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JUDGMENT
DR. DATE-BAH JSC:
By an order of 18th
June 2007, His Lordship Ofoe J.,
as he then was, referred the
following for interpretation by
the Supreme Court:
i.
“Whether or not upon a true and
proper interpretation of Article
63(1) (sic) of the
Constitution the defendant fully
discharged the constitutional
duty with the publication of the
declaration of President Elect
Instrument, 2004.
ii.
Whether or not upon a true and
proper interpretation of Article
64(1) of the 1992 Constitution
any citizen who was aggrieved by
or dissatisfied with the
declaration contained in the
declaration of the President
Elect Instrument, 2004, had 21
days within which to present a
Petition to the Supreme Court in
challenge of the declaration,
and
iii.
Whether or not upon a true and
proper interpretation of Article
64(1) of the 1992 Constitution,
the plaintiffs are estopped from
attempting now to challenged (sic)
the validity of the President
Election.”
Statements of Case were filed by
the plaintiffs and the defendant
on these issues. The
Attorney-General also, pursuant
to an order of this Court, filed
a statement of case.
The plaintiffs’ case is
basically that the promulgation
by the defendant of the
Constitutional Instrument
entitled “Declaration of
President Elect Instrument,
2004,” CI 49, dated December 10,
2004 was insufficient to
discharge the defendant’s
constitutional obligation under
Article 63(9) of the
Constitution. Article 63(9)
provides that:
“An instrument which –
(a)
is executed under the hand of
the Chairman of the Electoral
Commission and under the seal of
the Commission; and
(b)
states that the person named in
the instrument was declared
elected as the President of
Ghana at the election of the
President,
shall be prima facie
evidence that the person named
was so elected.”
The Plaintiffs allege in their
Statement of Case that they
wrote to the defendant’s
chairman in October 2005 to
publish in the Ghana Gazette the
full results of the December
2004 Presidential Elections.
The Defendant replied that by
the publication in the Ghana
Gazette of the DECLARATION OF
PRESIDENT ELECT INSTRUMENT,
2004, C.I.49, it had discharged
its constitutional duties with
regard to the declaration of the
results of a Presidential
Election. Not satisfied with
this response, the Plaintiffs
issued a Writ of Summons against
the Defendant claiming the
following reliefs:
i.
“A declaration that the
Defendant is bound by law to
publish in the Ghana gazette or
in any manner permitted by law,
the full, final and complete
results of the Presidential
Elections of December 7, 2004,
including but not limited to,
the details of the total votes
cast in each constituency, the
total valid votes cast, the
total votes cast for each
presidential candidate, the
respective percentage votes, all
gauged against the number of
registered voters in the said
constituency;
ii.
A further declaration that the
failure, refusal or neglect of
the Defendant to so publish the
Presidential Elections of
December 2004 is contrary to
Article 45 of the Constitution
1992, section 2 of Act 451, the
provisions of CI 15 and the
Presidential Elections
(Amendment) Act 1996 and
therefore unlawful;
iii.
A further declaration that the
Declaration of President Elect
Instrument, 2004 to the extent
that it was not supported by the
full, final and complete results
of the Presidential Elections of
December 7, 2004 could not form
the basis of the exercise of any
right envisaged under the
Constitution, 1992 in respect
of, arising from or pursuant to
the said declaration;
iv.
An order compelling the
Defendant to publish the full
and complete results of the
Presidential Elections of
December 7, 2004 in the Ghana
Gazette or by any method
permitted by law, and in the
manner stated above or in
previous Presidential Elections;
v.
A further order compelling the
Defendant to furnish the
Plaintiffs forthwith the details
of the results from 21,005
polling stations from which the
results of the Presidential
Elections of December 7, 2004
were collated, showing for each
polling station the following
details:
a.
Total number of registered
voters.
b.
Total number of voters.
c.
Total number of votes cast.
d.
Total number of valid votes
counted.
e.
The distribution of valid votes
cast among all the Presidential
Candidate (sic).
f.
Total number of rejected
ballots.
g.
The percentage valid votes for
each Presidential Candidate.
h.
And the voter turn-out.
vi.
Further or other relief;
vii.
Costs.”
At the Application for
Directions stage of the
proceedings that followed the
initiation of this action, the
Defendant set down the following
additional issues for trial:
(a)
“Whether or not upon a true and
proper interpretation of Article
63(9) of the 1992 Constitution
the Defendant fully discharged
its constitutional duty with the
publication of the Declaration
of President-Elect Instrument,
2004.
(b)
Whether or not upon a true and
proper interpretation of Article
64(1) of the 1992 Constitution
any citizen who was aggrieved by
or dissatisfied with the
declaration contained in the
Declaration of President-Elect
Instrument, 2004, had 21 days
within which to present a
petition to the Supreme Court in
challenge of the declaration.
(c)
Whether or not upon a true and
proper interpretation of Article
64(1) of the 1992 Constitution,
the plaintiffs are stopped from
attempting now to challenge the
validity of the Presidential
Election.”
The Defendant applied to the
High Court to have these issues
referred to the Supreme Court
for interpretation. When the
High Court ruled against its
application, the Defendant
appealed against it and applied
to the Supreme Court invoking
its supervisory jurisdiction to
stay proceedings in the High
Court and to have the three
issues identified above referred
to the Court for
interpretation. The Supreme
Court ruled on May 24th
2006 that genuine issues of
interpretation had been raised
on the pleadings and therefore
the three issues should be
referred to it for
interpretation. It was in
obedience to this ruling of the
Supreme Court that Ofoe J. made
the order quoted at the
beginning of this opinion. It
is clear, if one compares that
order to the three additional
issues set out above, that there
is a typographical error in the
order, in that the reference to
Article 63(1) in the first issue
should be a reference to Article
63(9).
On these facts, the learned and
Honourable Attorney-General
contended in his Statement of
Case that this Court should
address the second of the issues
referred first, because if he
succeeded in persuading the
Court to decline jurisdiction as
a consequence of his arguments
on that issue, then the other
two issues would fall away. The
second issue calls for an
interpretation of Article 64(1)
which is in the following terms:
“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.”
The plaintiffs argue that their
action is not an election
petition because they are not
seeking to challenge the
validity of the election of the
President. They only seek to
challenge the validity of the
defendant’s declaration,
pursuant to Article 63(9), of
the election of the President.
Although it may look like
dancing on the head of a pin,
there is a distinction between
the invalidity of the
declaration by the defendant of
the President Elect and the
invalidity of the election of
the President. If the
plaintiffs succeed in
demonstrating that the
defendant’s declaration was
invalid and therefore null and
void, it would mean that there
never was a declaration in
respect of which time could
begin to run. The twenty-one
day time limit would therefore
never have commenced.
Accordingly, logically, the
twenty-one day limitation period
cannot apply to an action that
seeks to establish the nullity
of the declaration, as distinct
from the invalidity of the
election itself. It is best
therefore to enter into the
merits of the plaintiffs’
arguments regarding the validity
of the declaration in order to
respond to the first issue
referred to this Court by the
High Court.
If the plaintiffs were to
succeed in their contention on
the first issue, although it
would result in a declaration
which in effect would mean that
no President had been declared
elected, it would not mean that
the election itself of the
President was invalid. The
underlying election results
could still be perfectly valid
and the defendant’s
responsibility would be to
declare them in the proper
form. The declaration would
mean merely that a President had
not yet been properly declared
elected, without prejudice to
the validity of the substantive
election results themselves. In
our view, therefore, the
plaintiff’s action is not an
election petition and the time
limit specified in Article 64(1)
does not apply to it.
Having disposed of the second
issue referred to this Court
(which probably implies
disposing of the third issue as
well), let us now return to the
first issue. Did the defendant
discharge its constitutional
duty with the publication of the
“DECLARATION OF PRESIDENT-ELECT
INSTRUMENT 2004” C.I.49? The
contents of the instrument were
as follows:
“In exercise of the powers
conferred on the Electoral
Commission by Article 63(9) of
the Constitution, this
Instrument is hereby made.”
MR. JOHN AGYEKUM KUFOUR the New
Patriotic Party (NPP)
presidential candidate having,
in the Presidential election
held on the 7th day
of December 2004, pursuant to
article 63(3) of the
Constitution, obtained more than
fifty percent of the valid votes
cast, and is hereby declared the
winner of the election.
Given under my hand and seal in
Accra, this Friday, the 10th
day of December, 2004.
DR. KWADWO AFARI-GYAN
Chairman, Electoral Commission.”
Was this form of the declaration
constitutionally permissible,
even if not desirable according
the standards championed by the
plaintiffs? For the reasons we
are about to set out, we believe
that this Instrument was a
perfectly valid exercise of the
powers conferred upon the
Electoral Commission. In
construing Article 63(9) of the
Constitution, we have confined
ourselves principally to the
provisions of the Constitution.
The plaintiffs, in their
Statement of Case, rely on
various Constitutional
Instruments and Statutes.
However, in our view, on a
reference by the High Court,
which is basically an invocation
of the original jurisdiction of
this Court, pursuant to Article
130 of the Constitution, the
principal focus of the Court
should be on the enforcement or
interpretation of the
Constitution.
The crux of the plaintiffs’ view
on how Article 63(9) is to be
interpreted is outlined as
follows in their Statement of
Case:
“The conduct of election is a
continuous process which does
not end with the counting of
votes. It includes the
declaration of the winner. The
final declaration is what is
contained in the gazette
notification. Coming from the
Defendant entrusted with the
electoral process, the results
of the elections should not only
be, but be seen, to be credible,
authentic and final, having been
obtained from the polling
stations through the
constituencies to the Defendant.
If these are borne in mind, this
Honourable Court should find no
difficulty in holding that a
bare declaration that a
candidate in a presidential
election has been declared in
gazette notification to have won
the elections without the
complete, authenticated and
final basis for such declaration
cannot constitute the proper
discharge of the Defendant’s
constitutional duty to conduct
elections for the highest office
in the country. The basis for
such declaration should be
published before or
contemporaneously with the
declaration of the elected
President. This interpretation
is in accord with the broad
framework of the whole of the
1992 Constitution.”
The Defendant, naturally,
disagrees with this
interpretation of Article 63(9)
and submits that the Plaintiffs’
contention is not borne out by
the language of Article 63(9).
It contends that the words of
Article 63(9) are clear and give
no rise to ambiguity. It argues
that the test for the validity
of an instrument issued under
Article 63(9) is set out in the
very words of the provision:
namely, it must be executed
under the hand of the Chairman
of the Defendant Commission, it
must be under the seal of the
said Commission and must state
that the person named in it was
declared elected as President.
The Defendant invites this Court
to apply a literal
interpretation to Article 63(9).
Our interpretation of the
purpose of Article 63(9) in its
context is that it is to enable
the Electoral Commission to
declare definitively who the
winner of the presidential
election is. That declaration
is prima facie evidence
of the due election of the
candidate concerned. It can, of
course, be rebutted by evidence
to the contrary. The evidence
for or against the declaration
by the Commission need not be
contained in the declaration
itself. So long as the evidence
has been duly generated by the
Electoral Commission in
accordance with its procedures,
prescribed by the Constitution
and statute, it is our view that
a declaration by the Electoral
Commission in the form made by
its Chairman on 10th
December 2004 is valid. The
evidence on which the
declaration is based need not be
part of the declaration. The
literal language of Article
63(9) does not require this and
our view of the purpose of the
provision does not require it
either. It is enough that the
evidence supporting the
declaration is available in the
public domain. Article 49 of
the Constitution ensures that
that evidence is available in
the public domain. The article
provides as follows:
1.
“At any public election or
referendum, voting shall be by
secret ballot.
2.
Immediately after the close of
the poll, the presiding officer
shall, in the presence of such
of the candidates or their
representatives and their
polling agents as are present,
proceed to count, at that
polling station, the ballot
papers of that station and
record the votes cast in favour
of each candidate or question.
3.
The presiding officer, the
candidates or their
representatives and, in the case
of a referendum, the parties
contesting or their agents and
the polling agents if any, shall
then sign a declaration stating
–
a.
The polling station; and
b.
The number of votes cast in
favour of each candidate or
question;
And the presiding officer shall,
there and then, announce the
results of the voting at that
polling station before
communicating them to the
returning officer.
…”
The affidavit of Mr. David
Adeenze Kangah, the Deputy
Chairman of the Defendant
Commission, dated 14th
July 2008, confirmed that the
Defendant followed the
prescriptions of Article 49 of
the Constitution. He deposed to
the facts that immediately after
the counting of votes in the
2004 Presidential Elections,
representatives of the political
parties concerned were provided
the detailed results at each
polling station and certified
the results. Next, at the
collation centres at the
constituency level, the collated
results were provided to the
representatives of the political
parties and certified by them.
Finally, the detailed results at
the national level were provided
at the Headquarters of the
Defendant to and certified by
representatives of the political
parties, including the first and
second plaintiffs in this suit.
It should be noted in particular
that Article 49(3) requires the
announcement of the results of
the voting at the polling
stations before they are
communicated to the returning
officer. Such announcement has
the effect of putting the
results in the public domain.
Observance of Article 49 means
in effect that the Defendant
Commission publishes at each
polling station the results from
that station. We do not
therefore see the need to imply,
as a condition of the validity
of the declaration of the
election of the President Elect,
the added publication obligation
that the Plaintiffs have argued
for in this case. If the
election system operated by the
Defendant could not function
without such a publication, we
could have been persuaded to
imply such a publication in
order to make the system
workable. Article 63(9) is
language in a Constitution and
consequently has to be
interpreted liberally and
flexibly to give effect to its
underlying purpose. (See
Tuffuor v Attorney-General
[1980] GLR 637, Asare v
Attorney-General [2003-2004]
SCGLR 823 and Agyei
Twum v Attorney General and Anor
[2005-2006] SCGLR 732).
However, we are not
persuaded that the underlying
purpose of Article 63(9)
requires the implication sought
by the Plaintiffs. While the
information sought, if it can be
practically and timeously
published, nationally and
contemporaneously with the
declaration of the President
Elect Instrument, may be
desirable, its publication is,
to our mind, not essential to
the validity of the declaration.
Accordingly, in our view, upon a
true and proper interpretation
of Article 63(9) of the
Constitution, the Defendant
fully discharged its
constitutional duty with the
publication of the Declaration
of President Elect Instrument,
2004.
The final issue referred to this
Court for interpretation was
whether upon a true and proper
interpretation of Article 64(1)
of the 1992 Constitution, the
plaintiffs are estopped from
attempting now to challenge the
validity of the President Elect
Instrument. The Defendant’s
argument on this issue is that a
challenge to the validity of any
of the stages in the process of
the election is a challenge to
the validity of the election
within the meaning of Article
64(1). The Defendant contends
that the Plaintiffs should not
be allowed, by subterfuge, to
take their case away from the
purview of Article 64(1) and to
launch a challenge in the wrong
forum to the election of the
person named as president-elect
in the Declaration of
President-Elect Instrument,
2004, through dressing up their
action as a normal suit in the
High Court for declarations.
However, it follows from the
distinction that we have made
above, in relation to the first
issue, between the invalidity of
the instrument embodying a
declaration of a President-Elect
and the invalidity of the
substantive elections themselves
that we are not persuaded by
Defendant’s argument.
Accordingly, although we agree
with the Defendant that Article
64(1) would debar the Plaintiffs
from challenging the validity of
the Presidential Election more
than 21 days after the
declaration of a winner by the
Defendant, we do not consider
that the Plaintiffs’ action
constitutes a challenge to the
validity of the Presidential
Election. In this view, we are
in agreement with the earlier
view expressed by our sister
Wood JSC (as she then was) in
The Republic v The High Court
(Fast Track Division) Ex-parte
The Electoral Commission
[2005-2006] SCGLR 514 at p. 542
where she said that the
plaintiffs’ case was not an
election petition. She
considered that they were mere
potential petitioners who,
depending on the outcome of
their action, might take such
action as they think fit.
In conclusion, we would like to
sum up our opinion on the
reference made to this Court by
the learned trial judge, His
Lordship Ofoe J. (as he then
was) as follows: Upon a true
and proper interpretation of
Article 63(9) of the
Constitution, the defendant
fully discharged its
constitutional duty with the
publication of the “DECLARATION
OF PRESIDENT-ELECT INSTRUMENT
2004” (C.I.49). The expression
of dissatisfaction (through a
legal suit by the plaintiffs)
with the form and contents of
the said DECLARATION OF
PRESIDENT-ELECT INSTRUMENT does
not necessarily amount to a
challenge of the Presidential
Election itself. Accordingly,
the time limit prescribed in
Article 64(1) for a challenge to
the validity of the election of
a President does not apply to a
challenge to the form and
contents of the declaration,
where such challenge is not
intended to challenge the
substantive election itself.
The plaintiffs are accordingly
not estopped or debarred from
challenging the validity of the
DECLARATION OF PRESIDENT-ELECT
INSTRUMENT. Their challenge,
however, fails on the merits.
S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
S. A. B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
S. O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. James Quarshie-Idun with Mr.
Edmond Armah for the Electoral
Commission.
Hon. Joe Ghartey for the
Attorney-General with Evelyn
Keelson, Marian Atuobi and
Cecilia Agbenyegah for the
Republic.
Tony Lithur for the Plaintiff.
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