Of Course Ghana Is Not Kenya

Kow A. Essuman, Esq.

"Ghana is not Kenya" is one reaction you would hear whenever you compare the presidential election petitions currently pending before the Supreme Courts in both countries. "Why not" is an immediate reaction to the “Ghana is not Kenya” reaction and I can empathise with that. Both countries are African countries and seem to have taken the path of democracy. Both countries have made provision in their respective constitutions for presidential election petitions to be filed in their respective Supreme Courts to challenge the election of the president. So why can't Ghana be like Kenya?

I can also empathise with those who vehemently say, "Ghana is not Kenya" and indeed, I do empathise with those who react in that manner but for completely different reasons. I mean how can we even think that Ghana can be like Kenya. We have to face facts and be honest with ourselves when comparing the manner in which the Supreme Court in both countries are dealing with the presidential election petitions before them. In that respect, Ghana is nowhere near Kenya at all. In fact, Ghana is millions of miles behind Kenya and we, Ghanaians, ought to be ashamed.

In writing this short piece of article, I have confined myself to the presidential election petitions before the Supreme Courts in both countries and the manner in which those petitions are being dealt with. I must therefore emphasise that this article does not compare the economic success or democratic success of both countries.

Having set out my intentions clearly, it is my opinion that Ghana is not Kenya because Ghana is far behind Kenya and also because

1. Kenya understands the stakes; Ghana does not

This is not the first election dispute being determined by a court in Kenya. The outcomes of previous election disputes before the courts in Kenya caused the violence following their last elections. At least 1,200 lives were lost with thousands more severely injured as a result of the violence. The loser in that election did not trust the Kenyan courts to deliver justice so instead of proceeding to court, his supporters and sympathizers went on the streets and he did not stop them. With this background in mind, the Kenyan Supreme Court knew what was at stake in the presidential election petitions before them. The loser in the 2013 elections placed his trust in the Kenyan Supreme Court to resolve the issues he had with the results declared by the Independent Electoral Boundaries Commission ("IEBC"). The Justices of the Kenyan Supreme Court knew what was at stake i.e. potential violence and inevitable loss of lives and injuries, and therefore managed the court with a view of determining the dispute before them in a fair and speedy manner.

The justices knew and were reminded by Ms. Kethi Kilonzo (the lawyer for Africa Centre for Open Governance) in her submissions that the dispute before them did not require an interpretation of the constitution or an interpretation of law but rather an election dispute and same should be treated as such. Notwithstanding the strict deadlines in the Kenyan constitution regarding presidential election petitions, there was a sense of urgency demonstrated by the Chief Justice of Kenya, His Lordship Dr. Willy Mutunga and the other Justices of the Kenyan Supreme Court. They wanted to dispose of the presidential election disputes quickly so that Kenyans could return to their normal lives and thus treated the dispute before them as an election petition and not as just another dispute before the Supreme Court.

Similarly, the Petitioners in the Ghanaian Supreme Court have placed their trust in the Justices of the Supreme Court to determine the election dispute before them instead of encouraging their supporters and sympathizers to take to the streets and be violent. Unfortunately, the Ghanaian justices don't seem to appreciate what is at stake mainly because this presidential election petition is the first of its kind in Ghana. Also, because we don't have a history of violence like Kenya has. The presidential election petition before the Ghanaian Supreme Court is being treated as an ordinary dispute before the court. There is no sense of urgency on the part of the justices to dispose of the petition and bring finality to the election that took place on 7 & 8 December 2012. If the Ghanaian justices understood the stakes, the petition before them would have been long determined.

2. Technology in the Kenyan Supreme Court

One can only admit that the Kenyan Supreme Court is far ahead when it comes to the use of technology in the delivery of justice. I watched live proceedings of the Kenyan presidential election petitions on television right here in Ghana and followed everything going on in the Supreme Court. I did not have to be physically present in the Kenyan Supreme Court or even in Kenya to follow this historic presidential election petitions. That is the power of technology and the Internet. Again, I reiterate that the Kenyan Supreme Court was very much aware of what was at stake and so did not hesitate to allow the proceedings to be televised live for all Kenyans who participated in the election to witness the determination of the disputes that arose therefrom and indeed allowed the whole world to witness the determination of the disputes. By taking such a step ensured that Kenyans were not kept in the dark regarding the presidential election petitions.

In Ghana, the Chief Justice, Her Ladyship Georgina Wood, denied a request made by Danquah Institute for the live transmission of the presidential election petition proceedings on security grounds. But certainly, if Kenya, a country with a history of violence, can allow television cameras into the Supreme Court for live transmission of their presidential election petitions proceedings then respectfully, Her Ladyship Georgina Wood's basis for refusing live transmission on security grounds can no longer be justified. Justice Wood's way of ensuring security at the Supreme Court is to swarm its premises with armed to the teeth policemen and before you enter, you are stripped of all your electronic gadgets so that you cannot update the rest of the world whilst the proceedings are going on. And this is the security measure that I believe cannot be justified. Even more ridiculous is the requirement to be accredited to enter the Supreme Court, which by the way is open to the public, whilst the presidential election petition is being heard regardless of whether you are a lawyer or not. I strongly disagree with Justice Wood on accreditation as a mode of screening which member of the public gets to witness the presidential election petition.

All Ghanaians participated in the presidential elections and ought to witness the final determination of any dispute arising thereof. Only a few Ghanaians are permitted to witness the presidential election petition. How can that be possible when the 1992 Constitution requires all court proceedings to be made public? Again, how can that be possible when the Supreme Court (Amendment) Rules, 2012 (CI 74) states that the presidential election petition shall be heard in open court? So why then must a Ghanaian be accredited to witness the presidential election petition? Who are these Ghanaians who have been accredited? How does an ordinary Ghanaian receive accreditation? Why must a Ghanaian be accredited to witness a presidential election petition, which arose from a presidential election he or she participated in? How can we be certain that there is no discrimination in accrediting persons to witness the presidential election petition? Members of political parties do not necessarily represent the interest of the majority of Ghanaians who do not belong to a political or apolitical Ghanaians. So then why should accreditation be limited to political parties? There would be no need for these questions if the cameras were let into the Supreme Court. All Ghanaians would then be able to witness whatever goes on in the Supreme Court.

Another interesting role technology played in the Kenyan presidential election petitions was that it quickened the process. The lawyers indicated in court during the morning session on 26 March 2013 that they would file their proposed issues with the court during the lunch break. When they returned for the afternoon session, the proposed issues had been filed and served on all the lawyers, and it was agreed the proposed issues would be narrowed down during the morning session on 27 March 2013. The quick filing of the proposed issues was as a result of e-filing process in the Kenyan Supreme Court. This means you can file a process and within minutes the process would be served on the other parties. No wonder all the lawyers were holding their cell phones (mostly Samsung Galaxy) in court. Also, with iPads and other tablets mounted before the justices, there is no doubt that they were able to read whatever had been filed with just a click. If that is not an efficient use of technology in the courtroom and in the dispensation of justice, then I don't know what can be clarified as such.

Contrast that with Ghana where paper filing is still the order of the day. The parties to the presidential election petition are required to provide their email addresses and indeed they provided their email addresses but for what? To show that they also use email? Because so far, all processes have been filed and served through paper and not electronically so again I ask, for what reason were email addresses required if they were not going to be used? The Kenyan Supreme Court settled issues in less than 24 hours but the Ghanaian Supreme Court has taken 18 days and still counting and issues have still not been settled.

The Kenyans employed the use of audiovisual aids in the presentation of evidence and when Ms. Kilonza requested to test the audiovisual aids thirty minutes before the commencement of the morning session on 27 March 2013, the court granted her request. In the Ghanaian presidential election petition, the 1st Respondent is vehemently opposed to the use of audiovisual aids in the presentation of evidence. Audiovisual aids by the way include PowerPoint presentations and playing videos as part of the evidence.

Lastly, digital LED timers were used in the courtroom to restrict the submissions made by the lawyers. The lawyers agreed on the time to be allocated to each lawyer and they complied with their respective time allocations. To paraphrase what the lead counsel for Raila Odinga, George Oraro, said when wrapping up his submissions, “I looked up to the clock and realized that I had two minutes left and therefore knew I had to end my submissions only to be told my time is up.”

If in the year 2013, the 21st Century, the ICT age, we cannot introduce and efficiently use technology in the dispensation of justice then I reiterate that Ghana is far behind Kenya.

3. The Chief Justice of Kenya is the President of Court

Justice Wood may have her reasons why as Chief Justice of Ghana, she chose not to sit and preside over the panel to decide this historic presidential election petition. I am not going to attempt to guess what her possible reasons may have been. I have however seen her preside over cases and I admired the manner in which she managed the court to ensure speedy but fair justice. Maybe, perhaps just maybe, if she were the president of panel hearing the presidential election petition, the justices would have showed some enthusiasm in disposing of same quickly. Justice Mutunga and his fellow justices showed the world that they intended on having the petitions before them determined within the constitutionally imposed timelines.

4. The conduct of the lawyers involved

Anyone who watched the Kenyan presidential election petitions proceedings will tell you that the conduct of the lawyers is worthy of commendation and indeed at the end of the hearing, Justice Mutunga commended members of the bar for their conduct. What therefore is the conduct that was worthy of commendation? Well, the language used by the lawyers in court was decorous and civil. They treated each other, even the junior lawyers, with respect and dignity. The lawyers had a common goal: resolving the presidential election disputes and doing so quickly within the constitutional time limit. The lawyers related to each other in a manner, which demonstrated that although they had a dispute between them, the interest of Kenya was paramount. The conduct of the lawyers in Kenya greatly reduced tension in the country as the petitions were being heard.

Contrast that with the presidential election petition before the Supreme Court of Ghana. The Petitioners’ lawyers want the dispute resolved quickly so that Ghanaians can move on with their lives. The Respondents’ lawyers on the other hand intend to delay the process for as long as they can to frustrate the Petitioners. Unfortunately, the Supreme Court has played a role in allowing this delay to go on by not adhering strictly to the CI 74.

5. Strict deadlines

Unlike Kenya, Ghana has no constitutional timeline within which to determine a presidential election petition. This means proceedings in the presidential election petition can go on for as long as 4 years. No wonder the Ghanaian justices are not keen on resolving the presidential election dispute before them and continue to adjourn proceedings sine die (without a firm date). Many Ghanaians including myself wonder why the drafters of the 1992 Constitution and members of the Rules of Court Committee who drafted the Supreme Court (Amendment) Rules, 2012 (CI 74) did not foresee that any petition that goes before the Supreme Court to challenge the election of the president needs to be determined quickly and within a definite time.

The foregoing reasons make it evident and very clear that Ghana is not like Kenya and that Ghana is far behind Kenya in resolving presidential election disputes. I end this short article with a quote from the Kenyan Attorney-General, Githu Muigai, in his submissions before the Kenyan Supreme Court:

“As my Lords are aware as we speak here today the Supreme Court of Ghana is seised on the election dispute relating to their election which was undertaken in December and they are slower than we are and I think we should take a little credit for the sort of enthusiasm that this court has brought to a timeous disposal of this matter.”

Written by Kow A. Essuman, Esq.

March 31, 2013