Supreme Courts, Election Petitions and Democratic Growth

A representative from the electoral commission supervises a voter, BBC World Service (Peter Lewenstein), Creative Commons

Ghana teaches us important lessons about the special role of African Supreme Courts for the survival of democracies on the continent.

On 4 March 2021, Ghana’s Supreme Court gave judgment in Mahama v Electoral Commission. This was only the second ever presidential election petition to come before it. The first was decided in 2013.

In this post, I discuss the impact of the two petitions on Ghana’s longest surviving democratic effort. I hope, in the process, to bring home to Supreme Courts across the continent, the critical and delicate nature of the task they undertake when they are asked to resolve important politico-legal stalemates like presidential election disputes.

Ansah JSC, in Ghana’s first presidential election petition prefaced his judgment with these profound words: “without doubt, the resolution of this case portends much for the future path of our democratic development”. He was right. Though by that time the 1992 Constitution had outlived all previous postcolonial constitutional arrangements, there remained some uncertainty about its longevity.

Public anxiety in the 2012 elections was palpable. Amidst campaigns for peace by civil society organisations, statesmen, donor agencies and state institutions, citizens hoarded supplies and fuel in unspoken anticipation of having to flee. With five military coups in our past, the opposition New Patriotic Party’s (NPP) rejection of the results, and comments like “the other option is to forego it [i.e. legal challenge] and make your case to the country” could well have been conducive to a sixth coup.

Eventually, the NPP turned to the Supreme Court — which took eight whole months to issue its decision. The petition failed the dust settled, and Ghana marched on in its constitutionalism journey.

“The 2021 petition presented the first test of the Constitution’s elasticity under extreme political stress; a test the Supreme Court helped it survive.”

In 2020, the NPP played the victorious incumbent to the National Democratic Congress’ (NDC) results-rejecting opposition. But the new and welcome difference from 2012 was the public response to that posture. There was much speculation whether the NDC would really file a petition. But no one worried that the rejection foreshadowed a coup d’etat.

Whereas in 2012 the period between the Electoral Commission’s announcement and the commencement of hearings was especially fraught, in 2020 it was not, despite being much longer. Both parties deserve commendation for accepting the court’s decision.

Nevertheless, it cannot be overstated how important the Supreme Court’s work has been to our democracy’s preservation. In 2013, many denounced the Court as uncreative for taking so long on the case. But, in retrospect, that slow methodology was strategically wise.

When the hearings started, the public was agog; excited, but also suspicious of the Court. By the third month, interest in the daily happenings at court was waning; people returned to their lives. When, finally, the decision was handed down, the high spirits had settled. The NPP would have had a difficult time rousing supporters to violence, had they tried.

Whatever the demerits of the actual decision (and there are several), the Court’s handling of the petition did much to defuse the explosive tension sparked by the results.

When the tables turned in 2020, the NDC was not in a position to make inciteful statements. No sooner had they voiced their discontent than a deluge of calls to “go to court” was directed at them. Following the judgment, the NDC accepted defeat and, despite some ill-advised comments thereafter, have put the matter to rest. Once again, the 1992 Constitution has survived the weight of a political impasse.

As I have argued elsewhere, the first-past-the-post electoral system coupled with the excessive appointment powers our Constitution grants the president makes the stakes of presidential contests exceptionally high. Since each party expects to benefit from these expansive powers when in power, the odds of a constitutional amendment narrowing this scope are practically non-existent.

Consequently, post-electoral violence is a risk that is virtually written into the Constitution. The 2012 petition presented the first test of the Constitution’s elasticity under extreme political stress; a test the Supreme Court helped it survive.

“The impact the public perception of the Supreme Court has had on Ghana’s electoral record should not be underestimated, for public confidence is a key insurance of our yet young democracy.”

The final point worth noting here is that in both instances, the Supreme Court charged some non-parties with contempt for their utterances about the Court. In 2012, it was two commentators. In 2020, it was MP and former Deputy Attorney-General, Dominic Ayine. In both cases, there was a mixed reception to the news.

The court’s actions drew such sharp criticism in 2012 that though it eventually sentenced two to brief custodial punishments, declaring it would suffer no disrespect, it laid no more contempt charges. In 2020, the court was more lenient — perhaps because there was strong public criticism of the offending statement.

Both times, the Court acted, rightly, to stem the flow of unwarranted disparagement that could undermine public confidence in it. Losing parties are not required to sing the court’s praises. But they should not be allowed to casually cast aspersions on the independence of the judiciary.

Such statements are insidious. They, like all unproved rumours, are hard to stamp out but with every day they live, become more believed. Thus, they can counteract all the gains made through the openness and thoroughness with which the petitions were decided.

The impact the public perception of the Supreme Court has had on Ghana’s electoral record should not be underestimated, for public confidence is a key insurance of our yet young democracy. As Ansah’s words attest, the Supreme Court has shown encouraging awareness of the prevailing political and constitutional conditions.

Thus, it moved with aching slowness in the more tense 2013 case but promised an expeditious end in 2020.  Where in the former case, a quick resolution might have fed high tempers, in the latter, a slow pace could have triggered anger and suspicion.

While a court must never fudge the law — even in the interest of peace — Ghana’s Supreme Court teaches important lessons.

Firstly, the court has a role to play outside the strict realm of legality in preserving the state. It is not a political role. But it does require the bench to be in tune with public sentiment so as to conduct its work in a manner protective of the constitutional state without compromising its reputation.

Secondly, we observe that Lord Hewart CJ’s oft-quoted statement that “justice should be manifestly and undoubtedly be seen to be done” captures the heart of the role of judicial authority in the constitutional state. The people’s view of the courts determines their inclination to respect law’s boundaries. If they think their grievances receive scant care in the courts, they will provide their own redress. In political/constitutional affairs such as elections, that extra-judicial redress invariably implies post-electoral violence.

The time Supreme Courts are most called upon to show themselves impartial is when they are deciding election petitions. Ghana’s experience teaches that the survival of democracy may rest more weightily on the shoulders of African Supreme Courts than on their counterparts elsewhere. O that they rise to the occasion when it most counts.