“Re: Showing of Election Petition Documentary – The Law on the Capacity of a Petitioner” By Kwadwo Gyan

On 23rd March 2018, the students of the School of Law at University of Ghana were thrilled by the showing of a documentary, The Election Petition, produced by ace journalist Paul Adom-Otchere.

At the interactive session, however, the producer made a representation on the capacity of a petitioner which I find inaccurate.  He suggested that as per the Supreme Court (Amendment) Rules, 2012 (C.I. 74), a Presidential Candidate, her running-mate and a representative of their political party are the “citizens” contemplated by the Article 64 (1) of the Constitution, 1992. That is to say, these persons are the only ones clothed with capacity in a presidential election petition. This seemingly definitive pronouncement on the position of the law triggered a question from an unconvinced member of the audience. In response, the learned Deputy Attorney-General who was present at the showing also appears to have misdirected himself on the position of the law, with all due deference; a contention this article addresses.

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.Clause (3) of Article 64 provides that “The Rules of Court Committee shall make rules for the practice and procedure for petitions to the Supreme Court challenging the election of a President.” In Mornah v. Attorney-General, Benin JSC explains that “the operative words herein are ‘practice and procedure’. This means no more than the rules that prescribe what steps to follow in order to have a right or duty judicially enforced.”

The Rules of Court Committee, pursuant to Article 33(4), Article 64(3) and Article 157(2) of the Constitution, 1992, exercised its powers and made C.I. 74. A constitutional instrument (C.I) is an enabling legislation which gives effect to a provision of the constitution where adequate rules and procedure may be required. The C.I. 74, thus amended Part VIII of C.I. 24 of 1999 which amended C.I. 16 of 1996. In essence, “it fleshes out” the skeletal requirement of how to challenge the election of President of Ghana. This is in contradistinction to the law that defines the specific rights or duties themselves.  The following provisions are useful for analysis:

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,…

I have carefully considered the C.I. and its template in Form 30 of Part V of the Schedule. My understanding and conclusion is that no where in the C.I. 74 does it state that capacity to bring an action in respect of a petition to challenge presidential election petition is restricted to a) the Presidential candidate, b) her running-mate and c) a representative of the party.

I contend that the representation made was an inadvertent misstatement of the law on challenging presidential elections. Mr. Adom-Otchere’s rendition would amount to an unconstitutional amendment of the Constitution by a C.I. in respective of which Benin JSC in Mornah v. Attorney-General expressed thus: “it is common knowledge that jurisdiction or a right, once created, can only be taken away by way of clearly defined procedures by the appropriate legal body entrusted with that responsibility under the Constitution or other enabling law.”

I am fortified in this conviction for the following reasons:

  1. On a true and proper interpretation of Article 63 on the Election of a President, it does not admit for partisan pre-condition. Thus, “the requirement of a representation from the party as ‘third petitioner’ would be misconceived.
  2. Any such requirement of a representation from a party for ‘third petitioner’ would mean that an independent candidate cannot contest the outcome of a presidential election since he would not have ‘a representation from his party’. Or, stated differently, that two or more candidates who lost the election cannot contest the results.
  3. That on a proper construction of Section 5 of the Presidential Election Act, 1992 (PNDCL 285) and Rules 68 and 68A of C.I 74 of 2012 on which bases the Petitioners in In re President Election Petition, Akufo-Addo & Ors v. Mahama & Ors grounded their action, what is required is a demonstration of how citizenship of the petitioner was acquired and not a restriction to the contestants of the election.
  4. It would appear that the practical constraint of gathering the Statement of Poll Forms (Pink Sheets) from over 29,000 polling stations as evidence to initiate proceedings by a ‘private citizen’ who did not contest the election may be daunting. But, I submit that such construction of Article 64(1) would be substituting a policy argument for a constitutional provision. The requirement that you are a citizen is sufficient to ground an action. To challenge the validity of an elected President, one does not need community of interest with the Constitution (Tuffuor v. Attorney-General). In Mornah v. Attorney-General, the Supreme Court struck down as unconstitutional sub rule 5 of Rule 69C of C.I. 74 requiring the Court to sit on public holidays. That provision offended the Public Holiday Act. The court held that a C.I could not restrict the application of an Act of Parliament.
  5. It is further submitted that any such attempt at restricting the meaning of citizenship by a C.I. would amount to defining exclude to mean “further exclude” and thus render same unconstitutional. Recall that in the joinder application by the National Democratic Congress, the question was whether the definition of respondent to include a person whose election was being challenged and the Electoral Commission (EC) where the EC is not a party, meant a political party was excluded from being joined as provided for in C.I. 74. It was held that what was required was necessity of the party to be joined in the action and include could not be defined to mean exclude.

I hope this clears any doubt in the minds of students present at the showing on the position of the law regarding the capacity of a petitioner.

The writer is Level 400 Post-First Degree student. His email address is gyaintlegal@gmail.com