RE-“Showing of Election Petition Documentary- The Law on the Capacity of a Petitioner” by Jonathan Abotiwine Alua

This article is a response to the brilliant attempt of an exposition of the position of the law in relation to the capacity to challenge an election in Ghana. The present author appreciates the intellectual maneuver that was made in the original piece, in an attempt to clear the shroud. However, there are a few points of law that I intend applying to the set of facts, just so we appreciate the discussion from a different but necessary standpoint.

“Citizen does not mean Citizen”- Article 64 of the 1992 Constitution of Ghana provides in the most skeletal of forms, the way in which an election petition in respect of a Presidential Election should be brought. As soon as one reads the provision with the literalist eye, absurdity emerges. It is entirely absurd to propose that every Citizen of Ghana is ipso facto clothed with capacity to bring an election petition under Article 64. The reason is obvious. Article 6 of the Constitution provides one too many categories of citizens. This obviously includes children below the age of 18, who do not qualify to vote in elections in Ghana. If “Citizen” as used in Article 64 meant any citizen at all, then everyone would be clothed with capacity to petition the apex court of the land. Every Tom, Dick and Harry would, as it were, have capacity to sue in respect of an election under Article 64. We are well aware that interpretation is the job of the judiciary but that has to be triggered. Until the Courts say otherwise, we’ll have to appreciate the discussion in the context of Article 296 of the Constitution. I can instantly imagine the reasoning the Supreme Court would put forward in rejecting the contention that citizenship is all that is required to clothe a person with capacity to bring a petition under 64. The Court may just recycle Dr. Date-Bah JSC’s dictum in the case of Ransford France (No. 3) v Electoral Commission & Attorney-General (2012) SC GLR 705 where dismissing the action, the Supreme Court stated, with fluorescent ability that “this Court will not sanction a construction of the constitution that would lead to a nuclear melt-down of governmental functioning”. The entire Article 64 does not provide enough practice and procedural cushioning for election petitions. Thankfully, pursuant to Article 64(3), the Rules of Court Committee is enabled to provide a CI to regulate the procedure. Article 65 empowers the Electoral Commission to make a CI to flesh out the provisions in Article 63. In substance, these two CI must be intertwined in the area of election petitions since they are only incidental to the electoral process.     

Article 64(1) provides 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.” It is my submission that the words in the Article do not mean that aside being a citizen of Ghana, no other criteria matters in deciding who has capacity or otherwise to bring an election petition. The more workable understanding would be that as far as the Rules of Court Committee, in exercise of their discretionary power, intends to add more criteria, the criterion of citizenship is non-negotiable. The two sentences; “the validity of the election of the President may be challenged only by a citizen of Ghana and the validity of the election of the President may be challenged by any citizen of Ghana” are very different.

The author also states that “to challenge the validity of an elected President, one does not need community of interest with the Constitution (Tuffuor v. Attorney-General)”. I disagree with this formulation of the law. The holding of the Court was as follows; “…the plaintiff under Article 1, need not have any community of interest with any person or authority. His community of interest was with the Constitution.” This clearly refers to actions that originate under Article 1 of the Constitution. In an election petition, I daresay that a community of interest is reasonably required. In any case actions Under Article 64 are brought by petition and those Under Article 1 are brought by a writ. They cannot be placed at par with each other.

The analysis of Rule 68 is where I converge with the writer of the previous piece.

Rule 68 provides that:

  • A proceeding pursuant to clause (1) of Article 64 of the Constitution shall be commenced by presenting to the Registrar a petition in the Form 30 set out in Part V of the Schedule
  • The petition shall be presented within twenty-one days after the declaration of the results of the election in respect of which the petition is presented.
  • The petition shall state a) the full name and particulars of citizenship of the petitioner, and how the citizenship was acquired,…

Although I maintain that an explicit addition of criteria for challenging elections would not have in any way  contravened the Constitution, the relevant portion of the CI in question left the criteria no further than that one is a citizen. In line with Article 296 therefore, the CI should have contained the necessary additions to the skeletal provision in Article 64 of the Constitution. There is no legal justification therefore for the statement of Law that was posited by Paul Adom-Otchere. What happened in the Supreme Court was therefore outside the meditation of the C.I albeit necessary to ensure the smooth hearing of the petition. The justification for the acceptance of the procedure and practice used is captured more succinctly in the case of Edusei [No. 2] v Attorney-General (1998-99) SCG LR 753 ; “It is globally acknowledged that despite such mandatory language in a constitutional provision, the failure of the Rules Committee to make such procedural rules does not debar a litigant from adopting any appropriate method for approaching the court”

The more important issue at stake was whether or not there was merit in the petition. The procedure as adopted was merely facilitative.