Nananom, Anuanom, Nnamfonom, and Yaanom, lend me your ears this Sunday. I come to bury an incongruous myth, not to crown it.
One of the most persistent and frankly puzzling myths to emerge from Ghana’s 2013 presidential election petition is the claim that the Supreme Court said “shall” doesn’t really mean shall. That it’s not mandatory. Or worse, that shall means may.
This is a constitutional urban legend in desperate need of retirement.
The truth? Nothing in the judgment supports that myth. Not even close.
What the Court actually wrestled with was not the meaning of shall, but the legal consequence of violating a shall. That’s a very different kettle of judicial fish.
Let’s zoom in on Article 49(3) of the Constitution, the much-cited battlefield:
“The presiding officer, the candidates or their representatives and…the polling agents…shall then sign a declaration stating—(a) the polling station; and (b) the number of votes cast in favour of each candidate or question; and the presiding officer shall, there and then, announce the results of the voting at that polling station before communicating them to the returning officer.”
In simple terms: sign the results and announce them at the polling station promptly.
Now, the Court’s majority held that if the presiding officer failed to sign, that failure did not automatically void the results. That’s it. That’s the sum of the holding.
It’s not a denial of duty; it’s an assessment of remedy.
And yet, this holding has been twisted into the monstrous myth that the Court said shall doesn’t mean shall.
Let’s be clear: “shall” always means “shall.” It signals obligation. It imposes a duty. It is not a polite suggestion or a procedural shrug. Ghana’s Interpretation Act says so. And not a single Justice dissented from that baseline.
So yes, when the Constitution says the presiding officer “shall” sign, or “shall” announce the results “there and then,” that officer is constitutionally bound to do just that.
But here’s the tougher and more important question: What happens when “shall” is breached?
That’s where the distinction between mandatory and directory comes in, not to weaken the obligation, but to weigh the legal consequence.
As Justice Atuguba explained in his judgment, some breaches of “shall” provisions void the act; others do not, especially when they don’t affect the substance, fairness, or outcome.
Let’s take a practical example.
Suppose a presiding officer suffers a medical emergency or a security threat and fails to announce the results “there and then.” Later that day, the results, undisputed and accurate, are announced at the collation centre in full view of all agents and observers.
Should that delay void the election results?
If we cling to a rigid, robotic reading of “shall,” we’d have to say yes, and in doing so, we’d disenfranchise an entire polling station over a procedural hiccup. That would turn the Constitution into a trapdoor, devouring lawful votes to appease bureaucratic literalism.
But that’s not a constitutional interpretation. That’s constitutional sabotage.
Our courts, and frankly courts around the world, recognize that the legal effect of violating a “shall” depends on the context.
Did the breach undermine the purpose of the provision?
Did it cause injustice?
Did it compromise the election’s integrity?
This is the heart of the mandatory-directory doctrine:
The rule binds. The breach does not always blind.
To be clear: interpreting a provision as a directory does not make it optional. The duty stands. The infraction remains. But not every breach is fatal. Some missteps call for correction, not cancellation.
The law, after all, is not allergic to common sense. It must accommodate emergencies, realities, and democracy’s messy margins. It must not demand perfect form at the expense of substantial justice.
To deny this flexibility is to claim that the Constitution would rather discard valid votes than suffer a 30-minute delay. That is not legal fidelity. That is legal formalism gone rogue.
So let’s end the monstrous myth.
Let’s stop pretending that “directory” means “do it if you feel like it.”
Let’s stop pretending that “shall” means “may.”
And let’s stop misrepresenting what the Supreme Court actually said.
“Shall” means shall. Always has. Always will. But not every breach is a bomb.
The Court never downgraded “shall” to “maybe.” What it did was uphold the Constitution without weaponizing it.
Let the record, and the myth, be set straight.
GOGO interprets. He does not judge.
Da Yie!
