Saturday,
December 29, 2012
Now that the NPP leaders have submitted
their petition to the Supreme Court to demand the declaration of their defeated
flagbearer, Akufo-Addo, as winner of Election 2012, they seem to have made good
their threat to pursue their claims of electoral malpractices to the full. They
can now congratulate themselves as successful lawyers and politicians who know
how to follow the due process to achieve “victory”.
By that action, they have jumped
a major hurdle on their way toward reassuring their followers that they are
good warriors who know how to fight their cause. They know how to buy time.
According to their petition, on
10th December, 2012, the Chairman issued C.I. 80 setting out “The
Declaration of President-Elect Instrument 2012” in which the NDC presidential
candidate, John Dramani Mahama, was declared the first-round winner of the
election. C.I 80 was notified in the Gazette on 11th December, 2012.
It stated the respondents to the
petition as the President-Elect, John Dramani Mahama, the person, according to
the Rules of the Court, “whose election is challenged by the petition”; and the
Electoral Commission, whose conduct is the subject of the complaint in the
petition.
The overarching objective of the
petition is for the Supreme Court to declare Akufo-Addo as the winner of the
Presidential elections. The petitioners are even not asking for a re-run of the
elections.
On the surface, however, we can
easily tell that the NPP’s suit has three main objectives: to create the impression
that President Mahama is complicit in the electoral malpractices and must be
dragged to court to answer why; to create instability in his political life and
frustrate him in exercising his powers as the President; and to simply divert
attention from themselves to an external body as the cause of Akufo-Addo’s
electoral woes.
We know that the NPP has attached
President Mahama in his capacity as the President-elect, suggesting that he is
not being cited in his capacity as the occupant of the highest office of the
land but as an ordinary Presidential Candidate who contested the elections with
the other seven candidates at Election 2012.
So, we may see it as his being
sued in his private capacity and not as a public official occupying the
Presidency. I have no doubt that these NPP litigants know why they chose this
route. This is a huge precedent in this country.
Certainly, if President Mahama
has to set aside his official duties to be in the chamber of the Supreme Court
any time that the case is to be heard, we can tell how disruptive that is to
his performance as Head of State. We do so in the context of suggestions by
some NDC lawyers (Chris Ackumey, for instance) that the President must defend
himself in court.
I want to concentrate on only one
aspect of this case to explain how (from a layman’s perspective alone) the NPP
leaders have set themselves up for an arduous, protracted, and vexatious
litigation. Contrary to the optimism that the petitioners and their followers
have already expressed about the outcome of this case, the intricacies of the
case itself suggest otherwise. The case has not yet begun being heard, so we
can comment on it without any fear of being cited for contempt of court at this
initial stage.
Attaching the Electoral
Commission to the suit is not strange because that is the statutory body
mandated by the Constitution to organize and supervise the elections with all
the resources at its disposal (both material and human). And it is the
government’s responsibility to equip it for such responsibilities.
On that score, is President
Mahama being sued together with the EC because the NPP leaders are aggrieved
that he either starved the EC of the resources needed to conduct free, fair,
and transparent general elections or by usurping its legitimate functions to
win an advantage? Certainly not.
So, why include the President (seen
here both in his capacity as the substantive caretaker President to complete
the full four-year term of his late predecessor on January 6, 2013, and as the
President-elect, waiting to be inaugurated into office on January 7, 2013, to
begin a full four-year term on his own)?
We are asking so because the case
will not be tried according to only the NPP petitioners’ documents, sentiments,
speculation, personal emotions, inclinations (or disinclinations), and
dispositions (or pre-dispositions). It will be based on raw facts and evidence,
which makes it incumbent on the petitioners to brace themselves up for grilling.
We are even not talking about the
implications of Article 57 (5) of
the Constitution, which states that “The President shall not, while in office
as President, be personally liable to any civil or criminal proceedings in
court.” If the NPP leaders knew the implications yet went ahead to sue him, it
must be their own cup of tea.
The NPP leaders have been
dangling documents (blue, white, or red sheets) and presenting them as the “incontrovertible
evidence” to buttress their allegations of electoral malpractices. That’s the
basis of their self-confidence that once their tabulation of figures has
yielded over 1.3 million votes as the crux of irregularities (and what should
have gone to Akufo-Addo), the Supreme Court will look favourably into their
petition. Many questions have already been raised about this over-voting or
tampering of votes and I will not belabour it.
But what these NPP leaders have
failed to handle is the aspect of their petition that touches on President
Mahama and the allegation of his deep involvement in the electoral malpractices.
They have imposed a tall order on themselves and must be ready for the Sisyphusean
burden awaiting them.
Here is what I consider the onerous
tasks facing them: they will have to prove to the Supreme Court the extent to
which President Mahama directly or indirectly participated in the malpractices.
So, the usual journalistic 5 W’s and H will pop up for them to convincingly
answer in proving President Mahama’s complicity.
These are the main questions that
the NPP petitioners should busy themselves seeking answers for even before the
Supreme Court begins sitting on their case:
The
WHO question
The “who” part is obviously
President Mahama, so we rule it out. Even then, the NPP petitioners will have
to prove whether he did the acts all by himself or was assisted by other
accomplices. This is where the burden of proof thickens.
The
WHAT question
What exactly did President Mahama
do to confirm that he did participate in the electoral malpractices that denied
Akufo-Addo victory? And here, the “what” provokes many other questions in terms
of acts of commission and omission.
The
WHERE question
Where exactly did President
Mahama do those acts? Again, there will be many other questions for the NPP
petitioners to answer as to whether President Mahama was physically present at
any location (polling station) to mastermind and to directly participate in
what they have accused him of. To the best of my knowledge the only polling
station that he was physically present at was the one in the Bole-Bamboi
constituency where he voted on December 7. Those making the allegation will
have to prove to the court where else they saw him.
Another issue here is whether the
President was at any point where the results were being collected, collated,
tallied, certified, and released by the designated officials responsible for
the elections. Again, the petitioners will have to prove whether in the
transmission of those results, President Mahama was anywhere in the line of
action to be able to influence the tampering of the results in his favour.
At the time that the results were
being faxed, where was President Mahama and what role did he directly or
indirectly play (physically, spiritually, or metaphysically) to accomplish what
the petitioners have accused him of doing.
The
WHEN question
When exactly did President Mahama
do any of those electoral malpractices? Here too, many sub-questions will arise
for these NPP petitioners to answer as to whether President Mahama did what
they’ve accused him of at night, during the day or before voting day or
thereafter.
The
WHY question
Why exactly did President Mahama
do those malpractices can be easily answered to say that he did so to win the
elections. But that will be simplistic. Unless the other questions can be
sufficiently answered, a mere statement implying that he negatively influenced
the electoral process to favour him will not suffice.
The
HOW
How exactly did President Mahama
do the electoral malpractices? This question will also provoke others that the
petitioners will need to answer sufficiently to prove President Mahama’s
complicity. Did he negatively influence the balloting and its outcome remotely
or immediately? By what means (electronic, witchcraft, inducement of the
election officials through bribery, physically intimidating them, or
influencing them by other means, for instance)?
The
Implications
These questions will definitely
constitute a major chunk of the proceedings and the NPP petitioners have the
Herculean task of identifying all those elements to drive their arguments. At
this point, it must be made clear to all and sundry that the mere dangling
about of documents won’t be the be-it-all-and-end-it-all in this case.
The Supreme Court will even ask
searching questions about those documents that I will not want to go into at
this stage that the case hasn’t even been listed for hearing. With time, we
will identify some of those questions and raise as we continue to monitor the
situation and discuss its pertinence.
The point must be clear by now
that the petition that the NPP has filed at the Supreme Court has many deeper
level issues than all this ugly noise about documents and figures being
tampered with. As to how the NPP’s own “vigilant” party agents at the various
polling stations functioned or malfunctioned to allow for the electoral
malpractices being fought against, it is clear that the NPP leaders will have a
heavy responsibility explaining that aspect too.
The fact is that all over the polling
stations and constituency vote collation centres, these agents appended their
signatures to the blue, white, or red sheets to confirm the authenticity of the
results before they were transmitted to the EC’s Regional and national
headquarters for further scrutiny, certification and release as the true
reflection of the voters’ will.
Where do these NPP petitioners
place their own party agents in this conundrum? I will leave this aspect to
them to sort out because how they handle this matter will definitely shape and
shave how these party agents perform at Election 2016 and beyond. I can stick
my neck out to say that by their repudiation of the results, these NPP leaders
have already impugned the integrity of their own party agents and demoralized
them to such an extent as to kill their party spirit.
Where is the assurance that those
to be engaged for Election 2016 will not suffer a similar or worse fate? Undeniably,
these party agents are also very important agents for improving our democracy
and must not be so discredited as to weaken that link in the chain. I will take
this matter up in a subsequent opinion piece.
Tying up the loose ends of my
discussion, then, let me point it out to these NPP petitioners and their docile
followers that their petition will take them through a rough roller-coaster
ride with devastating traumatic emotional, psychological, and political career-denting
experiences. I wonder, though, if by choosing to complicate the matter this
way, they are not just using it as a smokescreen behind which to hide
eventually exit unscathed.
They are certainly afraid of
their own supporters and will use any escape route of their own devising to
avert that anger. After all, they have hyped up these supporters’ expectations to
the boiling point and must adroitly find the means to escape now that the
inauguration of their arch-nemesis at the Presidency is in sight. They can’t
stop it, which is why anything to massage feelings must be done.
Having sustained those high hopes
by continuously piling up lies upon lies all the way to the dark chambers of
the Supreme Court, they can now sit back to find solace in their schemes and
blame everything on the Court.
That’s their exit strategy. But
they can’t implement it without roping in President Mahama, knowing very well
that proving his complicity will be the cul-de-sac into which the case will be
pushed. At that moment, then, EUREKA!! An escape route will be opened for them
to vanish into thin air. Let the Supreme Court carry the blame, they will
definitely say. We wait for more of the “Concert Party” show to unfold.
I shall return…
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