INTRODUCTION
On November 3rd, 2020 the people of the United States of America went to the polls to elect a president and other lawmakers. In order to become the legitimate president of the United States, the candidate was required to win at leas 270 electoral votes out of 538.
This is what the Constitution of the United States stipulates. Every election and every presidency of the United States since the very beginning, has been founded on and guided by this requirement. Fundamentally because of the continuing pandemic which has killed hundreds of thousands of Americans this year, a lot of the ballots were cast early and by mail. In addition, there was a record number of turnout during the election. The result is that counting the ballots has taken some time. As I write today, some ballots are still being counted in a few states. Be that as it may, about a week after the election, Joe Biden of the Democrats was determined to have won over 270 electoral votes and was thus declared president-elect. He has given a victory speech and he has been congratulated by many persons, including Canada, the United Kingdom, France, Germany as well as by former presidents of the United States. Mr. Biden has set up and he is running an office called the Office of the President-Elect. He is waiting to be inaugurated as the President of the United States in January 2021 as is the tradition and the requirement of the Constitution of the United States of America.
Before the election however the incumbent president Donald Trump stated publicly and on numerous occasions that the election was going to be fraudulent and that the democrats were going to steal a win and deny him a victory which he claimed as certain. After the election and after after it was determined that Joe Biden had won, President Trump refused to concede that he had lost. Consistent with his pre-election allegations of fraud, he stated that he had won and that the election had been stolen from him. He has instructed his lawyers and allies to take all necessary legal actions up to the Supreme Court of the United States, to get the Biden-win declared a fraud. As fraud vitiates every thing, upon such a finding by the Supreme Court of the United States, either President Trump would be declared the winner of the 2020 election or a new election would have to be held.
IMPORTANT ISSUES
First of all, let me make my position very clear. I am neither a democrat nor a republican. I am not taking sides on the matter. The courts will decide one way or the other. As well, only Americans can determine who it is that they choose as their leader. However, because what happens in America happens to the world, the purpose of this essay is to clearly state for jurists, lawyers, scholars, politicians and citizens of democracies, a very important pandemic of the modern law, that is emerging from the challenge by President Donald Trump. It is the treatment of law by those in power as politics one and of judges as gowned politicians. Why does this matter to the world? The answer is simple. Like it or not, Americans set legal precedents for the Western world. Without true justice there cannot be true government of the people. Therefore, should it happen that those who define the law as the wishes of the powerful, prevail, true democracies are about to come to an end; by December 2020. From January 2021 and continuing, there would be no more democracies. Whenever the courts become a rubber stamp for the powerful, might becomes right and democracies become autocracies. Let me explain.
THE RUBBISHING OF PRECEDENTS, LOGIC AND OF LEGAL AUTHORITY
President Trump has so far not produced to the public any credible or significant evidence of massive voter fraud to show that but for the fraud he would have won. Yet, in merely alleging fraud and repeating it as many times as he gets the opportunity to do so, his allies have joined him to amplify, to support and to assert the same thing. If you can think of him as the lead singer, he has everybody in the tribe singing the same tune. This is critical because his position and that of those who repeat it, undermine two fundamental canons of the Western Law. First, there is no presumption of fraud at law. This means that the person determined to be the winner is in fact the winner until the supreme court deciding correctly in accordance with law, rules to the contrary. Second, he who asserts must prove. Those who allege that something has happened have the burden to bring clear and convincing evidence to prove it. Until they prove it, it hasn’t happened. That is the law. Indeed, when it comes to fraud, which is a criminal matter, the threshold is very high. The standard goes beyond the balance of probabilities to something akin to beyond reasonable doubt.
Thus, anecdotes, hearsays and even criminal behavior by a few, are not enough to establish fraud. Nevertheless, I was watching television the other day when a high ranking diplomat and an ally of President Trump stated that steps were being taken to ensure a transition to a “second trump administration”. That statement implies that the allegation of fraud has morphed into a judgment of fraud. Never mind that the judgment was not made by a final court of competent jurisdiction. What it means is that for President Trump and those on the side of the President, allegations are facts and from these facts come rights and power. In this context, the rules of evidence, the rules of fundamental justice and important presumptions of the law are irrelevant for the resolution of election disputes. What this means is that they the accusers, but not any other person or court with a contrary view, determine for themselves what is right and what is true. Naturally, this is a recipe for chaos for if the other side holds the same view, there would be war.
THE LEGAL PANDEMIC
Legally, every person is entitled to hold his view on any topic except that on a very important matter such as the outcome of an election affecting hundreds of millions of people and possibly, the entire world; right, truth, fairness, logic, precedence and goodness, matter. If truth or right was based on claims alone, the world would be on fire. For the number of contrary claims to property and to good things, far exceed any number of cooperating claims by thousands of percentages. But here is the legal pandemic. The problem is not only that the one-sided view is not acceptable at law. The problem is that democracies as presently constituted, give too much power to winners of elections. It does not have to be so but current legal regimes enable and give life to the sort of one-sided view of dispute resolution stated previously. Power is nice. It is difficult to relinquish power voluntarily. Yet under current legal systems, once a person is elected as president, he wields all the power of the state until he leaves office. There ought to be reserve power for the defence of the people and for the defence of welfare of the people. This should be in every constitution.
There is no legal or logical necessity for giving all the power of the state to a few people to grow or to destroy the state for four or five year after an election. Yet, look at all the constitutions of modern nations. One in power, for the most part the ruling party acts like a monarch for the period in which they are in power. Within that time they can even suspend elections, change the constitution and destroy any semblance of democracy. Even when it says that the president or parliament has no power to suspend the constitution, the constitution does not resource or empower any great institution or persons to prevent the suspension or abrogation. Furthermore, there does not appear to be in any country laws that mandate that once another person is elected president, the president’s term comes to an end immediately. May be there should be such a law so that a caretaker or temporary special government would be in charge immediately after the winner is declared. For to make the loser in charge of all the powers, riches and levers of the state when he has lost, is very dangerous and unwise.
What if after he loses the election the president decides not to leave office? Remember that as president he appointed all the commanders, spies, and important leaders of the state. What if with the support of some judges, the president declares an election fraudulent requiring another kangaroo election or another election to be held at an indeterminate date ? What if the president appoints enough supreme court judges who grant him the judgment declaring him the winner? What if the president acting within his powers as commander in chief, orders the forces of the nation to arrest and to crush dissent or opposition on the basis of national security, emergency provisions or anti-terrorism laws? What if without formally suspending the constitution the president effectively renders it useless with brilliant operators who know how to fake dictatorships as democracies?
The problem is not about President Trump. I have full confidence that the right thing would be done in the United States. Indeed, I have very good reasons to believe that President Trump will comply with the will of the American people and of any final orders of the Supreme Court of the United States of America. There is no credible evidence to the contrary. But I am writing about law and about future presidents. So let me restate my position. This paper is about what happens when legal canons be ignored with impunity. It is about what happens when law is redefined as whatever a president alleges. It is about giving the power of the state to a person who can use that power to perpetuate his rule in the face of a defeat following a free and fair election. The current vulnerabilities of the system are such that unless they are fixed, one day there will arise a President validly elected into power who would -whilst in power, refuse to leave even when he has been overwhelmingly voted out of power. When that happens the supreme court would be the president’s court and there would be nothing that the powerless citizens can do.
Back to the United States. The president is in power. He has the full authority of the United States government. Unless there is a contrary judgment of the highest court that would be obeyed by the forces of the state, the president has the power to enforce his position “legally” through directed interpretations of texts, of laws and of selective applications of procedures that would justify his “facts”, his “truths” and of his judgments as law, as order as right. He also has the power to use many secret intelligent services, military establishment and the endless purse of the state to support, to defend and to justify his position. That there are supreme courts in every dictatorship writing lofty legalese in countless pages justifying what the dictators do as law and as justice, is evidence of how unreliable the courts can be when outmaneuvered by a well-resourced president and party determined to stay in power.
URGENT PROPOSAL FOR CONSTITUTIONAL REFORMS
The secret to defending true democracies are two. First, judges must be patriotic, learned and truly free to do what is right. Unless judges of the supreme court are free to do justice, there can be no true freedom for anyone. Whenever the law is no longer an independent, fair, learned and just authority on right and wrong, the power of the state can be used to justify any act, including the declaration of winners of free and fair elections, as losers. This means that it is time to remove the power of the president or of the ruling party from being able to appoint or fire judges. There must be alternative ways of appointing or electing judges and of supporting them that ensure that no president or ruling party can intimidate, manipulate or force them to rule in his or their favour on any matter. As long as judges are appointed by the persons or the ruling party or as long as the security, finances and tenure of judges are in the hands of the president or the ruling party, the courts can be manipulated to rule in favour of the president or of the ruling party. Second and more importantly, there ought to be supreme special forces of the state for the defence of the people’s wishes which are independent of the president and of the ruling party. The main responsibility of the special forces would be to remove a person/party from office after a free and fair election in which he/party loses. Those special forces should have only one boss: we the people. One mission: justice. One motto: Only God can stop us.
CONCLUSION
Should it become a reality to the effect that the outcomes of elections can be overturned on the mere allegations of the loser in power,, that would be the end of the American dream and of the end of democracy for the entire world. With God by our side, independent, fair and learned judges together with special forces in charge of ousting loser-presidents are urgent and necessary. We must accordingly amendment every constitution in the world in the United Nations especially of those in the Western and developing worlds to reflect these urgent democratic needs. Unless we amend our constitutions immediately to reflect these, come 2021 we would face a new world of dying and pretend-democracies run by dictatorships and would-be-dictators all over the world who fake might as right in an endless rule of woes. May God bless America. May God bless Ghana. May God bless the earth!
By Nana Oppong[1]
[1] President of the Distinguished Scholars of Africa