Tuesday,
March 15, 2013
The
Supreme Court has adjourned 'sine die' the NPP’s lawsuit, and instructed the
parties to the case (that is, the three NPP petitioners led by the Akufo-Addo,
on the one hand, and President Mahama (first respondent), the Electoral
Commission (2nd Respondent), and the NDC (joinder)), on the other
hand, to decide on the memorandum of issues they want the court to determine.
Consequently,
the Court has ordered the parties involved to ensure within 7 days that they
agree on the issues to be determined by the court or inform the registry of the
court if they fail to reach an agreement for the Court itself to determine the
memorandum of issues.
Several intriguing issues stand
out in this directive by the Supreme Court that tells me clearly the direction
in which the lawsuit is moving.
The Supreme Court’s adjournment
of the case “sine die” (indefinitely), which is unusual but indicative of the
long, winding route that this lawsuit will take is in and of itself interesting.
Those calling for an expeditious determination of the petition had better think
twice.
The need for the parties involved
in the suit to decide on the specific issues that they want the Court to
determine is clearly intriguing, for several reasons. Does the Court think that
all these parties will ever agree on common issues to be determined by it?
To be clear on this aspect, it is
important to observe here that the
memorandum of issues refers to the aspects of the petition that the petitioners
raised in their application for directions in court and that of
President Mahama, stating the specific areas of interest to him (also captured
in an application made to the Court).
Obviously,
both the NPP petitioners and President Mahama aren’t on the same page
concerning the issues of interest to them. Simply put, they have no common ground
except that they come into contact only because there is a petition before the
Supreme Court challenging the outcome of Election 2012.
What
the NPP’s petitioners want isn’t exactly what President Mahama wants the Court
to do in determining the lawsuit. In other words, the two have different issues
in their applications. Is that conflict of interest what the Court is asking
them to “synchronize” so they can agree on the specific aspects for the Court
to determine?
The process toward reaching a
common ground is not clear. We are told that in consultation with the bench, Justice Atugubah advised the
parties to meet and agree on the issues collectively so the case could start.
Where and how are these parties going to meet to decide on the memorandum of
the issues?
A well-equipped team of security
officers need to be put together for the occasion if ever these parties are to
meet face-to-face to do what they have been instructed to do. It is
inconceivable that these antagonistic forces will ever come face-to-face to
decide on a matter that has already divided ranks.
What specific steps will they
take to reach out to each other? The process itself is problematic.
Of course, they can communicate
through writing, but I see a big challenge here already. Who will initiate the action?
Or do we expect them to work independently and exchange documents toward
collapsing issues into one final memorandum of issues to represent a consensus
on specific issues?
If I may hazard a guess here, I
can say that in this case, the NPP’s legal team will tweak its application for directions in court and give the
President/NDC legal teams and the Electoral Commission a copy and in turn pick
up what the President/NDC legal team and the EC have for it.
Thereafter, all will generate separate
documents embodying the three parties’ issues to be agreed upon after
exchanging drafts. Then, a final memorandum of issues will be generated, agreed
upon, and forwarded to the Supreme Court. And all of this to be done in 7 days?
Considering the entrenched
positions taken by each party, will any be willing to sink differences so that a
common front can be attained for them to all agree on specific issues? I don’t
think so.
The NPP has raised a number of
issues in its application for
directions in court, which was objected to at the Court’s sitting on
Thursday by Samuel Kojo, the counsel representing the NDC with the explanation
that “the application is alien to the rules of court.”
So,
the preliminary issue (the application for directions in court) is itself in
dispute; how are the parties, then, expected to stand on it to reach a common
ground on what the Court should look into? Certainly, President Mahama’s legal
team has also applied to the Court for directions on issues to be determined.
I
see a fundamental conflict in this area, and will be very much surprised if the
petitioners and the respondents can ever reach a compromise as instructed by
the court. Probably, that is why the Court adjourned sitting indefinitely!
The
7-day ultimatum given by the Court will elapse without anything concrete being
agreed on by the parties. After all, the interests of all the parties don’t
converge. They don’t intersect to suggest that a compromise will be easily reached
within the period.
What
the NPP petitioners are looking for is not necessarily the same as what the
respondents and the NDC are looking for as a trump-card to play in this legal
game. Interests differ because each party will want to take advantage of the
others’ miscalculations.
By
throwing the ball back into the courts of these parties, the Supreme Court is
being smart because if they fail to reach a compromise, it will then step in to
pick and choose whichever issue it deems determinable. In that sense, then,
when it gives its ruling at the end of the process, it will be good or bad for any
of the parties.
Assuming
that in choosing the issues the Supreme Court sidesteps what the NPP considers as
the pith of their petition, will the NPP petitioners agree? Or if the Court
goes for what President Mahama will be ill-prepared to accept, will he be
comfortable enough to accept the outcome of the case? And the EC too?
I
strongly am inclined to say that it is not likely that the parties will ever
reach a compromise on the memorandum of issues. Thus, the strong likelihood is
that they will take the Court’s option to inform the Registry of their failure
to reach an agreement, which will compel the Court itself to choose the
memorandum of issues to determine.
If
the onus falls on the Supreme Court itself this way, there will be fireworks. Tempers
will flare. I suspect strongly that the petitioners won’t like it nor will the
respondents. Thus, the Court will do all it can to stamp its authority on the
matter; but that measure will provoke objections and motions and counter
motions, which will delay the determination of the case all the more.
As
the matter stands now, it is clear that the Supreme Court is giving all the
parties the long rope. Some may hang themselves with it. Others will not and
take actions that will make the determination of this case a protracted one.
Putting everything together,
then, I can tell that this case will definitely raise surprises, which we must
be prepared for, especially when the 7-day ultimatum elapses and the parties
fail to reach a compromise.
Who says that in such a contest
of wits, the NPP petitioners will compromise with their political foes? Or that
President Mahama will agree with the NPP petitioners to choose issues that he
has already debunked and ram them down his throat? It won’t happen. The Supreme
Court is really in for a rough and tough legal challenge. I hope nobody trips
in the process.
I shall return…
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E-mail:
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