Why did the Supreme Court help the NPP petitioners?

By Dr. Michael J.K. Bokor

Tuesday, August 13, 2013

We now know that this Wednesday, the Supreme Court will seek clarification on the written and oral presentations made by counsel for the petitioners and the respondents, respectively, on the NPP’s petition challenging the outcome of Election 2012. Barring any unforeseen negative circumstance thereafter, the Court will come out by two weeks’ time with its ruling.

Not many aspects of the petition or its hearing are any more unclear to us at this stage, our having followed and monitored proceedings over the past 4 months or so when the hearing of this petition began.  We know many things: that the petitioners have been inconsistent in telling the Court the exact quantum of pink sheet exhibits that they have based their petition on; and that the petition has been skewed to suit the premeditated agenda of the petitioners, which is why no evidence from the NPP’s strongholds has been adduced.

We also know that instead of presenting a petition covering all the 26,002 polling stations that participated in Election 2012, the NPP petitioners chose to do otherwise, giving the Court a tunnel-vision perspective on their case, not the bird’s eye view that should reasonably have been provided for a holistic appreciation of issues. We also know that the petitioners are asking the Court to annul over 4 million votes to put Akufo-Addo in power rather than seeking electoral reforms to improve our democracy. Some self-serving petition!!

We are, however, left with one major issue to interrogate, even as we prepare to enter the last lap of this long race between REALITY (the truth as established during the elections, captured on ballot papers) and TECHNICALITIES (shadow-boxing through over-reliance on clerical errors in pink sheets). We note at this stage that a fundamental decision by the Supreme Court has changed the nature, substance, and scope of the NPP petition and given it a different direction altogether. We are interested in this issue for all that it entails.

We will say hear without any fear of being cited for contempt that the Supreme Court’s monumental decision to streamline matters after the counsel for the petitioners and the respondents had failed to reach an agreement on what exactly the Court should hear and how it should do so is a major landmark not to be glossed over in discussing this petition, its hearing, and outcome.

I say so because I have heard some NPP bigwigs boast that their petition is based on statutory violations, irregularities, omissions and malpractices in the 2012 general elections. And they have unashamedly thumped their chests at succeeding in adducing enormous evidence to back their petition. This is a lie and I want it noted as such.

The angle given the petition before its being heard was not the brainchild of the NPP petitioners but that of the Supreme Court itself. I will discuss this matter in this opinion piece and cite it as a clear manifestation of the “bad faith” that has characterized this petition all along. Dear reader, bear with me as I explore issues to this effect because the NPP petitioners didn’t present their petition that way. They began with wild allegations only to be saved by the bell. They were put on course by the Supreme Court and the respondents guided to behave as such. We won’t miss this subtlety because it is the only make-or-break element in the hearing of this petition by the Supreme Court.

Incontrovertibly, the Supreme Court’s intervention set the NPP petitioners on a different course to redeem themselves as far as the substance of their petition is concerned. Let us not deceive ourselves that the NPP petitioners really knew how to prosecute their agenda at the Supreme Court to be focused on specific complaints worth adjudicating by the Court. They did not.

Right from the very moment that they hatched their plot to dispute whatever the EC would come out with after polling had ended, they were torn between many fronts and didn’t settle on any particular substance (except the allegation of fraud and rigging of the elections) to protest against; and they were firmly resolved not to accept any outcome that didn’t favour their Akufo-Addo.

And they knew—either from the frightening opinion polls preceding Election Day or from their own underground research findings—that the going would be tough for them. On the surface, however, they dissembled everything and stuck to hot-headedness in public posturing and the making of public utterances assuring their supporters that Akufo-Addo was well poised to snatch electoral victory “one touch”. Their misplaced optimism was reinforced by the rabble-rousing self-fulfilling prophecies of their hirelings in the Christian community passing off as “Men-of-God” (Where are the Owusu Bempahs and Co.?).

By some orchestrated means, they managed to hold on to their agenda and would have had things turned their way had the EC Chair not been firm to declare the results in the absence of any indubitable evidence of rigging from them. Jake Obetsebi-Lamptey’s desperate manouevres to cash in failed and they had no leeway left to frustrate efforts at tying up all loose ends for Election 2012 to be declared in favour of the legitimate winner.

Dr. Afari Gyan’s declaration of the results—because the downtrodden NPP people couldn’t provide any concrete evidence of malpractices—ended it all for them. That was even after Kwadwo Owusu Afriyie, NPP General Secretary, had done the unimaginable to declare the elections in favour of Akufo-Addo when barely 30% of the results had been known.

He was probably taking a leaf from what Obetsebi-Lamptey had done in 2004 by declaring victory for ex-President Kufuor, taking the wind out of the sail of the EC and pre-empting everything else. The NDC protested at that brazen misconduct but approached matters in a half-hearted manner, which couldn’t overturn the results. Thus, ex-President Kufuor retained his Presidency.

But in the case of Owusu Afriyie, the proclamation that he made—and his incitement of NPP supporters to begin celebrating an Akufo-Addo victory that Saturday and spread it to Sunday with church services and being clad in white—fizzled out against the background of stinging reality. The EC didn’t announce victory for Akufo-Addo and there was no evidence on the ground to suggest—even faintly—that Akufo-Addo was the preferred candidate of the electorate.

There and then, the NPP leaders decided to dig in, declaring their intention not to concede defeat but take to the Supreme Court to seek a reversal of the results that had been declared in favour of President Mahama. It was that disposition which undergirded and catalyzed their initial street demonstrations and wanton destruction of property and maiming of limbs in Accra, which they extended to Kumasi only to be disillusioned further, especially when the Asantehene declined to accept their petition. 

Indeed, these NPP people clearly lost their bearings as their hearts tumbled into the pit of their stomachs. The realization that what the EC had written as a John Mahama victory could not be unwritten was too much for them to cope with.

Neither could they come to terms with the fact that the electorate could vote down Akufo-Addo despite his seemingly enticing promise of fee-free education at the Senior High School level that had been given so much publicity as to emerge as an election-winning strategy. Also difficult for them to accept was the fact that Akufo-Addo had spent years campaigning, adopting all manner of outreach programmes and novel electioneering strategies as against the 40 days that President Mahama used to mobilize public support but couldn’t reach Canaan.

All the manna that he ate on the way (because we saw images of him sharing food with poor rural folks in the Central Region) couldn’t yield the ultimate miracle of electoral victory. But trust these puffed up NPP people. They won’t accept their loss in good faith and use it as a bitter lesson to prepare for future elections. Thus, they moved on to Plan “B”, which was to contest the outcome of the elections at the Supreme Court—a throwback to what they had attempted doing in 2008 but couldn’t because of the overwhelming influence of the voices of reason within the party.

This time, they damned those voices of reason and braced themselves up for the Supreme Court, to which they carried their baggage of allegations—rigging of the elections, fraud perpetrated by the Electoral Commission and President Mahama through manipulation of the electoral process, padding of votes to favour President Mahama, voting by over 241,000 Ghanaians resident outside, manipulation of votes, doctoring of votes, swapping of votes for Akufo-Addo with those for President Mahama.

Others included voting without biometric verification on the orders of President Mahama, prevention of NPP-aligned voters from voting because of “No Verification No Vote” clause, and many more. Indeed, the initial allegations suggested that the entire elections were fraudulent and unbecoming of the country’s democracy.

A careful scrutiny of their first petition clearly reveals the quantum of allegations. Then, they quickly turned round upon sober reflection of the seriousness of those allegations and the heavy burden of proof that they had brought on themselves to revise their petition. Even though they seemed to have toned down on the allegations or categorized them in a more comprehensive manner, they still insisted that the EC colluded with President Mahama to rig the elections.

Indeed, their list of allegations still remained really tall, which was to be one of the bones of contention between them and the respondents, and which would force the Supreme Court to step in after they had failed to reach any compromise with the legal teams of the respondents on the exact issues that they wanted the Supreme Court to hear.

Thus, the Court took it upon itself to issue directives on what it would hear and the modalities to be used by the counsel for the petitioners and respondents, respectively, in presenting their opinions, facts, and arguments through affidavits. It consequently set only two broad categories: (i) to establish whether or not there were statutory violations, irregularities, omissions and malpractices in the 2012 general elections; and (ii) to ascertain whether the violations, irregularities, omissions and malpractices affected the results of the election.

That’s what has guided the hearing of this petition thus far. In effect, then, the original matter that the NPP petitioners put before the Court is not what has been heard all this while but what the Court itself determined after streamlining the petition., It is, therefore, absolutely wrong—and, indeed, unconscionable—for the NPP petitioners and their benighted followers to claim, maintain, and insist that their petition is what the Court is hearing.

I differ strongly and opine forcefully that what the Court is dealing with is its own brainchild. Whatever has happened so far only goes to prove to me that the Court has exercised its unregulated authority to determine for the petitioners and the respondents—and, indeed, the entire Ghanaian populace—what it considers as the crucial elements to throw light on any dispute concerning Election 2012. It is an unsolicited help that has given some “life” to this petition.

I don’t know which aspects of the 2992 Constitution grant the Supreme Court that power to fine-tune the petition and make us believe that it is coming from the quarters of the NPP. What I am driving at is simple: that any boast by the NPP petitioners or their followers that their case is SOLID is porous because without the intervention of the Supreme Court, they couldn’t have honed it this way to come across as something worth pursuing, if anything at all.

They started with a mirage but got saved by the Supreme Court to have some form of spook to aim their darts at. Even then, they haven’t proved to be good archers. At least, Addison’s shortcomings, flim-flammery, and flip-flopping during cross-examination of witnesses,—and especially his incomplete and hesitant oral submission, confirms it all. 

Although their petition has been fine-tuned this way, it hasn’t yielded any evidence to persuade me that they are on a winning trail. They haven’t been able to produce any concrete and incontrovertible evidence from any live human source to that effect. No witness stepped forward to substantiate any of their claims. All they’ve relied on is Dr. Bawumia’s suicidal refrain of “You and I were not there” and the clerical errors in the pink sheets, having assured themselves of a premeditated victory because of that so-called water-tight evidence in the pink sheets.

We have heard what Dr. Kwadwo Afari Gyan has said to debunk their claims; and we have been given to understand what constituted the so-called over-voting, serial numbering of pink sheets, failure of Presiding Officers to sign pink sheets, and many of the porous allegations that have guided the petitioners’ cause all this while.

At the end of it all, I expect nothing but concentrated humiliation for them because their case couldn’t even have gone thus far had the Supreme Court not intervened to set it on the right legal path to merit any hearing at all. That is where we are now. As the judges gear up to seek clarification from counsel on Wednesday, I don’t expect anything spectacular to emerge. It will be the same sing-song “rally ground talk” from the petitioners and their ridiculing by counsel for the respondents.

But no matter what happens, it cannot be glossed over that the Supreme Court has helped the petitioners frame their petition to merit its being heard. Had the petition remained in its original form, nature, and substance, it would have been reduced to a worse absurdity than what has characterized it so far. It would have been consigned to the dustbin long before now. The saving grace of the Supreme Court is to blame for the reversal of that fate.

A major question lingering on cannot be left unasked: Why did the Supreme Court choose to intervene the way it did to give the petitioners a semblance of form and substance? Why did the Supreme Court act to give some MOJO to the petitioners instead of leaving them disorganized to be subjected to much grilling and drilling for their case to tumble down to nothingness right from scratch?

Don’t tell me that the Court did so because it wanted an expeditious hearing of the case or that it didn’t want anything flying about unrestrained. Taking 8 months to hear this case alone is itself irritating, if I want to agree with the complainants in the NPP fold who have been uneasy all along that the case is dragging on.

All said and done, when the Court finally gives its ruling, any discussion of the NPP’s petition will not be complete without a scrutiny of the very role that the Supreme Court has played in shaping and shaving that petition for it to go the whole hog—whether for good or bad.

I have had my say and will return!!

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