“When the Cat is away the mice come out to play” is yet another one of those ‘civilising’ home truths of our formative years. Even though I cannot bear cats, (allergy and not hatred), I seek refuge in this adage to dabble in the legalese of the Supreme Court verdict on the Presidential Petition. As with a few of the totally ‘knackered’ lawyers and Jurists who took part on the great marathon, my lawyer has gone to cool his head abroad, though mercifully no one is recalling him to come and hear all the ill-informed opprobrium being heaped out in the guise of fair comment.
Having read all of the 588 pages, it is my humble submission that the verdicts given by all nine Justices were founded on very solid law and not partisan political considerations as some uncharitable folks, who incidentally have not read them, are propagating and propagandizing. It is also a fact that the decision is irreversible (no matter how folks want to work out the arithmetic) and that our time will be better served trying to get a deeper appreciation of how our justices came to their varying conclusions on the face of the same evidence and submissions placed before them.
As an engineer, I have lived and prospered by the comforting and reassuring fact that there is only solution to an engineering problem once you strip down the concepts into the basic algorithms and equations. It turns out that this is not the way of the Law, for which the basis for making fortunes or crumbs, is how well you can split hairs and argue about the nuances and meanings of what is on the face of it. None of this WHAT YOU SEE IS WHAT YOU GET (WYSWYG) stuff which made Legends and Billionaires of Steve JOBS and Bill GATES.
I have been through the Non-Formal Education Class of Legal Interpretation. (YES, It’s never too late to learn) and want to share what I learnt with you.
Of course, the lawyers are invited to mark my script though I don’t intend to part with any fees for pointing out where MAY should have been SHALL or vice-versa.
What I have learnt about Law is that what you see as clear and unambiguous words can have three different meanings, namely;1) LITERAL; 2) PURPOSIVE; 3) INTEGRATED; which CONFUSION is compounded by the reality that all three are valid and acceptable for the purposes of evaluating and judging legal cases. Indeed, all three were at play in the verdicts, including internal bickering and swipes, as to which should hold sway in deciding whether or not our President should be elected by the Pen or the Vote.
The LITERALISTS are of the Jobs & Gates WYSWYG School; that you interpret the words you see in its natural reasonable construct, namely: SHALL means SHALL, not MAYBE. This is strict “I WAS NOT THERE YOU WERE NOT THERE… ON THE FACE OF THE PINK SHEET” AND THE CONSEQUENCES PRESCRIBED HAVE NO WIGGLE ROOM.
The PURPOSISTS respond that it is important to try to establish THE INTENT BEHIND THE WORDS OF THE LAW as it is not always possible to put down the law in constrictive and narrow phraseology of the English language. They move on from the YES, I WAS NOT THERE AND YOU WERE NOT THERE” to “BUT WE HAVE THE DECLARED RESULT OF THE VOTERS TO SHOW THEIR INTENT.”
As you have guessed by now, THE INTEGRATIONISTS mix the two as per the On the one hand and on the other hand ALL INCLUSIVE (is it UNIGOV) approach of Economists (except of course the one-handed ones, (JOKE!!!!). The interesting thing is that whichever approach they took, all nine Justices managed to summon both local and international authorities and precedents to buttress their positions.
Indeed, in one notable example, one LITERALIST and one PURPOSISIST cited my Commonwealth Secretariat colleague and new Chairman of Legon Council, Justice DATE-BAAH to support their diametrically opposite interpretations; with both giving him recognition as perhaps the most erudite Jurist of our recent times. In another, both the Chief Justice and the Interpretation Act (792; 2009) of Ghana were cited to justify both the PURPOSIVE AND THE LITERAL standpoints.
The other issue of interpretation which was central to the case was that of who should bear THE BURDEN OF PROOF. Mercifully, all nine Justices were unanimous that the burden lay with the Petitioners; “he who alleges must prove.“ They further agreed that they would apply the civil case approach. Where they differed was what constituted proof as contained in the evidence presented by the Petitioners and the cross examinations of “You and I were not there” Dr Bawumia; “Foreign Material” General Mosquito; and “Go to Court” Dr Afari-Gyan
I have put a more in-depth discussion of the three approaches and the relevant authorities quoted by the nine Justices on my website and will recommend the non-lawyers to read it and other sources for more enlightenment. However, based solely on my NFE Diploma and the very tiring reading of all 588 pages, I have put the approaches of the nine Justices into the three categories.
My Score card is as follows. THE LITERALISTS were ANSAH, JSC & ANIN-YEBOAH, JSC; THE PURPORSISTS were TUGUBAH, JSC; BAFFOE-BONNE, JSC; GBADEBE, JSC; and AKOTO-BAMFO, JSC. The INTEGRATIONISTS were ADINYIRAH, JSC, OWUSU, JSC, & DOTSE, JSC. All of them delivered SOLID, COGENT AND AUTHORITY-BACKED JUDGMENTS which should ensure that they do not ever need to lose an iota of sleep worrying about the excellent work that they did.
The problem now is for us civilians to come to terms with the verdict. So here is my take. No matter how anyone wants to compute the outcome, the Petition was denied or in plain language FAILED. Looking for the devil in the details also arrives at the same conclusion. On the SIX specific issues, 3 FAILED BY THE UNANIMOUS DECISION OF ALL NINE JUDGES; The other 3 were decided on a 5-4 MAJORITY TO DENY THE PETITION, Interestingly only one of the 4 Dissenting Judges granted the Petitioners 2nd Relief of inviting the Court to throw out the COUNTED VOTES AND DECLARE NANA AKUFO-ADDO as PRESIDENT OF GHANA on the FACE OF THE INFRACTIONS ON THE PINK SHEETS.
For those who care to know, the most celebrated Final Court of Appellate in the world, the United States Supreme Court, has decided most of its cases on a CASTING VOTE OF ONE SWING JUDGE. This includes the recent contentious and very emotive case of GAY MARRIAGES. These judgments have not only been accepted but they have gone on to become the reference for Jurisprudence in the US until such time as new Laws or succeeding Supreme Courts invoke new laws and/or change the decisions of previous courts. That is how we should all see the recent Judgements if we want to continue to progress as a decent and civilized nation instead of descending into the deepest abyss of anarchy and backwardness.
As for, me, as an Engineer and NFE Diploma in Law, I stand by every word I have written here. I leave it to you and the lawyers to make your own opinions; but only on my scorecard and not on the outcome, as the latter will be futile and frustrating.
Finally, I assert and we are in agreement that THE INTEGRTAED APPROACH IS THE SHADE OF GREY. As to which of the LITERAL AND PURPOSIVE is BLACK & which is WHITE, I am staying out of this as I am sure that even the nine eminent Justices will not be able to agree on the DEFINITION, LET ALONE THE CONSTRUCT OF THE BURDEN OF PROOF.
I am done. If you have been, thank you for your reading my Take. Please feel free to share your perspective with me.
How I arrived at my scorecard will be shared with you in the next two narratives. Rest your reading glasses for now.
CHIEF POLICY ANALYST,
Ghana Inst for Public Policy Options (GIPPO)