Sunday, December 30, 2012

So, the NPP sued President Mahama only as a PROCEDURE? (Part I)

Monday, December 31, 2012
Life will not grind to a halt in the country just because the NPP has rejected the outcome of the Presidential elections and is uncompromising in national affairs. As I sought to imply in my earlier opinion piece (“The NPP shackles itself by suing President Mahama”), there are many contradictions, inconsistencies, and legal technicalities in its lawsuit at the Supreme Court that should make those NPP supporters and apologists nursing bloated optimism hasten slowly in thumping their chests.
In responding to that opinion piece, varying viewpoints came from NPP supporters and apologists to give me the impression that they have already satisfied themselves of pursuing a winnable case and won’t listen to any other viewpoint. Already steeped in this optimism, they are behaving as they did before the elections only to be stunned stiff by reality when the dust settles.

A cursory analysis of the reaction of these NPP supporters and apologists revealed to me what the real substance of the NPP’s decision to attach President Mahama to the lawsuit is. That is, that the petitioners were merely following the “court rules” and “procedures” as outlined in Constitutional Instrument 75 (“as the President-Elect, John Dramani Mahama, the person, according to the Rules of the Court, “whose election is challenged by the petition”).
The underlying implication here is that making President Mahama the first respondent is just in consonance with a “procedure,” which raises several pertinent questions that motivated this opinion piece. I reproduce below some of those viewpoints to cast the issue in its proper context:  
“NPP need not necessarily prove Mahama’s complicity. There is a law which enjoins an election petitioner a make the person for whom the election was called THE FIRST RESPONDENT even before the EC. The level the discussion has reached now is whether that law contravenes the constitutional provision that a president cannot be sued while in office.” 
“It would have been legal malpractice for NPP to have left Mahama out of this election challenge Petition. Assuming you are correct the President can't be named in this Petition, all the Court will do is to strike Mahama out of the Petition if a motion is filed on his behalf. The EC still remains a party and the case goes on for judgment. It would have been fatal to have left an indispensable party in such a time sensitive election law suit.
“We look at CI 75. It is not NPP who is suing the President, Regulation CI 75 mandates that before you can petition a presidential election at the Supreme Court, you MUST INCLUDE AS FIRST RESPONDENT "THE PERSON WHOSE ELECTION IS BEING CHALLENGED.”
The NPP need not necessarily prove Mahama’s complicity? Wow!!!!!!!!!!! The main inference, then is that “If the Supreme Court believes that the President cannot be sued, the Court will order a re-wording of CI 75 to conform with Article 57 of the constitution. His name was added because it is procedural and not that he has done anything wrong.”
I won’t rush to say that this viewpoint confirms that of the NPP legal team; but it opens my eyes all the more to the hidden motives and use of legal technicalities as a smokescreen behind which the NPP leaders are desperately seeking to hide as they to continue massaging the feelings of their benighted and angry supporters.
Their merely following procedures in this case raises many intriguing questions. Of course, they can’t do otherwise, being “legal luminaries” who know the safe haven provided by such technicalities. That is why they will swiftly turn to procedures to sue President Mahama, constructing him as “President-elect” and not the incumbent President who is yet to complete the caretaker tenure of his predecessor.
But we all (including the NPP legal team and the mass of the party’s supporters) know that at the time President Mahama contested the elections, he wasn’t a private citizen like Akufo-Addo and the other candidates. He was still the substantive President. Thus, turning round to close their minds to that reality and suing him as the President-elect is merely procedural, which is what they are waiting for the Supreme Court to determine. It is the leeway they are dashing forward toward in self-defence against their supporters’ anger if the case blows up in smoke and dashes their hopes into smithereens.
As soon as the Supreme Court rules that at the time of the elections, the incumbent was the substantive President and that under Article 57 (5) of the 1992 Constitution, he can’t be sued for any criminal or civil offence, the NPP’s case against him crumbles. What do the NPP leaders hope to achieve by tossing the dice this way if not to outwit their party’s followers?
Probably, the only benefit of their suit, then, will be the emphatic ruling by the Supreme Court to re-affirm the constitutional provision that the President cannot be sued and reduce to absurdity Constitutional Instrument 75 in the case of President Mahama. We know this is the first time that such a problem has cropped up. Thus, a ruling by the Supreme Court will settle it all for the future.
The NPP’s own John Ndebugre has already slashed through that attachment of President Mahama to the suit, citing examples from the second republic and others to prove that suing the President is unconstitutional and a flaw in the NPP’s petition.
But trust the NPP legal team and supporters to swiftly dismiss him as a nut case. On the one hand, the legal team will do so in revulsion at his attempt to expose their cunning—hiding behind that procedural technicality as an exit strategy to save themselves from their supporters’ anger.
On the other hand, the supporters will condemn Ndebugre because theirs is already a case of the petition being used as the “opium of the masses.” They have been very much sedated by their leaders’ linguistic and legal gymnastics and will not want to see anything else from another angle.
Such is the problem of people configured as “masses” following a cause that is premeditated in the closet and unleashed on them to blindfold them. Manipulation at its best. Political Rev. Jim Jones at work here!!
Once they have been adroitly pushed around to this point in their struggle to redeem the irredeemable, they will have no other option but to continue trusting their leaders all the way deeper into the abyss. That is why they still pose a grave danger to our democracy and must be watched carefully.
So far, it is clear to me that the NPP will have a very tough business to do at the Supreme Court because it is calling shots that will demand exhaustive proof to be able to persuade the Supreme Court.
As we’ve kept saying all along, it has imposed on itself a heavy burden of proof. For it to prove its allegations, it definitely will not be enough for it to produce those documents and figures. Anybody thinking that the mere fact that they have documents that they are dangling about with zeal puts them poles ahead in the case at the Supreme Court must begin rethinking because the petition won’t be determined in that narrow manner.
The burden of proof is onerous, and the NPP members shouldn’t deceive themselves that what their leaders are telling them is the truth inviolate. As they go about insulting those of us directing them to the other side of the coin, they confirm long-held impressions that they can’t tolerate divergent opinions, which itself is not good for our democracy.
I see nothing spectacular that this lawsuit will add to our democracy, its being an exercise in mere formality. The so-called irregularities that are the substance of the petition are not peculiar to elections in Ghana alone or the 2012 polls, specifically.
We acknowledge the need for us to refine our electoral system, but not necessarily by behaving as if a petition of the kind being pursued by the NPP is the answer. It is not. At best, it is just the use of the legal system by virtue of exercising one’s fundamental human rights to pursue the acrid ambitions of a power-hungry Akufo-Addo.
The Supreme Court won’t do anything spectacular to eradicate electoral malpractices. That’s a human-related issue, and perfection is not a human quality. At best, it will interpret the law and call for reforms at different levels. Those reforms cannot be effected unless we have strong institutions of state. The EC is one such institution that, to me, has performed creditably well so far and needs our backing to tackle its challenges.
It is not as if the Supreme Court can handle the problems that any weird ruling from it will create. We must bear this particular aspect in mind and be guarded in our perception of the situation as it continues to unfold.
I shall return…
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