“Asesa Anaa” (Review of 2009) by Kow Essuman

I apologise for the delay in bringing this review. I expected someone else to do it but no one seems to be concerned about a review as I am. So this is a review by me and not anyone else; so no one should tell me what I left out or question why I focussed on what I focussed on. Now that we have that out of the way, I don't intend to dwell on every single thing that occurred in 2009. Just the things I found to be headline material, at least in my opinion. So please feel free to comment, criticise and most important of all, ENJOY!

The highlight at the beginning of 2009 was the swearing in of our president, His Excellency Professor John Evans Atta-Mills. He emerged victorious after one of the tensest and most anxious election run-off the world of politics had ever witnessed. His campaign catch word – "Yeresesamu" – had been accepted by many including members of other political parties. The jubilation following his success was one worth sitting back and enjoying as all manner of persons kept repeating the catch word – "Yeresesamu". I wonder whether a year later if "Asesa Anaa". And if it has, is it in the direction they expected? Hold your tongues and answer after reading the entire note.

The swearing-in ceremony didn't go as smoothly as one would have expected after such a victory. Our new president stumbled and nearly fell as he attempted to walk in the attire he had chosen to wear on this grand day. He was unable to take the oath properly even though he had a copy of the oath in his hand; and the kind Chief Justice (oh bless her soul) read it out slowly. He kept mumbling and inserting phrases which weren't there. Many Ghanaians were infuriated by this and they were right to be infuriated. I completely agree with such fury. The Oath of Presidency is a solemn declaration to defend the Constitution of the Republic of Ghana and as such should be taken with all seriousness. It was suggested that he should retake the oath. Correct me if I am wrong but that never happened. Could that be the reason behind the abuse of power in his first year? I'm only asking because in some cases, the Constitution has been put aside and so has the rule of law.

Anyway, we thought it was a one-off or at least hoped it was. But we were so wrong as the mumbling and insertion and/or addition of words to the English language has been repeated throughout his first year as a president. To be fair, Obama messed up his oath too but it wasn't as bad as President Mills. Yet he retook the oath so why couldn't President Mills? Further, President Mills' acceptance speech had no particular agenda for the country. There was no outline as to how his administration intended to manage the affairs of the country for the next four years or should I say eight years. Could it be because he and the NDC had no agenda for Ghana? Maybe except an oil-related agenda. This could be the reason why there has been nothing to be proud of in his first year. Nevertheless, he revised his catch word and said, "Yeresesamu na y'ako y'anim". Has any of this happened in the first year? Again, hold your tongues and answer after reading the entire note.

It took me a while to get familiar with the fact that Development in Freedom had been kicked out of office and that the NDC was back in power. We saw the resurrection of the 64 Infantry Battalion we thought no longer existed. For those who are not familiar with the 64 Infantry Battalion, it is the lawless section of the Ghana Armed Forces popular referred to as commandoes during the Rawlings era. Yes they were back and stormed the Castle seizing cars and halting the running of the civil service. Amongst the cars seized was the car of Nana Addo (NPP's presidential candidate in the 2008 election).

The former president, John Kufuor, was no stranger to this humiliation. He took home six cars: three of which were bullet-proof luxury cars and the other three non-bulletproof luxury cars. They were all BMWs. He was paid a visit by the infamous "car seizers". They left with three cars: two bullet proof vehicles and one non-bulletproof car. I have never understood why they didn't take all six cars if they were that important or why they didn't leave with the three bullet proof cars if it was that necessary. These people returned at a later date and further humiliated the former president saying he was holding onto government property. Government property they could have taken on their first visit. He was later given cars way below the luxury ones he enjoyed. There was also an issue with his office but I won't go into the details.

One of President Mills' campaign promises was to have a lean government. Not only did he appoint mediocre members of government but his government was far from lean. He put a freeze on the civil service and single-handedly suspended the ex gratia package approved by Parliament to be paid to the former president Kufuor (See Ex-Gratia - Mills' Suspension of the Package is Ultra Vires and Unconstitutional or Ex-Gratia - Mills' Suspension of the Package is Ultra Vires and Unconstitutional). I believe President Mills was under public pressure to suspend the ex gratia package. To be honest, given the economy of Ghana and the content of ex gratia package, the public outcry was justified. But with everything, there are laws regulating its implementation and suspension. Nonetheless, President Mills suspended the ex gratia and asked the newly sworn Council of State to review it. Both acts were unconstitutional though taken in good faith. (See Ex-Gratia - Mills' Suspension of the Package is Ultra Vires and Unconstitutional or Ex-Gratia - Mills' Suspension of the Package is Ultra Vires and Unconstitutional).

President Mills asked for 100 days to implement his campaign promises. One of which was to reduce fuel prices for the citizens of Ghana. This was a noteworthy promise as many electorates voted for him in the run-off elections based on this promise. As the 100 days neared, we saw the fuel prices dropped. Yeah right! In about a couple of weeks, fuel prices were up again past the price it was sold at prior to the drop. Speak of taking Ghanaians for a ride. Later in the year, fuel prices were increased again when world prices for fuel remained the same. Not only were fuel prices increased, there was a shortage of fuel in the country for some time. Also, in the first 100 days, the Budget was read during which the word "ECOMINI" was invented. The President also made it known to Parliament and Madam Speaker that it was difficult to translate the millions into "OPIPIPIIPIIPI".

2009 saw the "Cobwebs in my Head" beef between Ato Kwamena Dadzie and Koku Anyidoho. There was also unrest in the NDC camp between the Ahwois and Dr. Ekwow Spio Garbrah. Rawlings never hesitated to criticise Mills on how slow he was dealing with issues. NPP had its problems as well. Everyone came out with their theory as to why the Elephant was chased into the bush. I had to use that phrase. There have been further divisions within the party: the Kufuor faction and the Nana Addo faction. Thankfully, former president Kufuor stated that he didn't have any faction and was hoping that the party could move forward in unity. There were proposals to revise the NPP constitution and to limit the number of presidential candidate nominees. Dr. Arthur Kennedy wrote a number of articles and published a book – "Chasing the Elephant into the Bush" – highlighting why the NPP lost and suggesting ways they could win in 2012. Boy did he get a telling off from his party members.

The Asantehene celebrated a decade on the throne and invited former heads of state including the former president Jerry John Rawlings. The ceremony was grand with the golden stool being carried around the streets of Kumasi.

Welcome to Ghana, Barack Obama. His first trip to sub-Saharan Africa was to Ghana and not his father's land Kenya. Why? President Obama wanted to highlight Ghana's young democracy. And he did. It was beautiful to see all the former presidents (Rawlings and Kufuor) together with Obama and Mills. In the build up to Obama's arrival, all most of us prayed for, was that President Mills would not mess up Obama's name and refer to him as President Omama or even Osama. In an interview with VOA, he slipped up and referred to President Obama as President Omama. (Clip available here: Mills Blunders - "Omama, Confinent, Sacred Obrigation, Abilitiluu"). In my opinion, the entire visit was beautiful and contrary to popular criticism, I think it was well organized. His visit gave former president Rawlings the opportunity to rant about what was on his mind. He kept repeating that Kufuor rigged the 2004 election and attempted to rig the 2008 one but was warned by Nigerian generals against rigging the 2008 elections. I leave that to you to judge.

The Attorney-General, Mrs Betty Mould-Iddrisu, too had her share of defeats in 2009. Open-shut cases any lawyer would have been able to determine were frivolous, she didn't. Instead, she ran to court every single time hoping to score political points forgetting that her legal reputation was being dragged into mud. In fact, I am confident of standing up in court against her. A bit corky but true. The seizure of a passport without a court order was against the freedom of movement of a citizen of Ghana. Asabee was prevented on two occasions from taking a vacation with his family. Details of circumstances surrounding his arrest and detention can be read here: Issues Surrounding the Arrest and Detention of Asabee by the BNI or Issues Surrounding the Arrest and Detention of Asabee by the BNI.

Rawlings never hesitated to refer to the Kufuor administration as the most corrupt administration ever. His favourite words were "Probity and Accountability". And then Mabey and Johnson hit, naming members of his administration in one of the most corrupt scandals ever. Honourably, those involved who were also members of the Mills administration, resigned. Speaking of corruption, not too long into the Mills administration did the Muntaka scandal surface. He was forced to resign and cried that his party neglected him at a time when he needed them. I wonder why he thought they would stand by him. It's NDC – zero tolerance for corruption.

On the "ecomini" front, I mean, the economy front, there has been worse and no good. Ghana's stock exchange went from the best to the worst according to Bloomberg. At present the GH Cedi is approximately 1.45 US Dollars. Remember the GH Cedi was greater than the US Dollar at some point and during the time of the election the exchange rate was 1 GH Cedi = 1.1 US Dollar. I don't intend to go into the fine details of the economy but I urge you to ask the ordinary Ghanaian who voted if things are better or worse or the same. If the answer is not the first option i.e. better, then President Mills and the NDC deceived Ghanaians in their quest for power. Can we trust them with the oil money?

As the year drew to an end, the Ghana @ 50 Probe Committee published its report. It indicated that some former government officials could be prosecuted but emphasized that prosecution was not the objective of the Committee. The Committee hoped that the same mistakes will not be repeated by subsequent government officials. The Attorney-General had a different view to the report. She came out to say 2010 will witness the aggressive prosecution of the named former government officials in the report. My first reaction was: is this woman serious? With all the other criminal activities going on the country, which are of interest to the public and the general safety of Ghanaians, she is concerned about prosecuting former government officials connected with the Ghana @ 50 celebrations.

Has she quickly forgotten her significant losses in court in 2009? Maybe Amina Rawlings should be Attorney-General. (Congratulations to her on getting called to the Ghana Bar in October 2009). I'll have some faith in her as a fellow Lincoln's Inn barrister and at least, I know her Very Competent grade from Bar School in England puts her in a better position to serve Ghana's interest when it comes to deciding which cases to take to court. The current Attorney-General seems to have forgotten court procedures and evidence. The report is nothing but hearsay. It holds no weight in a court of law though it is a persuasive document. She should get her priorities right or be replaced by Amina.

I applaud the Minister for Information for getting with the times. She got herself a facebook account so she could be accessed and also keep internet users abreast with what her government has to offer. I wonder why she hasn't accepted my friend request since she joined. Samuel Okudzeto Ablakwa also did well informing the public whenever an issue arose. His recent assignment was "the corrupting hampers" which were intended gifts for the President. I must say President Mills took a bold step in rejecting the hampers and a bolder step in citing the reason for rejecting them as corruption. Many people have had their opinions about that so I reserve mine.

In the very last days, we lost Uncle Dan a.k.a. "Domestication" – May his soul rest in peace as his contribution to Ghanaian politics will be forever remembered. In 2010, I pray for good health for President Mills. This is particularly important because his job is a very stressful one. Making sure members of his administration are in tune with his agenda (if there is indeed one) for Ghana is no easy task. I pray God gives him the wisdom to carry out all the promises he has for Ghana. I encourage him to remain open to ideas, listen to good counsel and take the right decisions to put Ghana on the right track. I implore him to put the interest of Ghana ahead of his own interest and/or the interest of his party or even specific members of his party.

He should reduce the number of committees set up for every single thing because 2009 saw a record number of committees for anything and everything. It appeared the committees were set up to run the bill of the country up through breakfasts, lunches and dinners. We could have done without many of them. Finally, the BNI should stick to their constitutional duties such as preventing Nigerians on "no-fly" lists from buying tickets in Accra rather than harassing civilians on a daily basis.

I think these are the most important things that happened in 2009. Again, I reiterate that it is my opinion; so don't accuse me of deliberately ignoring a headline or purposely including a headline. Now you have a chance to answer the question I have been posing all throughout this review. Has "Yeresesamu" translated to "Asesa Anaa"? If it has, was it as you (or the ordinary Ghanaian) expected. Be honest with yourself. All the best in the New Year and I hope 2010's review will have more positive news than this. God bless you and God bless Ghana!

Written and Edited by:

Kow A. Essuman Esq.

LL.B. Hons (Westminster), PgDip (BPP), LL.M. (Cornell)

Barrister-at-Law (Lincoln's Inn)

Attorney and Counselor-at-Law (New York)

All comments, corrections and contributions should be sent to kaessuman@yahoo.com.

This review is based on the thoughts, observations and opinions of Kow A. Essuman Esq. Any attempt to reproduce all or any part of this article without the express permission of the above named person shall be an infringement of intellectual property laws; following which the author reserves the right to commence an action/suit against any such person(s) or body for breach of copyright and/or any other action/suit the author sees fit.

Issues Surrounding the Arrest and Detention of Asabee by the BNI

Introduction

1. 
   
   Just like everyone else, I woke up to the news that the former Minister for Information, Mr. Asamoah Boateng (Asabee), had attended the offices of the Bureau of National Investigations (BNI) after he had been prevented from travelling outside the country on a second occasion. I interpreted Asabee's action as cooperation with the BNI to resolve whatever issue was outstanding. Later on in the day, I found out Asabee had been arrested and detained. Asabee was the former honourable Member of Parliament for Mfantseman West and given my ties to that area, I am much obliged to put pen to paper in attempt to educate the ordinary Ghanaian on the issues surrounding his arrest and detention.
   
   
   
   
2. Before jumping into any discussion of the issues, I refer readers to Article (Art.) 35(1) of the 1992 Constitution (the Constitution) where it is stated that "Ghana shall be a democratic state dedicated to the realization of freedom and justice; and accordingly, sovereignty resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution". And most importantly, Art. 35(4) which provides that, "the State shall cultivate among all Ghanaians respect for fundamental human rights and freedoms and the dignity of the human person".
   

Facts

1. The facts leading to Asabee's arrest and detention can be read on the myjoyonline website. (See http://news.myjoyonline.com/news/200908/33960.asp). According to his lawyer, Peter Okudzeto, Asabee was forcibly hounded into the BNI cell on Thursday, 13^th August 2009 at 18:30 GMT without any formal charge. Asabee voluntarily handed himself to the investigative body on Thursday morning following media reports that he was a fugitive of justice. He is under investigation for alleged malfeasance in the award of a contract to his sister-in-law for the refurbishment of the Ministry of Information last year.
   
   
2. Mr. Okudzeto narrated that they had waited for hours to see the director of BNI, only to be told later afternoon that they, the lawyers, could leave because their client was going to be detained. They resisted, arguing it was against the Constitution and a breach of fundamental human rights to interrogate their client without his counsel. He said they demanded to know what charges had been preferred against their client, something the BNI officials were not ready to provide. According to him, a scuffle ensued between officials of the BNI and Asabee which led to the shoving of Zuleika Asamoah Boateng, wife of Asabee to the ground. Zuleika had insisted to be locked up together with her husband. The counsel said they will meet to consider the next line of action.
   

Arguments

1. One issue which should be discussed or at the very least, be addressed before discussing Asabee's arrest and detention is whether the BNI has been acting appropriately in carrying out its duties. This issue has popped up many times since former members of government begun receiving invitations to the BNI.
   

The BNI is not the appropriate government agency to deal with Asabee awarding the contract to his sister-in-law

1. The BNI is the internal intelligence agency of Ghana. Among the duties of the BNI are dealing with organized crime and providing intelligence to counter threats to security. The BNI is legally a creature of The Security and Intelligence Agencies Act (Act 526) 1996. Amongst other security agencies, the Security an Intelligence Agencies Act 1996 also recognized the existence of Ghana's Bureau of National Investigations and the research department (of the Ministry of Foreign Affairs) as 'the Internal and External Intelligence Agencies of the State, referred to in this Act as "the Intelligence Agencies"'. (See Kwame Boafo Arthur, Ghana: one decade of the liberal State, page 193) The wide range of responsibilities assigned to the intelligence agencies under the Act covered the following functions:
   
   
   
   1. Collect, analyze, retain and disseminate as appropriate information and intelligence respecting activities that may constitute threats to the security of the State and government of Ghana;
      
      
   2. Safeguard the economic well-being of the State against threats posed by the acts of omissions of persons or organizations both inside and outside the country;
      
      
   3. Protect the country against threats of espionage, sabotage, terrorism, hijacking, piracy, drug trafficking and similar offences;
      
      
   4. Protect the State against activities of persons, both nationals and non-nationals, intended to overthrow the government of Ghana or undermine the constitutional order through illegal political, military, industrial or other means or through any other unconstitutional method; and
      
      
   5. Perform such other functions as may be directed by the President or the Council. (Republic of Ghana 1996).
      
   
   
   
2. The reforms and adoption of a new security structure were seen as a fundamental priority in order to address and ensure the end of military coups. (See Higazi 2004, quoted in Security Sector Reform in Ghana, page 4). The intelligence agencies were intended to be political neutral. In light of the functions of the BNI set out above, I do not believe the BNI is the most appropriate government agency to determine whether Asabee was wrong in awarding the contract to his sister-in-law. The BNI's primary concern should be related and limited to intelligence concerning the national security of Ghana from within and without the Ghana. Awarding a contract to refurbish the Ministry of Information does not fall within this concern and as such the BNI cannot be the most appropriate body to deal with Asabee awarding the contract to refurbish the Ministry of Information to his sister-in-law.
   
   
3. The Commission on Human Rights and Administrative Justice (CHRAJ) and the Serious Fraud Office (SFO) constitute the two main anti-corruption bodies actively existing in contemporary Ghana. The CHRAJ has pretty much the same role as all other commissions of inquiry that have existed in the past, its role is to investigate deeply into all types of allegations of corruption and report their findings to the Attorney General who then takes a decision as what procedures should be undertaken under legal requirements. Nevertheless, it has a role that was not given to any other precedent commissions, that is a mission to educate the public on their human rights and freedom. Its jurisdiction is limited because it cannot investigate certain matters which are, overall, to prevent it to 'engage in unnecessary litigation and confrontation with the government of the day.'
   
   
4. The other anti-corruption body that is active in contemporary Ghana is the SFO. The SFO was created by an Act of Parliament, the Serious Fraud Office Act 1993 (Act 466) as part of the Public Services of Ghana. It was established as a specialized agency to monitor, investigate and, on authority of the Attorney-General, prosecute any offence involving serious financial or economic loss to the State. The executive director of the SFO can decide from his own accord, and more importantly without any legal institutional control, to accuse that person of 'serious and complex fraud' and consequently deprive that person of freedom of movement and of access to his or her property.
   
   
5. Thus, these two bodies are appropriately set up to deal with Asabee awarding the contract to his sister-in-law. Given the limited financial autonomy of the CHRAJ and the extensive prosecution powers of the executive director of the SFO, the SFO would have been the most appropriate agency amongst all three agencies to handle Asabee's issue. It has been argued that the discretion the executive of the SFO has creates a presumption of institutional corruption. Nonetheless, the executive director's powers under the Serious Fraud Office Act 1993 (Act 466) would have been legitimately exhausted if the SFO had decided to prosecute Asabee under the Act.
   
   
6. Accordingly, it is my opinion that the BNI were not the most appropriate agency to investigate and/or prosecute any contract award by a former minister particularly in Asabee's case. This is because awarding a contract to his sister-in-law to refurbish the Ministry of Information, assuming the facts were proved against him, may potentially amount to an offence involving serious financial or economic loss to the State and as such the SFO was responsible for investigating and prosecuting Asabee. It must be proved that the financial or economic loss to the State was serious. What amounts to serious will be determined by the courts. However, case law gives a fair idea and in my opinion, it is less likely that awarding a contract to a sister-in-law will amount to serious financial or economic loss to the State.
   

The arrest and detention of Asabee were a breach of Asabee's fundamental human rights and freedoms under the Constitution

1. The fundamental human rights and freedoms of the Ghanaian citizen are entrenched in Chapter 5 of the Constitution. Art. 12(1) of the Constitution provides that "The fundamental human rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution." Every person in Ghana is entitled to fundamental human rights and freedoms in Chapter 5 of the Constitution. (See Art. 12(2)).
   
   
2. According to Art. 14(1)(g), "every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law – upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana." Subject to argument one and assuming the BNI had the authority to investigate and prosecute Asabee, then upon reasonable suspicion that Asabee had committed a criminal offence or about to commit a criminal offence under the laws of Ghana, the BNI could deprive Asabee of his personal liberty in accordance with the procedure permitted by law.
   
   
3. Art. 14(2) further states that "a person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice." According to the facts as reported by the media (myjoyonline), the BNI failed to provide the reasons for Asabee's arrest, restriction or detention when asked by Peter Okudzeto, Asabee's lawyer. This is a breach of Art. 14(2). The clear and utter disregard for this fundamental human right and freedom – even after protests from Asabee's lawyer – raises serious issues of the rule of law and constitutionality in Ghana's growing democracy.
   
   
4. Under Art. 14(3)(b), "a person who is arrested, restricted or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana, and who is not released, shall be brought before a court within forty-eight hours after the arrest, restriction or detention." Thus, Asabee must be brought before a court within forty-eight hours of his arrest and detention. Forty-eight hours after his arrest and his detention will be Saturday, 15^th August 2009. If Asabee is not brought before the court on Friday, 14^th August 2009, he will have to wait until Monday, 17^th August 2009, to appear before court since the courts are not in session during the weekends.
   
   
5. Alternatively, he should be released without prejudice to any further proceedings that may be brought against him. (See Art. 14(4)). His release should either be unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial. (See Art. 14(4)).
   

Conclusion

1. The BNI was not the most appropriate body to handle issues concerning contracts being awarded to former minister's sister-in-law by the former minister as the BNI's primary concern should be related and where possible, limited to intelligence concerning national security. I further submit that the SFO is and should be the most appropriate agency to handle Asabee's issue as the issue falls within the SFO's authority and the SFO has extensive powers in dealing with the issue competently. In addition, the BNI breached Asabee's fundamental human rights and freedoms when the BNI failed to inform or provide reasons as to why Asabee had been arrested and detained. I reiterate the fact that this raises serious concerns regarding the turn rule of law and constitutionality is taking or has taken in Ghana. This is definitely not the State cultivating respect for the fundamental human rights and freedoms.
   
   
2. President Mills in his many speeches and interviews has not hesitated to inform Ghanaians and the world of his desire to ensure the rule of law is strongly upheld in Ghana. I suggest he lets his administration's actions do the talking instead of him repeating the theme in the preceding statement in his speeches and interviews.
   
   
3. Also, I should mention that I am not saying Asabee is innocent; nor am I saying he is guilty. Awarding a contract to a sister-in-law raises a conflict of interest issue. Therefore, Asabee was required and should have ensured that the conflict of interest issue did not impair, in anyway, his discretion in awarding the contract to his sister-in-law. Failure to ensure his discretion was not impaired by the conflict of interest issue is a breach of a fiduciary duty given the position he held and if he did cause financial loss to the State he should be rightly held accountable.
   

Written and Edited by

Kow A. Essuman Esq. LL.M. (Cornell);

Barrister-at-Law of Lincoln's Inn.

All comments, corrections and contributions should be sent to kaessuman@yahoo.com.

This opinion is based on the thoughts and observations of Kow A. Essuman Esq. Any attempt to reproduce all or any part of this article without the express permission of the above named person shall be an infringement of intellectual property laws; following which the author reserves the right to commence an action/suit against any such person (s) or body for breach of copyright and/or any other action/suit the author sees fit.

Ex-Gratia - Mills’ Suspension of the Package is Ultra Vires and Unconstitutional

Introduction

1. This piece is in fact long overdue. I was asked by many colleagues and friends to provide my opinion on the ex gratia package recommended for the former President, Mr. Kufuor. I failed to do so; given the busy schedule I had to manage at the time the package got into the public domain. Nevertheless, I do recall mentioning to a few colleagues and friends that Mr. Kufuor was entitled to the recommended package. At the time of making those statements, I was unaware of the constitutional provisions making that possible. I relied solely on the authority of Parliament to make laws which become binding once they have received assent. I read numerous articles on the issue as well as comments individuals posted regarding the package. It was unfortunate to see how personal some individuals responded to these articles. Even worse, these individuals referred to Mr. Kufuor as an extortionist who had the sole intention of defrauding the country. I was saddened by such comments for many reasons. But the only reason which pervaded my sadness is as follows.
   
2. Mr. Kufuor in his capacity as the President did not reward himself with the ex gratia package. A committee was set up to look at what befitted a former President (including all former Presidents). The recommendations of the committee were then sent to Parliament for approval. Parliament approved the recommendations which then had legal effect. The reason for bringing this up is that, Parliament could have rejected the recommendations of the committee if it thought they were unreasonable. But Parliament did not. Instead, Parliament approved the recommendations of the committee thereby giving it legal effect.
   
3. Parliament is representative of the people of Ghana. Members of Parliament are elected through parliamentary elections to represent their constituencies in Parliament. I do not intend to educate anyone on election processes except I am only reminding readers of who sits in Parliament. The electorates send MPs there to represent their interest. Anything done in Parliament by the MPs is done on behalf of the electorate. As a result of that reasoning, the MPs by approving the recommendations were doing so on behalf of the electorate. Hence, the name calling of Mr. Kufuor was unnecessary and in any event, the electorates should have held the MPs they sent to Parliament to represent them accountable for approving the recommendations.
   
4. Having explained the reason that pervaded my sadness, I remember making a comment along the lines of the aforementioned that since Parliament had approved the package; Parliament had the exclusive authority to repeal it. I never went into the details of that statement but I hope to do so in this opinion. I also recall some legal practitioners arguing along the same lines but none of them explained the reasons underlying their arguments.
   
5. In any event, I have now had the opportunity to assess the legal implications and constitutionality of the actions of the current President, His Excellency Professor John Evans Atta-Mills. One question that I faced was: why hasn't Mr. Kufuor claimed what he is entitled to by virtue of the Chinery Hesse ex gratia package? I could come up with only one answer which makes sense to me. And that is Mr. Kufuor is being the gentleman that he is in giving the new administration time to find their feet before he makes any demands on his entitlements. Mr. Kufuor himself, I recall, referred to the contents of the ex gratia package as unreasonable. Such modesty as it may be viewed is not enough and is irrelevant to the issue that has a risen as a result of the Chinery Hesse Report.
   
6. There was a public outcry when the details of the ex gratia package got into the public domain. This in fact caused former and current MPS who contributed to the approval of the recommendation to take a rather adverse stance. Eventually, Prof. Mills suspended all and any payment of gratuity to any beneficiary under the Chinery Hesse Report. It is my understanding, based on reasonable information, that some former MPs withdrew their salaries under the package before Prof. Mills' suspension was announced. Nonetheless, this opinion will focus on the suspension of gratuity payments to Mr. Kufuor.
   
7. At this point, I find it necessary to stress that this opinion is entirely legal and is in no way whatsoever influenced by any political ideology or affiliation. It is not politically biased or indeed biased except to the extent of the arguments raised to persuade the reader that the foregoing act of Prof. Mills is ultra vires and unconstitutional. The 1992 Constitution of the Republic of Ghana is the relevant legal framework for the arguments below and all articles mentioned herein are in reference to the 1992 Constitution unless otherwise stated.
   

Arguments

The Suspension is inconsistent with the 1992 Constitution

1. At present, it is or should be common knowledge that the President on leaving office receives gratuity payments for his service to the nation. This is enshrined in the Constitution. Unfortunately, when members of the public refer to the Constitution in light of the gratuity package, they mention Article 71 which deals with who determines the salaries and allowances payable, and the facilities and privileges available to the President. This article also deals with salaries and allowances payable and the facilities and privileges available to MPs, Speakers of Parliament, members of the Council of State, Ministers of State and other significant public servants mentioned in that Article.
   
2. As mentioned earlier, this opinion intends to focus on the ex gratia package in relation to Mr. Kufuor – the ex President. For that reason, the relevant part of the Constitution is Article 71(2) which states that "The salaries and allowances payable, and the facilities available, to the President, the Vice-President, the chairman and the other members of the Council of State; Ministers of State and Deputy Ministers, being expenditure charged on the Consolidated Fund, shall be determined by Parliament on the recommendations of the committee referred to in clause (1) of this article." For the purposes of Article 71, and except as otherwise provided in the Constitution, "salaries" includes allowances, facilities and privileges and retiring benefits or awards – See Art. 71(3).
   
3. Interpreting Clause 2 in light of Clause 1, Parliament is the only body charged to determine salaries and allowances payable, and the facilities available to Mr. Kufuor on the recommendations of the committee. Prof. Mills can only determine the salaries and allowances payable, and the facilities and privileges available to MPs, Speakers of Parliament and the public servants mentioned in Clause 1. The context of this power is different from the power that Parliament has in Clause 2. Also, it should be distinguished from Prof. Mills' power to appoint the five person committee in accordance with the advice of the Council of State. Prof. Mills does not have the constitutional power to determine "salaries and allowances payable, and the facilities available" to Mr. Kufuor.
   
4. Instead, the only role the President has in the determination of the "salaries and allowances payable, and the facilities available" to the President is selecting the five person committee which makes recommendations to Parliament. I believe the rationale behind this is to prevent the President from awarding himself exorbitant salaries and allowances and making available to himself, luxurious facilities. In this case, the Chinery Hesse Committee was set up to recommend gratuity payments befitting a former President. The Committee then made recommendations to Parliament in the Chinery Hesse Report which was subsequently approved by Parliament in accordance with the Article 71(2).
   
5. So far, all that has been discussed is relevant to the "salaries and allowances payable, and the facilities available" to the President. Mr. Kufuor is no longer the President so how does this apply to him? With regards to Mr. Kufuor, the pertinent constitutional provision is Article 68; which I urge anyone reading this opinion to take a look at thoroughly. Article 68(3) reiterates the above analysis of Parliament's power to determine "salaries and allowances payable, and the facilities available" to the President.
   
6. According to Article 68(4), on leaving office, the President shall receive a gratuity in addition to pension, equivalent to his salary and other allowances and facilities prescribed by Parliament in accordance with clause (3) of this article. Thus, Mr. Kufuor is entitled to the contents of the ex gratia package under this article. It is my opinion that this Article gives Mr. Kufuor a constitutional ground for instituting legal proceedings against the current administration for not honouring the contents of the Chinery Hesse Report thus far.
   
7. There is an argument that the use of the words "payable" and "available" in Article 71(2) imply that the ex President has no right to the salaries, allowances and the facilities until the present administration decides to take steps with the view of honouring the contents of the ex gratia package. There is also the argument that Parliament has to determine when the ex gratia package will be available to the President. Both arguments, in my opinion are flawed and unconstitutional.
   
8. The wording of Article 68(4) begins with "on leaving office" which simply refers to the day the incumbent President ceases to be the President. In this case, the Seventh day of January 2009 was the day Mr. Kufuor ceased to be President; as Prof. Mills was sworn in as the third President of the fourth Republic of Ghana that day. Mr. Kufuor has been entitled to the contents of the Chinery Hesse Report since then. I am unaware of any implementation date set by Parliament as to when the Chinery Hesse Report is to have legal effect. Nevertheless, if there was or is such a date, it will be inconsistent with Article 68(4) which entitles Mr. Kufuor to the contents of the Chinery Hesse Report "on leaving office".
   
9. Article 68(8) states that "the salary, allowances, facilities and privileges of the President shall not be varied to his disadvantage while he holds office." Therefore, as Mr. Kufuor is no longer in office, the "salaries and allowances payable, facilities and privileges" can be varied to his disadvantage. However, Article 68(9) stipulates that "the pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime." Thus, the contents of the Chinery Hesse Report can be varied; save for any pension payable to Mr. Kufuor and the facilities available to him cannot be varied to his disadvantage during his lifetime. Any attempt to do that will be inconsistent with the Constitution.
   
10. In the process of writing this opinion, the Council of State was sworn in; and Prof. Mills immediately directed them to review and work on the Chinery Hesse report. The Council of State's role in the ex gratia package is to advise the President in appointing the five person committee which recommends the package to Parliament (See Art. 71(1)). Therefore, the Council of State does not have a constitutional basis to review or work on the Chinery Hesse report. Any such review or work is unconstitutional and ultra vires. Thus in my opinion, the direction is inconsistent with the 1992 Constitution.
    
11. There is the argument that under Article 90(1), a bill which has been published in the Gazette or passed by Parliament shall be considered by the Council of State if the President so requests. In so far as this appears to be similar to Prof. Mills' direction above, it is not. Firstly, this provision does not relate to gratuity payments where the President and the Council of State are constitutionally barred from direct involvement in the determination of gratuity payments to the President. Secondly, once a bill receives assent, it becomes an Act and is subject to review by the Judiciary only (this is thoroughly elucidated hereinafter). In view of the foregoing, Article 90(1) does not validate Prof. Mills' direction.
    

The Suspension is inconsistent with the Concept of Separation of Powers

1. A model well known and popular discussed in Constitutional Law is the concept of Separation of Powers. This model is often traced to Baron de Montesquieu, a French enlightened political philosopher. It simply requires powers of a State to be vested in three separate branches: the Legislature, the Executive and the Judiciary. The framers of the 1992 Constitution adopted this concept and entrenched it accordingly in Chapters 8, 10 and 11 of the 1992 Constitution. By so doing, each branch of the State acts as a check on the others; thus fulfilling the simultaneous concept of Checks and Balances. The legislature is responsible for enacting the laws of the State. The executive implements the laws passed by the legislature and the judiciary adjudicates by interpreting the enactment and implementation of the law.
   
2. There are some situations where the responsibilities of the three branches overlap. The executive may legislate by enacting regulations or rules but can only do so if the legislature has permitted it to do by enacting an enabling or parent Act. The executive may also adjudicate when it sets up a board or commission to deal with the complaints of aggrieved persons. The judiciary legislates through case law and some members of the legislature are usually in the executive especially in the case of Ghana. I just needed to point that out before getting into the substance of the argument.
   
3. Prof. Mills as the president is a member of the executive branch of the State. Thus his responsibilities are to govern Ghana by implementing the laws passed by parliament through his administration. He does not have the right to interpret the Constitution per se nor to legislate or pass laws. In responding to the public outcry, Prof. Mills suspended all and any payment of the ex gratia package to Mr. Kufuor. It may sound like the politically correct thing to do but my question is and has been throughout this opinion is whether it was legally correct for him to do that. In addition to suspending the payments, Mr. Mills announced that he will review the package. It can therefore be implied that this review will result in amendments to the package in order to appease the public who were appalled by the contents of the ex gratia package.
   
4. Prof. Mills as the executive had no role in suspending a report approved by Parliament as by so doing, he was adjudicating by interpreting the law passed by the legislature. This is clearly inconsistent with the concept outlined above. What the new administration should have done and perhaps, should do is petition the Supreme Court to declare Parliament's approval of the package null and void. In my opinion, it would be difficult to prove that Parliament's approval was inconsistent with the constitution. As per arguments mentioned above, it is Parliament's constitutional role to approve recommendations by a committee set up to determine the President's salary.
   
5. Also, he had no role in legislating which will be exactly what he will be doing if he attempts to amend the ex gratia package recommended by Parliament. It is probable that he will set up a committee to carry out this review and possible amendment. The position does not change if such is the case as the executive will still be legislating through the amendment. Alternatively, it can be argued that the amendments can be introduced in Parliament on behalf of the executive and this is constitutionally permitted (See Art. 108). However, this does not take care of the fact that suspending the package in the first place was inconsistent with the concept.
   
6. Furthermore, Parliament is the only body that can change or repeal prior laws. It usually does this by passing new laws to expressly repeal the old one or expressly changing the old laws. Parliament must also legislate as permitted by the Constitution. Thus, Parliament cannot pass any law which is inconsistent with any Constitutional provisions. If Parliament passes a law that is inconsistent with the Constitution, the Supreme Court has the authority under the Constitution to declare such legislation unconstitutional and invalid. Accordingly, Parliament is the only body that can amend or repeal the ex gratia package in addition to being the only body under the 1992 Constitution that can determine the "salaries and allowances payable, and the facilities available" to the President (See Art. 71(2)).
   
7. Another key issue worth noting is that once a Bill of Parliament goes through all stages and subsequently receives Assent, questions as to the process of its passage are irrelevant. In other words, where a Bill of Parliament becomes an Act of Parliament, questions such as how it was introduced in Parliament, the debates that took place or how it was analysed by a committee is irrelevant to the validity of that piece of legislation as an Act of Parliament. It can only be challenged as being inconsistent with the Constitution.
   
8. It has been argued by some members of the public that because the recommendations were introduced rather late and received approval on 6^th January 2009, it is invalid. It is also argued that the package cannot be held to be binding because MPs did not properly debate the contents of the recommendations. Taking into account the issue I have just explained, these arguments are irrelevant. As long as the recommendations were approved by a properly constituted Parliament which seemed to be the case here, questions to the validity of the package, in my opinion, are irrelevant.
   

Conclusion

1. In my humble opinion, Prof. Mills acted ultra vires when he suspended all and any payment of gratuity to Mr. Kufuor. He had no constitutional basis for instituting such an action hence the suspension was and is unconstitutional. Prof. Mills exceeded his powers thereby subjecting the suspension to review by the Courts. As mentioned above, I wonder why Mr. Kufuor has not commenced legal proceedings to challenge the acts of Prof. Mills. As modest as he may be in thinking the package was and is unreasonable, there is a serious constitutional question that needs to be addressed.
   
2. The President and for that matter the executive should know what it can and cannot do. They should not be allowed to take actions which are inconsistent with the constitution and beyond their powers. The citizens of Ghana were quick to cry foul when details of the ex gratia package were made public. Yet, they have ignored and failed to question the unconstitutional way Prof. Mills has handled the situation in relation to Mr. Kufuor's gratuity. The average Ghanaian could have challenged and can still challenge Prof. Mills' suspension of the ex gratia package in relation to Mr. Kufuor.
   
3. All that needs to be done is for a citizen of Ghana to file a motion at the Supreme Court to challenge Prof. Mills' action on the grounds that his actions are ultra vires and unconstitutional. The Supreme Court shall have jurisdiction to hear the case because it involves the President of Ghana as a party in relation to issues of constitutionality (See Art. 130 (1) of the 1992 Constitution). Secondly, the average Ghanaian will have standing to file the motion by reason of being a citizen of Ghana. Thus, I hope the arguments I raised in this opinion will persuade any one of its readers to institute legal proceedings on the grounds echoed throughout this opinion.
   

Written and Edited by Kow A. Essuman Esq. LL.B. Hons, Barrister. All comments, corrections and contributions should be sent to kaessuman@yahoo.com.

This opinion is based on the thoughts and observations of Kow A. Essuman Esq. LL.B. Hons, Barrister. Any attempt to reproduce all or any part of this article without the express permission of the above named person shall be an infringement of intellectual property laws; following which the author reserves the right to commence an action/suit against any such person (s) or body for breach of copyright and/or any other action/suit the author sees fit.

Why We Lost the 2008 Elections

Maybe it is too late to point fingers, pin blames or even say 'I told you so'. So do we leave it as it is? I think not. People need to realize that for the party to move forward as we said in our campaign; a number of issues need to be addressed. This short article is meant to highlight the reasons why the NPP lost the 2008 election. It is worth noting that the reasons are not limited to the ones mentioned. Thus, I welcome any other reasons. The supporters in Kumasi have made it clear that Nana Addo should be the presidential candidate representing the NPP in the 2012 election. I agree with them and I am sure supporters around the country feel the same about Nana Addo. [This has since been confirmed all over the country where ever Nana Addo holds a thanksgiving rally]. The supporters in Kumasi say that because presidential candidates are known to run twice. And presidents tend to enjoy two terms. So will Atta Mills and the NDC remain in power till 2016? Possibly. Hence we need to address the issues underlying our defeat in the 2008 election. So then was the loss an internal loss or an external loss? I think it was a mixture of both; with the internal factor dominating. There are different ways of telling the story but I think a chronological outline will be the best. So enjoy and remember to drop your two cents.

1. Nominating the presidential candidate
   

You may wonder why I have taken it that far back. I think that's when we started losing the election. In selecting our presidential candidate, there were eighteen (18) presidential aspirants. All presidential aspirants were equally eligible to lead the party. Or were they? Was it a mockery of politics or a mockery of the party itself? Eighteen aspirants meant the party was divided into eighteen unequal sections. This could have been avoided. There were many unfamiliar names. Unfamiliar here means the names were not names one would have expected to see as a presidential aspirant. Eighteen presidential aspirants? This was a joke. That's what it was. The only people duly fit to be presidential aspirants were Nana Addo (of course), Dr. Apraku, Aliu Mahama and Osafo-Maafo. These are the familiar names in the party. The other contestants had no place putting their names forward as presidential aspirants. You may think I am being biased in thinking Nana Addo was the best person to lead the party. I have my reasons. Certain people have served the party since its inception. Nana Addo is one of them. But to be fair a few new names could have been added to the names mentioned. I am just saying eighteen is a large number for a contest.

So how did this affect the party in the 2008 elections? Well, the numerous aspirants had followers. I single out Alan Kyeremanten. There was a breakaway from the NPP by Kwabena Adjei to form his own political party (Reformed Patriotic Democrats - RPD) which contested in the 2008 elections. About 90% of RPD's supporters were from the NPP. It was rumored at the time that the RPD sought to have Alan Kyeremanten as their presidential candidate for the 2008 election. The RPD obtained 0.7% of the votes cast in the December 7 election. On Alan Kyeremanten, he was the first runner up in the nomination for presidential candidates. In other words, he did way better than the names I mentioned in the previous paragraph. Why did he do so well? Remember the name: 'Alan Cash'. His campaign for presidential candidate was all about money. And you know how Ghanaians 'love' the word money. In fact everyone loves money. Besides he had the backing of the ex president Kufuor. Was Kufuor's support for Alan Cash warranted? Many top or old members of the NPP thought and still think otherwise. Firstly, Kufuor was aware of the significant contribution that Nana Addo and the other names mentioned in the previous paragraph had made to the party. Even at times when it was dangerous (personally, politically and asset wise) to have political affiliations other than with the NDC. Secondly, Kufuor's campaign for presidency in 1996 and 2000 was not a money based campaign. He had financial support from all arms of the party. People made personal and financial sacrifices because it was not about money. So then why was Kufuor supporting Alan Cash? I guess that question will never be answered. But in my opinion, the party's division started from then.

Two camps emerged from that convention. The Nana Addo camp and the Alan Cash camp. Nana Addo failed to attain the required votes to lead the party in the 2008 elections under the NPP's constitution. If my memory serves me right, I think Justice Kpegah took issue with this after the 2008 election run-off. Well, there was meant to be a run-off between Nana Addo and Alan Cash. However, Alan Cash conceded and Nana Addo was nominated to lead the party in the 2008 presidential election. It was an honorable thing Alan Cash did. However, did that affect the party? Should there have been a run-off? I personally think a run-off was unnecessary but I am sure members in the Alan Cash camp had a different view. I will explore how the view manifested later on. This was just the beginning of the loss in the 2008 election.

1. The running mate/vice president selection
   

Dr. Mahamadu Bawumia? Who is he? I am sure many people can read out his curriculum vitae and tell me who he is at the moment. I challenge those who can that as at August 2008 they had no idea who Bawumia was. This is when I can confidently say I told you so. If anyone remembers my facebook status after Bawumia was picked then you would know what I am talking about. Nana Addo received many recommendations for vice president. Some party leaders think his selection of Bawumia demonstrated his lack of leadership skills. Others like Jake Obetsebi-Lamptey defended Nana Addo's pick. Other members of the party who supported Nana Addo's pick argued that it was a good pick because Bawumia was not your ordinary politician. In fact he was not a politician at all. Does any remember when he was introduced at the Takoradi rally? All I said was a lot of work needs to be done. Look at Mills' pick for running mate; John Mahama. He was actually picked before Bawumia was picked. The point I am making here is that technocrats like Bawumia are not used to win an election. Bawumia's pick was an entirely wrong decision in my opinion. The party lost in Bawumia's hometown. I can only draw one conclusion from this: his own people didn't want him to be vice president. Now his participation in the election has cost him his job as deputy governor of the Bank of Ghana.

Now let us take a look at the recommendations Nana Addo had for running mate. As early as April, chiefs in the central region and other prominent members of society advised Nana Addo to pick a running mate from the central region. Many people argued that chiefs should not involve themselves in politics. Why not? Are they not citizens of the country? In any event, the chiefs or togbui as they are referred to in the Volta Region contributed to the success of the NDC in that region. Besides, the chiefs in the central region were politically right for making such suggestions. Nana Addo was in a presidential election contest with his two main opponents being citizens of the Central Region. For those who advocate that tribalism has no room in politics. I beg you to wake up and smell reality. The 2008 presidential election has confirmed the already existing principle that tribalism is essential in Ghanaian politics. The fantes have been left out of Ghanaian politics for far too long. They have been taken for granted by politicians who have forgotten that the fight for Ghana's independence and politics started with the Fante Confederation in 1868.

The NDC were wise and played on this. Mills, a citizen of the central region from Komenda, was their presidential candidate. To be fair, his hopes for presidency commenced in 2000 where he lost to Kufuor. Yet, he never changed his slogan: 'adze wo fie a oye' (it's good to have something at home). He capitalized on this phrase and of course he received support from his people who without a doubt agreed with him. Nana Addo may have his reasons for not selecting a running mate from the central region or even the western region. The fantes may have voted massively for the NPP even though they would be second in command. At least they would appreciate the fact that the NPP considered the fantes in their administration. So politically, Nana Addo's pick for running mate was wrong.

Some party members argue that Nana Addo had to pick a Muslim from the North because he, Nana Addo, was a Christian from the south. Besides, it was the party's tradition that the running mate be from the Northern part of the country. When did party traditions and customs dominate the essence of winning an election? Anyway, there were other Muslims from the North who were capable of being Nana Addo's running mate. There were three people who had been tipped to be potential running mates of Nana Addo. They were Hajia Alima Mahama, Alhaji Abubakar Saddique Boniface and Lepowura Alhaji Mohammed Nuru Deen Jawula. These were people who were well known on the political scene in Ghana. Alima was actually tipped to be selected as running mate. It would have been a historical appointment as it would have been the first time a woman was on a presidential ticket in Ghanaian politics. Nana Addo actually said he didn't mind having Alima. So why didn't he pick her? Maybe he made the right decision because both Boniface and Alima lost their seats in parliament. With all the support from Tescon, Boniface still lost his seat; one of the casualties in the 2008 elections.

Remember the Alan Cash camp? Well, they believed that Nana Addo will return the honorable act by Alan Cash and select Alan Cash as his running mate. Was this wishful thinking; maybe. But they had a right to think along those lines. The party was split in two camps. What better way to unite the party than to reach out to the leader of the other camp? Maybe Nana Addo had justifications for not selecting Alan Cash. They could include Alan Cash's political views or many other personal reasons. Nana Addo took a page out of Obama's book and decided not to select Alan Cash as his running mate just as Obama refused to select Hillary as his running mate. But then Obama ended up selecting an eminent politician as a running mate and not an unknown technocrat. Bottom-line, Nana Addo's failure to select Alan Cash as his running mate ticked off some loyal supporters of the party who had second thoughts regarding his leadership abilities.

1. The campaign
   

We run campaigns in elections in order to win the elections right? In order to win an election, one needs to run a very effective campaign. An effective campaign is effective as long as it stays within the confines of the law. So what was Nana Addo's campaign all about? The members of his campaign team ran a terrible campaign. Oh yes! Jake and Apraku did a terrible job in running Nana Addo's campaign. But they were not the only ones. I will highlight a few scenarios and examples.

In running a campaign against the NDC, one thing should be the core of the campaign: remind Ghanaians of who the NDC are. Ghanaians needed to be reminded of how corrupt the NDC party was; their disregard for the rule of law and civil liberties. That is what Nana Addo's campaign should have focused on alongside the usual development messages and manifesto content. So why didn't they do the things I have suggested? Answer is their respect for politics and the need to have a clean campaign. When did these become relevant in Ghanaian politics? Members of the NPP are known to be elitist and legally educated in one way or the other. For the reason that members of the party have extensive legal knowledge, it is difficult to run such campaigns. There is a term used to refer to such people in Ghana; 'book-long'.

NPP prefer to do everything according to the book. This doesn't work all the time. Besides, I don't see what is wrong with 'negative campaigning'. Apparently, they attempted to campaign along those lines but were asked to desist from such forms of campaign as they were unhealthy. Meanwhile the NDC were running such campaigns. Campaigns full of insults and mockery of the NPP. They stood on the platform at their rallies insulting members of the NPP directly and persuading their ignorant followers with nothing but false statements. Still the NPP refused to run such campaigns. Well until the last minute when the damage had already been done.

'We are moving forward'. This was a very catchy phrase which is still used to this day in churches and many other functions. The renowned musician in Ghana, Daddy Lumba, sung a song using that phrase. And that song still gets airplay even today. With a number of Ghanaian music artists like Kwabena Kwabena backing Nana Addo, the campaign was unsuccessful. The truth is Mills' effort in his campaign exceeded the effort Nana Addo put in his campaign. Mills started the door to door campaign with his message 'I care for you'. The NPP campaign team and others mocked him. Well who is laughing now? The people believed they could relate better to Mills. They felt confident around Mills. They saw Mills as a president who will be able to address their needs should they call upon him.

Nana Addo on the other hand has always been perceived as an arrogant person. Frankly speaking, I thought so too. From the days of 'Talking Point' and the NDC era, anytime he appeared on the television screen, he came across as arrogant. Ghanaians never forget things like that. I personally think Nana Addo did a very good job in getting rid of that arrogance for the sake of the 2008 elections. But like I said, Ghanaians don't forget the initial perception of a person. Ghanaians still viewed Nana Addo as arrogant. Well only 50.23% of Ghanaians viewed him as such.

Even the campaign advertisements were not as effective. The NPP only got serious on the night of 26^th December 2008. By which time it was too late. I wondered why they were airing such effective advertisements at such a time. But I was reminded that it was because members of the party preferred to do things according to book.

Nana Addo should not be the only one held responsible for the party's loss in the 2008 elections. There were many others who had a hand in the party's loss namely the members of parliament for the constituencies where the NPP lost. Members of parliament are given funds to campaign on behalf of the party in their constituencies. MPs pocketed the funds they were given and campaigned a little or not at all. Some MPs went to the extent of disregarding their constituencies all together. A typical example being Asamoah Boateng; the Minister for Information and MP for Mfantseman West. Though his arrogance played a key part in his loss, he disregarded his people and took them for granted. This led to the NPP losing a significant amount of seats in parliament and NDC gaining those seats. How did this affect the NPP's chances? Well with a majority in parliament, it was less difficult for the NDC to convince the undecided voters to vote the incumbent government out.

1. The presidential factor
   

I chose this title to compare both ex presidents of the fourth republic and then assess the influence either or both of them had on their party's campaigns. As I have mentioned already, Kufuor was part of the Alan Cash camp during the primaries and the convention. Ordinarily, people would have thought that being the president of the incumbent government; he will use his influence and support whoever was picked as the presidential candidate for the NPP. That should have been the case even though he was in a different camp at the time of nominating the presidential candidate.

Unfortunately for Nana Addo and the NPP, that was not the case. Kufuor did not participate in Nana Addo's campaign. At times I wondered if Kufuor was a member of the NPP party at all. I remember how people campaigned on behalf of Kufuor during the 2000 election and even more during the run-off. People argued that as Kufuor was the president at the time of the election, it was best to separate himself from Nana Addo if he wanted Nana Addo to win. I don't agree with that argument. Considering the favor Kufuor had with the people, especially the fantes, he campaigning on behalf of Nana Addo in the Central Region may have overturned the loss.

I draw your attention to Rawlings. He was all over the place campaigning for Atta Mills. All the NPP could make of this was that Rawlings is controlling Atta Mills. This was far from the truth. Rawlings was only securing his party's success in the election. One thing I noticed about Rawlings during the election period was that from the time when the votes were being counted to the time when the winner was declared and even after, he disappeared from the scene. This is not an article directed at praising or criticizing Rawlings. Save for acknowledging the impact he and his personality had on the Atta Mills' campaign and success during the 2008 election. An essential characteristic of Rawlings is his charisma. Where ever Rawlings went, people came in their numbers just to see him. Rawlings knew this and so did the Mills' campaign team. Hence they capitalized on Rawlings' charisma. Ashanti Region is the stronghold of the NPP. With this in mind, Rawlings spent most of his time campaigning for Atta Mills in the Ashanti Region. Even though it didn't change the existing fact that Ashanti Region is the stronghold of the NPP, it reduced the NPP's votes. Even in the second round.

I don't know the truth in this rumor and I welcome any correction. The rumor being that Dr. Apraku and other prominent members of the NPP including Nana Addo himself asked Kufuor to stay away from the Nana Addo campaign. The reason for this was that Kufuor would have 'overshadowed' Nana Addo in his own campaign. I found this reason to be ridiculous because Kufuor was leaving office. The only thing he could have done to Nana Addo's campaign would have been to help it and not destroy it. Other arguments I have heard about Kufuor's failure to support Nana Addo include Kufuor's intention to sabotage Nana Addo's chances of becoming president. That sounds so absurd right. That's what I thought when I initially heard it. But I cooked up a theory based on some facts which appear to support the fact that Kufuor had the intention of sabotaging Nana Addo's chances of becoming president. Have you wondered why Kufuor decided to release all the NDC members he was keen on imprisoning when he first came to power? Why did he decide to drop all cases against Nana Konadu and the other NDC members?

Rumor is Kufuor was quick to advise Nana Addo to concede. Why would you want to do that to your potential successor who happens to be from your own political party? In the last two years of his administration, Kufuor lost the support of his party members and worsened it by supporting Alan Cash for presidential candidate. Kufuor therefore had to plan for his personal future. So what does he do? He reaches out to the other side and makes a deal with the other side. You may think this assertion is farfetched. I urge you to take a look at the circumstances surrounding Kufuor's exit. He pardons members of the other party he was keen to put behind bars; he drops cases against these same party members. All this a day before he leaves office? I wonder why. Don't you? And more recently, the news coming out of Ghana was the approval of the kinds of benefit the ex-president receives on leaving office. Many people wonder why and call Kufuor greedy for that. All I said was that it is for the NDC to implement this. With that in mind, I was expecting the NDC to publicly declare a negative intention towards this ex gratia policy. I wasn't the only person surprised to hear that the NDC were in fact for the policy. [The NDC's position has since changed. So have many other MPs.] Maybe that was the cost of Nana Addo losing the election. That's just my personal assessment of the rumor that Kufuor indeed had the intention of sabotaging Nana Addo's campaign. However, I don't think Kufuor will actually sabotage the party which sent him to the castle.

Nevertheless, I argue that Kufuor did not do much for the party as was expected of him being the incumbent president. We all realized how the oil prices rose steadily in 2008. But then it dropped and the Kufuor administration never reduced petroleum prices. After the party's inability to obtain the constitutionally required majority to clinch the presidency, Kufuor's administration reduced petroleum prices. How insulting could that be to the citizens of Ghana? They felt they were being patronized by the NPP. And even worse, the NDC capitalized on this and made sure the Ghanaian people were aware of how much the NPP wanted to win the 2008 election by hook or crook. In my opinion, that decision to reduce the petroleum prices after the first round cost Nana Addo in the run-off.

The last straw demonstrating how Kufuor failed to assist the Nana Addo was when he turned around on his way to Tain to ask the citizens of Tain to vote for Nana Addo. No matter the view anyone holds, Tain was decisive in the 2008 election and if the NPP have obtained over 23,000 Nana Addo would have been president of Ghana. This means campaigning in Tain was as important as campaign for the election in general. Immediately it was announced that Tain will be the deciding constituency, prominent and influential members of the NDC headed that way. They campaigned vigorously for Atta Mills. Kufuor was on his way to Tain but then turned around because of security reasons. I couldn't believe my ears when I heard that. And he was only a few miles away from Tain. Were his security personnel and he not aware of the risk before heading off to Tain? Did they have to get that far before realizing that there was threat to the president in Tain? Unbelievable. He shouldn't have made the journey at all. I don't think there was any security threat in Tain because the whole nation's attention was there and there was tight security in and around Tain. Kufuor and his people should make up better stories. And this was the same man who was inviting Nana Addo to concede the elections way before Dr. Afari Gyan came out with the provisional results.

Based on the above conclusions backed up with facts, I am sure you will agree with me that Kufuor did not do enough for Nana Addo and the NPP in the 2008 elections. I have recently read that Nana Addo disagrees with the conclusions I have drawn. It is not his place to agree. His hands are tied. He has the responsibility of uniting the party. By agreeing with my conclusions, he risks dividing the party and making Kufuor the only president from the NPP unpopular. In a nutshell, his agreement with my conclusions will be at a disadvantage to the party.

1. The elections (the Ashantis, rejected ballots, at the polling stations, the illiterates, the fantes and undecided voters)
   

I always thought elections were won by the number of votes a party received from the registered voters who went out and cast their ballot on Election Day. But in Africa and Ghana there is an election myth that figures are inflated and sometimes ballot boxes have ballot papers in them before they arrive at their polling stations. I am sure many of you believed this myth just as I did. Well guess what? That myth is a reality. As I sat in a lecture at the Ghana Law School at Makola, I was amazed to know that the myth was in fact a reality. In the words of the lecturer, elections are not won by you and I standing in a queue in the hot sun to cast our ballot for our political party or the candidate we think deserves our mandate. Rather, winning an election in Ghana depends on which party can cheat best. Clearly the NDC were professionals at that. One thing we can be proud of as Ghanaians is the maturity of our democracy. However, we still have a long way to go. Like I stated earlier on, tribalism is very alive in Ghanaian politics and the 2008 elections confirmed that. Ghana is being congratulated all over the world for conducting such peaceful elections. Well, all over the world except in Africa. Africans especially Nigerians continually classify the NPP as 'fools' for being an incumbent government which couldn't steal the election in the first round when the difference was only 1% (more or less). They simply can't comprehend how the NPP will allow an election to get into a run-off by just 1%. That is because the NPP understands what democracy means and holds the electoral process in high regard.

Can we blame the Ashantis or the people in Kumasi for our loss? Ashanti Region is the NPP's stronghold and we are always confident when the results come in from Bantama, Nhyieso, Suame, Manhyia and other constituencies. The day before the first round elections, drivers who were illegally parked and traders who were trading at inappropriate places in Kumasi were asked to leave the area. They got infuriated by this action and decided not to vote at all. In fact this resulted in the low turnout in the Ashanti Region in the first round. Maybe and even probably, if the Ashantis had voted in the first round, the NPP and Nana Addo would have had the one touch victory they were looking for. It is likely that the Akyems will return the favor should Alan Cash be nominated as the presidential candidate for the NPP in 2012. Hence, I suggest that Nana Addo should remain as the NPP's presidential candidate in 2012 if we want to win.

The number of rejected ballots and spoiled votes in the first round exceeded 200,000. This was the second highest number of spoilt ballots since 1992. And back then NDC won as well. Do you perceive what I am driving at? Some people have dismissed Dr. Apraku's accusations and assertions. They have actually ridiculed his allegations. His allegation was that those who counted the ballots had some special ink in their hair. And anytime they passed their hand through their hair and held the ballot paper, the ballot paper became void. Others have blamed lack of education on the part of the EC. I think it is all rubbish. The voters clearly knew what finger to vote with. The number of spoilt ballots is so large that the lack of education argument doesn't stand or make any sense. Voting is not a new thing in Ghana. We've been voting since 1992. I actually agree with Dr. Apraku on this one. Only because most of the spoilt ballots actually belonged to Nana Addo. And those were enough to give him the one touch victory he sought. It could have been the strategy the NDC employed with the sole purpose of pushing the elections to the second round.

What happened at the polling stations is appalling. Most of the officials at the polling stations belonged to the NDC. I single out a constituency in Accra where out of 19 polling stations, 18 EC officials belonged to the NDC. The only EC official who belonged to the NPP was challenged as being biased because of her political affiliation. Nonetheless, she stood her ground and asked whether any of the other officials had no party affiliations. This saved her from being removed as an official. In the Volta Region, all the EC officials there were NDC supporters. The NPP polling agents were actually chased out of the stations. This was the basis of our cry of electoral fraud. We went to the extent of invoking the courts. But then I remember reading on the NPP website that it was only a reckless party that would not send party agents to the polling stations and later made accusations of electoral fraud. This was exactly what the NPP were doing; acting contrary to their words. I knew the court action would be unsuccessful so I was the least surprised when it was withdrawn from court. We were crying electoral fraud when our own party agents had signed the results. The results coming out of the Volta Region especially from areas such as Ketu South were ridiculous. Firstly, not that many people live in Ketu South; and secondly they had a massive turnout in the first round so the turnout in the run-off was definitely tantamount to electoral fraud. What the party agents should have done was to refuse to sign the results. This brings me to another reason why I think Kufuor did not do enough for Nana Addo and the NPP. Knowing how the results from the Volta Region are always outrageous, he should have increased the security in the Volta Region. Maybe he did. But I don't believe it was enough.

One thing I noticed was that the illiterates voted massively for the NDC. They had no idea why they were voting. They were voting because they wanted change. What kind of change? I asked some of the voters what kind of change they sought. They couldn't tell me. It sounded as if this election was a joke to them. They didn't understand why we needed to change governments. This led me to advocate for qualified voting which was met with a lot of criticisms. I have touched on the fante factor so I won't repeat myself here. Except that the fantes have shown that in any election, the candidate they vote for is the candidate who becomes president and as such they should not be taken for granted. One last point under this heading is that once the undecided voters realized that people were voting massively for the NDC, they joined those people in the second round and increased Atta Mills' votes. I know the NPP's stronghold is in the Ashanti Region and especially the constituencies I mentioned. Why did it take so long for those results to come in? It appeared as if the NPP were out to cheat hence they withheld the election results from Kumasi in order to inflate them.

Even more astonishing is this theory. Nearly half of the country if not half of the country live in the Ashanti and Eastern Regions. I say this because these are the only two regions where the NPP had a majority. The NPP is fortunate that Ghanaian elections are not conducted as the US elections otherwise the NDC would have had the mandate of eight regions. Picture this: if the NPP had obtained the same percentage of votes in the Ashanti Region or Eastern Region as the NDC obtained in the Volta Region, the NPP would have won the election. And that would have been a majority in only two regions.

1. Complacency
   

I saved the primary reason for last. Complacency was the main reason why we lost the election. We thought we had it in the bag. We were not as vigilant and aggressive as the NDC were. In fact they ensured that they were not bullied or cheated at all. And when it came to deciding who the better cheat was, they played their cards well. They campaigned vigorously and used every trick in the political book. Both positive and negative. They dwelt on the illiterates and the fante fishermen along the coast. They capitalized on the few mishaps of the Kufuor administration and painted the NPP as a party of crooks. We just sat there and watched. We could say Ghanaians are ungrateful. We gave them free health; free ante natal and post natal for pregnant women; free education; better roads; a stable macro economy; a stable currency and these are just a few of the notable things of the NPP administration. In the Central Region, numerous schools were built and refurbished; the Cape Coast road was maintained to ensure that the route that claimed the lives of travelers was once again safe and yet the fantes refused to vote for us. These were the reasons why we lost. We knew we had done all these things for the Ghanaian people. Reassuring us that there was no way they will compare the two main parties, NPP and NDC, and vote the NDC. That is where we were wrong. There was little or no campaign in the Central Region. Blame the MPs? I already did that. Even when we were losing, we were confident that we had won the election. We thought we didn't need votes we actually needed. It was this complacency that drove us to court to seek an injunction on grounds any election lawyer would have known was without merit.

If we want to come back in 2012, we have a long way to go. We have to convince the fante people to vote us back into power. That will be an extremely difficult task considering how they would be aware that every president enjoys two terms. They will be less likely to remove one of their own from power. Our campaign will need a new strategy and dimension. It should be more dynamic and should involve the younger generation not boring old folk like Dr. Apraku and Obetsebi-Lamptey. We should include the local people and the illiterates (since qualified voting is not in place) in our campaigns. They should not feel left out. We should concentrate less on NDC strongholds like the Volta Region and the three northern regions because no matter the extent of your campaign in those regions and the development projects you set up in those regions, they will always vote NDC. We should not take for granted our own strongholds and battlegrounds such as Greater Accra and Brong Ahafo. And finally, we should have more vigilant and aggressive party agents at polling stations. Especially in the Volta Region and if possible provide these party agents with security. With these corrections in place, I have no doubt that the NPP will return to power in 2012.

Written and Edited by Kow A. Essuman Esq. LL.B. Hons, Barrister. All comments, corrections and contributions should be sent to kaessuman@yahoo.com.

These are the thoughts and observations of Kow A. Essuman Esq. LL.B. Hons, Barrister. Any attempt to reproduce all or any part of this article without the express permission of the above named person shall be an infringement of intellectual property laws; following which the author reserves the right to commence an action/suit against any such person (s) or body for breach of copyright and/or any other action/suit the author sees fit.