A former Chair of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan has explained two key factors that can cause a judge to make unsound decisions in election cases.

The first reason is insufficient knowledge of elections, he said.

He explained that judges are not necessarily experts on elections and they may sometimes give judgments in election cases without realizing the full implications for the entire electoral process.

This is often seen in injunctions and consequential orders, he added.

For example, he said, a judge once placed an injunction on holding the district level elections when some candidates went to his court complaining that there had been no voter education at all in their areas.

He said the areas concerned comprised only six electoral areas out of thousands of such areas in the entire country, but the injunction unwittingly covered the whole country.

“Likewise, a judge once ordered a recount of the votes in a disputed election result case, but also ordered that the ballot boxes could only be opened in the presence of the agents of all the four parties that were present at the initial count. As it turned out, the two parties not contesting the result were simply not interested in the recount and would not be present. In such situations, the EC has to get the decision varied by the same or another court before it can act,” Dr Afari-Gyan said Delivering an address to mark Constitution Day on Monday, January 7 at the University of Professional Studies, Accra (UPSA).

The second reason for unsound judgements is what may be characterized as the lack of purposive interpretation of the law in full-blown election petitions, he said..

“I like to spend a bit of time on this, because it is not as self- explanatory as the previous one. To start with, let me give an example of what I consider to have been a purposive interpretation of the law when I was at the Electoral Commission.

“A Ghanaian citizen, then living abroad, once walked to the commission’s head office and said he wanted to register as a voter, so that he could vote in an election due to be held in about two months’ time. It was explained to him that voter registration officially closed more than a month back, so he would have to wait till the next registration time. Not satisfied, he took the commission to court and the court ruled that, under our constitution, the right to register to vote is a fundamental right and it is not within the remit of the electoral commission to decide when citizens can enjoy their fundamental rights.”

Dr Afari-Gyan also opposed to resorting to street protests and media warfare in resolving electoral grievances.

He said “Street protests and media wars are not appropriate ways of resolving disagreements over electoral matters. Neither can achieve authoritative and binding conclusions. Besides, street actions can be costly in terms of human and property loss. With regard to the media, it has become extremely difficult to distinguish between genuine media and counterfeit media because of the preponderance of one-sided, even distorted, presentation of issues in the partisan media, the indiscretions of some serial callers, especially into radio discussions, and the irresponsible use of social media for political purposes. Nor do we know the impact that artificial intelligence (AI) will make on elections in view of its ability to create voices and visual images that are virtually indistinguishable from the real ones Add to all this the fact that election-related matters cannot be an exception to the rule of law and you can easily see why the judiciary is an integral part of our electoral system.”

As a general rule, he explained, election cases are urgent matters that need to be decided as quickly as practicable, except where the court genuinely does not know what to do in the particular situation.

He cited an example of such a situation which he said occurred in Washington D.C. in America where a candidate was officially sworn into office as a winner in the city council election when all the overseas votes had not been counted.

Later, after collating the overseas votes, a different candidate emerged as the actual winner. The new winner went to court, but the case was not decided during the entire lifespan of the particular council, apparently because a situation like that had never happened before and the court did not know what to do once someone had already been officially sworn into office. When the council’s life ended, the case was dislodged on the ground that the substance of the action was vacuous, he explained.

On the issue of corruption allegation against judges, he said “As far as I know, allegations of corrupt judges taking money to decide election cases have been rare in Ghana. However, in recent times concerns have been expressed about the judicial function in elections. The concerns are encapsulated in two inter-related concepts: the judicialization of elections and the politicization of the judiciary. Judicialization of elections refers to the increasing trend of resorting to the judiciary to settle electoral controversies of all kinds. Politicization of the judiciary refers to appointing judges in the hope that they will give judgements that are favourable to a particular political party or cause, if the need arises.”

As to which one comes first, he said,  it is like the chicken and egg question.

“It depends on which chicken or egg one is talking about – is it the chicken that laid the egg or the egg that hatched into a baby chicken? So, the sequence may differ from one country to another. What we can say for sure is that judicialization begets politicization and politicization begets judicialization: and the end result is the same: judges are embedded in the judiciary in anticipation of decisions favourable to a particular political party or cause.

“I do not know the extent to which judges are so embedded in our judicial system. But I find it noteworthy that even before the Supreme Court began hearing the 2012 presidential election petition, some Ghanaians were predicting a six to three verdict of the nine justices, based on the number of panel members appointed by presidents of the two disputing political parties. The prediction did not come true, but it indicates that there was a perception that the decisions of our judges might be influenced by political considerations.”

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