GH - JOSHUA EMUAH KOFIE v DORCAS TOFFEY & ANOTHER

Dr. Richmond Osei-Hwere J.

Election and its related matters present a phenomenal sense of passion amongst considerable number of people in a democratic state. This explains the heightened interest in election petitions. However, misgivings about the outcome of judicial adjudication of electoral disputes is a regular feature in some jurisdictions. Ghana has had its fair share of such controversies in the aftermath of electoral litigations and other disputes. It is fair to state that as judges, we are undaunted by controversies in general because we are used to resolving them. Ultimately, it is fidelity to the law and fidelity alone that would vindicate the court. In this respect, I am inspired by the words of Osei

Hwere JSC of blessed memory in the Supreme Court case of Gyewu v Asare

Il (1991) 1WASC 169 where the eminent jurist once delivered himself thus, at page 186 of the Report:

"A court of justice called upon to resolve a dispute, I repeat must neither play the role of the 'artful dodger' (of Dicknesian creation) nor indulge in 'diplomatic double talk' (intending to hurt no one) but must seize the bull by the horns and hand down the decision the dispute demands …”

This judgment relates to the qualification of an elected member of parliament to participate in the parliamentary election that elected her into office. The election petition flowing from the qualification complaint is anchored on Article 94 (2)(a) of the 1992 Constitution of Ghana. It provides:

"A person shall not be qualified to be a Member of Parliament if he a. owes allegiance to a country other than Ghana;

This constitutional provision is repeated verbatim in section 9(2)(a) of the Representation of the Peoples Act, 1992 (PNDCL 284).

Closely related to the above constitutional and statutory provisions is Regulation 8(1)(a)(i) of the Public Elections Regulation, 2020 (C.1.127), the Constitutional Instrument that regulated Ghana's 2020 Presidential and Parliamentary Elections. It also provides as follows:

"A candidate for Presidential and Parliamentary election shall, at the time of nomination of the candidate,

(a) deliver or cause to be delivered to the returning officer (i) a statutory declaration stating that, that candidate is qualified to be elected as President or a Member of Parliament and is not disqualified from being elected as such; …”

BACKGROUND OF THE PETITION AND RELIEFS SOUGHT

On 7th of December, 2020 the 2 Respondent herein, the Electoral Commission, conducted p