Court shoots down EC, allows Nduom to correct errors
The High Court in Accra yesterday quashed the Electoral Commission (EC’s) decision which disqualified the presidential candidate of the Progressive People’s Party (PPP), Dr Papa Kwesi Nduom, from standing for the December 7, 2016 presidential election.
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It, therefore, directed the EC to afford Dr Nduom the opportunity to correct the anomalies on his nomination forms.
According to the court, the EC’s disqualification of Dr Nduom without giving him the chance to correct the anomalies on his nomination was a breach of the rules of natural justice.
The court’s decision was greeted with a sudden uproar of excitement from within and outside the packed courtroom when Justice Eric K. Baffour upheld an application for judicial review, praying the court to quash the EC’s disqualification.
Dr Nduom was mobbed by teeming sympathisers when he emerged from the courtroom in the company of his wife, sons and party executives.
Security details had a tough time controlling the excited crowd, while party supporters sprinkled talcum powder on themselves to signify victory.
The application
Dr Nduom filed an application for judicial review four days after his disqualification with certiorari to bring to the court the decision of the respondents, dated October 10, 2016 which disqualified the applicant as a presidential candidate for the 2016 general election for the purpose of having same quashed.
The second relief was an order of prohibition to be directed at the respondents from proceeding with balloting for positions in the presidential election.
Dr Nduom, through his lawyer, Mr Ayikoi Otoo, sought a further order directed against Mrs Osei in her capacity as the Returning Officer for the presidential election to grant him the opportunity to amend and alter the one anomaly found in his nomination papers, as well as accept his nomination papers as amended or altered to enable him to contest as a presidential candidate for the December 7, 2016 elections.
The respondents in the case were the EC and its Chairperson, Mrs Charlotte Osei.
The grounds upon which the Applicant mounted his application were breach of the rules of natural justice (audi alteram partem) and error apparent on the face of the record.
The decision
Touching on the ground of error apparent on the face of the record, the court held that there seemed not to be an authoritative pronouncement yet from our courts but it did appear that the phrase did not lend itself to easy definition.
He said error apparent on the face of the record could not be established with a “degree of certainty and mathematical precision.”
What was clear, he noted, was that an error could not be deemed to be apparent on the face of the record, if one needs to journey beyond the scope of the record to determine whether the decision impugned was correct or not.
That he noted was because the said record, upon examination at first glance, must be striking, blatant and visible.
Referring to the Indian case of Batuk Vyas V Surat Municipality Air, the court held that no error could be said to be apparent on the face of the record if it was not manifest or self-evident and requiring an examination or argument to establish it.
Examining the applicant’s ground of error apparent on the face of the record, the court said the record that the applicant complained of and prayed the court to quash was the October 10, 2016 EC letter disqualifying Dr Nduom.
The said letter informed Dr Nduom that his nomination paper could not be accepted because one subscriber, Richard Aseda, endorsed Dr Nduom’s form in two different districts.
According to the court, it would be difficult to conclude, without admitting further evidence and arguments that there was something palpably wrong with the letter disqualifying him.
Mr Justice Baffour held that there was the need for admission of further evidence and arguments to determine error and for that reason he was persuaded that the second leg of Dr Nduom’s challenge to the decision of the respondents that there was an error apparent on the face of the record had not been made out.
Dr Papa Kwesi Nduom and his wife, Yvonne, arriving at the court in Accra yesterday. Picture: SAMUEL TEI ADANO
Rule of natural justice
Upholding the argument on the abuse of the rule of natural justice, where the applicant accused the EC of not giving him a fair hearing before the announcement that he had been disqualified as a presidential candidate on the ticket of the PPP, the court held that the EC was mandated by law to act in accordance with the Public Elections Regulations, 2016, C.I. 94.
The court agreed with the applicant’s position that the EC could only declare a nomination as invalid only after affording applicants the opportunity to correct defects within the nomination period.
It said it was only when the opportunity had been offered within the nomination period for the amendment and the candidate was still unable to effect the amendment that Mrs Osei shall consider the nomination paper as invalid and inform the EC with a decision being taken on it within seven days.
What is nomination period?
Mr Justice Baffour queried if the applicant was afforded the opportunity required by the provisions of the Rules under Regulation 9 of C. I 94, as dictated by the ‘audi alteram partem’ rule of natural justice, to be heard and to effect whatever anomaly that Mrs Osei discovered within the nomination period before a decision was taken to invalidate his nomination paper.
Justice Baffour said what constituted nomination period and nomination day, has not been defined by the C.I 94.
“However, what is nomination day has been defined for the purposes of the Representation of the Peoples Law, PNDCL 284 and in relation to elections as “the day appointed for the nomination of candidates.”
“It would then mean that nomination period under C.I 94 will be the period appointed for the nomination of candidates who have manifested an intention of contesting as candidates for both the presidential and parliamentary elections.
“And it would further mean that nomination period would be longer than the nomination day or days considering the import of Regulations 7 and 9 of C. I. 94,” the judge continued.
The court then moved on to ask what then was the time appointed by the EC as the day and period for the nomination of candidates in compliance with Regulations 7 and 9 respectively.
“ The only guide I have is Ex “DPKN1” captioned “Immediate Release [Thursday September, 08, 2016] Update on Preparations For December 7 Elections”. The relevant portion for now is the following:
“The Electoral Commission has briefed the political parties on its preparation so far towards conducting the 2016 elections. At the Inter-Party Advisory Committee meeting held on Thursday September 8, 2016, the Commission advised as follows: The Commission will be accepting nominations from Presidential and Parliamentary candidates on 29th and 30th September, 2016”
He said it was, therefore, clear to him that the day (s) that the EC was to receive the nomination papers from candidates was set to be September 29 and 30, 2016 and that “to my mind will satisfy what is nomination day (s) within the contemplation of Regulation 7 (2) (d) of C. I 94.”
He, however, noted that the nomination period as contemplated by Regulations 9 (3) of C. I. 94 was conspicuously not set by the EC.
Justice Baffour held that although the rules clearly afforded a candidate an opportunity to present his nomination papers on or before the nomination day, it seemed that per the EC’s press statement, the EC signalled its preparedness to receive nomination papers only on September 29 and 30, 2016.
Dr Nduom complied
The court held that Dr Nduom dutifully complied with the EC’s directive by presenting his nomination forms on September 30, 2016.
“It is after the receipt of the nomination papers on the nomination day, and within the nomination period; that respondents were under duty by law to inform the applicant of any anomaly detected on his form.
“The respondents purporting and proceeding under the erroneous assumption that the two days set for the presentation of the nomination papers coincided with the end of the nomination period, failed to afford any opportunity to the applicant to amend his form,” the court held.
Justice Baffour said granted that even the nomination period ended on September 30, 2016, the denial of an opportunity to the applicant to amend his form will be wrong. “And if the nomination period did not end on September 30, as I seek to posit supra that EC did not set any nomination period, the denial of an opportunity to the applicant is even more fatal and incurably bad,” the court added.
According to the court, nomination day as it appeared in Regulation 7 (2) (d) of C. I. 94 was different from nomination period appearing in Regulation 9 (2) (b) of C.I 94 due to one of the presumptions of interpretation.
He said it would be absurd from a clear reading of Regulations 7 and 9 of C.I 94 that the framers of the rules would vest in the hands of Mrs Osei to provide an opportunity to candidates to amend within the nomination period and expect that the day the acceptance of the nomination papers end was the day the nomination period closed. Justice Baffour further argued that “if one were to interpret the Rules that the end of the day(s) of acceptance of nomination papers ended the nomination period, it would be tantamount to the rules providing a right to a party in one breath and taking the same right away when there seems to be no claw back clause.”
“I think, in my respectful opinion, that it is contemplated within Regulations 9 (2) of C. I 94 that a right is provided a candidate to amend or alter his forms after acceptance of same by the Returning Officer.
“And that the time for the end of the nomination period is set to last longer than the nomination date so that the nomination period span a time after the acceptance of the nomination forms.
“For that is the only way to make the enjoyment of the right afforded a candidate meaningful under regulation 9(2) of C. I 94. And to interpret it otherwise will mean the Returning Officer arrogating to itself the power to snatch from candidates what the Rules have given them. And the Returning Officer and the EC have no such power,” the court added.
The court held that Dr Nduom acted within the scope of the instructions of the EC and could not be made to suffer any penalty of denial of a hearing that the Rules under C. I. 94 gave him before a decision was taken as to whether he had fully satisfied all the requirements necessary to contest as a candidate to the office of President of the Republic.
According to the court, if the right to put oneself up as a candidate to contest an election was needlessly denied by the respondents without due regard to well-trodden paths of fairness and propriety, it rendered meaningless the exercise of the right to vote guaranteed by the Constitution in a participatory democracy.
It said the conduct of the Returning Officer and the Commission in its denial of the right afforded the applicant by law to make alteration or amendment to his form “has been taken in a petulant fashion and their decision in respect of Applicant has been extremely perverse.”
“The Applicant, Dr Papa Kwesi Nduom, has made a clear case on the basis of the ‘audi alteram partem’ rule of natural justice for the grant of the reliefs of certiorari and prohibition,” the court asserted.
Consequential orders
Touching on the contention of counsel for respondents that the court was impotent to make any further consequential orders to give directions regarding the opportunity to amend his nomination forms, the court held that counsel seemed to misapprehend the import and the scope for the invocation of the supervisory jurisdiction of the court.
Justice Baffour held where the EC’s actions disclosed any vitiating circumstances such as illegality, irregularity, unfairness or failure to satisfy an essential pre-requisite to the making of a decision that may justify the intervention of the court to set any exercise of discretion of the EC aside; the court had the power to direct it.
He said the respondents had no basis to complain that nomination period has closed when they did not set one.
“In conclusion, I trust and hope that this ruling dissolves doubts and illuminates our perception of the C.I 94, especially Regulations 7 and 9, an area that has been tormented by controversy and ambiguity. I will exercise my discretion not to award cost. Each party shall bear its own cost,” the court noted.
The court earlier dismissed counsel for the EC, Mr Thaddeus Sory’s, preliminary objection to the applicant’s application for judicial review.
The court also declined to award cost against the respondents.
Dr Nduom and Mr Otoo, in separate interviews with the media, welcomed the court’s decision and said the decision was victory for democracy and rule of law.