Professor George Ayittey, renowned Ghanaian economist and policy analyst, has said Ghana’s Supreme Court must avoid the lapses in the Kenyan and Venezuelan experiences, as it attempts to make a judgment on a similar petition brought before it by the leadership of the New Patriotic Party (NPP), about the 2012 December polls.
Professor Ayittey, who is also president of the Free Africa Foundation in Washington DC admits, though he is not a lawyer or constitutional expert, he can foresee gaping traps which the Kenyan and Venezuelan Supreme Courts fell into in handling similar election petition cases.
The associate scholar at the Foreign Policy Research Institute exclusively told Myjoyonline.com, the Kenyan ruling was bad.
“It was a bad ruling on five counts. First, given the highly charged political atmosphere, they should have stayed above the fray, instead of inserting themselves into it by declaring or confirming one of the contestants as the winner. Now they risk being seen as “compromised” or “partisan,” favoring one candidate over the other”, explained Prof Ayittey.
Secondly, he was of the opinion the Kenyan Supreme Court ordered a re-tally of votes from 22 polling stations out of a total of 33,400. In his view, the sample was too small.
“Admittedly, the Supreme Court had only 6 days to make a ruling and, further, the Coalition for Reform and Democracy (CORD), the Odinga camp, may have suggested a scrutiny of those 22 polling stations. However, if that small sample revealed evidence of irregularities, logic suggests that the large remainder must also contain irregularities that must also be scrutinized. If a portion of the meat is spoilt, would you cut it off and eat the rest?” he quizzed.
His third reason was that the Kenyan Supreme Court's decision did not erase the widespread suspicion that there were nefarious attempts to manipulate the results and rig the election. In his view, it was a bit of a stretch to attribute the irregularities to “clerical” or “human error.”
“How does one explain the sudden break-down of IT or electronic transmission of results, necessitating manual tabulation? The break-down of biometric equipment, necessitating voting without biometric verification? The mysterious expansion of over 1 million voters in the electoral register for the presidential election but not for the parliamentary?” he asked.
Fourth, “Kenya is dangerously polarised politically. Uhuru’s win of 50.07 of the vote is one the narrowest majority and the “minority” is nearly 50 percent of Kenyans who did not vote for him. That means nearly half of Kenyans were not pleased with the Supreme Court's decision and will still feel aggrieved. This is dangerous because, in Africa, it takes a small group of determined mal-contents to wreak havoc and mayhem - let alone half of the electorate” he explained.
He explained further, “in 1985, the late General Samuel Doe held elections in Liberia. When it appeared that he was losing, he ordered the vote count halted. Ballot boxes were then transported to a secret location at the army barracks where the votes were tallied and Doe declared the winner. Charles Taylor refused to countenance this contumely and started a 'bush war' with only 100 men. The rest is history. Similarly in Uganda, Yoweri Museveni started out with only 27 men”.
Prof Ayittey’s fifth point on why the Kenyan Supreme Court ruling was bad is that the decision did not ease but rather exacerbated tension in Kenya. The country is also deeply polarised along tribal and religious lines.
“Kikuyus voted for Kenyatta, Kalenjin for Ruto and Luo for Odinga. Religion or tribal politics is a very dangerous proposition in any African country. In Kenya, there is a perception that the Kikuyus have dominated both the political and economic scenes. Of Kenya’s three presidents since independence in 1963, two – Jomo Kenyatta and Mwai Kibaki - have been Kikuyu; Daniel arap Moi is Kalenjin. Further, the ‘Kenyatta’ family is the largest land owners in Kenya and among the richest in Africa” he intimated.
Prof Ayittey stated that “In Nigeria, tribal politics led to the Biafran War (1967-70). The Igbo, through their own hard work and determination, had become very successful, dominating senior positions in government, educational institutions, etc. But it bred tribal resentment and persecution, which propelled the Igbo to secede. Over 3 million – mostly Igbos – died in the ensuing war. In Rwanda, tribal politics led to the 1994 genocide, in which 1 million Tutsis were slaughtered".
He said, in Ethiopia, tribal politics has stunted that country’s growth prospects. In Ivory Coast, it was the politics of religion. The country was split into the Muslim North and Christian South after the Nov 2010 elections. Similarly in Mali, where the Muslim Tuaregs have long chafed under Christian South domination and discrimination.
“In Kenya, the Mombasa Republican Council, a Muslim group, is demanding secession. They were responsible for a series of attacks on polling stations in the March 4 elections. Clearly, the Kenyan Supreme Court cannot claim to be unaware of these developments. Note that nearly all the civil wars in post colonial Africa were started by politically marginalized or excluded groups”.
In his opinion, the Kenyan Supreme Court inserted itself into the political fray and looked partisan by declaring Kenyatta the winner. But more importantly, in so doing it violated the principle of separation of powers and prerogatives.
“Let me explain because this is important: Ministries have certain specific functions to play in government or society. Ministries of Defense, Health, Transportation, etc. have specific functions. Threats to the country’s security are referred to the Ministry of Defense or Interior. If you want a new passport, you do not go to the Ministry of Health”,said Prof Ayittey.
According to him, similarly institutions have certain specific functions and prerogatives.
“Elections and declaration of winners is that of the Electoral Commission. The function of the Supreme Court is to uphold and defend the Constitution and the rule of law. It is not the role of a Supreme Court to determine the winner or loser of a presidential election. That is the role of the Electoral Commission” he said emphatically.
The most egregious blunder, according to the Professor, was committed by Venezuela’s Supreme Court.
“On Wednesday, April 17th, the Supreme Court rejected calls for a recount of the disputed presidential vote. The Chief Justice, Luisa Estella Morales, said that manual vote counting wasn't possible in the country”, he recalled.
According to him, the election was held on Sunday, April 14. The announcement of the results sparked unrest and street protests that claimed lives and the opposition camp called for a recount.
In his view, the Chief Justice, Luisa Estella Morales, acted improperly by rejecting publicly on television, calls for a recount when the petition had not even been filed in the Supreme Court.
So how should have the Kenyan and Venezuelan Supreme Courts rule?
Professor Ayittey believes after an election a dispute may arise. According to him, the petitioner(s) may allege that:
- Minors were allowed to vote, - Non-nationals were allowed to vote, - People voted without biometric verification, - The number of people who voted EXCEEDED the number of registered voters in some constituencies, - The number of registered voters for the presidential election exceeded the number of registered voters for the governorships and parliamentary elections, - Polling stations were placed at secret location unknown to the opposition (8 locations in the case of Ghana). - Other allegations of systematic fraud, etc.
“When such a dispute is brought before a Supreme Court, its responsibility is to investigate and determine if the electoral laws were followed or broken by the Electoral Commissioner. We must not forget the primary role of a Supreme Court is not to determine who won or lost an election but to uphold the rule of law. The Supreme Court is not set up to overturn a decision by the Electoral Commission. The Electoral Commission must do so itself”, said Prof Ayittey.
According to him, another blunder in the Kenyan and Venezuelan situation pertains to the cavalier manner in which opposition grievances were handled.
He said, the Supreme Court in Kenya rejected the opposition petition out of hand and declared Kenyatta the winner. In Venezuela, it was worse. The Supreme Court rejected opposition calls for a recount – even before such a petition had been filed before it.
"As a former university professor, many a student has challenged the final grade that I gave them. To start the appeal process, they could petition the Chairman of the Department. If they so, he may refer them back to me to try and resolve the dispute. Regardless of whether the petitions are frivolous, baseless or not, we (the Chairman and I) both make every effort to give the students a fair hearing and attempt to resolve the matter to everyone’s satisfaction" he intimated.
According to him, this is important because is not right to dismiss any grievance or petition out of hand as “groundless” and the Chairman strives to show that he is impartial and does not automatically side with the professor.
"So if a student’s grade is just 2 points short of a B+, I might upon re-grading award him those 2 points and change his grade to B+. We make this effort because we want the student to feel that he is part of the university community and that his grievance was adequately redressed to his satisfaction" he explained.
"This is what I expected the Kenyan Supreme Court to do. To revert the issue back to the Electoral Commission and say, “We found some irregularities in the results from the sample of 22 polling stations. Check the results from the remaining 33,378 polling stations and make the necessary adjustments. If none of the two top candidates secure more than 50 percent of the vote then schedule a date for a run-off”, he declared.
According to him, in the Kenyan case a run-off would mop up the stench of tribalism as it would force candidates to canvass for votes or court tribal groups other than their own.
"It would also put to rest the suspicion that the March 4 vote was manipulated or rigged. My preference would be a re-run of the entire elections because of the high number of rejected ballots" he opined.
He said for the re-run, a new Electoral Commissioner should be employed because Isaack Hassan, the current Commissioner, cannot be trusted. The difference in cost of running a run-off and a complete re-run is likely to be same as it is the same electorate voting again.
"If a portion of the meat is spoilt, the entire meat should be thrown out", he said emphatically.
Again on the Kenyan petition, he was of the view that it is quite possible that correction of the irregularities and re-count may not change anything or result in a run-off and it is also possible Odinga may well lose a run-off.
"But doing things this way gives the aggrieved party the satisfaction that its grievance was seriously addressed and not just brushed aside. I believe this is how one keeps confidence in the electoral system as well as independence of the Supreme Court" he suggested.
According to him, as it stands now the aggrieved party may feel the Supreme Court sided with the Electoral Commission and brushed off their grievance as due to “clerical error.” This can destroy confidence in the electoral system as well as the credibility of the Supreme Court itself.
Prof Ayittey believes Ghana’s Supreme Court Judges are caught between a rock and a hard place
According to the learned policy analyst, Ghana’s Supreme Court Judges are caught between a rock and a hard place, because whatever decision they come out with will displease some people.
Going forward, he propose a review of the Constitution to ensure that all electoral disputes be resolved before the final results are announced.
“This was not done in December, which is why the issue landed on the laps of the Justices”, he said.
Second, he believes the time span between elections and the inauguration of the new president is too short for disputes to be resolved.
“Either move the election day to November or the inauguration day to February to allow sufficient time for the disputes to be resolved”, he opined.
“Third when the election of a new president is being challenged in the Supreme Court, it would be judicious to put any inauguration on hold until the dispute is resolved. You cannot ask the Chief Justice to swear in a new president when at the same time there is a petition before her/his own court challenging the validity of his election”, said the Professor.
Fourth, Prof Ayittey thinks there should be a time limit on the ruling. Kenya’s Supreme Court had two weeks to make a ruling and Ghana’s case has dragged on for four months.
Finally, his view is that the Supreme Court should aggressively push for a Constitutional Review.
In his view, although the current 1992 Constitution has been revised, it is still terrible. Among its defects, according to him, are the following: A very powerful Executive who appoints: - All the Supreme Court Justices, - 7 of the 11-member Police Commission, - 30 percent of District Assemblymen - 11 of the 25-member Council of State.
According to the Professor, this guts separation of powers and checks and balances when the President appoints heads of the very institutions that are supposed to check his powers.