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Written by H. Kwesi Prempeh.
As with most things in Ghana in these democratic times, reaction to the decision of the NPP to contest the result and other aspects of the December 2012 elections in court is split along party lines: most NDC loyalists and sympathisers find the decision objectionable and unnecessary, while NPP loyalists and sympathisers generally support it. This partisan divide on the question of the utility of “going to court” is not new; it is only the latest manifestation of a difference in preference and attitude between the two parties about the courts that has been around, from at least the early days of the Fourth Republic and, arguably, dates back to the beginning of party politics in our country.
Since the formal restoration of multiparty democracy in Ghana in January 1993, the NPP, when it had been in Opposition, has gone to court several times to challenge various acts or omissions of the ruling Government or President or agency of the State. Cases like NPP v. GBC and the many NPP v. Attorney-General that populate the pages of our Supreme Court Reports attest to the frequent use of litigation by the NPP. Many of these cases, brought before the Supreme Court by the NPP, have led to landmark decisions and outcomes that have helped to advance the cause of democracy and freedom in Ghana.
In sharp contrast to the NPP, the NDC, as a party, has shown far less interest in the courts of law. During its time in opposition, the NDC generally avoided the courts, even when it had a grievance that is couched in legal or constitutional verbiage. Thus, very little constitutional law has been made at the initiative of the NDC. Rather than use the courts of law, the NDC has done much of its legal politics in the street and court of public opinion, using its vast network of media mouthpieces (Radio Gold and the so-called “rented press”) alluded to by former Attorney General Martin Amidu, as well as through street protests by party fronts like the now-inactive Committee for Joint Action. In fact, not only has the NDC generally avoided going to court (except as prosecutor when in power), it has often taken a confrontational and antagonistic posture towards the judiciary, including occasionally accusing the judicial leadership and individual judges of bias and sometimes sending its foot-soldiers to besiege the court houses, especially when there are politically important public trials taking place there.
It should be fair to say that, between the court of law and the court of public opinion/street, the NDC has consistently exhibited an ideological preference for the latter, while its rival, the NPP, has tended to place its bets with the former. In consequence, the NDC has mastered the use of the street and the court of public opinion (propaganda), while the NPP feels more sure-footed in the court room and is generally less adept at playing politics in the other court.
None of this is accidental. The genealogy of the two parties offers some interesting insight and explanation. The NDC is the lineal descendant of the PNDC, which came to power through the coup d’etat of December 31, 1982. Over time, the NDC has also come to draw significant support from many loyalists and admirers of the 1950s/1960s CPP and Nkrumah. Both these regimes, the PNDC and the CPP, viewed the courts with deep skepticism, seeing courts as a reactionary institution and judges as elitist. Naturally, neither regime had much use for the courts, except where the regime could use them to support and accomplish its political goals. Both regimes, too, had dramatic clashes with the judiciary, including, the firing of the Chief Justice and a number of judges by Nkrumah and the establishment and use by the PNDC of its own “people’s tribunals” as opposed to the courts as well as the targeted abduction and execution, during the PNDC, of certain High Court judges by regime foot-soldiers.
These developments during the PNDC also caused a schism between the PNDC and the legal profession generally. A group of lawyers associated with the PNDC even attempted to break away from the Ghana Bar Association (GBA) to form a rival association. The GBA later refused to take up the seat assigned to it by the PNDC in the Consultative Assembly that met to consider proposals for a new Constitution to return the country to civilian rule. The GBA objected to the composition of the Consultative Assembly, which was dominated by persons representing various PNDC-affiliated, populist “civil society” groupings, including the Ghana Chopbar Operators association—quite a different kind of “bar” association than the GBA lawyers were used to dealing with! The NDC, then, has emerged as a political party out of a political tradition that had a history of hostile relationship with the courts, the judiciary, and the organized bar.
The NPP, on the hand, traces its genealogy to the UGCC/UP/PP political tradition. Prominent among the ancestors of the NPP were leading Gold Coast lawyers like Joseph Boakye (J.B.) Danquah and Edward Akufo-Addo. Their busy professional lives in the courtroom and chambers was an important consideration in the decision of the UGCC leadership to recruit and bring back from London the non-lawyer and politically nimble Nkrumah to take charge of the party’s day-to-day affairs as General Secretary. Thus, while the UGCC lawyers pursued their profession in the courts of law and conducted their anticolonial politics in the language and methods of the colonialists, Nkrumah was busily working the court of public opinion and the streets, mobilizing mass opinion to the anticolonial cause. The rest is history. In the struggle for leadership of the nationalist movement, Nkrumah and his “veranda boys” (the street and the court of public opinion) eventually triumphed over Danquah and the lawyer-dominated gentry of the Gold Coast. Therein lies the beginnings of the persistent “populism”-“elitism” tendencies and attitudes of the two rival political traditions in Ghana.
Danquah continued to use the law and the courts of law during the early post-independence period to challenge the illiberal and authoritarian laws and practices of Nkrumah. The famous Re Akoto case is the most well-known of his public-interest cases, but there were others. Since then, the parties of the NPP tradition have always featured prominent lawyer-politicians in leadership positions and use of the courts of law has remained a major part of the modus operandi of the NPP. In fact, during the period 1993 to 1996, when the NPP’s boycott of the 1992 parliamentary elections gave it no representation in the first Parliament of the Fourth Republic, the party’s main forum for challenging the Government was the courts of law, where it won many important victories, including the decision of the Supreme Court that the publicly-funded celebration of the December 31, 1982 coup d’etat as a public holiday was unconstitutional.
In short, there are important ideological and historical differences between our two main rival parties in their belief and attitude toward the courts of law and in the role that courts versus alternative forms of political agitation and mobilization occupy in their respective strategies and approaches to democratic politics. When we consider the decision of the NPP to go to court in the matter of the disputed December 2012 election and the generally dismissive reaction of the NDC and its supporters to that decision, we must not lose sight of this important and interesting historical context.
The writer is a Professor at Seton Hall University School of Law, Newark, New Jersey in the United States.
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