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:
RESPONSE
1
“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.”
RESPONSE
2
“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.”
RESPONSE
1
“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.”
MY
INFERENCES
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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E-mail:
mjbokor@yahoo.com
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