Of the Supreme Court, disputed election results and the dilemma of the Ghanaian public

Peter N. Amponsah, Catholic University College of Ghana, Fiapre

Regarding the election dispute currently before Ghana's Supreme Court, three views exist in the public sphere. They are: that the opposition NPP has no evidence and is just whining as a sour loser; that the sceptics of the Ghana judiciary believe that even if the NPP has adequate evidence of cheating it would be ignored by the Court; and that the optimists trust that if the NPP has the evidence the Court will give a landmark judgment, which will turn the situation around and transform the country's electoral exercise permanently.

 

The enthusiasts of the first view, which is typified mostly by the NDC and the EC, argue that the NPP's petition has no merit. They contend that there was no electoral fraud. For the NDC the election outcome reflects a poor showing of the NPP campaign whose leadership goes to court as a ploy to appease the anger of the NPP party's supporters. According to the defenders of this view, it would have been politically more expedient for the NPP to concede defeat and reorganise itself for a better performance in 2016.

 

If the allegation of political subterfuge were true, the NPP's action would amount to an offensive game playing with both the highest court of the land and the emotions of millions of NPP supporters, as well as waste of the nation's time and resources. Moreover, after regional and international observers had commented on the elections as reasonably free and fair, it would be unfortunate if the NPP took their petition to the Court without any concrete evidence to warrant a hearing. So, one may find it doubtful that a right-thinking, well-meaning person would violate political astuteness for such a political misstep.

 

The next two views represent an unrelieved dilemma of other Ghanaians: the conflict between scepticism and optimism. On the one hand, some citizens allege that the Court will not have the courage to overturn the Electoral Commission's declaration even if the evidence of electoral fraud corroborates the NPP's claim. This group of people opines that we are in Africa, and overturning such a verdict can never happen. So for such forecasters it is a fruitless step going to the Court to resolve such a critical political impasse. Such apathetic view reminisces from the continent's post-colonial past where unilateralism of some ruling governments succeeded in cowing other branches of governance.

 

However, in proffering this sceptic view, one succumbs to pessimism that does not propel development of a strong democratic culture. Its apathetic projection reminds one of the Greek mythological Sisyphus, the cunning king of Corinth who was punished in Hell and had to repeatedly roll a huge stone up a hill; but his efforts remained fruitless because the stone rolled down again as soon as he brought it to the summit. Along similar lines, the doubters spin a negative perception of the judiciary failing to assert itself as a branch of government with equal power as the executive. This group plies its projection with the German philosopher Ludwig Feuerbach, who asserts that we are inescapably hooked to our individual isolation booth. Thus, holders of the sceptic view resign themselves to expect no change; it is simply the same old game of power versus truism.

 

On the other hand, Ghana's democracy should not play that mythical Sisyphus. Thus, a section of the citizenry trusts that the Court in Ghana can make the difference to chart a truly maturing democracy in which the law is not a respecter of persons but truthfulness and justice, and it is exercised without fear or favour. For example, it took the Justices of the United States Supreme Court to brave such decisions as the Brown v. Board of Education I (1954) 347 US 483 and Brown v. Board of Education II (1955) 349 US 294 to end racial segregation and promote civil liberties on constitutional grounds.

 

Again, in 2004, the Ukranian Supreme Court could overturn a presidential election in which Viktor F. Yanukovich was declared winner while Viktor A. Yushchenko, the opposition leader, had been denied his rightful victory. Hence, the optimists trust that even though Ghana's Justices do not control the national purse cannot create edifices and infrastructure for the country, they are capable of building enduring monuments in terms of landmark decisions that can strengthen Ghana's democracy for the benefit of both the present generation and posterity.

 

The dilemma of the two views is not merely an alternation of emotions, but implications resulting from chicanery, political rhetoric and altercations. The neutrality, objectivity and firmness on the part of the Justices are crucial in their scrutiny of the case. If the allegation of electoral fraud lacks evidence and is unsupported it would be a regrettable suit; but the able Court will give a solid opinion that will both enrich constitutional law and educate the citizenry.

 

An outcome that would suggest that the Justices overlooked evidence in order to preserve the status quo – no need to disturb the state of affairs now that a new president is sworn in – may confirm the apathetic viewpoint. In that case, the judiciary may lose its integrity and credibility. Many citizens will lose confidence in the judiciary to settle a matter of this kind next time. It will indicate a weakness of a Court that cannot guarantee justice and, in an extreme scenario, people may take the law into their own hands.

 

To let pass successful electoral fraud, if supported, would encourage a repeat either by the same party or its counterparts in the future. So, instead of ending electoral cheating in order to solidify our democracy, it will be excused and perpetuated. Consequently, electoral cheating will reduce voters' confidence and lead to democratic decline. The case is a serious one for lovers of democracy because a successful electoral fraud has the likened effect of a coup d'état of the ballot in the strict sense. In a tempered sense, it typifies a corruption of democracy; a breakdown of democracy that leads to fostering of dictatorship.

 

In contrast, an outcome that would suggest that the Justices upheld the substantiation of the case (that is, if the evidence available supports that claim) will build confidence in the judicial system and chart a new course in voting and Ghana's democracy. The optimists presume the trustworthiness of the Court; it will neither allow the Executive to control it nor interfere in its work nor cajole its decision. The Court knows very well that it has to operate by the principle of the checks and balances under-girding the separation of powers that resides in the three arms of government. Just as the Court does not interfere in the work of the Executive and that of the Legislature, so the Court will not defeat itself by tolerating an external force's intrusion into its jurisdiction. This way, the strong and independent Court leads the presently desired campaign to build strong institutions. It is achievable by braving each case as an opportunity for advancement and by standing on the side of the truth in all cases no matter whose ox is gored.

 

All well-meaning Ghanaians expect the Justices to go into examining the merits of the case as neutral "referees" without bias or prejudice and to let truthfulness and justice flow from the pinnacle of constitutional heights. Ghana will ever be grateful to them for this service of creditable legal performance, unlike Roger Brooke Taney (1777-1864) who could have been considered among the United States' great jurists but brought infamy upon himself because of his judgment in Scott v. Sandford (1857) 60 US 393. Chief Justice Taney, who succeeded the famous Chief Justice John Marshall in 1836, gave an inflammatory opinion of the Court in the Dred Scott case that viewed the alleged inferiority of blacks with constitutional backing and held that blacks could not be citizens of the United States.

 

All in all, Ghana's democracy must progress rather than roll back to ground zero if the Court were to sustain our democratic gains. The electoral dispute currently before the Supreme Court is an opportunity for the Court to demonstrate Ghana's democratic maturity and to strengthen the country's institutions.  The Court's objectivity in examining the evidence and determining the truthfulness and reasonableness of the alleged electoral fraud will provide a landmark judgment to benefit Ghana's jurisprudence, sustain democracy and foment national pride.