A few days ago I came across an article that was written by one intelligent Mr. Kofi Ata, Cambridge. The article was about the recent High Court decision by Justice Eric K Baffour in the case of the Electoral commission vs. PPP’s presidential candidate, Dr. Papa Kwesi Nduom. See – Can EC still disqualify Dr. Nduom? http://www.ghanaweb.com/GhanaHomePage/NewsArchive/Can-EC-still-disqualify-Dr-Nduom-482269.
In the article, Mr. Kofi Ata commented on the judgment made by Justices Baffour that went in favor of Dr. Nduom. According to Mr. Ata, the judgment according to Justice Baffour was based upon two grounds upon which the Applicant initiated his application against the disqualification by the Electoral Commissioner, Mrs. Charlotte Osei. The grounds were, and I quote Mr. Ata: Breach of the rules of natural justice (audi alteram partem – meaning, listen to the other side). Error apparent on the face of the record.
Whiles Mr. Ata agrees with Justice Baffour on the “breach of rules of natural justice” (audi alteram partem), he disagreed on the “error apparent on the face of the record.” An extract of the statement by the Electoral Commission as per Mr. Ata’s article and I quote:
We will refer the matter of the possible forgery of the signature(s) to the Ghana Police Service and the Attorney General for investigation and prosecution in line with the following sections of the Criminal Offences Act,1960 (Act 29): Section 211; Perjury Section 248: making false declaration etc. for office or voting; Section 251; Deceiving a public officer Section 256; Corruption, Intimidation and personation in respect of election” (see, “Why Nduom and 12 presidential aspirants were disqualified”, Ghanaweb, October 10, 2016).
The above statement made Mr. Ata to conclude as follows and I quote:
From the above, it is very clear that Nduom was disqualified not because of an “error” but rather for an electoral offence of potential forgery, fraud, and deception of a public officer. For reason of misdirection, all the authorities relied upon by Justice Baffour as the basis for “the ERROR APPARENT ON THE FACE OF THE RECORD” are null and void and of no consequences. Nduom did not make an error but committed unlawful and potential criminal acts of forgery, fraud, and deception of a public officer for which he must be investigated and prosecuted if there is credible evidence.
Whiles, I respect Mr. Ata’s opinion and his effort to educate us on the ruling, I beg to differ and respectfully disagree with Mr. Ata that Justice Baffour errs in his judgment in favor of Dr. Nduom.
According to the statement by the Electoral Commission, in a layman’s terms, the commission disqualified the candidates on two different grounds: An incomplete application form(s) by the candidates – some infractions example is an omission of signature(s) or error(s) on the form(s) etc. An apparent fraud, forgery or misleading/deception of public officer found on the application form(s) – an example is a candidate using an illegal means of an endorsement on his/her application form(s), an alleged (fraud/forgery).
There is a universal principle that governs “the rules or principles of natural justice known as procedural fairness to ensure that decision-making is fair and reasonable. In other words, natural justice requires decision-makers (the Electoral Commission) to have informed the candidates of the case against them or their interests and providing them a right to be heard (the ‘hearing’ rule), not having a personal interest in the outcome (the rule against ‘bias’), and acting only on the basis of logically probative evidence (the ‘no evidence’ rule).
This does not mean the EC should provide the candidates the right to amend wrong or fraud, but the right to respond to the allegation that was raised by the Electoral Commission to dismiss them.
There is also the universal principle which provides presumption of innocence. The presumption of innocence requires all decision-makers, judges, juries, and other officials, to presume and treat any accused of criminal wrongdoing as innocent until he or she is proven guilty. This overarching principle of procedural fairness is so robust and vital for the exercise of legal power in matters of criminal law that no one can question its standing. The candidates are not guilty until proven that they have intentionally committed the fraud/forgery. Do you think it will be the correct procedure to disqualify Usain Bolt in a few hours to compete for Olympic finals because his manager raises an allegation that he has taken illicit drugs? The proper procedure and fairness will be for the authorities to inform him (Usain) to provide a sample for testing and his medal will be scrapped if the test proves positive.
Procedural Fairness must deeply embed in our law. There is no question that it is our pillar of the judicial function and conditions. It provides a broad array of administrative powers affecting the rights, duties, privileges and immunities of individuals and organizations. As an agent for decision-making, is it about justice or is it about wisdom? That question may be unraveled into a contemporary taxonomy which posits a number of rationales such as: An instrument that assists in proper decision-making. We should encourage to support the rule of law by promoting public confidence in official decision-making. Justification as the first principle of justice, a principle of constitutionalism. That, the procedural fairness must be seen to give due respect to the dignity of individuals.
Procedural fairness is about procedures employed by a decision-maker, which is far from the actual outcome. It means that a fair and correct procedure be applied when agencies are making a decision.
I am not stating that procedural fairness is applicable to every decision-making? However, the procedural fairness applies to decisions that a reasonable person can think will negatively affect an existing interest of a person. For instance, procedural fairness would apply to an agency before making the decision to publish a report that damages a person’s reputation.
If a presidential candidate is going to be negatively affected by an Electoral Commission’s decision, the applicants are entitled to expect that the decision-maker (EC) will follow the rules of procedural fairness before reaching a conclusion to disqualify them, even if the EC claims they may have committed an offense. Thus, they are entitled to: Be told about the pending decision (for example, that, the EC is considering invalidating the applications), including reasons for the disqualification and any adverse or prejudicial information relating to them that is to be used in the decision-making process.
For example, the EC could have sent them a letter or a summary of the issues being considered before making the decision to disqualify them. It is not necessary for the EC to allow them to correct wrongful act or send them the copies of all original documents or the identity of confidential sources to be revealed. That is, giving a chance for the candidates to reply to the allegation, whether that be in writing or orally.
The type of hearing should be proportional to the nature of the decision. In this case, the consequences of the proposed decision by the EC were highly significant, so a formal hearing process may be warranted.
In their (applicants) reply, they may, amongst other things, wish to: Deny the allegations against them – thus, the forgery/fraud, etc Provide evidence to EC that disproves the allegations against them Explain the allegations against them by the EC or present an innocent explanation; and Provide details of any particular circumstances the applicant(s) think should be taken into account.
The EC must give them a chance to response to the allegations before the decision was made to disqualify applicant(s), but after all relevant information has been gathered. This is so the candidates can be given all the information they are entitled to and be aware of the issues being considered by the Electoral Commissioner.
I am respectfully disputing Mr. Ata’s disagreement on the second ground – “error on the face of the record” and the argument that the applicants have committed fraud. On the face of the record, let us assume the obvious forgery claim by the EC, the errors and the crime borders on the principle of “procedural fairness.” That is, irrespective of the criminal element on the face of their applications, the EC ought to have given them a chance to response to the allegation. By giving them the opportunity to a response does not mean they are going to change the outcome of any intended criminal proceedings.
On the face of errors and incomplete applications, common-sense should prevail. The EC’s function is to serve and protect but not to become a hidden block to the citizens. We can compare the role of EC to a classroom teacher whose primary goal is to educate but not to fail the children.
Justice Baffour’s ruling is clearly stating to the EC and Dr. Nduom to go back and follow the principle of procedural fairness. That is, the EC must first provide the applicant the opportunity to respond to the apparent fraud/forgery and other infractions on the form(s) as follows: Provide the applicant(s) the: Opportunity to amend the administrative errors such as missing signatures etc. Should the applicant fails to do the correction within a reasonable timeframe, disqualify the applicant(s) Opportunity to follow procedural fairness so that the candidate can respond to the criminal allegation found on the forms. That is, the chance to respond but not to amend the criminal part.
For example, EC can write to the applicant(s), we are considering a decision to disqualify your application on the grounds of forgery, fraud and or misleading public officer. We will be referring the matter to the appropriate law enforcement for further investigation. You have seven days (7) to respond to the allegation after which we shall make our decision.
Based upon the response from the applicant(s), the EC then make the decision to disqualify the candidate(s) and proceed to refer the matter to the CID.
The applicant, Dr. Nduom did not proceed to the court to defend the forgery allegation or the apparent crime. Dr. Nduom went to court seeking that the EC has infringed on his civil rights by declining him the opportunity to response to any allegation(s) whatsoever.
Once the EC has provided the applicant(s) a chance to response to the fraud, forgery and misleading the public officer, the EC should then proceeds to disqualify all the applicant(s) deemed to have committed electoral fraud and further refers the matter to the CID. From here, the applicant(s) can initiate court action to defend the crime against them by the EC. The disqualified applicant proceeding to court to defend an electoral fraud is different to seeking a resolution to “procedural fairness.” The applicant(s) have every right to ask for procedural fairness, and the EC failed to do so.