Jan 14

A Quick Guide to Electoral Petitions in Ghana

As a country, we have since the coming into force of the 1992 Constitution chosen the path of democratic governance. The President, who is the head of the executive, and members of Parliamentare elected at regular intervals every four years. The principle of universal adult suffrage has firmly been established giving every individual who is 18 years and above the right to vote.  The country has been divided into 10 regions, which are further divided into constituencies considering the population density in the country.

The 1992 Constitution provides that Ghana shall not be a one-party state and this allows multi political parties as well as independent candidates to contest elections.The Constitution elaborately provides for the right of each eligible individual to be registered. It has also made adequate provision for the conduct of elections.

Ghana, since the coming into force of the 1992 Constitution, has had five elections held in every four years. These elections have been relatively peaceful although there have been isolated instances of tension and disputes over some results. Fortunately Ghana has not had the experience of conflicts resulting into violence as have been witnessed in some countries in the sub-region.

Articles 45 to 56 of the 1992 Constitution provides for the functions and powers of the Electoral Commission as well as the organization of political parties. From these constitutional provisions, it is clear that the duties imposed on the Electoral Commission are onerous and inevitably, conflicts and or disputes may arise in the course of the performance of these functions.

The 1992 Constitution, under article 125, gives the Judiciary the mandate to administer justice. The judiciary, as an independent state institution, is vested with judicial power.

What is the originating process in an election dispute

Under Ghanaian law, complaints or disputes are expressed in the nature of claims and described as “election petitions” that are filed before specified courts for determination. Petitions arising out of presidential elections are in accordance with article 64 of the 1992 Constitution to be determined by the Supreme Court, the highest court of the land and those in respect of parliamentary elections are in accordance with article 99 of the 1992 Constitution to be determined initially by the High Court. An appeal against the decision of the High Court in respect of parliamentary elections lies to the Court of Appeal whose determination is final.

In the case of Re Parliamentary Election for Wulensi Constituency; Zakaria v Nyimakan [2003-2004] 1 SCGLR 1, the Supreme Court by a four to one majority decision, held as follows:

There was no right of further appeal from the Court of Appeal to the Supreme Court in respect of an appeal from an election Petition determined by the High Court under article 99 (1) of the Constitution 1992 because (I) notwithstanding the general appellate jurisdiction of the Court of Appeal stated in article 137(1) of the Constitution, article 99(2) had expressly provided that a person aggrieved by the determination of an election petition by the High Court under article 99(1) might appeal to the Court of Appeal. That provision had the effect of taking it, ie such an appeal out of article 131 (1) jurisdiction of the Court of Appeal in respect of appeals to the Supreme Court.”

Who may bring a petition?

Pursuant to section 17 of the Representation of the People Act, 1992 (PNDCL 284), as amended, an election petition in a parliamentary election may be presented within twenty-one days from the publication of the results in the Gazette by one or more of the following:

(a)   person who lawfully voted or had a right to vote at the election to which the  election petition relates;

(b)   a person who claims that he had the right to have been elected at the election;

(c)     a person alleging to have been a candidate at the election; and

(d)  a person claiming to have had a right to be nominated as a candidate at the election

In the case of a challenge to presidential election, the 1992 Constitution, art 64(1) provides that the validity of the election of the President may be challenged only by a citizen of Ghana by a petition presented to the Supreme Court within twenty-one days after the declaration of the results.

An election petitioner must satisfy the Court that he has the necessary capacity to initiate the petition. Once the court is satisfied that a petitioner is clothed with the capacity to institute the petition, the court can go ahead to commence hearing on the substantive petition.  On other hand, if the court is satisfied upon examination that the petitioner does not have the capacity to initiate the election petition, then there will be no need to entertain the petition. The petition should then be dismissed for lack of capacity on the part of the petitioner.

When a petition may be brought

The Supreme Court in the exercise of its supervisory jurisdiction as opposed to appellate jurisdiction (the latter, which it lacks in parliamentary disputes) in the case of TheRepublic v HighCourt, Koforidua; Ex-Parte Baba Jamal & Other InterestedParties [2009] SCGLR 460 had to determine when a person might be clothed with a cause of action to mount an election petition. The question before the court was whether it is before the results are declared by the Electoral Commission or after such a declaration. In its decision, the Supreme Court held that unless the Electoral Commission had declared the results in a parliamentary election in accordance with sections 18(1) and 50(1) of the Representation of People’s Act 1992 (PNDCL 284), it was incompetent for a claim to be mounted in court in respect of the elections. This case also emphasises the need for challenges to parliamentary election results must be brought by means of a petition and not a writ of summons.

What are the remedies available to a petitioner?

In a presidential election petition, the Supreme Court may grant the following reliefs:

(a)   Declare that the person elected as President was not validly elected as president of the Republic of Ghana and or order a re-run of the elections.

(b)   Declare that the petitioner is the validly elected President of the Republic of Ghana

(c)    Dismiss the petition and declare that the one whose election is being questioned was duly elected as President.

Reliefs, which may be granted by the courts in parliamentary electionpetition are as follows:

Under section 19 of PNDCL 284, after hearing an election petition, the High Court may make any of the following orders or decisions:

(a)   Declare that the election to which the petition relates is void and order a fresh election;

(b)   Declare that a candidate other than the one whose election is questioned was duly elected; or

(c)    Dismiss the petition and declare that the one whose election is in question   was duly elected.

Where the claim relates to the allegation of irregularities in the conduct of election, the courts have held that although the High Court is vested with jurisdiction under sections 19 and 20 of PNDCL 28 to annul elections in certain cases, in cases where the breach is not so serious to invalidate the election then the court might not set aside the election but based on the admitted evidence declare either the petitioner as the victorious candidate or affirm the person who was declared as the winner as duly elected. This position was held in the case ofEnos v ElectoralCommission [1999-2000] 1 GLR 564.

Indeed, Ghana has shown much promise in conducting peaceful elections within the sub-Saharan region. From the above-discussed cases, it is evident that the courts of Ghana have contributed tremendously in ensuring peaceful elections. The judiciary must be lauded for its consistent effort to fairly adjudicate on election disputes. However, the law pertaining to elections has been fairly tested. Amendments to election laws are done quite frequently and the judiciary must continue to safeguard the peace and stability that Ghana enjoys by rightly interpreting election statutes and fairly deciding on election disputes. This is an indispensable role that the judiciary must play if our beloved country will continue to thrive on the peace it proudly boasts of.