The issue of a speedy trial has been at the heart of the ongoing election petition brought by the presidential candidate of the National Democratic Congress challenging the validity of the 2020 presidential election.
In many respects, in a petition which was supposed to bring finality to the question whether Nana Akufo-Addo was validly elected as President of the Republic, we have seen the issue of expedition or speed become fetishized and taken the front row in the path to pursuing substantial justice.
In this short piece, I seek first to ascertain, in whose interest is expedition in an election petition sought. Is it the petitioner, respondents, the Court, or the people of Ghana? I also interrogate the applicability of the Supreme Court (Amendment) (No.2) Rules, 2016 (C.I. 99) to presidential elections that entail run-offs.
Commencing an Election Petition; The Constitutional How to.
The right to commence an election petition action is conferred by an entrenched provision in the Constitution. Article 64 (1) states that:
“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.”
Article 64 (1) determines the issue for adjudication – “…validity of the election of the President…”. It also resolves the question of capacity – “…only by a citizen of Ghana…” Thus, the Constitution envisages that any citizen of Ghana has the capacity to bring an action to challenge the validity of a presidential election. It also determines the mode of commencing the trial – “…may present a petition…” This contrasts with the general mode of commencing most civil actions by writ of summons. Article 64 (1) also determines the forum and vests the Supreme Court with original jurisdiction to hear and adjudicate on presidential election petitions. Finally, it sets a timeframe within which the petition should be brought, which is “…within twenty-one days after the declaration of result in respect of which the petition is presented”.
Article 64 (1) in my opinion makes the petition challenging the validity of a presidential election sui generis and distinguishes it thus from an ordinary civil action. We can also agree, as is consistent with constitutional jurisprudence, that no law can attempt to vary or modify the clear and unambiguous provisions of Article 64 (1): its form, time to file a petition and forum.
Contextualizing the Need for Speed: In re the New Supreme Court Rules
A few weeks before the 2020 presidential and parliamentary elections, the Judiciary in anticipation of possible challenges to the elections, popularized, in its comprehensive Election Adjudication Manual, the hitherto obscure Supreme Court (Amendment) (No.2) Rules, 2016 (C.I. 99) which had entered into force on the 5th of January 2017. The constitutional instrument (C.I. 99) amends the general procedural Rules of the Supreme Court by complementing it, for the first time, with practice rules that are specific to presidential election petitions over which the Supreme Court has exclusive original jurisdiction.
In effect, C.I. 99 was adopted pursuant to Article 64 (3), to provide for the practice and procedure for petitions to the Supreme Court challenging the election of a President. In rules 68A and 68B, the C.I. provides procedural clarity to Article 64 (1) with regard to the parties and mode of presentation of the petition respectively.
Evidently, C.I. 99 was also adopted to ensure expeditious hearing and adjudication of presidential election petitions.
Crucially, while C.I. 99 purports to set the time frame within which an election can be heard and adjudicated, the question as to the exact time limit continues to be the object of controversy and has led to competing interpretations. One school of thought reads the C.I. to support the view that the maximum time limit for the adjudication of an election petition is forty-two (42) days. Others are of the view that the word “sitting” should be read into the rules as to make the appropriate time period forty-two (42) “sitting” days. Some consider that because the C.I. mentions “January – March” in its Second Schedule, the time period for the adjudication of the dispute is a maximum of ninety (90) days.
This confusion is borne out of the inelegant drafting of Schedule 2 of C.I. 99. Hitherto, the rules did not provide a limit to the time frame for the hearing of a presidential election petition. Notably, the first petition challenging the results of a presidential election in Ghana which was brought by the then opposition candidate Nana Akufo-Addo in 2012 was heard over an eight (8) month period.
C.I. 99 thus, introduces what I call the “Usain Bolt” rules, entailing:
A prescription that no amendment to petition to add or alter grounds in the filed petition.
A prescription of ten (10) days within which respondents who intend to oppose the action should file their answer.
A prohibition preventing the petitioner or respondent from joining anyone to intervene in the action in any manner whatsoever.
An affirmation that the Court shall determine the petition expeditiously.
Balancing Speed and Justice: In Whose Interest?
The panel hearing the 2020 election petition chaired by the Chief Justice, Kwesi Anin Yeboah CJ, has made clear its intention to respect and stick with fidelity to the timelines prescribed under C.I. 99. There is no doubt that the commitment to proceed expeditiously in dealing with presidential petitions is commendable and augurs well for constitutional stability. However, there is still scope to not only question, as many are increasingly now doing, the desirability of the Court’s rigidity in applying these time frames in disregard of context and concerns for substantive justice, but also inquire into the interests that are at stake and are deserving of protection when the Court makes fetish of timelines.
In my opinion, there are three distinct constituents, whose interests are at play in an election petition: (1) the people; (2) the Petitioner (who is presumed here to be the supposed losing candidate) and (3) the Respondent (who is presumed here to be the presumptive president). It is possible to find other constituents, who may have an interest in the proceedings, such as the Electoral Commission, who would be keen to protect its reputation. However, my approach is to consider such as puisne interest, which can be subsumed under the first three. So, for instance, it is possible to subsume the EC’s interests under the interest of the people, who it serves. In the same way, it is possible to subsume the interests of the political parties under those of the Petitioner and Respondent, as respectively applicable.
The People’s Interest
According to Article 125(1) of the Constitution:
“Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” (emphasis)
The idea that justice emanates from the people means the judiciary are the agents of the people on whose behalf they administer justice. This creates a nuanced principal-agent relationship in the administration of justice and the scope of the authority of the agent-judiciary is subject to the Constitution including the power to make rules of procedure for expeditious trials.
Thus, the people of Ghana in my considered view from whom justice emanates ought to be the primary beneficiaries of any trial. In this regard, while expedition is a necessary virtue of a fair trial, it will be turning justice on its head, to elevate speed over fairness. In a presidential election petition in particular, the people’s interest in securing justice is three-pronged. First, they are owed the duty to ensure that their expression of their right to vote produces only a legitimate President, however long it takes to determine who that legitimate president is. Secondly, even though the Constitution does not taint with illegality anything done by a presumptive president, the people have an interest in quickly disposing of a president who is illegally imposed on them and relatedly quickly restoring their legitimate president to his or her rightful place. Thirdly, the people have an interest in ensuring that their rightfully elected president is not tainted with the continuing murmur of illegitimacy, by an overly drawn-out process. It follows, in this regard that, with regard to the first two interests, the need for speed, should not be used to disable them from determining who their legitimate president is so as to quickly dispose of a person illegally imposed on them. In respect of the third interest, the best protection that can be afforded a rightfully elected president who is the object of a murmur of illegitimacy is to demonstrate clearly that their election is in fact right. Speed does not quieten murmurs of illegitimacy, only true justice does.
The interests of the Petitioner and the Respondent
With respect to the petitioners and the respondents, the Constitution has made provisions to ensure that an ongoing election petition does not affect their rights.
The respondent who is the presumptive President – as has been the case in the two petitions so far – is allowed by the Constitution to be sworn in and to exercise the full gamut of executive authority despite the “hissing noise” of the legitimacy of his or her presidency. But such noises are flattened since the Constitution grants legitimacy to all actions undertaken by the person.
As regards the petitioner, Article 66 of the Constitution provides that, when their petition is successful, they “…shall, hold office for a term of four years beginning from the date on which [they are] sworn in as President”. In essence, if the adjudication of the petition lasts for 42 days, 90 days or 8 months, the petitioner if successful is still assured of a four-year term as President, so he or she does not lose anything if the petition drags.
In Which Direction Should the Pendulum Swing?
Having regard to the analysis above of the weight of the interests aforementioned, it seems to me that the weightiest interest that an election petition must protect is that of the people, seeing as it is the interest most aligned with justice. Afterall, justice emanates from them.
If that is the case, then it follows that speed, while necessary to secure the interests of the people is secondary in fact to the pursuit of manifest justice. As Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices,  1 KB 256, says:
“It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
In this respect, as he further said, “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.” Not even the need for speed.
However, does this imply that a blank cheque is given to either party to unduly delay the processes? No! Both the respondent and the petitioner must be accommodated and given the opportunity to lay out their case and plaint fully, even as attempts of fishing or moonshining should be stopped in their tracks.
However, it is important to bear in mind that the seeking of a judicial remedy in a presidential election petition is not only a legal process but also a therapeutic process that encourages parties to presidential elections to opt for a mediated judicial process rather than turn to undesirable undemocratic alternatives. The showing of the proceedings on live TV, also offers the parties to the petition an opportunity to connect with their constituents and offer them hope that their cause is being pursued in a legitimate way. This also calms the nerves of their support base, by allowing the process of “healing” and coming to terms with the outcome of the election. Because of these other benefits of a court process, the strict adherence to procedural niceties and timelines, though legitimate, may send negative signals and may jeopardize the faith in embarking on such legitimate action in the court in future.
The Applicability of C.I. 99 To Judicially Pronounced Re-Run Elections.
The 2020 presidential election petition has put on full display the many faults of the new Supreme Court rules, C.I. 99. Many of these faults have produced both ire and ridicule. However, one of the hidden faults of the C.I. is the confusion it creates as to the potential applicability to run-off elections. In addition, the rules become potentially unusable, where as a result of a judicial process, the tenure of the President no longer commences on January 7.
For context, Article 64 (1) is clear when it states that “…The validity of the election of the President …within twenty-one days after the declaration of the result of the election in respect of which the petition is presented.” In this regard, a challenge as to the validity of the election of a president can arise under three circumstances:
After the 1st round of elections and declaration of results;
After a rerun election which is held within twenty-one days after the election where no candidate attained the 50% plus 1 votes; and
After a judicially pronounced re-run resulting from the annulment of a prior presidential election.
In all the above scenarios all that is needed to trigger a petition is a declaration of the results of the election. This means that in any of the scenarios, the provisions of Supreme Court (Amendment) (No. 2) Rules 2016 (C.I. 99) would guide the procedure for the trial and adjudication. However, it appears from the tenor of C.I 99 and particularly Schedule 2 of C.I 99 that the framers of the rules envisaged primarily that a person will be declared President after the 1st round of elections, without the need for a second, and as such any election petition will relate to a first-round election and to a very limited extent C.I. 99 as drafted may accommodate scenario two – rerun twenty-one days after no candidate attains the required threshold to be declared President.
The Second Schedule of C.I. 99 has been interpreted by some that it intends a forty-two-day timeframe period from filing and service of the petition to judgment. Others opine that the mention of January to March in the table in the same schedule means the duration for the adjudication of the petition should be within 90 days.
I disagree with both interpretations since they appear not to be borne out of an appreciation of the three scenarios from which the validity of an election may be challenged. Granted but not admitted that the petition must be heard in 42 days, starting in January, how would the rules and the 42 days commencing in January accommodate a judicial-induced rerun which obviously would be held within two days after the judgement of court in March? Similarly, if we go by the 90 days as opined by others, in a situation of petition premised on a judicial-induced rerun, we would have entered April and Schedule 2 of C.I 99 which prescribes a January to March duration for presidential election petitions would be inapplicable.
The reality of the situation is that we are faced with a schedule to C.I. 99 which in my considered view appears defective and is a product of bad drafting. “The Usain Bolt” provisions of C.I. 99 were meant to beat the tedious 8-month long process of the 2012 Presidential Election Petition. But in curing one mischief we have dug a wider grave of confusion. It is argued, if C.I. 99 intended to set timelines for adjudication, it should have set out the timelines clearly taking into consideration the three scenarios from which an election petition may be filed. The following options are offered as proposals for future law reform:
Filing and Service
8 days after Filing with Registrar
Filing of Appearance
8 days after Service
Filing of Answer
14 days after Appearance
Within 8 days after Filing of Answer
Within 8 days after determination of Preliminary Applications
30 days after Pre-Trial
End of Hearing
4 within days after Hearing
20 days after End of Hearing
Rule 69C of the principal enactment is amended by
(b) the substitution for subrule (4) of
“(4) The Court shall inquire into and determine the petition expeditiously and the time frame for the process relating to the petition from the time of filing at Registry of the Court to the time of judgment shall not exceed one hundred days.” and
(c) the insertion after subrule (4) of
“(4A) Despite the rule as to time in subrule 4, the Court may on its own motion or on the motion of a party abridge or extend time to accommodate the peculiarities of the petition and such a motion shall be moved at the preliminary application stage and when granted, the Court shall provide a road map and timeline for the trial at the pre-trial stage.”
My preferred option is option 2. Option 2 allows the Court together with the parties where the 100 days appear impractical due to the exigencies and peculiarities of the petition to agree on a time frame and road map for the trial. With this option, there is flexibility to still attain “Usain Bolt” but with room to adjust time to suit the trial and allow the parties room to make their case.
The rules of procedure for the adjudication of presidential election petition requires a total overhaul. The lessons from the 2012 election petition and the ongoing 2021 petition, present us with the opportunity to embark on an organic amendment of the rules in this regard. The outcome of presidential election petition adjudication is in rem as opposed to in personam even though the petition is filed by “a citizen”. The in rem nature of the outcome of adjudication of presidential election petitions should inform the procedural rule creation for presidential election petitions. The bench would have to be given a more central role in the adjudication of presidential election petitions. The reforms must create a sui generis procedure for presidential elections and expressly prohibit the application of other rules of procedure.
It is proposed that the rules should expressly require the Electoral Commission to file into the Registry of the Court, the certified true copies of the coalition forms as part of its answer to the petition. This would ensure that the Court has in its custody the certified copies of the documents supporting the declaration. This is necessary because once a petition is filed, the subject matter – the declaration documents, must be placed in the custody of the independent neutral arbiter. The below is proposed:
Rule 69A of the principal enactment is amended by
(a) the insertion of subrule (2a) of
“(2a) The Electoral Commission shall file a Record of the Declaration of Results which shall contain all the certified true copies of the coalition forms supporting the declared results of the Presidential election together with its answer to the petition.”
(b) the substitution of subrule (4)
“(4)” The Registrar shall, as soon as practicable, after the pre hearing, serve a copy of the Record of the Declaration of Results filed by the Electoral Commission on the other parties to the petition.”
This will further reduce the time for applications for inspection of document and the Court being seized with the documents may question petitioner – witnesses based on the Record of Declaration of Results. This will further remove the need for the Electoral Commissioner to mount the witness box to be cross examined unless the petitioner raises issues with the Record of the Declaration of Results as filed in court by the Electoral Commission.
It is my view that the experiment of fashioning rules to adjudicate presidential election petitions by grafting new rules on the existing Supreme Court rules of procedure and applying in some instances the general rules on civil procedure does not help in bringing out the sui generis nature of presidential election petitions. The Rules of Court Committee must promulgate stand-alone rules on election petition not grafted on the existing Supreme Court rules and not subjected to the general rules of civil proceedings. This will enable us to create a body of rules to address the peculiarities of an election petition adjudication.
We need a new vaccine (new rules of procedure) for adjudicating presidential elections petitions. The vaccine must have a 90% efficacy rate of protection against the viruses (problems) identified in the adjudication of presidential election petitions.
Source:Clement Kojo Akapame