Ghana’s electoral drama: the 2012 Election Petition
Despite a tumultuous political history, including several military dictatorships, Ghana has reached a period of peace. Despite a fall from previous years, Ghana was ranked as the 58th most peaceful country in the world, ahead of the U.S at 99th and South Africa at 121. Ghanaians are proud of the peace in their country, and most people seem committed to keeping it that way. One symbol of this commitment to peace is Ghana’s most recent constitution, enacted in 1992. Considering Ghana’s chequered political history, the current constitution is a symbol of endurance. Unlike Ghana’s other constitutions it has weathered the rise and fall of four democratically elected governments. Like Canada, Ghana’s constitution entrenched a number of civil, political and human rights. These may be enforced by a special tribunal for human rights, the High Court, or the Supreme Court. Despite this similarity, many parts of the constitution are under litigated by Canadian standards. There are many reasons for this, but part of it has to do with the reluctance to accept judicial review as a legitimate interference in an already tense political process, as well as a widespread concern at confronting the government in an adversarial court battle.
Given this backdrop, a case before the Supreme Court has caught the attention of the whole country. Ghana’s opposition has brought an action before the Supreme Court claiming widespread election malpractice and fraud. Election malpractice has always been a concern in Ghana. During the elections last year Ghana even had extra power shipped in from Nigeria to ensure that the lights stayed on during the electoral period. Unfortunately this wasn’t enough to prevent criticism of the elections. The 2012 Election Petition has now been before the court for over a month, and it is difficult to go anywhere without hearing a radio blaring something about the ‘pink sheets’. Pink sheets are missing!! Pink sheets have irregularities!! Pink sheets are unreadable!! The list goes on. Such a context is ripe for courtroom drama, and there has been plenty of that. Two people have even been thrown in jail for criminal contempt of court. One journalist was jailed for ten days after he called the Supreme Court Justices “hypocritical” in an editorial that appeared in a local newspaper. More humorously recent testimony indicated that a polling officer wrote twenty seven zero instead of two hundred seventy on one of the pink sheets. Throw in a romantic sub-plot and the election petition has all the makings of John Grisham style courtroom thriller.
But among all the drama, a very important legal and political question is at stake. Can Ghana handle the Supreme Court batting down election results and potentially deposing the current administration? Are Ghanaians able to accept the consequences of the judicial review entrenched in their constitution? This is the question that keeps Ghanaians up at night, and it is the reason you can’t go anywhere without hearing about those pink sheets. The concern is legitimate. One of those jailed for contempt of court was a member of the incumbent party who threatened violence if his party was deposed by the court decision. Although he later apologized, his threat plays on the fears of many Ghanaians who know all too well what it means to live under threat of war.
The trial is now coming to a close, and soon Ghana will have to live with the results of one of the biggest legal decisions this country has ever seen. In making its decision, the court has three options: to uphold the election results, call a new election, or award the election victory to the opposing party. A bad decision could spell trouble for the peace Ghana has worked so hard to enjoy. A good decision could be a landmark case that would change landscape for judicial review in Ghana. Despite the beating of war drums and the court room drama, I think that Ghana will weather the election petition. Faith in the court system is at the heart of a constitution which requires judicial review to answer controversial questions. As a Canadian I understand the type of faith required to trust the court to review contentious legislation and administrative actions. Although Ghana is a wildly different place, I think that Ghanaians ultimately have faith in their courts and the democracy they have worked so hard to build. I hope that their faith is justified when the court turns out their decision in the coming weeks.
 Kofi Kumando & S.O. Gyandoh Jr., Sourcebook of the Constitutional Law of Ghana 2nd ed v.1 pt 1 (Accra: Black Mask Publishing, 2009) at vi.
 Peter Atudiwe Atupare, “Legitimacy, Judicial Review and Human Rights Enforcement in Ghana”, (2005-2007) 23 University of Ghana Law Journal 228.