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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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Balancing Speed With Justice, The Task Before The 9 Justices

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There is some considerable weight of apprehension across the country. On the one hand, there are people who are a fearful of trouble were the court to rule against the petitioners and there are those who fear the reaction of the ruling party were the court to rule for the petitioners. But one thing ( I hope) unites all sides of the anxiety chain, they want this case to be disposed off (not ‘speedily’, perhaps, but expeditiously and in the interest of justice).


Indeed, such is the level of this apprehension that the Editorial of the Accra Mail last week, ‘Ghana’s Peace & Security in the hands of the NPP’ said, “It may seem all so civilized - that is [NPP] resorting to court action – but many a blood-letter situation has started that way: the refusal to accept election results. Do NPP leaders in their wildest dreams think that Ghana would survive the turmoil of a disruption in the status quo? If that’s their mindset, then their naïveté approaches criminal nonchalance! Reason and wisdom must prevail as they strategise for 2016. They must listen to compatriots like Opanin Adusei, Dr Wereko-Brobby and discontinue this litigation to save our nation the trauma their action is inexorably leading us to.”
In a curious twist, Haruna Attah’s paper is asking whether the NPP was ready for the disruption that could occur if the Supreme Court gave a ruling that would disturb the ‘status quo’, meaning a decision which would invalidate the results declared by the Electoral Commission.

DISTURBING THE STATUS QUO
I find that thinking most curious because the only status quo that could be disrupted is an action that disturbs the Constitution. The Constitution provides for the Supreme Court to be the final arbiter in presidential election disputes, so a decision from the Supreme Court, whichever way it falls, should not disturb the status quo. What would disturb the status quo would be any attempt from any corner to disregard what the declaration of the court may be. Indeed, the security forces, especially the police and the armed forces, will work with what the Supreme Court, the final arbiter, decides. If the decision is that President John Mahama did not satisfy the constitutional requirement to be declared the winner in last December’s presidential election then that is the only authority that the security forces shall obey.
There are those who are pushing for the President to state publicly that he will abide by the decision of the court. But, that may not be necessary. He knows what is expected of him. The world heard him say on January 7, "I, John Dramani Mahama, having been elected to the high office of President of the Republic of Ghana do in the name of the Almighty God swear that I will be faithful and true to the Republic of Ghana; that I will at all times preserve, protect and defend the Constitution of the Republic of Ghana… I further solemnly swear that should I at any time break this oath of office; I shall submit myself to the laws of the Republic of Ghana and suffer the penalty for it. So help me God." Preserving, defending and protecting the Constitution is to abide by the declaration of the final arbiter in presidential election disputes, the Supreme Court.
Already Akufo-Addo has assured the nation that he will abide by the decision of the court. Honestly, that was even needless. Akufo-Addo has no choice but to abide by the decision. The same goes with that strange opinion from the bench that they were allowing the NDC to join the suit so that the party would be bound by the court’s final decision. It is bizarre because it suggests that the NDC has a choice. The problem with that ruling which allowed the NDC to join is that now a party against whom no allegations were made and no reliefs sought is being allowed to raise issues on point of law even when the dispute is only between the petitioners and second respondent, the EC, and has nothing to do with the 3rd respondent (NDC). The 3rd respondent’s interest is duplicitous to that of 1st respondent and by allowing the NDC to join the court now has an extra responsibility to ensure that move does not become costly to expeditious trial.

DELAYING JUSTICE, NIGERIAN CURE
These are the things which can cause delay and, so far, it has been difficult to have a clear sense of the court’s attitude against delay. I was surprised that even though the Supreme Court (Amendment Rules), 2012 (CI 74), which governs challenge of election of president, gives a respondent a maximum of 10 days to file an answer to the petition, the court on Thursday gave respondents 14 days to file their answers to the amended petition! Signals like these can be worrying. CI 74, in its wisdom, stays silent on how long the hearing must take, but it makes it clear that it does wants an expeditious trial, therefore, the court must sit even on weekends and public holidays and that the court must give its decision 15 days after hearing ends and does not permit a review of the decision. The task before the court now is how best to case manage the process to serve the interest of justice, both against delay and against undue haste.
In Nigeria, an amendment of the 1999 constitution (Section 285(6)) limits the entire process of an election petition to 180 days, six months, which seems reasonable - it used to be 30 days some years back under the Federal Republic’s 1982 Electoral Act. In my view, 150 days should be enough for any court to dispose off an electoral dispute. Yet, even the 180 days has been criticised, in the words of respected Lagos-based lawyer, Iwilade Akintayo, “[T]he petitions are a means of seeking to find out whether the persons exercising state authority are doing so with the mandate of the people… That makes an election petition a fundamentally substantive exercise that cannot be subsumed, or reduced in significance, by a resort to merely procedural provisions; like the type contained in Section 285(6)...”
Akintoya continues, “Election rigging is a fundamental assault on the sovereignty of Nigeria; a debasement of the very basis of the Nation’s survival. As such, election petitions symbolically allege and challenge such unpardonable sovereignty subversion. It therefore does no harm to emphasise that in an election petition, it is not the feuding political classes, called petitioners and respondents, that are on trial but the sovereignty of the people that is being called to question. The very foundation of the State’s authority is what is being questioned in election petitions.
“With utmost respect to the Supreme Court, it ought to have considered that Election Petitions are seeking to test the observance of Section 1(2) of the amended 1999 Constitution on whether the Government of the Federation, or any part thereof, have been hijacked, by illegitimate means, especially election rigging and other electoral manipulations. The people, (the presumed makers of the Constitution), will certainly intend that the issue of whether some persons have taken over their Republic, or any part of it, be exhaustively determined on the merits at the Courts. And while the people may have desired that such issues be decided within 180 days, where for any reason it cannot be so decided, the people must have intended that such time lapse cannot make them run the risk of their Republic remaining in the hands of possible civilian coupists…”

UNCHARTED WATERS
After over 1,200 electoral petitions in 2007, the President of the Court of Appeal in Nigeria, issued Practice Direction. The practice direction introduced the practice of frontloading of documents as a means of fast tracking matters. Indeed, the decision by our Supreme Court in the present case to allow parties access to further and better particulars can be seen in this light. Conversely, our Supreme Court was not convinced by the argument of the petitioners that the EC must produce all 26,002 pink sheets because the petitioners have copies of same and did not plead any fear that those official documents in the lawful possession of the EC may be tampered with, for instance, even though that is probable, considering that thousands of duplicate pink sheets have been found in the system.
Last Thursday, Ghana’s Supreme Court was sincere in admitting that the petition before it (by Akufo-Addo and 2 others) is like swimming in uncharted waters for the court and that the parties should consult among themselves on how best to case manage it as the panel do same. We are getting to the hearing itself, the first of its kind, the only thing close to it was in Appiah v A-G (1970), a failed petition which even had to do with the eligibility of an elected ‘ceremonial’ President, Edward Akufo-Addo.
Election petitions are sui generis, which means special or unique. The court has a special duty to deliver justice and within a period of time that would give relevance to the decision and to do so expeditiously without compromising justice. Delaying this case would heighten political tension, thicken the clouds over the legitimacy of the presidency, and, in the words of one commentator, make “grievances linger, breeding anxiety and uneasiness and leading to an inevitable eruption of rage.”
Furthermore, it would subject the judiciary to adverse publicity, affecting public confidence and risk encouraging the employment of “self-help to settle political scores.”
The overriding objective of adjudication in election petitions is to ensure as far as humanly possible that the choice of the electorate is given legal backing. Indeed, it may be fair to say that to drag an election petition beyond five months is to be unfair to the parties involved, and the nation, as a whole. And there is no reason why the current case before our justices must stretch beyond 5 months from the day the petition was filed, December 28, 2012.


AMENDED PETITION
There are those who argue that the decision by the petitioners to amend and add on to the particulars of their case is what can cause delay. On Thursday, the court ruled for the petitioners to amend their petition. This means that, they are now challenging over 900,000 votes as being tainted by over-voting; over 600,000 cases of voting without biometric verification, over 300 pink sheets without the signature of the presiding officer, affecting over 100,000 votes, and some 2.9 million pink sheets carrying duplicates of serial numbers, even though each pink sheet must have a serial number unique to that polling station. The amended petition now includes 28 polling stations, which were not part of the 26,002 officially declared by the EC.
In all, the number of polling stations where the results, as stated on the pink sheets, are being challenged has shot up nearly three-fold from 4,709 to 11,906, affecting some 4.7 million votes, with over 3 million of votes declared for the NDC candidate being asked to be annulled and another 1.47 million for Akufo-Addo to be also annulled. These are huge numbers, considering that the petitioners only have to prove that less than 155,000 votes given to John Dramani Mahama were illegal, to force a run-off or that some 323,000 of the President’s votes were invalid, for Akufo-Addo to be declared the outright winner.
The increase in the numbers does not mean that the threat by 1st respondent (John Dramani Mahama) to call 4,800 petitioners must now increase to 12,000. Indeed, what is in dispute can certainly not be the facts and figures on the pink sheets but the effect of those facts and figures and that will not be determined by polling station agents but by expert witnesses, legal arguments and the like. For the respondents to begin doubting the facts and figures on the pink sheets is to doubt the very basis upon which that disputed declaration of December 9 was made. They cannot pick and choose which aspects of the facts and figures on the pink sheets to accept and which not to and once that matter is settled the court would not need hundreds of witnesses to assist it in settling this dispute. Thousands of polling agents would not be material witnesses in this case.
BESIGYE VS MUSEVENI
That is why it is reasonable to conclude that this case should not travel beyond five months. Yet, the situation in Uganda where the law requires that findings of the court be announced within 30 days from the date of filing the petition is most unfair to the petitioners, especially, and justice, as a whole. Thus in Uganda, after the presidential election was held on 23 February, 2006, the petition was filed on March 7, the court took 8 days to hear the petition and gave its judgment on April 6, 2006.
The decision, which followed an election in which Yoweri Museveni was declared the winner with 59% of the votes and Kizza Besigye came second with 37%, was interesting for a country which, as one commentator put it, has a “life president” and the petitioner did not have enough time to gather enough evidence and make a more compelling case. The seven-member panel court voted as follows, as summarized by a local newspaper:

  • Did the EC comply with the law?   No (7:0)
  • Was the election Free and Fair?      No (7:0)
  • Did malpractices affect results?     Yes (4:3)
  • Is candidate Museveni (the incumbent) innocent?   Yes (5:2)
  • .  Should the elections be annulled?   No (4:3)

Indeed, whilst the malpractices were said to have affected the results the gap between the two leading candidates was so huge that it was held, just as in a similar 2001 petition, that “it was not proved to the satisfaction of the court” that the malpractices and violations “affected the result of the election in a substantial manner.”
Courts in Africa, while happy to quote the locus classicus, Lord Denning’s reasoning in Morgan v Simpson ([1974] 3 All ER 722) in election petitions, however, in a majority of cases they have given a narrow interpretation to it to mean that a petitioner has to establish, not only that there has been a substantial violation of the electoral laws but also that the substantial non-compliance must have substantial effect on the result of the election.
Thus, when President Levi Patrick Mwanawasa’s election was challenged in 2002, the court held what has become the deciding factor in electoral petitions in Africa, especially. It repeated its earlier view in the case against President Chiluba, “The bottom line, however, was whether, given the national character of the exercise where all voters  in the country formed a single electoral college, it can be said that the proven defects were such that the majority of the voters were prevented from electing the candidate whom they preferred; or that the election was so flawed that the defects seriously affected the result which could no longer reasonably be said to represent the true free choice and free will of the majority of the voters.”
Going by the face of the petition before Ghana’s Supreme Court, the figures being challenged are far in excess of what has been held in election petitions in Africa to be substantial to change the outcome of the disputed elections. What is left is how the respondents would proceed to deny with evidence the evidence before the court.
Our Supreme Court is in an unprecedented situation similar to what Americans faced after the November 7, 1876, in which an ad hoc ‘electoral commission’ of 15 members (10 representatives from Congress split equally from both sides plus 5 Supreme Court Justices ruling by 8:7) was set up to adjudicate, which finally overturned the results in favour of Republican Rutherford B Hayes. Democrat Samuel J Tilden led Hayes by more than 260,000 popular votes, and returns showed Tilden with 184 electoral votes (one shy of the majority needed to win the election) to Hayes’s 165, with the 19 electoral votes of three states (Florida, Louisiana, and South Carolina) and one elector from Oregon (originally awarded to Tilden) still in doubt. By early March 1877 the commission of enquiry had resolved all the disputed electoral votes in favour of Hayes, allowing him to win by 185 votes to Tilden’s 184.
It was a little more than 10 years after the Civil War, the nation was again in a state of crisis and there was grave anxiety that another civil war between North and South might break out because of the electoral dispute. The split decision of 8:7, which overturned the results, was accepted by the highly polarised American public and the country’s democracy never looked back.
136 years later, we, in Ghana, are at a similar, if less charged, juncture, the decision of our justices in this case will have a significant impact on the fate of our democracy and, by extension, that of Africa, as a whole. Our justices have every reason to show that they are on top of this pinnacle of history, whether we fall from there or build from there lies in their bosom.
The author is a legal practitioner and the Executive Director of the Danquah Institute, a policy think tank in Ghana.



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