August 2, 2013 (Page 26)
Lawyers for President John Dramani Mahama, have called on the Supreme Court to dismiss the case of the petitioners in the ongoing presidential election petition because they have failed to prove their allegations.
They submitted that the refusal or neglect of the petitioners to file any complaints relating to the alleged irregularities at the various polling stations and collation centres should ordinarily have denied them the opportunity to invoke the jurisdiction of the Supreme Court under Article 64 of the 1992 Constitution.
This was contained in an 84-page address the lawyers presented to the court on Tuesday, July 31, 2013.
Address on behalf of President
According to the document, it was patently clear from the history of the case that the petitioners failed to make a case for the occurrence of the alleged irregularities at the various polling stations nationwide and to provide the EC with the opportunity to deal with those allegations administratively and on the spot because they simply lacked the evidence to back their claims.
“So the strategy they adopted was simply to trigger the jurisdiction of this court by filing a petition and then go back to look for the evidence,” the document held.
On biometric verification, the document said the burden lay on the petitioners to prove by credible evidence that, indeed, people voted at the various polling stations without having undergone biometric verification.
It submitted that proof could not be limited to pink sheets but must relate to actual events at the affected polling stations, testified to either orally or by affidavit by persons who were allowed to vote without biometric verification or persons who were witnesses to such occurrences.
“This is particularly so since the respondents have strongly denied this allegation and there are patent clerical errors in the C column of the pink sheets,” it said, adding that “no such evidence outside of pink sheets was proffered by the petitioners in support of their claim”.
On over-voting, the document said electoral irregularities and malpractices could not be left to be defined either by the parties to electoral disputes or even by the court.
“In a truly democratic society, such irregularities and malpractices are stipulated in laws duly enacted by the authorities invested with the power to make laws and regulations, so that all actors in the democratic process have foreknowledge of what may or may not constitute an infraction,” it said.
According to the document, given that there was no common law basis for contesting an election, the parties to such a contest derived their right to participate in the contest and to contest the outcome from the legislative scheme put in place by Parliament.
It said in order to discharge their burden of proving that over-voting occurred at a particular polling station, the petitioners must have led evidence to show that one or more of those incidents occurred at the affected polling stations, in respect of which they had complained in prescribed manner.
That, it said, could be done by affidavit evidence, as ordered by the court, by oral testimony or, indeed, by exhibiting, for instance, an irregularity form duly filled.
Touching on the absence of the signature of presiding officers on pink sheets, the document submitted that a presiding officer who omitted to sign a declaration form was compellable in law to perform those duties.
It said had the suggestion been made that the failure to sign was wilful, then such a presiding officer would have committed an electoral offence for which he would be subject to criminal sanction.
That notwithstanding, it said, the effect of failure to sign the declaration form should not be that the results the presiding officer had declared should be annulled, unless the suggestion was that his failure to sign affected the results.
Duplicate Serial Numbers
On duplicate serial numbers, the document said Dr Mahamudu Bawumia’s evidence-in-chief on alleged irregularities did not state the exact nature of the malpractice or irregularity that had been occasioned by the use of the duplicate serial numbers on the pink sheets.
It said the testimonies of Dr Afari-Gyan and Mr Johnson Asiedu Nketia regarding the processes surrounding security items in the electoral process should have informed petitioners about the futile nature of their claim, since they could not claim ignorance of the requirement of serial numbers on ballot papers.
“At least the first and third petitioners have been part of this electoral system for years. Inventing such a claim is, therefore, an act of bad faith. It was an invention by petitioners to bolster their case and should be wholly dismissed as adventurous,” it noted.