS cards is deeply worrying.

  • GHANA MUST WAKE UP, SHOUT FOR A NEW REGISTER AND SHAKE UP THE EC -

    FITCH Rating’s latest report on Ghana lays particular emphasis on the importance of Ghana’s democracy and stability to the country’s economic prospects. Whiles it gives a negative outlook based on how the economy is being run, Fitch makes the point that Ghana’s credit rating has not, however, fallen below ‘B’ because of the country’s “strong governance record and recent democratic history,” and that, this is “reflected in Ghana’s ability to attract foreign direct investment, which at 7% of GDP is well above that of Nigeria, Gabon, Zambia, Kenya and Angola.”

  • Danquah Institute Reacts to Bogus Polls On NPP General Secretary Race -

    The attention of the Danquah Institute has been drawn to a story making the rounds on social media and now on www.ghanaweb.com, as well, titled “Danquah Institute predicts 64.7% win for Kwabena Agyepong.”

  • The Monetary Policy Committee - November 2013 -

    You are welcome to this Press briefing. The Monetary Policy Committee (MPC) held its 58th meeting on November 25 to 27, 2013 to review the latest economic developments and the monetary policy stance. I present to you the outcome of the deliberations.

    The latest projections by the IMF indicate a pickup in the pace of global activity from 2.9 percent in 2013 to 3.6 percent in 2014, driven largely by the advanced economies with the impulse to global growth expected to come mainly from the United States against weaker prospects in emerging market economies.

  • Africa’s tax systems: progress, but what is the next generation of reforms? -

    Mick MooreTaxation is zipping up the development agenda, but the discussion is often focussed on international aspects such as tax havens or the Robin Hood Tax. Both very important, but arguably, even more important is what happens domestically – are developing country tax systems regressive or progressive? Are they raising enough cash to fund state services? Are they efficient and free of corruption? This absolutely magisterial overview of the state of tax systems in Africa comes from Mick Moore (right), who runs the International Centre for Tax and Development (ICTD). It was first published by the Africa Research Institute.

    Anglophone countries have led the way in reforming tax administration in Africa, considerably more so than their francophone peers. The reasons for this are numerous. Networks of international tax specialists are based mainly in English-speaking countries. Many of the modern systems that promote best practice within tax authorities were developed in anglophone countries, especially Australia. International donors, and particularly the UK’s Department for International Development (DFID), have directly and indirectly promoted a lot of reform of national tax authorities. In fact, this has been one of the success stories of British aid.

  • TWO DECADES OF FREEDOM: What South Africa Is Doing With It, And What Now Needs To Be Done -

    As the 20th anniversary of the birth of democracy in South Africa, on April 27 2014, approaches, it seems a perfect opportunity to take a step back and get a long-range perspective on the important question: “So, what has Nelson Mandela’s South Africa done with its freedom?”

    Goldman Sachs has produced this report in the hope of contributing to- wards a more balanced narrative on South Africa; one, which in the wake of 2012’s tragic events at Marikana, had become somewhat hysterical, short-term and often negative

  • Shifting Power? Assessing the Impact of Transparency and Accountability Initiatives -

    Accountability and transparency initiatives hav e taken democratisation, governance, aid and development circles by storm since the turn of th e century. Many actors involved with them – as donors, funders, programme managers, implementers and researchers – are now keen to know more about what these initiatives are achieving.

    This paper arises from a review of the impact and effectiveness of transparency and accountability initiatives which gathered and analysed existing evidence, discussed how it could be improved, and evaluated how impact and effectiveness could be enhanced. This paper takes the discussion further, by delving into what lies behind the methodological and evaluative debates currently surrounding governance and accountability work. It illustrates how choices about methods are made in the cont ext of impact assessment designs driven by different objectives and different ideological and epistemological underpinnings. We argue that these differences are articulated as methodological debates, obscuring vital issues underlying accountability work, which are about power and politics, not methodological technicalities.

  • ADVISORY NOTES TO PARLIAMENT ON THE PETROLEUM AGREEMENTS BETWEEN THE REPUBLIC OF GHANA, AGM PETROLEUM AND COLA NATURAL RESOURCES -

    The Ministry of Energy has officially laid before Parliament two Petroleum Agreements for ratification following earlier approval by Cabinet. The Agreements are:

    1. Petroleum Agreement among Government of the Republic of Ghana, Ghana National Petroleum Corporation, GNPC Exploration and Production Company Limited and AGM Petroleum Ghana LTD in respect of the South Deepwater Tano Contract Area (and shall be called AGM Contract for the purpose of this Analysis).

    2. Petroleum Agreement among Government of the Republic of Ghana, Ghana National Petroleum Corporation, Cola Natural Resources and Medea in respect of East Cape Three Points Contract Area (and shall be called Cola Contract for the purpose of this analysis).

    This Advisory Notes is provided to members of Parliament to enrich debate during the consideration of the Agreements. The Notes are based on analysis by the Africa Centre for Energy Policy (ACEP) of the Negotiated Agreements and the memoranda accompanying them. These Notes do not cover most of the subjects in the two Agreements as most of them have common provisions. The focus of the analysis therefore covers subjects that show material differences between the Agreements for the purpose of enriching the debate in parliament.

  • CADA DISCUSSES OVER VOTING -

    Of late Ghanaians have become obsessed with throwing electoral ‘jargons’ around arising from the recent Election Petition in the Supreme Court of Ghana and most people have overnight turned themselves into Electoral Specialists in view of the enormous interest generated during the petition hearing. However, there are still lack of clarity and understanding in some of the widely used electoral terminologies. The Centre for African Democratic Affairs (CADA) a ‘Think Tank’ of Election Experts, has taken upon itself the challenge to critically examine some of the terms that created confusion in the minds of people during the court proceedings. One of such terminologies is over voting whose definition is still ambiguous even after the ruling of the Supreme Court. CADA therefore discusses the term Over Voting in the first of its series.

  • A strong Parliament is key to fighting corruption - Minority Leader -

    The Minority Leader in Parliament, Osei Kyei Mensah-Bonsu, has stated that strengthening Parliament’s financial oversight responsibilities is critical to combating corruption.

    He noted that “the evil enterprise of corruption which has become cancerous in Ghana”, explaining that Parliament has no option than to demonstrate extreme concern about the problems and threats that corruption poses to the stability and security of the country.

    He said corruption undermines state institutions and the values of democracy, as well as cultural and traditional values and the justice system. According to him these work against sustainable development and the rule of law.


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WHY MR. JUSTICE WILLIAMS ATUGUBA's DECISION ON THE NDC JOINDER APPLICATION IS CONVULUATED IN LAW

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In the case between the NDC (applicant for the joinder application) and NPP(respondent), the nine-member bench (Mr Justice William Atuguba (presiding Judge), Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu,Merr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr P. Baffoe- Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo) agreed to the argument raised by the applicant’s lawyers for joinder and granted the application a 6-3 majority decision. This paper provides information on the case and argues why theJudges decision is flawed and totally disconnected with law and jurisprudence.

Arguments put forward by members of the bench

In her ruling, Mrs Justice Vida Akoto Bamfo (Justice of the Supreme Court) said that the Supreme Court considered the matter brought by the applicant. She explained that Ghana political parties including the NDC were integral part of the current democratic dispensation and which selected and sponsored the first respondent to stand on its ticket. She said the argument by the lawyers of the NPP that theapplicant (NDC) have no relation to the selection of a candidate and that it was done through a document cannot be sustained.

Mrs Justice Bamfo said if the Supreme Court should come to a decision that the presidential elections should be re-run the applicant would still play a critical role in the selection and sponsoring of its candidate. She said the NDC in this regard would be affected by the decisions of the court and in the interest of justice and fairness it should be allowed to join the petition.

Mr Justice William Atuguba agreed with Mrs Justice Bamfo and explained that the word party in the law to mean an interested party. He said Article 55 and 66 allows political parties to sponsor candidates to stand for presidential and parliamentary elections for political power and that the restrictive approach sometimes adopted bycourts to interpret a motion for application to a joinder should be avoided. Mr. JusticeAtuguba further explained that the applicant has a real interest in the matter and should be joined to the petition and assist the court to arrive at conclusive decision.

Mrs Justice Sophia Adinyerah and Ms Justice Rose Owusu, associated themselves with the presiding Judges majority decision and explained that even though thegranting of the application is discretionary, it should be done in such a manner that it does not waste the court’s time.
Mr Justice Jones Dotse allied himself to his colleagues and said that prior to NDCapplication was heard, the case had generated strong emotions in the country and that a lot of injustice would be done if the applicant was not allowed to join the petition to seek their interest to ensure fairness and justice. He advised the court toput in place appropriate mechanism to ensure that the case was determined expeditiously. Mr Justice Sulley Gbadegbe also allied himself to the majority butreserved his ruling on the matter.

Conversely, Mr Justice Baffoe Bonney who opposed the decision for the NDC to be allowed to join the petition said that he has still not been convinced that the suit fromthe applicant was meritorious and should be made to join the NPP petition. He argued that whatever interest that the applicant was seeking could be channelled through the first respondent in the petition to the same effect. Mr Justice BaffoeBonney also said although the applicants were able to demonstrate that they havevested interest in the case, they have failed to convince the court how they became a necessary party. He said the law clearly indicates a process by which one can challenge a petition and this must be done by ‘human persons and not an entity. He said that ‘apart from a Member of Parliament who cannot cross carpet and join another party, the president can resign from his political party and still rule with executive powers’.

In associating himself with Justice Baffoe Bonney, Mr Justice Anin Yeboah said the NDC was coming into the case as an intervener but has failed to convince the court why it should be joined to the petition. Mr Justice Anin Yeboah felt the court can still go ahead and determine the case since the interest of the NDC is not more than that of the first respondent in the matter. He however said the rules of court do not allow the applicant to intervene in a matter which they are not a party to or are not part of a suit. He argued that the application by the NDC was unnecessary since all the interest being pursued by the applicant could be taken care of by the first respondent in the petition. Mr Justice Julius Ansah who also sided with his said the action can be contested without the involvement of the applicant.

The court rose for few minutes break after the Judges’ ruling and when it re-convened, Mr Justice Atuguba (who headed the nine-member panel) stated that the court has granted the NDC its application to join the NPP petition. Amongst other considerations, Mr Justice Atuguba based the court’s decision on his statement that "the restrictive approach sometimes adopted by the court to interpret a motion for application to a joinder should be avoided."

Critical Analysis of the Judges Decision
The Judges’ consideration and decision is not only flawed and perverse in law but also problematic, especially for legal jurists and students of jurisprudence who may be following the case around the world. The Judges decision is also flawed as itdemonstrates a poor process of reasoning, adjudication, interpretation and application of the law on joinder applications in Supreme Court. Conversely, the late Lord Denning will be turning in his grave if he were to hear that supreme court judges in a common law system which he shaped and developed has strayed from the law merely because the law is restrictive without any legal basis whatsoever.

The judgement is convuluted with regard to a developed common law systembecause Judges in a system such as in the United Kingdom common law would not set a precedent without supporting their decision with either case law or Statute, Custom or a Convention to say the least. Why such eminent Ghanaian Judges in highest court in the land would make such basic errors in law when the law is so clear is totally mind boggling.

Johnson Asiedu Nketiah (aka, General Mosquito and now aka, Any Idiot Can Go To Court), in paragraph 6 of his affidavit of 31st December 2013 states that, "That the NDC, as a the party on whose ticket 1st Respondent contested the election, has a direct interest and stake in the matter and would be affected by any decision of this honourable court." In paragraph 7, Johnson Asiedu Nketiah also said that, "That I have been advised by counsel and verily believe same to be true that, as a party which would be directly affected by the decision, the NDC is entitled to be joined as a party and to be heard in respect of the petition and seeks to be joined by the motion herein."

The Judges decision is however convoluted because NDC as a party should not have been made a party to the petition filed by the Nana-Addo, Dr MahamudaBawumia and Jake Otanka Obetsebi-Lamptey for the following reasons:

First, in the Supreme Court, joinder is only permitted in only limited situations when the original jurisdiction of the Court is invoked. The rule says that the court may on its own motion or by application by a party join another person. Party is defined in the rules as a party to the suit and not just any interested party as Mr JusticeAtuguba and NDC seems to be saying. With respect to election petition, there is no room for joinder and when considered against the Applicant's petition, there no claim or assertion that the NDC committed irregularities or was a party to the irregularities as claimed against the Electoral Commission (EC). Therefore the NDC as a party is not a 'party to the suit' for the purpose of party as defined by the rules as above.

Secondly, Mr Justice Atuguba's statement that the NDC should be joined to the petition "to assist the court to arrive at conclusive decision" does not only go against the rules of the Supreme Court but also against jurisprudence. The Supreme Court cannot in jurisprudence call the NDC party as claimed by Mr Justice Atuguba's statement "to assist the court to arrive at conclusive decision." That is because ‘arriving at conclusive decision’ is the sole role of the Supreme court.

The third reason why the decision is perverse and floored is because of the NDC Party's claim that they should be joined because they sponsored President Elect John Dramani Mahama and that they as a party will be affected by decision of the Supreme Court and thus have a right to be heard in respect of the petition.

Ananalysis of this frivolous claim which Mr Justice Atuguba wrongfully relied on will clearly show that the NDC party will no doubt be effected if the Supreme Court was to declare that the President Elect should step down. This however is not a logicalground under law for Mr Justice Atuguba to make them a party to the suite as they can be called by the President Elect as a material witness to give live evidence on the effect the ruling will have on them. Equally in jurisprudence and in accordance with the rule on joinder, the mere fact that a person is sponsored does not make the sponsor a party to his actions.

An example of this claim is where 'Mr A' decides to sponsor his wife to take their children by car to their school every morning and does so by giving 'Mrs A', his car and money for fuel. One morning 'Mrs A' crushes her husband’s car in to 'Mr B'’s car and the latter files a suit for compensation. 'Mr A's'lawyer tell him that the court is likely to find his wife, who is unemployed a sum of £10,000. In this case study, Mr 'A' will be affected by the decision of the court financially as his wife is unemployed. 'Mr A' will however not be a party to the suit as he did not witness the accident. Secondly, Mr. A is not a party to the case because 'Mr B' in his claim makes no assertion against 'Mr A', just like the petition filed by the three citizens of Ghana makes no assertion against the NDC party. 'Mr A,' however is a material witness to the case and can give evidence for 'Mrs A' in that it was his car that she was driving and the fact that he "would be affected if the court decides to impose a fine for "Mr 'B’.

What this case study illustrates is that as the NDC party did not witness or were involved in the irregularities, it cannot be a party to the petition. However, the NDC party can be a witness to the case to explain how the court decision will affected them.

Mr Justice Atuguba appears to have invoked the principle of natural justice, namely, the right to be heard. He is however wrong to partly base the court’s decision on this principle because the principle only applies when an allegation or a claim has been made against a person or persons and this gives the accused party opportunity to respond. As the NPP petition is silent on the NDC, the latter has no right in law to be heard apart from being a witness for first respondent to the petition.

I heard on the radio that the NDC needed to be joined so that they can be bound by the decision. This statement is however wrong in principle and in law because one does not need to be a party to a case in order to be bound by court order. A clear example is the case of trespass.

Conversely, the minority judges led by Mr Justice Baffoe Bonney are spot on when they said that whatever interest the NDC have could always be channelled through the lawyers for the first Respondent and this is a view that I'm very much used to hearing in UK courts.

Given that the NDC have been incorrectly joined to the petition, this raises the issue of whether President Elect John. Mahama and NDC will call the same witnesses and if so then this has implications for whether the 6 judges will allow for this and/or for the case to drag on and undermine the need for dealing with election case expeditiously .

They have surely made an interesting case in to a messy fiasco!!!!

 

Godwin Adjei-Gyamfi
NPP UK EC



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