Legality of Election Validity in the Boardroom of a Philosopher in 2013 Ghana

The 2013 presidential petition hearing in the Supreme Court of Ghana, following a petition lodged against the Electoral Commission of Ghana’s declaration of Mr John Dramani Mahama as validly elected president with 50.70% of total valid votes cast in the 7/8^th December 2012 general elections, has indeed attracted huge attention of people from both far and near, including legal experts and philosophers. The contention of the petitioners and the adjudication thereof are in the spirit and backing of article 64(1 to 3) of the 1992 republican constitution of Ghana which gives the petitioners the right to challenge the validity of presidential elections and equally empowers the Supreme Court not only to adjudicate but also to formulate appropriate adjudication rules such as those found in Constitutional Instrument (CI) 74, 2012.

Validity is one of the concepts that may be seen from different perspectives. But it is certainly not without parameters. It may be understood in philosophy as a logical arrangement of argument or contention which posits that the conclusions and premises of any reasoning must necessarily follow or be consistent with each other in truth or falsity wherever it might be seen to be interpreted (Socrates, Aristotle).

For example, in deductive reasoning, if it is said that: ‘All animals are cats – The laptop computer is an animal - Therefore, the laptop computer is a cat’; it will be quick for anyone anywhere to raise an unequivocal objection that all the three statements or propositions at issue are false. The reason obviously is that, not all animals are cats – laptop computer cannot also be an animal – laptop computer cannot be a cat either.

Another circumstantial instance may be contended that: ‘All irregularities, statutory violations and malpractices make elections invalid – The 2012 elections in Ghana had irregularities, statutory violations and malpractices – Therefore, the 2012 elections in Ghana were invalid’. This argument could also easily be labeled as false and dismissed even though its second premise might have appeared to be true.

Ironically however, in both arguments there seems to be an inherent logical form that proves beyond every sense of flow that, indeed, the contentions are after-all valid. This means that the truthfulness or otherwise of an argument is not necessarily what makes an argument valid but the ‘logical form’. That is, validity is obtained in so far as the premises logically support a reason to believe the conclusions. It does not matter the falsity or truthfulness of the propositions – what matters is the logical form and consistency of the truthfulness or falsity. Nevertheless, even though such reasoning may be valid, it cannot be said to be sound.

Sound arguments not only must have logical form but also must have true propositions in its premises and conclusion. In determining reality of circumstances, philosophers are more interested in the soundness of arguments put forward in support of claims made. Philosophers are well-grounded in philosophy or critical thinking and so use structured viewpoints to seek for truth or reality of a phenomenon or claims thereof.

In the field of law, however, validity may be understood as not just the logical flow or form of the argument but also the veracity or truthfulness of the reasoning with attention to both internal and external factors that may have effects on the way the propositions are made. Validity of propositions in this case ought to be determined within a given legal framework and perhaps socio-political and moral imperatives. Thus in determining validity in law, veracity and soundness of reasoning are not considered in isolation but are situated in the context of implicit and explicit guidelines or standards which the society gives recognition or credence to through its legal, political and moral institutions, amongst others.

This implies that validity of an argument on a given issue might vary from one jurisdiction to the other depending upon the frameworks that guide human activities and processes. Such variations may be on both the form and substance. There is nonetheless a huge amount of consensus on the substance and form of issues with international scope which international legal architecture regulates, especially on some fundamental human rights such as right to freedom of expression, democratic and political choices including elections of political leaders, as happened in Ghana during the 2012 December elections.

For example, in many democratic nations where rule of law and freedom of expression predominate, validity of elections is determined by free, fair and transparent processes where each candidate has an equitable chance of being elected by eligible voters who also must be given the political space to exercise their franchise without intimidation or victimization or other hindrances. The legal and socio-political framework to administer and enforce those, may still differ from country to country and determination of validity thereof will largely depend on that country’s legal, social and political frameworks, of course with hindsight of international legal experience and standards.

The legal framework that principally guided the conduct and remedies for the 2012 general elections of Ghana principally constituted the constitution of Ghana (primarily articles 49, 50, 51, 52; particularly articles 42, 63,64, 65 ) and (CI.75, and CI.74)2012, as well as ‘2012 manual on election adjudication, 2^nd edition’ and other legal and social imperatives.  In considering validity of the 2012 presidential elections, it is therefore very important to have a holistic and strategic view of all the parameters that hold a proof of some level of validity in elections across the world but with reasonable consideration of domestic laws such as those mentioned immediately beforehand. Thus, ‘malpractices, irregularities and statutory violations’ alleged to have occurred in the election of President John Mahama, for example, will have to be subjected to the highest standard of proof of veracity and magnitude of claims on one hand the legal and mathematical effects on the other.

Perhaps a careful balancing walk through strings of technicalities of the philosophical and legal conceptualizations could be very useful and undoubtedly appealing.  It may not still be enough to perfection but it should have been realized that philosophical narratives ought to be significantly featured in legal analyses albeit with some transmutations to reflect specific legal imperatives and moral reasoning – whether categorical moral reasoning interested in duties and rights or consequential moral reasoning interested in utility or best outcomes.

In closely observing the ongoing Supreme Court proceedings of the presidential petition in 2013 Ghana, a philosopher with the hindsight of the legal imperatives could therefore be attracted to make these insightful but laconic propositions:

Credible elections should possess basic validity if it is able to secure voter legitimacy involving identification of eligible voters; vote integrity constituting security of ballot, competence of voter, and accuracy of single tally of votes whereby each ballot is stamped or marked, clearly voted and counted; as well as level of accuracy of agreed result as openly counted and declared. Very credible elections should have non-coercible validity if it possesses elements of basic validity together with voter preference which constitutes absence of seduction to vote preferred candidate; and lack of constraint on voter integrity in which the voter should not be coerced to vote. Highly credible elections are characterized by non-deniable validity which integrates non-coercible validity with non-deniability of tally of results by candidates or their representatives and non-deniability of legitimacy of the results obtained by each candidate and the winning candidate thereof.

Simply put, non-deniable validity incorporates basic validity and non-coercible validity which altogether posits that elections are highly credible in validity if the process was free, fair and transparent whereby each eligible voter was openly identified, freely allowed to vote preferred candidate, votes properly counted, tallied and results openly declared in which candidates or representatives of candidates certified and accepted the results and winner at the polling station thereof. This is true for three main reasons: firstly, it would have satisfied most of, if not all, the legal and social imperatives that provided the framework for the elections; secondly, it would have met the standards of international legal jurisprudence on valid elections;

 Thirdly, it is consistent with the imperative deductive logic which essays that: Every country’s election is valid if its process and outcome was free, fair and transparent, even with some insignificant errors - Ghana’s 2012 elections were free, fair and transparent but with some insignificant errors - Therefore, Ghana’s 2012 elections were valid.  Perhaps, this suppositional hazard may attempt to attract some vibrations of contempt of court. But nay, it shall not be contemptuous for two reasons; first, it is an informed academic opinion which merely attempts to put legal philosophy in perspective; second, it shall not in any way prejudice the outcome or reasoning of the eminent Supreme Court Justices.

It is sufficiently reasonable to then conclude by saying that validity of the 2012 presidential elections can only be interpreted and determined by the Supreme Court of Ghana (1992 Constitution - Articles 64.2; 130.1a).  But suffice to reveal that in the categorical and consequential boardroom of the philosopher, logical deliberations attentively try to reconcile with legal imperatives in which rational conclusions reached must comply with the real truth and utmost certainty – the true intentions and preferences of legitimate Ghanaian voters as found in secured ballot boxes.

Contextualizing a critical strategic balance between Kenya’s Supreme Court Judgement and Ghana’s Presidential petition

At least, with their enviable recent management processes of electioneering outcomes and lawsuits, Ghana and Kenya are lately becoming proud examples of democratic and legal maturity in Africa. Despite some apparent challenges with the first-time biometric technology deployed, the processes and outcomes of the 7th – 8th December 2012 presidential and parliamentary elections in Ghana in which 275 parliamentarians and President John Dramani Mahama got duly elected were, indeed, exemplary.

Equally so were the processes and outcomes in which Uhuru Kenyatta, governors and legislators were duly elected in the March 4th 2013 presidential, municipal and legislative polls in spite of some challenges with electronic transmission of results and so on.

In both countries freeness, fairness, transparency and credibility appeared to have firmly crowned their elections with tremendous admiration and satisfaction from most local and international observers. Indeed in Ghana, the AU/ECOWAS elections’ observer team and Coalition of Domestic Election Observers (CODEO), radio and TV stations and others verily described the process and outcome of the 2012 elections as historic, free, fair, transparent and credible. Similar credible verdict by both local and international observers was also reached in the 2013 Kenya’s elections.

Nevertheless, as could be expected from any election, not all stakeholders were quite satisfied with the processes and outcomes. The New Patriotic Party (NPP)’s 2012 Presidential Candidate, Nana Akuffo-Addo, Dr Mahamudu Bawumia (running mate) and Jake Obtsebi Lamptey (National Chairman, NPP) did, for example, petition the Supreme Court of Ghana against the Electoral Commission (EC)’s 9th December 2012 declaration of National Democratic Congress (NDC)’s John Dramani Mahama as winner and validly elected President with 50.70% over NPP’s Nana Akuffo-Addo’s 47.74% of total valid votes cast in the presidential elections. 

The petitioners raised issues grounded on alleged ‘wide spread irregularities, malpractices and statutory violations in 11,916 polling stations’ (filed on 7/2/13 and as  amended from earlier 4,709 polling stations filed on 28/12/12) out of the total 26,002 polling stations, asking President John Dramani Mahama, EC and NDC to respond and praying the Supreme Court to nullify all the presidential results from the affected polling stations, declare Nana Akuffo-Addo as Winner or legitimately elected and issue any consequential orders therein. Interlocutory submissions by the petitioners and respondents dragged the hearing of the main petition until the 2nd of March 2013 when the Supreme Court of Ghana directed the substantive hearing to begin on the 16th of April 2013 – four clear months after elections and subsequent declaration of the Winner. 

The petitioners therein appeared not to be very clear on the magnitude and nature of their dissatisfaction and complaint thereof before proceeding to the court. As it stands, it is fairly impossible to prognosticate when the Supreme Court of Ghana will reach any final judgement given the convoluted nature of submissions, lack of time table for proceedings and inadequate cooperation between petitioners and respondents.

The exclusive dissatisfaction with the NPP appeared to have been replicated in Kenya whereby CORD’s 2013 Presidential candidate, Raila Odinga, African centre for open governance (Africog) and others also petitioned the Kenya’s Supreme Court against the 2013 electoral process and the subsequent 9th March 2013 declaration of Uhuru Kenyatta by the Independent Elections and Boundaries Commission (IEBC) as validly elected President with 50.07% over Raila Odinga’s 43.28% of total valid votes cast on 4th March 2013. 

The petitioners therein complained of irregularities and statutory violations in almost all the 33,400 polling stations against which they implicated the IEBC, Uhuru Kenyatta and others. And, therefore, prayed the Supreme Court of Kenya to nullity the whole Presidential elections, give any consequential orders and reorder for a re-election or run-off.  Even though there were interlocutory matters thereafter declaration of results, right from the beginning of the litigation, the petitioners were quite clear in their minds what they were complaining about and requesting for, albeit only tried to chase a wild goose.

In less than three weeks after the 9th declaration, however, the Supreme Court of Kenya elaborately and laboriously scrutinized and heard all submissions and pleadings but came out with a decisive unanimous judgement on 30th of March 2013 that the 2013 presidential elections were “free, transparent and credible,…in compliance with the constitution and the law" . This was obviously to the disappointment of some people but for the admiration of all. Indeed, any objective observer who happened to have followed the proceedings in court would have attested to the fairness of the hearing which was additionally highlighted by resplendent display of rich legal knowledge from lawyers for both petitioners and respondents. They acquitted themselves quite well. I personally admired their impressive sense of appreciation and understanding of comparative and constitutional laws. 

Indeed, the Chief Justice of Kenya and president of the 6-member panel of judges sitting, Dr Willy Mutunga, and the other judges were beaming with spectra of praises for all the lawyers therein. There was a meticulous and expeditious trial. Justice was neither delayed nor denied. Justice appeared rushed guided by the constitution but still not denied. Thus when the judgement was reached, the constitution of Kenya and the law appeared to have won the day. Uhuru Kenyatta was cleared to be sworn in, later this April, as ‘validly elected President of Kenya’ together with his deputy president Mr Ruto.

This was not without apparent disappointment for Raila Odinga – perhaps not in the constitution, justices or lawyers but in the hope of getting a favourable judgement, per slim chance, he all too well knew about. With utmost maturity, he nonetheless, respected and accepted the Supreme Court’s holdings and vowed to continue to pursue peaceful means whilst wishing Uhuru Kenyatta (President-elect) well and urging his supporters to avoid violence. Kenya has since remained calm after few initial reactionary skirmishes.

With the terrible reminder of the 2007 deadlocked elections that claimed over 1,200 lives, after the 2013 elections, all eyes were now on the Supreme Court to adjudicate and uphold the electoral integrity of Kenya. Happily, the Supreme Court of Kenya did live up to expectation by not only making the hearing process telecasted live but also ensuring fairness and credibility as per the dictates of the Constitution of Kenya, electoral regulations and applicable principles  of law. The speedy nature of proceedings was dictated by article 140 (1, 2) of the constitution which gives a limited space of not more than three weeks to file, hear and judge presidential election petitions. The non-tolerance for technicality to be used to delay and avoid substantive justice was also sanctioned by article 159(2) of the constitution. 

The recent judicial experience with the presidential petition in Kenya obviously has some enormous obvious attraction for the on-going Ghana’s presidential election petition. Clearly though, Ghana and Kenya have different legal imperatives and jurisprudence. It may therefore not be too appropriate to expect the Supreme Court of Ghana to adopt the same procedures which were applied by the Supreme Court of Kenya. But in all sincerity, the legal principles of equity, fairness, transparency, expeditiousness and credibility that informed Kenya’s Supreme Court hearing processes can, and indeed must be applied by the Supreme Court of Ghana in mutatis mutandis. 

For example, article 64 (1) Of the constitution of Ghana gives any citizen of Ghana the right to contest the validity of presidential elections within 21 days after declaration of results by EC and also does procure a right for the candidate declared as president-elect by EC to be sworn in subsequently by the Chief Justice while remaining as valid president until the holdings of the Supreme court prove otherwise (article 64 (2)). The 2012 Elections Manual and C.I.74 (inspired by article 64 (3)) together with the spirit and letter of the constitution and applicable principles of law require fair, transparent, credible and expeditious trial. These are not too different from those provided by the constitution, election regulation manual and other applicable laws of Kenya. 

The main difference, one must add, is that while the constitution of Kenya is quite clear about how long presidential election petition should be filed, heard and judged, that of Ghana is not quite specific on the duration. But of course by virtue of expeditiousness, C.I 74 (section 69c.5) for example does make court proceedings to be undertaken ‘daily including Sundays, Saturdays and public holidays’ just so that justice can be dispensed speedily. The inherent lacuna in no maximum time allowed, nonetheless, make discretions of judges to unnecessarily succumb to pressures from litigants to submit interlocutory matters or digest all available remedies likely make unnecessary adjournments to prolong the case too probable. 

This is where the Supreme Court Judges must be able to rather use their discretion to strike a careful balance between expeditiousness and substantial justice in recognition of the rights of litigants. Also, Ghana’s Supreme Court must equally resolve to broadcast the court proceedings live on radio and TV. This will not only ensure transparency and openness but it will also form a nucleus around which legal education and public confidence could be hugely enhanced. I do believe that it is in the interest of the integrity of the Supreme Court represented by the eminent justices and that of the litigants as well as the general public to see to the fair, transparent, credible and quick decision on the NPP’s petition whose claims are, without malice and prejudice or contempt, nothing more than frivolity and wild goose chase which will, nonetheless, somewhat enrich the electoral jurisprudence of Ghana.

There is therefore the need for the Supreme Court of Ghana to show high level of legal integrity and keep a careful strategic equilibrium between the Kenya’s Supreme Court’s presidential petition judgment and that which will be reached by the eminent justices sitting on the NPP’s 2012 presidential petition who should know existing international comparative legal jurisprudence on elections and who may have been  fortunately living in Ghana when the whole 2012 elections were conducted in an atmosphere of transparency, tranquillity  and peace.