Last week, the Ghana Centre for Democratic Development (CDD) organised a three-day sensitization workshop on the 2020 general elections in Ada. At that workshop, respected constitutional law professor, Prof. H. Kwasi Prempeh was reported to have said, among others, the following:

“What is lost by allowing the elections management body to speak for itself to admit that errors were made but to say they were inconsequential?

“But the cost is high. The cost in saying you may remain silent as if, if you actually came you would self-incriminate and we will put you in jail. There is no threat to the liberty of the institution, they won’t be jailed.”

If these were what Prof. Prempeh actually said, that would not be new. He expressed these same views during the election petition and strongly disagreed with various rulings of the Supreme Court. What bothers me about his views, is the apparent constitutional confusion that is created in the minds of ordinary citizens.

Let me state from the outset and forcefully make the point that, a presidential election petition grounded in Article 64(1) of the 1992 Constitution, is a strict and narrow forum meant to challenge the VALIDITY of the election of the President, NOT a forum to seek administrative justice! If you invoke the jurisdiction of the Supreme Court under Article 64(1), there is one and only one objective: to challenge the VALIDITY of the election of the President, the declaration of which was based on Article 63(3) of the Constitution and the gazetting of which was based on Article 63(9) of the Constitution. Challenge the VALIDITY of the election of the President! Nothing more, nothing less. So, let’s be clear what the Constitution provides for under Article 64(1):

“The validity of the election of the President may be challenged only by a citizen of Ghana who may present a petition for the purpose to the Supreme Court within twenty-one days after the declaration of the result of the election in respect of which the petition is presented.”

That is the foundation of a presidential election petition in Ghana. Failure to understand the meaning of that provision of the Constitution, seems to be what has created all the confusion about why the Supreme Court ruled that the Chairperson of the EC could not be compelled to testify during the proceedings, or that any alleged violations of Articles 23 and 296 should not be litigated through a presidential election petition.

I will deal with what I consider as key issues that must go into determining the validity of the election of the President later, but let me first deal with issues surrounding the Electoral Commission’s public accountability under Articles 23 and 296. As the Supreme Court said in Page 25 of the Judgment in the 2020 Presidential Election Petition, “If it is the case of anybody that the 1^st Respondent violated articles 23 and 296 in the discharge of its duties, which included the declaration of the Presidential results under article 63(3) of the 1992 Constitution, the remedy of that person lies in the High Court, because strictly, such a complaint cannot be an election petition challenging the validity of the election of the President of Ghana.”

The Electoral Commission undertakes several processes that have direct and indirect bearing on the election of the President of Ghana, ranging from procurement of equipment and stationery, publication of a constitutional instrument, training of election officials, compilation of electoral register, demarcation of polling stations, registration of presidential candidates, balloting, printing of ballots, election-day logistics management, to voting, counting, collation and declaration of results, et cetera, et cetera. If you want to stretch the argument, many of these processes either on their own or together may affect the outcome of a presidential election. To what extent, however, can you then argue that violation of any of these processes should lead to challenging the validity of the election of the President? Does it also mean then, that the EC cannot be held accountable and be challenged in court under Articles 23 and 296 in the discharge of its duties with regards to the processes listed above? Certainly not. As the Supreme Court has settled, you can do so at the High Court. And, if you are interested in the accountability of the EC under Articles 23 and 296,  you can invoke various Parliamentary processes and committees, including the Public Accounts Committee (PAC). But, if you have evidence to prove that EC’s failure to discharge its duties had a direct bearing on the validity of the election of the President, you can file a presidential election petition at the Supreme Court under Article 64(1).

So, what are some of the key issues that should determine the validity of the election of the President? In my view, every presidential election petition filed under Article 64(1) of the 1992 Constitution is about facts and figures, and must address the following key issues, among others:

1. Was a presidential election conducted as enshrined in law?
2. Did the presidential election take place at all polling stations? If not, would the votes of all the polling stations where election did not take place change the outcome of the election, if all the votes are added to the runner-up presidential candidate?
3. Were all eligible voters able to cast their ballots? If not, would the votes of all those who could not cast their ballots, for whatever reason, change the outcome of the election, if all the votes are added to the runner-up presidential candidate?
4. Were votes that were cast counted, collated and declared in accordance with the law at all polling stations and collation centres (at all levels)? If not, would the total of the affected votes change the outcome of the election if all the votes are added to the runner-up presidential candidate?
5. After collating the results from all polling stations, did any candidate achieve the over 50% threshold provided for under Article 63(3) of the Constitution? If the Petitioner says no candidate met the threshold, does s/he have evidence to prove same?

As a digression, it is unacceptable for a major political party that claimed to have won the election based on their internally-collated results, that changed their position in court and claimed that no candidate met the Article 63(3) threshold, to be given a filthy pass to refuse to publish their collated results! Don’t tell this is an internal party matter! When NDC officials spoke to the media, and their supporters went onto the streets to protest and burn tyres, they were talking to the whole of Ghana and the rest of the international community. President Mahama and the NDC must publish their internally-collated figures, otherwise they will suffer a permanent damage to their credibility.

6. Were there any violations in all the processes – pre-election day, election day and post-election day – that affected or should have affected the votes of any candidate and if so, would the affected votes change the outcome of the election of the President as declared by the EC in accordance with Article 63(3)?

If you cannot positively convince yourself that your answers to the above questions (and more) should invalidate the election of the President, then don’t file an election petition challenging the VALIDITY of the election of the President. If you are seeking accountability of the EC and its chairperson, don’t file an election petition. Go to the High Court and seek administrative justice. Let us once and for all clear this constitutional confusion and let Ghanaians understand what a presidential election petition is about. And if you file a presidential election petition under Article 64(1), be prepared with your evidence to prove that the person declared winner under Article 63(3) did not receive more than 50% of valid votes cast and that the Supreme Court must therefore declare his or her election as invalid. A presidential election petition under Article 64(1) is NOT a forum to seek administrative justice under articles 23 and 296 of the Constitution.

Kwaku Antwi-Boasiako, Accra

May 3, 2021