Why proponents of Ghana's ‘anti-gay bill’ get it so wrong

        Photo credit: globalcitizen.org

The propriety of the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 ('anti-gay bill') has generated national conversations in the past few weeks. The anti-gay bill seeks, in a nutshell, to criminalise LGBTQ+ sexual relationships and associations. The bill also criminalises directly or indirectly a wide range of other perceived non-heterosexual conduct, vestimentary habits and any advocacy for or in support of LGBTQ+ rights or persons. Some of the bill’s proscriptions also apply to non-LGBTQ+ persons.

In this piece, I shall catalogue the key arguments made by proponents of the bill and address them from a legal and governance policy perspective for the purposes of public education.

 

1.      Proponents of the bill argue in the memorandum to the bill that LGBTQ+ and related activities are not consistent with Ghanaian traditional and cultural values. Therefore, the clauses in the bill which place excessive restrictions on basic rights guaranteed by Ghana’s constitution such as the right to privacy, free expression, association, non-discrimination, personal autonomy, amongst others are justified.

 

Response: Under Ghana’s Constitution, culture is NOT used to determine whether rights are allowable. Rather, custom is assessed on the basis of whether it infringes rights guaranteed by the Constitution. Chapter 5 of the Constitution which guarantees basic rights and proceeds to provide the circumstances under which these rights could be restricted makes no provision for the restriction of rights on the basis of 'traditional Ghanaian customs, beliefs and values' (see Article 21 of the 1992 Constitution).  

 

2.      In the memorandum to the bill, the sponsors of the bill argue that LGBTQ+ persons and related activities threaten the concept of family and the associated value systems that are central to the social structure of all ethnic groups in Ghana.

 

Response: Under Ghanaian law, LGBTQ+ persons are excluded from the institution of marriage [see Marriages Act, 1885-1985 (CAP 127)]. It’s therefore strange how anyone could suggest that they pose a threat to marriage and family life. Beyond this mere assertion, proponents of the bill do not demonstrate in what ways LGBTQ+ persons represent a threat to family or to marriage. All LGBTQ+ persons ask is to be left alone. How that constitutes a threat to family life is yet to be explained by the proponents of the bill.

 

3.      Proponents of the bill justify the restrictions placed on basic rights on the ground that rights are not absolute. Therefore, the rights of LGBTQ+ persons are ‘restrictable’. According to them, the State's power to restrict rights is demonstrated in the passage of the Cybersecurity Act, 2020 (Act 1038) which permits reasonable restrictions on the right to privacy, and the Vigilantism and Related Offences Act, 2019 (Act 999) which proscribes the formation of groups for the furtherance of interests by the use of threat of violence or intimidation. 

 

 

Response: Of course, rights are not absolute. But neither is the power of the State to restrict rights absolute. The State must show sound public interest or public policy justification for restricting a right. No such justification has been provided by the proponents of the bill for the excessive restrictions on the rights of LGBTQ+ persons and or persons who may want to advocate for the rights of this minority group. Under the 2 statutes cited (Act 1038 and Act 999), the public interest justification for the restrictions placed on rights to privacy and association is national security. For instance, in the case of the Vigilantism Act, our experience as a country has shown that if left unchecked, 'vigilantism' has the propensity to create far-reaching social chaos and disrupt public law and order. The violence that characterised the 2016 and 2020 general elections are enough proof of the need for such a law criminalising ‘vigilantism’. Unlike these two statutes which provide national security as a sound justification for the restrictions placed on  the above-mentioned rights, the anti-gay bill provides no such public interest grounds for restricting rights to privacy, free expression, personal autonomy, non-discrimination, association, etc.

 

 

4.      Proponents of the bill also justify it by expressing a public health concern. They cite a 2017 report of the Science Research Council which says that about 18.1% of people living with AIDS are men who sleep with men. They then proceed to single out LGBTQ+ persons and their activities for criminalisation.

 

Response: In citing this data, the proponents of the bill fail to realise that on its flip side, this very statistic means that roughly four-fifths (81.9%) of persons living with HIV/AIDS cases bear no relationship to LGBTQ+ persons. They fail to demonstrate how LGBTQ+ persons infringe on the rights and freedoms of others or how the private sexual or amorous relations of mutually consenting adults of sound mind, whether heterosexual or same-sex, pose a public health threat. Instead of focusing exclusively on LGBTQ+ persons, proponents of the bill should concern themselves with the social costs and health consequences of all forms of sexual behavior—whether between heterosexuals or LGBTQ+ persons. The appropriate public policy response then is not to criminalise LGBTQ+ persons or their activities, but an intervention that ensures that all potentially sexually active persons, whether LGBTQ+ or heterosexual, are provided adequate and appropriate education on responsible sex or sexual behaviour as well as access to medical advice and care.

 

In a democratic dispensation where the rights of all persons, including social minorities, are guaranteed under the Constitution, any legislation seeking to target and single out LGBT+ persons or gay rights advocates for such unfair treatment further marginalises and victimises them and sets a dangerous precedent for the treatment of unpopular minorities in general. The proponents of this anti-gay bill need to understand that treating other persons unfairly does not guarantee equal justice for anyone.

Fact checking the CNN interview with Ghanaian MP over proposed anti-gay bill in Ghana

 

        Photo credit: American Psychological Association 

A CNN interview of Ghanaian MP, Sam George, on or about October 8, 2021, over a proposed bill—the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 ('anti-gay bill')—appears to have won the lead sponsor of the bill praise in some quarters in Ghana for defense of the bill.

The anti-gay bill seeks, in a nutshell, to criminalise LGBTQ+ sexual relationships and associations. The bill also criminalises directly or indirectly a wide range of other perceived non-heterosexual conduct, vestimentary habits and any advocacy for or in support of LGBTQ+ rights or persons. Some of the bill’s proscriptions also apply to non-LGBTQ+ persons.

In the said CNN interview, Sam George, the lead sponsor of the private members’ bill makes a number of claims and deductions which are false. The facts he alluded to are as false as his reasoning. Despite the apparent falsity of George’s claims, the CNN interviewer, Kenyan journalist Larry Madawo, failed to point out these factually inaccurate statements and completely false deductions to him, perhaps due to his own lack of adequate preparation. I shall catalogue these issues and deal with them for the purposes of public education.

1.      The Afrobarometer survey finding that Ghanaians are generally intolerant of LGBTQ+ persons

The MP Sam George cites an Afrobarometer survey finding that 93% of Ghanaians would not wish to have LGBTQ+ persons as their neighbours. i.e. Ghanaians are generally less tolerant of LGBTQ+ persons. Therefore, there is justification for the bill which criminalises LGBTQ+ and related activities. Indeed, the proponents of the bill make similar arguments in the memorandum to the bill.
The MP conveniently forgets that the same Afrobarometer survey he refers to found a high tolerance for wife beating among Ghanaians. Going by his logic, Ghana should have legislation de-criminalising domestic violence too, No?!

In a democratic society, that Afrobarometer finding means that LGBTQ+ persons are more vulnerable to discrimination and harm and the response of the State should be to fulfil its obligations under Ghana’s Constitution by ensuring that it adopts extraordinary measures to protect such persons. The appropriate State response is NOT to formally license (by way of an anti-gay bill) majority intolerance and discrimination and deprive those minorities (in this case LGBTQ+ persons) of their basic human rights.

 

2.      The case for conversion therapy

The MP and his fellow sponsors of the private member's bill, profess knowledge on a subject (homosexuality) about which knowledge and understanding continues to evolve and propose a so-called ’conversion therapy' as a supposed 'cure' for homosexuality (See p.9 of memorandum to the bill). He makes the same argument in this CNN interview. Conversion therapy is a pseudoscientific practice (a collection of beliefs/practices mistakenly regarded as being based on scientific method) of attempting to change an individual's sexual orientation from homosexuality or bisexual using psychological, physical, or spiritual interventions. The point has to be made that there is no reliable evidence anywhere that sexual orientation can be changed. Medical experts around the world question the scientific legitimacy of this therapy. In an August 8, 2019 ‘New England Journal of Medicine’ report, medical experts observed that so-called "conversion therapy" can trigger depression, post-traumatic stress disorder, and suicidal thoughts and attempts, and it should be banished in the United States. ‘As a result of the lack of regulation on these 'therapies,' many adults and children continue to be defrauded, harmed and traumatised in the U.S. every day,’ said the report’s lead author Dr. Carl Streed, Jr. The assumption that one can change his/her sexuality through some therapy is as laughable as it is silly. It's even more laughable when you seek to justify a bill criminalising LBGTQ+ using it as a basis. On page 9 of the Memorandum to the anti-gay bill, Sam George and his co-sponsors of the bill argue that, ‘…we also recognise that groups of vulnerable persons in the [LGBTQ+] discussion ought to receive support to address underlying biological, social and economic issues that make them prone to the rapacious activities of persons involved in [LGBTQ+] activities. Social support systems must be established to help the vulnerable persons understand their sexuality and to access psychological or physiological support where necessary’.!

The distinguished Ghanaian-British philosopher, Kwame Anthony Appiah, is one of the most sought-after philosophers in the world today. He's an Asante royal (son of the great lawyer and statesman Joe Appiah) and also comes from an aristocratic British family (son of Peggy Cripps whose father was Chancellor of the Exchequer in Britain; a man who was instrumental in negotiating India's independence from Britain). For his unparalleled brilliance, Anthony Appiah is sought after by elite universities around the world: Oxford, Cambridge, Yale, Harvard and now NYU. He’s gay. He's obviously a person of unlimited means. Question: If being gay was/is a choice for such a person, why would Anthony Appiah not change his sexuality through the so called 'conversion therapy'?

3.      False claim over the 19^th amendment to the US Constitution

George also justified the bill saying ‘laws are a reflection of society. Until 1960 American society did not find women fit to vote and so women did not vote there…’ This claim is also completely false. The 19^th Amendment to the US Constitution granting women the right to vote was passed by Congress on June 4, 1919 and ratified on August 18, 1920.

    4.        The culture justification

George also claimed in this interview that ‘the bill is supported by the National house of chiefs… Ghanaian culture forbids homosexuality…’. This argument is also made in the memorandum to the bill in which proponents argue that the proposed restrictions on the rights of LGBTQ+ persons are justified because LGBTQ+ persons and their activities do not conform to ‘traditional Ghanaian customs, beliefs and values’. Sam George and his co-sponsors also justify the bill and its restrictions on the basis that no right is absolute. Of course, no right is absolute but. But so is the State’s power to curtail a right not absolute. Rights would be meaningless if all it took to destroy them was the passage or implementation of any law aimed at destroying them.  In order to ensure the maximum possible protection for a right guaranteed under the Constitution, the Constitution sets a high bar for any law that seeks or purports to restrict a guaranteed right. Among other things, the policy grounds for restricting the personal liberties of persons irrespective of their gender, ethnicity, faith or sexual orientation must align with grounds provided by and permissible under Ghana’s Constitution. Under the Constitution, culture is not used to determine whether rights are allowable; rather custom is assessed on the basis of whether it infringes rights. Chapter 5 of Ghana’s Constitution sets forth grounds and the circumstances under which personal liberties may be restricted. The circumstances include where a person’s liberties are restricted (i) in execution of a sentence or order of a court in respect of a criminal offence of which a person has been convicted [Article 14(1) (a)]; (ii) in execution of an order of a court punishing a person for contempt of court [Article 14(1)(b)]; (iii) for the purpose of bringing a person before a court in execution of an order of a court [Article 14(1)(c)]; (iv) in the case of a person suffering from an infectious or contagious disease, a person of unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community [Article 14(1)(d)]; and (v) for the purpose of the education or welfare of a person who has not attained the age of eighteen years [Article 14(1) (e)]. In addition, a person’s right may be restricted ‘for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the expulsion, extradition or other lawful removal of that person from Ghana or for the purpose of restricting that person while he is being lawfully conveyed through Ghana in the course of his extradition or removal from one country to another [Article 14(1)(h)]; or upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana’ [Article 14(1)(g)].

Evidently, Chapter 5 of the Constitution makes no provision for the restriction of personal liberties on the ground of ‘traditional Ghanaian customs, beliefs and values.’  “Culture”—as important as it is in other realms—cannot be invoked or used to override constitutional rights.

I have had the opportunity to review a number of draft legislations in my line of work as a legal policy person. In reviewing draft legislations, one has to consider the object of the bill or the legislative gap the proposed bill seeks to fill. In other words, the ‘mischief’ the bill seeks to cure, as the lawyers would put it. One also has to pit the proposed clauses against constitutional provisions and court decisions to check if the proposed clauses are compatible with same. International law and best practice(s) in other jurisdictions are also an important yardstick.

I point out these considerations to highlight the fact that this is the first time I have come across a draft bill which is so incurably deficient. The proposed anti-gay bill is so constitutionally flawed to the extent that no amount of amendment, tweaking or redrafting could possibly save it!

 

 

7 Practical tips for GSL entrance exam candidates

To all our friends preparing for the Ghana School of Law entrance exam in the coming weeks, we have you in our thoughts. Give it your best shot.

Here are a few tips you may find useful:

1. Understand and know what the question requires of you in substance and in form. Form and substance are equally important. If the question says write a memo, write a memo, not an essay. The marking scheme would allocate marks for form and substance. Pay attention.

2. If you’re required to write an essay, it would be in your interest to summarise the key points you plan writing on in about 4/5 lines as part of your introduction. Eg. In this essay, I shall address the issue of XYZ. In doing so, I shall argue that (i)Q, (ii)R, (iii)S, (iv)T. Remember there are thousands sitting this paper. Examiners may not have the time to go through your script fully if you start beating about the bush. First impressions matter!

3. Handling 'Case flight': Every law student knows what ‘case flight’ is; when you’re unable to recall the title and or essential details of a case during an exam. This happens to almost all of us. If you forget the title of a relevant case law and or essential details, please write the principle of law the case addresses. It's in your interest to state the principle of law and explain it, even when you may not recall the case title. One way of doing this is to couch your authority this way: The courts have held that XYZ... Write that and move on... don't sweat it. You should do same for constitutional or statutory provisions. If you fail to remember exactly what a relevant provision says, paraphrase it. The examiner would recognise that knowledge of the law. Caution: Don't make it a habit in the exam hall! 

4. Have a conclusion, always. Your conclusion may be a comment on the current position of the law; a suggestion for amendment of a prevailing law (eg. statute) given an identifiable gap; etc. Even if it's 2 sentences, write it. It will fetch you a mark or two.

5. In your own interest, please do not go into the exam hall without knowing the trending socio-economic or political issues in Ghana today, and the applicable law. If you've been following the news/news analysis in the media, participating in webinars such as the 'Law in Crisis series' organised by the University of Ghana Faculty of Law you should be familiar with these issues. Also, if you’re following the right legal policy experts or commentators such as Prof H Kwasi Prempeh, Prof Kwaku Asare (‘Kwaku Azar’) or Mawuse Oliver Barker Vormawor (‘Barker H Vogues’) and others on social media,  you should be fine.  

6. Answering problem questions: At the analysis stage, restate the issue you've identified earlier in your answer and proceed to do your analysis.  Analysis: Facts + Law =Conclusion.

7. Feel free to reach out to your seniors if you have any questions. No senior would say no when you reach out.

May the odds be in your favour.

Ghana: Anti-gay bill is irredeemably flawed

I have had the opportunity to review a number of draft legislations in my line of work as a legal policy person.

In reviewing draft legislations, one has to consider the object of the bill or the legislative gap the proposed bill seeks to fill. In other words, the ‘mischief’ the bill seeks to cure, as the lawyers would put it. One also has to pit the proposed clauses against constitutional provisions and court decisions to check if the proposed clauses are compatible with same. International law and best practice(s) in other jurisdictions are also an important yardstick. Typically, a review is in the form of a memorandum to the relevant Parliamentary Select Committee recommending that problematic clauses identified be amended or expunged to ensure the passage of a credible legislation. 

I point out these considerations to highlight the fact that this is the first time I have come across a draft bill which is so incurably deficient. The proposed private member bill; ‘Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021’ is so constitutionally flawed to the extent that no amount of amendment, tweaking or redrafting could possibly save it. 

Take Clauses 12-16 of the bill for instance. These clauses generally criminalise any form of association or  advocacy for the rights of gay people including funding for such activities. Ghana’s 1992 Constitution guarantees the rights of all persons to assemble freely, to speak freely and bandy together to promote a cause. Our courts have given a number of decisions enforcing these rights, including the decision of the Supreme Court in the case of New Patriotic Party v Inspector General of Police [1993-94] 2 GLR 459—509. In resolving the key issues in that case, Amua-Sekyi JSC observed that '[e]xcept in time of war, or when a state of emergency has been declared, it cannot be right for any agency of the executive to suppress the free expression of any opinion, however unpopular that opinion may be. The believer in absolutism and the anarchist, those who support and those who are opposed to abortion, those who favour and those who oppose equal rights of women—yes, lesbians and homosexuals too—are all entitled to the free expression of their views, and the right to assemble and demonstrate in support of those views and to propagate those views.' [Emphasis added]

Given the relevant provisions of the Constitution guaranteeing these rights and the decisions of the courts enforcing same, Clause 12-16 of the bill seeking to criminalise any form of association or  advocacy for the rights of gay people is inherently flawed, in my view. No amount of amendment or redrafting can salvage these clauses to make them compatible with the Constitution. 

In a democratic dispensation where the rights of all persons, including social minorities, are guaranteed under the Constitution, any legislation seeking to target and single out LGBT+ persons or gay rights advocates  for such unfair treatment further marginalises and victimises them and sets a dangerous precedent for the treatment of unpopular minorities in general.

The proponents of this piece of legislation need to understand that treating other persons unfairly does not guarantee equal justice for anyone.

 

 

Summary of 2021 presidential election petition ahead of Supreme Court ruling

Prepared by Nick Opoku

Facts

The Supreme Court shall deliver its judgment in the presidential election petition filed by the flagbearer for the National Democratic Congress (NDC) in the 2020 presidential elections, John Mahama on Thursday, March 4, 2021. Hearing of the petition began on January 26, 2021.

 

At stake in this petition is Nana Akufo-Addo's first round victory in the elections. According to the certified results declared by the Electoral Commission (EC) on December 9, 2020, President Akufo-Addo won the presidential election with 6,730,587 votes (51.3%) while Mr. Mahama polled 6,213,182 (47.4%). Third party and independent candidates collectively polled 1.339% of the valid votes cast.

However, Mr. Mahama wants the apex court to invalidate the declaration of Nana Akufo-Addo as the President-elect by the EC and order run-off elections for various reasons contained in his petition. Chief among those reasons is the contention that the results declared by the EC on December 9, 2020, which purportedly confirmed Nana Akufo-Addo as President, violated Article 63(3) of the Constitution because at the time of the said declaration, neither him nor Nana Akufo-Addo had obtained more than 50 per cent of the total number of valid votes cast. He also alleges that the EC was ‘unfair’, ‘untruthful’ and ‘unreasonable’ in collating the results of the presidential election because he has evidence of ‘vote padding’ and clerical or arithmetical errors in the collation of the results.

 

Arguments of Respondents

First Respondent:

The First Respondent in this petition—the Electoral Commission (EC)—in its answer to the petition, largely denied the claims made by the petitioner. The EC said it ‘complied with all the processes and procedures laid down by law for the conduct of the 7^th December 2020 Presidential Election with fairness to every candidate and without malice, ill will or bias against anyone’ [para 40 of 1^st Respondent’s answer to petition]. The EC provided a detailed account of the entire process for the collation of the presidential results and said that the petitioner’s representatives signed 13 out of the 16 Regional election results summary sheets while representatives of the Second Respondent (President Akufo Addo) signed 15 out of the 16 regional results summary sheets. The EC however admitted that some errors were made during the December 9, 2020 declaration of the presidential results, noting that

 

in reading out the results on 9^th December, 2020, its Chairperson inadvertently read out the figure presenting the total number of votes cast as the figure representing the total number of valid votes, and the percentage of [the President] as 51.59% instead of 51.295%.’ [para 21 of 1^st Respondent’s answer to petition]

 

The EC also conceded that there had been errors in the declaration of the total valid votes. However, the EC took the position that notwithstanding those errors, and in light of the fact that timely corrections had been made after the declaration, ‘the figures converted into percentages showed that the president had obtained more than 50% of the valid votes, which met the constitutional threshold for the Election of President under Article 63(3) of the Constitution. ’ [para 28 of 1^st Respondent’s answer to petition]

 

Second Respondent:

The Second Respondent, President Akufo Addo, in his answer to the petition, raised some preliminary objections to the petition; arguing that the petition should be struck out by the court on grounds that it (the petition) is ‘incompetent, frivolous and vexatious and discloses no reasonable cause of action in terms of article 64(1) of the Constitution’. Counsel for the second Respondent, argued that the petition fails to meet the constitutional requirement for challenging the validity of a presidential election. They also pointed to alleged factual weaknesses in the petition, including the claim in paragraph 13 of the petition that  ‘a total of one hundred point three per cent (100.3%)’ is yielded from the percentages announced by 1^st Respondent (EC) on 9^th December, 2020’.

 

Pretrial directions

The court, in its pre-trial directions set the issues (questions) for determination of the petition as follows:

 

1.        Whether or not the petition discloses any reasonable cause of action

 

2.        Whether or not based on the data contained in the declaration of the 1st Respondent, no candidate obtained more than 50% of the valid votes cast as required by Article 63(3) of the 1992 Constitution

 

3.        Whether or not the 2nd Respondent still met the Article 63(3) threshold by the exclusion or inclusion of the Techiman South Constituency Presidential election results

 

4.        Whether or not the declaration by the 1st Respondent dated the 9th of December, 2020, of the results of the presidential election conducted on 7th December 2020 was in violation of Article 63(3) of the Constitution

 

5.        Whether or not the alleged vote padding and other errors complained of by the petitioner affected the outcome of the presidential election results of 2020 

 

The court also decided that its decision on the preliminary objections raised by the 2^nd Respondent would be incorporated in its post-trial judgment.

 

Major events during trial

Throughout the trial, the Supreme Court has had to make a number of decisions bordering on procedural steps and evidence by the parties.

(i)             On January 19, 2021, the Supreme Court unanimously dismissed an application for interrogatories filed by the petitioner seeking leave of the court to elicit some answers to questions relating to the conduct of the elections from the First Respondent, Electoral Commission (EC). The court held that the Supreme Court (Amendment) (No. 2) Rules, 2016 (C.I 99) provide for expeditious trial of a presidential election petition and since the questions petitioner sought answers to could be answered at trial, the application was irrelevant at the time.

 

(ii)            On January 28, 2021, the court unanimously dismissed the petitioner’s application for a review of the court’s January 19, 2021 decision on his application for interrogatories. The court held that the petitioner had not satisfied the conditions set out in Rule 54 of the Supreme Court Rules, 1996 (C.I. 16) to warrant the grant of the review application. The court reasoned that the petitioner had neither demonstrated by way of evidence, any exceptional circumstances which had resulted in a miscarriage of justice, nor the discovery of any new evidence which the court had failed to take into account in its earlier decision.

 

(iii)          On February 3, 2021, the court unanimously dismissed the petitioner’s application to inspect documents of the first Respondent (EC) relating to the December 7, 2020 presidential election results. The court held that the petitioner had failed to demonstrate that he had no copies of the documents in question. The court reasoned that the First Respondent (EC), in compliance with the Public Elections Regulations, 2020 (C.I. 127), had already given copies of the said documents to the parties that participated in the presidential elections through their accredited agents; a fact the petitioner’s witnesses had admitted under cross-examination.

 

(iv)           On February 11, 2021, the court unanimously dismissed arguments by counsel for the petitioner seeking leave of the court to compel Chairperson of the EC, Jean Mensah, to testify after the First Respondent had elected not to adduce evidence.

 

(v)            On February 16, 2021, the court unanimously dismissed an application by the petitioner to reopen his case and subpoena the Chairperson of the EC, Jean Mensah, to testify as an ‘adverse witness’. The court held that the petitioner had failed to satisfy the legal test for the grant of such applications. The test being: (i) that a new matter had arisen in the course of the trial which was not reasonably foreseeable; (ii) that the new evidence the applicant sought to adduce will influence the court’s eventual decision; (iii) that the applicant could not have known of the existence of such evidence after a reasonable and diligent search; and (iv) that re-opening the applicant’s case would not unduly prejudice the other party.

 

(vi)           On February 18, 2021, the court unanimously dismissed an application filed by the petitioner for a review of the court’s February 11, 2021 decision not to compel the Chairperson of the First Respondent, Jean Mensah, to testify. The court held that the petitioner had failed to satisfy the conditions for the grant of a review application as outlined in Rule 54 of the Supreme Court Rules, 1996 (C.I. 16).

 

(vii)         On February 22, 2021, the court unanimously affirmed its February 16, 2021 decision not to allow the petitioner to reopen his case and compel the Chairperson of the First Respondent to testify following a review application filed by the petitioner.

 

What is likely to be the court’s decision?

Ghanaian jurisprudence on electoral disputes adopt the position that ‘not every irregularity or breach of law in the conduct of an election provides sufficient grounds to void an election; as long as there has been substantial compliance—or non-compliance—with the applicable laws and regulations the election will not be invalidated, unless the non-compliance affected the results.’

Considering (i) court’s decision in the 2013 presidential election petition  (Nana Akufo Addo v Electoral Commission & John Mahama); (ii) the precedents of other constitutional courts in the West-African sub region; (iii) the basis of the petition; and (iv) evidence adduced by the petitioner throughout the case, it is very likely the petition will be dismissed by the Supreme Court.