A constitutional lawyer, Professor H. Kwasi Prempeh, has criticised the Supreme Court (SC) for failing to give binding recommendations for electoral reforms to the Electoral Commission (EC) following the 2012 election petition.
He said the SC’s recommendations were bereft of legal authority, and indicated that the recommendations “are analogous to non-binding advice”.
Delivering a paper in Accra yesterday at a public forum on the status of the Supreme Court’s recommendations for electoral reforms, Prof. Prempeh said, “Those recommendations cannot compel the EC to do those things that have been recommended.”
He expressed doubt that the EC would implement the reforms based on the recommendations.
“With the EC such as we have, you need more than recommendations to get it to act,” Prof. Prempeh said.
Jointly organised by Imani Ghana and OCCUPYGHANA, the forum sought to solicit views on the way forward regarding the SC’s recommendations for electoral reforms.
It was attended by people in the academia, legal practitioners, political leaders, members of civil society organisations, representatives of donor partners and students.
Yesterday marked one year of the Supreme Court judgement on the election petition.
Nana Addo Dankwa Akufo-Addo, the 2012 presidential candidate of the New Patriotic Party (NPP); his running mate, Dr Mahamudu Bawumia, and then Chairman of the party, Mr Jake Obetsebi-Lamptey, had asked the court to overturn the results that the EC used in declaring the candidate of the National Democratic Congress (NDC), President John Dramani Mahama, winner.
The SC judgement upheld the validity of the election of President Mahama in the 2012 election.
No clarity in SC recommendations
But Prof. Prempeh, who teaches constitutional law at the Seton Hall University Law School in the United States of America, said when a court needed to compel a subject to take or refrain from taking certain actions, it proceeded by way of an order addressed to that party but not recommendations.
He indicated that there was no clarity and certainty in the recommendations of the SC on electoral reforms regarding how elections must be conducted and how to mount a successful challenge in court in the event of a disputed election.
Prof. Prempeh said the judgement of the SC functioned as law.
Therefore, he said, a court judgement must provide sufficient guidance and clarity so that parties would know how to conduct their affairs if faced with a similar situation in the future.
The law professor said the parties must be able to discern from the judgement, perhaps with the assistance of counsel, what things they might do or not do next time in an election.
“Viewed in terms of its function as law in the forward-looking sense, the majority judgement in the 2012 election petition case is regrettably of dubious value,” he said.
Prof. Prempeh said it was not clear from the recommendations whether presiding officers were bound to sign the pink sheets.
Besides, he said, it was not clear what a petitioner should present in order to be successful in an election petition.
Again, he said, the permissible remedies that the SC could direct, such as recount or revoting, were not clear.
Prof. Prempeh said the recommendations had created more uncertainty about the legal standards for conducting valid presidential elections and successfully challenging the validity of the declared results.
“Such uncertainties as well as the lingering perception following the 2012 election petition that a judicial challenge for an election petition has rather poor prospects does not augur well for a peaceful conduct of elections in Ghana.
“Unfortunately, these are the questions that the Supreme Court majority judgement in the 2012 election petition case failed to answer. Instead, the judgement of the majority in that case has left us with more questions than answers,” he said.
Prof. Prempeh recommended that elections should be conducted in October or early November instead of in December.
That, he said, would enable the SC to reach a final determination of an election petition before the swearing in of a President.
Prof. Prempeh said after the swearing in of a president, questions as to whether s/he was validly elected becomes a political question instead of a legal issue.
Therefore, he said, the expectation that judges sitting on such a case would approach the case purely as jurists concerned with only the law was fanciful.
On the election of the Chairman of the EC, the constitutional lawyer proposed that the process for the selection of the EC boss should be open for discussion with other political parties instead of limiting it to the President and Members of the Council of State.
He charged the EC to come up with a road map to ensure that Ghanaians abroad exercise their franchise.
Prof. Prempeh suggested that the EC must be compelled to publish the voters register ahead of the election to ensure the integrity of the register.
He was of the view that constituency demarcations should not be arbitrary, and indicated that “creating new constituencies when districts are created is wrong”.
On abuse of incumbency, Prof. Prempeh said the law that allowed the President to have a fund for unspecified use must be relooked at to avoid abuse of the fund.
Source: Graphic Online