Below is the full ruling handed by the Judicial Council and delivered by the CJ, Issifu Seidu Kudus Gbeadese:
THE JUDICIAL COUNCIL OF THE STUDENT’S REPRESENTATIVE COUCIL (SRC) OF WISCONSIN INTERNATIONAL UNIVERSITY COLLEGE (WIUC)
ACCRA- A.D. 2023
CORAM: KUDUS GBEADESE, CJ
(PRESIDING)
EMMANUEL OWUSU
(Member)
FELIX E. NYAABA
(Member)
PETITION WRIT NO. 001/05/2023
IN THE MATTER OF THE SRC ASPIRANTS VETTING HELD ON THE 2ND OF APRIL, 2023
AND
IN THE MATTER OF A PETITION AGAINST THE CONDUCT OF THE ASPIRANT VETTING AND DECLARATION OF RESULTS.
PETITIONERS:
1. MARY PORTIA BONDOUG
2. MAAME DUFIE APPIAH
3. PRAISE ABENA BUAHPE
4. PAUL KOJO FYNN JNR.
5. NATHANIEL TURKSON
Vrs.
RESPONDENTS:
1. ELECTORAL COMMISSION
2. SRC EXECUTIVE COUNCIL
3. SRC VETTING COMMITTEE
RULING OF THE JUDICIAL COUNCIL:
The Unanimous Opinion of the Judicial Council as read and delivered by Issifu Seidu Kudus Gbeadese, the Chief Justice.
Majority Opinion:
Kudus Gbeadese CJ:
Introduction:
This is a Petition invoking the original jurisdiction of the Judicial Council of the WIUC SRC pursuant to article 11 (2) of the SRC Constitution as amended 2022 to nullify the SRC 2023 vetting results per the number of reliefs as sought by the petitioners.
In this Petition (herein referred to as the Petition), the Petitioners altogether as aspirants of the Wisconsin International University College (WIUC) Student’s Representative Council (SRC) elections which is to be held before the 16th April, 2023, are seeking reliefs against the Electoral Commission of the SRC as the 1st Respondent; the SRC Executive Council as the 2nd Respondent and the SRC Vetting Committee as the 3rd Respondent. The reliefs are in the nature of one (1) declaration and five (5) orders. While relief one (1) was directed against the SRC Vetting Committee; relief two (2) was directed against the Electoral Commission of the SRC; relief three directed against the SRC Council; relief four directed against one of the presidential aspirants in the person of Hakeem Enyan Steve and Miss Catherine Amuzu as they sought an injunction on the entire electoral process pending the final determination of the matter. We considered the matter against Hakeem Enyan Steve and Catherine Amuzu to be farfetched and in consideration of the germane matters that need to be considered did not make them key respondent to the matter at hand.
The reliefs are as follows;
1. A declaration that the vetting results must be thrown out as it lacks merit, not a true reflection of what actually happened and the panel was not only improperly constituted but compromised with as well.
2. That the entire electoral process must be cancelled and restarted with a new independent body, selected from among class representatives with no control from the SRC Executives.
3. An order that the SRC Council should be separated from the whole electoral process as they have shown a clear bias and an unwillingness to promote a fair electoral process.
4. That Hakeem Enyan Steve and Miss Catherine Amuzu must be barred from contesting in the elections as their actions are clear violation of the rule of natural justice which states that one cannot a be judge in his/her own cause.
5. An immediate injunction on the entire electoral process pending the final determination of this matter.
6. Any other relief this Judicial Council deems necessary.
As noted, the language and text of reliefs 1 to 3 and 4 are suggestive of the fact that the reliefs are wholly directed to the SRC Electoral process or the Electoral Commission of the SRC which is an organ established within the meaning of the powers of the Constitution of the SRC of WIUC. (Supra). The article provisions and rule under which the Petitioners mounted their onslaughts against the respondents are; Articles 296 and 17 of the 1992 Constitution of Ghana, Article 7 (7) of the SRC Constitution as amended 2022, Article 1(3) of the SRC Constitution as amended 2022, Article 7(10) of the SRC Constitution as amended 2022, article 7(11) (f) of the SRC Constitution as amended 2022.
Conspicuously missing in the text of the Petitioners was any reference to the Constitutional Instrument (C.I 3) which was duly enacted by the Parliament of the SRC for the conduct of the 2023 SRC elections and which in the opinion of the panel constitute as germane reference in the determination of the matter per some of the reliefs being sought by the petitioner. It is not enough to make sole attributions to only Constitutional provisions without having a linkage with subordinate legislations such as a C.I especially in matters of Elections and this petition, knowing the fact that it is this C.I that actually spells the nitty-gritties of the whole electoral process, so long as its content does not violate provisions of the SRC and indeed at a ultimate level, provisions of the 1992 Constitution, which provides in article 11 another source of law for Ghana in which lies, orders, rules, regulations with the C.I not been an exception at all.
Background:
The Petitioners were all SRC aspirants contesting for various positions at the 2023 SRC Elections. 1st Petitioner was a Presidential aspirant, 2nd Petitioner, Vice Presidential aspirant, 3rd petitioner, General Secretary aspirant, 4th petitioner, Financial Secretary aspirant and 5th Petitioner Public Relations Officer aspirant respectively. They all together with other aspirants passed the initial stages of the electoral process and passed for vetting. The vetting was held on 2nd April, 2023 at the Araba Otua Hall on the campus of the WIUC. The vetting began at 1.00pm and ended late into the early mornings of Monday 3rd April, 2023. Pursuant to the orders of C.I 3 (Elections Regulations of the SRC of Wisconsin International University), a 7 member panel was constituted for the purpose of the vetting with representatives coming from the SRC executive Council, Judicial Council, International students association, alumni which was represented separately by two alumnus at separate interval sessions of the vetting process, and the electoral commission which had two (2) representatives. The C.I 3 is to amongst others; interrogate all aspirants who apply to the electoral commission showing interest in all or any positions advertised, evaluate the intelligence and competence of all aspirants who appear before it, conduct background checks on the credibility of all aspirants, evaluate the performance of former officers of the SRC (.ie, Members of parliament of the SRC, Class reps and committees Members) who seek to be elected to the SRC Council. The background documents as used for the vetting were; the Curriculum Vitae of the aspirants, an SRC electoral commission nomination form, a print of an aspirants’ transcript and a general SRC score sheet which served as the basis for analyzing aspirant’s representation and scoring same accordingly. One after the other, candidates were vetted and scored by the panel members. After the close of the vetting process, raw scores had to be determined and final determination on each aspirant. The panel was not able to fully and exhaustively collate all records and make a final determination on the matter. Panel postponed the collation and determination of the vetting to a later time in the morning of 3rd April, 2023. The results was declared including the analysis pursuant to C.I 3 (Elections Regulations of the SRC of Wisconsin International University).
A nine (9) page report titled: Report on the Vetting of the Aspirants for the 2023/2024 academic year elections was released by the SRC Electoral Commission, on 3rd April, 2023 giving a full account of the vetting process as constituted and established under the orders of C.I 3 (Elections Regulations of the SRC of Wisconsin International University). According to the report, the vetting committee accordingly passed a number of aspirants being, Frederick Opoku, (Vice presidential aspirant) who got a passed mark of 72% pass mark, Paakow Ekumah Okatakyie Jnr (External Affairs Presidential aspirant) who got 73% pass mark, Beatrice Acquah (Women’s Commissioner aspirant) who got 74% pass mark, Catherine Amuzu (SRC Secretary Aspirant) who got 86% pass mark and Hakeem Enyan Steve (SRC President aspirant) who got 87% pass mark. The report also failed a number of aspirants, being Paul Kojo Fynn Jnr (Financial Secretary Controller aspirant) who got 46% failed mark, Franklin Chiemere (External Affairs Secretary Aspirant) who got 49% failed mark, Praise Abena Buah (SRC General Secretary Aspirant) who got 53% failed mark, Nathaniel Turkson (Public Relations Officer Aspirant) who got 56% failed mark and Mary Portia Bondoug (SRC President Aspirant) who got 64% failed mark. Within the meaning of C.I 3 and the SRC constitution, a pass mark of 70% is needed for SRC Presidential, Vice Presidential and Secretary Aspirants, while a pass mark of 60% needed for the other positions.
The Petition Itself:
Declaration 1:
1. A declaration that the vetting results must be thrown out as it lacks merit, not a true reflection of what actually happened and the panel was not only improperly constituted but compromised with as well.
There are two separate issues to respond to here and we shall proceed to answer them starting with the second. Within the meaning of the SRC Constitution as amended 2022 in Article 7(1), the provisions herein give specific details on the Composition of the vetting Committee being the following members;
a. The Chairperson of the Electoral Commission
b. The Deputy Chairperson of the Electoral Commission
c. Two members of the Parliament elected at the first meeting of Parliament in the second semester or proposed by the SRC Council and approved by Members of Parliament.
d. One member of the SRC Council nominated by the SRC Council but not the President or Vice President.
e. One representative of the Judicial Committee.
f. One past Student.
Judging from the provisions above, it settles well in the mind of the panel as per the report of the electoral commission that as far as practicable the vetting panel that was so constituted and empaneled to sit and vet SRC aspirants was fully and properly constituted. Save as it may be, one of the petition issue as received by the panel was the fact that there were two separate past students on the panel at different points in time. An explanation in regards to same as stated by the SRC Council in their response to the petition text was the fact that given that one of the past students gave indication of an early exit as panel member due to the fact that he had another engagement and owing to the fact that at all material times there ought to be a past student on the panel, it was imperative that a standby person also a past student be engaged to sit at the time of the exit of the other past student panel member.
On the second leg of the matter, which is whether or not the petitioner’s case of panel members being compromised stands the test of objectivity. The petitioners state that, the Chairperson of the Electoral Commission is a known Tertiary Education Institution Network (TEIN) of the NDC member. They further state that Alumni who were on the panel were also known TEIN members on campus and thus affected the sanctity of the results as declared. To say that they are known TEIN-NDC members and therefore they cannot at any point in time deliver sound judgment to in the matter of the assessment of the aspirants worthy or contesting SRC elections is rather to say one is belittling the rather input of intellectual discourse and capacity of the members who have been accused.
For us, it is trite knowledge that ones’ challenge of compromise as a panel member cannot just be perpetuated on the singular grounds of that person being a TEIN-NDC or TESCON-NPP member. So long as one is of a sound mind, is either a student or a past student and properly justified to be a member of the Vetting committee with the meaning of article 7(1) of the SRC Constitution as amended 2022 with further grounds in the C.I 3 (Elections Regulations of the SRC of Wisconsin International University), it is settled in law and procedure that such a person is so qualified to be a member. If out of 7 panel members, two are being accused of being politically exposed members, is it even the case that the other 5 are not in the positions to deliver sound judgment and is it the case then that the two who stand accused are more powerful in terms of their influence to generate results that favours aspirants from a certain perceived political inclinations?
Tied in to this matter of Compromise is the allegation against a member of the Judicial Council. We think and belief the response as given by the SRC Council to wit; that the company of the Judicial Council member and some representatives of the SRC Council at the time that they were seen together was only against the backdrop that assistance was been offered to secure an Uber taxi for the member of the Judicial Council to go home, he was not a student who stays on campus but needed a care to connect back home, and that at the time that he needed the assistance it was past 12 midnight. We accept in part the part of the Petitioners’ reliefs especially on the matter of scoring and results declaration.
Declaration 2:
Order 1:
2. That the entire electoral process must be cancelled and restarted with a new independent body, selected from among class representatives with no control from the SRC Executives. It is difficult understanding the position of the petitioners as regards their Declaration 2. Are the petitioners saying that they want a cancellation of the ENTIRE electoral process and to be restarted? Are the petitioners saying that there should be a new body constituted now by Class representatives with no control from the SRC Executives? The SRC constitution was amended as early as 2022, just about a year ago. It therefore baffles our minds that the petitioners did not see the need nor sought an advise to as it were to challenge the composition and procedure as regards the conduct of SRC elections and superficially on the matter for who and who qualified to be part. Again, it is trite knowledge that in the matter of the conduct of SRC elections on WIUC campus, articles 7 of the SRC Constitution as amended 2022, which was passed by the SRC parliament gives very good and detailed account of the who, what, when and where WIUC SRC Election Should be held. At any given point in time as well, further legislations such as the C.I 3 (Elections Regulations of the SRC of Wisconsin International University), gives further and better particulars of the conduct of any elections on the WIUC campus. As it stands now, the petition lacks any genuine detail or grounds of illegality, procedural unfairness and irrationality which are grounds for judicial review. We dismiss this part of the petitioner’s relief.
Declaration 3:
Order 2:
3. An order that the SRC Council should be separated from the whole electoral process as they have shown a clear bias and an unwillingness to promote a fair electoral process.
Again, as regards declaration 3 which we describe as an order from the Petitioners, we can only say at this point that if the petitioner so belief or inclined to belief that there is merit in their order, they may be advised to come properly by way of a Motion giving cogent reasons why the SRC Council be separated from the whole electoral process.
In paragraph 5 of the petitioners’ petition, they make claims to vetting panel members who they perceive to be known associates of some of the candidates ….but they do a quick turnaround to state that …. That alone might not be a strong enough reason to prove bias except …….” in one of their supporting case laws, Franklin v. Minister of Town and Country Planning: they state a position of Lord Thankerton who in his stands gave an opinion on the concept of bias …….. “in which it states amongst others ….. is to denote a departure from the standard of even handed justice….”. it cannot be said that the entire vetting panel wholly departed from the standard of even handed justice to the aspirants. We therefore dismiss this part of the petitioner’s relief.
Declaration 4:
Order 3:
4. That Hakeem Enyan Steve and Miss Catherine Amuzu must be barred from contesting in the elections as their actions are clear violation of the rule of natural justice which states that you can’t be judges in your own cause.
Once again, petitioners have called upon the panel members to give an order to bar Hakeem Enyan Steve and Catherine Amuzu from contesting in the elections. Our simple answer to this is that the SRC Constitution as amended 2022 in article 7 (a) (b) (c) and (d) give elucidation to the Eligibility of Candidates to any elections on WIUC campus. Again the C.I 3 gives further dimensions as to who must come into the elections. Why will it then be the case of the petitioners that they would want a total ban on the eligibility of some aspirants when the reason they give does not find expression within the meaning of the article 7 (a) (b) (c) and (d). We are firmly convinced that this is not just a matter toy with and if indeed in the minds of the petitioners they indeed have a safe believe and settled opinion on this matter, we think they should come properly within the meaning of article 7(a) (b) (c) and (d) Simpliciter. We therefore dismiss this part of the petitioner’s relief.
Declaration 5:
Order 4:
5. An immediate injunction on the entire electoral process pending the final determination of this matter.
It is very much known that per a Judicial Council release of 4th April, 2023, the Council amongst other statement place a temporal suspension on the electoral process until final determination of the matter. The Council did this in respect of the fact that it had taken a decision to analyze and peruse all elections related documents and to give a determination on the matter. The Council by this decision also gave opportunity to all parties to present their positions for redress and determination. So, that relief by extension was partly granted as per the release from the Judicial Council on the 4th of April, 2023.
Declaration 6:
Order 5:
6. Any other relief this judicial Council deems necessary.
Having perused all relevant document and materials presented by all parties in this matter; having taken all relevant information into context; having studied all relevant laws, orders and rules regarding the conduct of the 2023 SRC elections; in wiliness to apply decorum to the process, the Judicial Council stated opinion on this petition is the fact that the petition receives merit in part and lack same in another part.
Based on the above stated opinion, the following is a single dose relief of the Judicial Council.
Relief:
A. An order that the SRC Electoral Commission takes reasonable steps to fully include aspirants and petitioners who within the meaning of this petition have a case against the respondents and who formed part of the category of students who could not meet the minimum constitutional threshold.
Our pronouncement is premised and anchored on two main grounds of reasoning;
a. Article 7 (a) (b) (c) and (d) of the SRC Constitution give detailed, clear and unambiguous constitutional expressions of who and what constitute eligible candidate for any SRC elections.
b. The C.I 3 gives particular details on any SRC elections.
The gravamen of our argument here is the fact that it is trite knowledge that to strike a Constitutional provision against the lesser legislative document which in this case the C.I 3, at all times the Constitutional provision takes precedent over and above the legislative order or enactment where there appears to be an apparent indication of confusion. To the extent that petitioner can be said to have fully qualified as per the constitutional provisions of article 7 (a) (b) (c) and (d) it may be superfluous to further disqualify any candidate based on the provisions of a legislative enactment, in this case C.I 3.
Even within the meaning of the principle of discretionary power which we are inclined here to belief was applied by the vetting committee and by extension the Electoral Commission, we should be reminded again of article 296 of the 1992 Constitution, which speak to the matter of exercise of discretionary power, that in applying discretionary powers, there is an imposed duty to be fair and candid and also in the exercise of that discretionary power a duty is placed on the one exercising same not to be arbitrary and capricious. With this, it is our assertion that, to a very high degree, the Vetting Committee exercised its discretionary powers without utmost recourse to fairness and candidness. We therefore hold the view that Article 7 of the SRC Constitution-WIUC should take precedence over the discretionary powers handed the vetting committee by the C. I 3.
The petitioners are persons who in the minds and thinking of the vetting panel did not meet the constitutional percentage threshold for qualification. But it settled that they met the constitutional requirement for eligibility to contest elections as candidates. If that is so, then we deem it expedient to allow Constitutional justice to prevail over legislative enactment to give expression for the petitioners to as far as practicable be featured in the electoral process.
We also are aware of the fact that given the exigencies of the time at hand, it will not be possible for the vetting committee to conduct another round of vetting for aspirants. We therefore settle that vetting should be excluded from the process moving forward, while reasonable steps are taken by the Electoral to activate all other relevant processes leading to the election as scheduled earlier, with the constraint of time in mind.
We advise the SRC Electoral Commission to as a matter of importance take measures to conduct elections as soon as possible to avert any possible disorientation of the school calendar and extra burden on all relevant stakeholders.
SIGND:
ISSIFU SEIDU KUDUS GBEADESE
(CHIEF JUSTICE OF THE JUDICIAL COUNCIL)
SIGND:
EMMANUEL OWUSU
(JUSTICE OF THE JUDICIAL COUNCIL)
SIGND:
FELIX ENGALIGE NYAABA
(JUSTICE OF THE JUDICIAL COUNCIL)
CC:
The President-WIUC
The Registrar
The Chief Operating Officer
The Director of Public Affairs and Marketing
The Dean of Students
The SRC Council
The Parliament-WIUC
The Electoral Commission
The Petitioners
The Student Body-WIUC
