Monday, September 30, 2013

Positioning TOR @ 50. Can it still be the catalyst?

 Saturday, September 28, 2013 (Page 12)

Ghana’s first and only crude oil refinery was commissioned 50 years ago today, September 28, 2013, and remains one of the country’s most valuable national assets; though it has not actualised Ghana's first President's vision of becoming the base for the petrochemical industry.
Ghana became one of the countries with a crude oil refinery and the sixth largest in Africa in the 60’s. Crude oil, according to Dr Kwame Nkrumah, ‘is the life blood of industry,” and that informed his initiative to set up Ghana's only oil refinery to propel his dream of championing national development through industrialisation.
The refinery was known as the Ghanaian-Italian Petroleum Limited (GHAIP) and was solely owned and managed by the Italian group ENI, until 1977 when the Government of Ghana bought all the shares and became the sole shareholder of GHAIP. The refinery was a simple hydro skimming plant with a capacity of 1.25 million metric tonnes. The refinery was a tolling refinery, refining crude oil on behalf of the major Oil Marketing Companies including TOTAL and BP for a fee.
 Dr Nkrumah during the commissioning of the £8.5 million refinery on September 28, 1963 said it was the government’s intention that “the refinery becomes the vital foundation for the establishment of other industries in Ghana”.
The refinery has gone through different phases since its commissioning; with GHAIP being re-named Tema Oil Refinery (TOR) Limited in 1990. Though, a Limited Liability Company, owned by the State, TOR has never been allowed to operate and function as such. True to Nkrumah’s word’s “Government had the final say in determining the prices of the oil products refined”.
This concept has prevailed to date.  As a result of underpricing (subsidies) which was not paid on time, over the years, sales revenues were not sufficient to pay for Letters of Credit established for crude oil imports and the shortfall had to be funded by the Ghana Commercial Bank through overdraft facilities. The overdraft attracted penal interest charges which accumulated into what is now referred to as the TOR DEBT.
 Just like numerous industries set up by Dr Nkrumah, most of which are defunct, TOR faces operational and technical challenges. These have impacted on the availability, reliability, efficiency and profitability of the company.
The country’s only refinery which produces Liquefied Petroleum Gas (LPG), gasoline, diesel, kerosene, aviation turbine kerosene, naphtha, fuel oil and cracked fuel oil was and is still faced with debts. As a result, many financial institutions saw TOR as a high risk entity.

 TOR’s challenges

TOR’s challenges broadly include the unavailability of working capital to procure crude oil consistently, plant and operational inefficiencies and the nature of the old business model. Therefore, the once vibrant refinery has been in the news for the wrong reasons: “TOR on the verge of collapse,” “TOR in tatters,” “Help Save TOR,” “TOR workers leave for Oman, “TOR Shuts Down”, “Aging Plants at TOR”, “TOR lacks working Capital” “Crude Oil on Financial Hold” and TOR on road to recovery” among a host of others.
The frequent shutdown of the Crude Distillation Unit (CDU) and the Residual Fluid Catalytic Cracker (RFCC) unit no longer comes as a surprise to many Ghanaians. There have been instances where workers have agitated due to the non-functioning of the processing plants or unavailability of crude oil for weeks and sometimes months.
These unplanned shutdowns are attributed to unreliable and unstable utilities among other factors. The shutdowns damage the process equipment designed for continuous operations, safety of personnel and operational efficiency. As a result, plant efficiency is compromised due to depletion of funds for plant maintenance and loss of revenue. The situation has been very frustrating for stakeholders including TOR's management, workers and Ghanaians.
 The fluctuating crude oil prices on the world market put pressure on the profit margin of refineries worldwide, including TOR. Due to the lack of working capital, TOR is unable to plan its procurement of crude oil, and as a result tend to rely on the Spot market with its attendant risks and challenges to profitability.
The problems arising out of debt on the books of TOR in addition to the high interest rates charged by financial institutions, cannot be over-emphasised.
What seems to have added to the woes of TOR is the poaching of its skilled personnel by refineries in the Middle East especially in Qatar and Oman, which have become fertile grounds for TOR staff who are being offered lucrative remuneration packages. Despite these challenges, there appears to be some light at the end of the tunnel for TOR.

TOR today

As a result of the many challenges aforementioned, the management of TOR initiated a Plant Stabilisation and Profitability Enhancement Programme (PSPEP) to turn around the fortunes of the refinery. TOR required $67.7 million for this programme based on recommendations from various consultants to fix the processing plants to ensure continuous processing, availability, reliability and profitability. The government released $30 million out of the $67.7 million in December 2012 for the initiatives. The procurement of items is at various stages, while the refinery awaits the balance of $37.7 million to complete the identified projects to ensure the refinery’s operations are efficient and reliable.
Under the PSPEP, operational losses, which is one of the bane of the refinery, are being addressed with the installation of Automatic Tank Gauging System (ATGS) and Flow Meters on out and inward bound pipelines to reduce human intervention and ensure accountability of products.
The refinery’s three operational boilers which depended mainly on fuel oil which is so expensive and adds to operational cost have been commissioned to use flue gas which otherwise would have been flared. Another initiative geared towards making the refinery more profitable is, the off-gas compressor has also been fixed and awaiting commissioning.  This facility will compress off gases generated from the processing units and channel them to be used as fuel for the boilers and furnaces.
Aside these laudable actions, the company is also focusing on its human resource retention by training and re-training staff.
As part of measures to reduce the risk of non-settlement of credit, TOR has changed its old business model of selling on credit to the Oil Marketing Companies (OMCs). Currently, TOR sells its finished petroleum products to the Bulk Distribution Companies (BDC’s) who post unconfirmed Letters of Credit to reduce the risk of non-payment.

Quality Petroleum Products

With a workforce of more than 700, TOR is noted for its quality specifications in Aviation Turbine Kerosene (ATK) which meets international specifications. The airlines would have had to refuel from their countries of origin adding to high cost of operation.  ATK from the refinery has been used to refuel presidential jets including AIRFORCE ONE on three occasions when Presidents Clinton, Bush Jnr and Barack Obama visited Ghana. The refinery has, therefore, replicated this stringent process on other product lines including petrol and gas oil.
What TOR can be

Fortunately, the country joined the league of oil producing countries in June 2007 when oil was discovered in commercial quantities and it will be befitting to fulfil Dr Nkrumah’s charge to GHAIP in 1963 when he directed the company to "purchase and refine the crude oil" in the event Ghana strikes crude oil.
In the past, present and successive presidents have had to move from one country to the other virtually on "their knees pleading for crude oil" to be supplied to TOR. Ghana does not have an excuse to go begging for crude oil when crude oil is being shipped from Ghana to buyers abroad.
The refinery brings “value addition” to the crude oil found in Ghana in addition to the many wells which are yet to be explored and discovered. The benefits to the economy, industries and employment generation is obvious. Ghana cannot reach the threshold of development if it continues to spend billions of dollars to import finished oil products, rice, cooking oil, chicken, toothpick, tomato puree and many others at the detriment of local industries. TOR must, accordingly, position itself to be able to purchase Ghana's crude to feed its plants.
The refinery could be the foundation for any petrochemical venture Ghana intends to embark on. Dr Nkrumah once stated, ‘The refinery should become a vital part for the establishment of other industries to contribute to national development’.
While TOR positions itself to expand and improve its infrastructure to ensure reliability of petroleum products on the Ghanaian market and beyond, it should also consider entering into strategic partnership with investors. It would also not be a bad idea for it to float shares on the Ghana Stock Exchange (GSE).
TOR is a viable company that should be supported to play its strategic role to enhance the country’s development. The government must assist TOR to be independent. Subsidising petroleum products is not the solution to the country’s oil industry and other areas begging for assistance.
The several millions of cedis used in subsidising fuel products, which from experience hardly reach the intended vulnerable group, can be channelled into the provision of quality health care, education and other social amenities for the benefit of millions of Ghanaians whose needs are increasing daily.
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Company develops infrastructure to support gas imports

September 27, 2013 (Back Page)

A wholly-owned Ghanaian company is embarking on a venture to help meet the growing demand for gas in Ghana.
Quantum Power Ghana Gas Limited is currently developing a Liquefied Natural Gas ( LNG) reception, storage, regasification and delivery infrastructure to support LNG imports by industrial scale gas users in Ghana.
Upon completion, the company’s initiative will provide adequate and more affordable fuel to power Ghana’s thermal plants which would become the major source of power in Ghana’s energy mix when the country achieves its 5000 megawatts capacity by 2017.
  LNG is a natural gas (predominantly methane, CH4) that has been converted to liquid form for ease of storage or transport. It permits transportation across longer distances than pipelines.It is odourless, colourless, non-toxic and non-corrosive.
The Workshop
Consequently, a two-day workshop organised by the Ministry of Energy and Petroleum in collaboration with Quantum Power Ghana Gas Ltd on LNG negotiations for power producers, industrial gas users and general stakeholders in the gas industry is underway in Accra.
It is being run by internationally recognised LNG experts who are leading discussions on global and Atlantic basin LNG markets, commercial and technical agreements involved in establishing an LNG supply chain and key commercial and legal issues that drive LNG supply negotiations.
Participants were drawn from 28 public and private institutions in the oil and gas sector of the economy.
The participants will be taken through topics such as LNG Basics and the LNG Value Chain, Global and Atlantic LNG Markets, Regasification Terminals, Risk Management and Pricing, Commercial Models, LNG Sale and Purchase Agreements and the way for Ghana LNG.
The event is in conformity with the ministry’s agenda of encouraging a creative private-sector-led LNG solution for the country in which power generators could arrange imports of LNG to feed their businesses.
Opening the workshop, a Deputy Minister of Energy, Mr John Abu Jinapor, said there was the need to “facilitate investment and provide a clear fiscal and operational regulatory regime around which you can plan and develop LNG businesses,” and accordingly assured that the government had put in place the necessary measures to promote the LNG sector.
He said the Energy Commission had developed and published a competitive, fair and transparent licensing regime for investment in LNG regasification facilities, LNG importation and gas distribution while the PURC had set out clear processes for setting energy tariffs.
The government, Mr Jinapor explained was “interested in achieving the lowest possible priced LNG, in order to achieve the lowest possible priced power and to make Ghanaian industry increasingly competitive.”
He disclosed that the government was therefore supporting the Ghana Grid Company (Gridco) to embark on major projects aimed at addressing the transmission challenges through progressive replacement of over-aged and obsolete equipment and reinforcement of others including the construction of 161kV and 330kV transmission lines, construction of new substations across the country as well as expand  some existing substations and the installation of capacitor banks.
“Furthermore, the Electricity Company of Ghana and the Northern Electricity Distribution Company are equally being supported to strengthen and improve reliability of the electricity distribution grid,” Mr Jinapor pointed out.

Thursday, September 26, 2013

Stop illegal fees - Subsidiary Legislation Committee orders Korle-Bu

September 25, 2013 (Lead Story)

HAS anyone in the past week paid the newly introduced rates at the Korle Bu Teaching Hospital?
If yes, they are entitled to a refund, says the Chairman of the Parliamentary Committee on Subsidiary Legislation, Mr O. B. Amoah.
He has accordingly advised the management of the Korle Bu Teaching Hospital to revert to the old service charges since the newly increased fees were “illegal and unconstitutional.”
He said persons who had either paid the increased rates on their own behalf or on behalf of their friends and relatives, were advised to request for a refund “without any delay.”
But the management of the Korle Bu Teaching Hospital says it inadvertently misconstrued 21 parliamentary sitting days for 21 working days for the implementation of new fees charged at the hospital.
It, however, said since the approval of the fees was not in dispute, nothing was going to change as far as the implementation was concerned.
The acting Chief Executive of the hospital, Dr David Nortey, who made this known to the Daily Graphic, noted that apart from misconstruing the number of days, the hospital was also not sure when the 21 parliamentary sitting days were to take effect.
According to the September 21, 2013, edition of the Daily Graphic, patients were surprised and upset to have been directed by the hospital staff to pay increased service fees without any prior notification.
The rate for a new folder for new patients has increased from GH¢9 to GH¢16, while charges for laboratory services have shot up to between 40 and 100 per cent.
A source at the hospital informed the Daily Graphic that Parliament had given approval to the new rates proposed by the hospital through the Ministry of Finance and Economic Planning (MOFEP).

Unconstitutional Rates

Appalled at reports that the hospital began charging the new rates from September 17, 2013, Mr Amoah said in an interview with the Daily Graphic that  “the hospital is charging the fees illegally.”
That, according to him, was because Parliament was yet to approve the rates submitted by the MOFEP on behalf of the hospital and 28 other government institutions, including the Driver and Vehicle Licensing Authority (DVLA), the Lands Commission and the Road Safety Commission.
He said the Legislative Instrument L..I. 2206 titled Fees and Charges (Amendment Instrument 2013) for the various institutions were submitted on their behalf by the MOFEP on July 19, 2013.
Other institutions seeking an upward adjustment in the services they render to the public are the Food and Drugs Authority (FDA), Ghana Standard Authority (GSA), the Ghana Free Zones Board, Registrar General’s Department, Births and Deaths Registry, Parks and Gardens and the Gaming Commission.
The Public Records and Archives Administration (PRAAD), the Postal and Courier Services Regulatory Commission, the National Identification Authority and the Narcotics Control Board (NACOB)) among others are also pleading with Parliament to approve their new rates.
Mr Amoah indicated that the L.I., which sought for new rates, was laid six days before Parliament went on recess and that Parliament would resume in the last week of October, 2013 after which the 21-day mandatory period for the maturity of legislative instruments would have been due.
Article 11 (7) of the 1992 Constitution states that "Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall:
(a) be laid before Parliament
(b) be published in the Gazette on the day it is laid before Parliament and
(c) come into force at the expiration of twenty-one sitting days after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Order or Regulation by the votes of not less than two thirds of all the members of Parliament.”
That, according to Mr Amoah, who is also the New Patriotic Party (NPP) Member of Parliament for Akuapem South, was a clear indication that “it is left with 15 sitting days for the L.I. to mature. In any case, Parliament can annul the said L.I. before the mandatory 21 days elapses.”

Message to Korle Bu Management

Pointing out that laying a legislative instrument before Parliament did not mean an automatic approval, Mr Amoah, consequently, urged the management of the hospital to return to the old fees while it awaited parliamentary approval for full implementation.
“Parliament has not approved it. You cannot use the laying as an excuse to change fees. What the hospital’s  management has done and is doing is unconstitutional. Those who have paid the new charges are entitled to a refund,” Mr Amoah emphasised.
He also urged the remaining 28 government organisations to desist from charging the new rates until their various instruments were passed by Parliament.

Korle Bu's Response

According to Dr Nortey, the reversal of the new fees was going to be a challenge since the implementation of the new fees came with the activation of a complex Information Technology software that was linked to the payment of fees at the hospital.
Korle Bu, he said, was a law-abiding institution which went through the normal processes and institutions including the Ministry of Health, Ministry of Finance and Economic Planning and the Parliament to get approval for the new fees.
Dr Nortey said the new fees were necessary because the hospital had for the past six years not review its fees although the prices of inputs and goods and services had gone up.
“This is not a unilateral decision and Korle Bu was part of 29 institutions that made a case for the upward review of fees,” he said, and dismissed the argument that Korle-Bu was fleecing patients.
The decision to increase fees, he said, was to provide quality healthcare to Ghanaians.
“Korle Bu is law abiding and there is no way Korle Bu would fleece patients.

Fact Sheet
•    Some patients at the Korle Bu Teaching Hospital are upset at the increased rates for services because they had not been notified.
•    There has not been any increment in laboratory and other services at the hospital since 2006.
•    A total of 29 governmental institutions have placed various Bills before Parliament for approval.

Wednesday, September 11, 2013

How the judges ruled in the election petition - Judgement of Justice Baffoe-Bonnie

Tuesday, September 10, 2013 (Page 20)

A Supreme Court judge, Mr Justice Paul Baffoe-Bonnie, has contended that annulling votes because a presiding officer has not signed a pink sheet should not have a place in modern democracy.
“To disenfranchise hundreds of thousands of voters (through no fault of theirs) because a presiding officer fails to sign will not have a place in modern democratic governance,” Justice Baffoe-Bonnie held in his judgement which formed part of the 588-page composite judgement of the recently adjudicated presidential election petition.
Dismissing the call for the annulment of votes in 1,638 polling stations because presiding officers had not sign pink sheets (statement of poll and declaration of results forms for the office of president), Justice Baffoe-Bonnie held that to strictly interpret Article 49 (3) which required the presiding officer to sign pink sheets “is to take the importance away from the voter and give same to the persons who run the elections.”
That according to him was because, “if the absence of the single signature of the presiding officer can lead to the annulment of the votes of hundreds of thousands of voters, then the election ceases to be about the voters and shifts to the presiding officer.”
“So that if a presiding officer, either from pressure of work, oversight, or plain mischief fails to sign, then fatally, hundreds of voters are disenfranchised. Again,a corrupt politician needs only to team up with a few hundred presiding officers in an opponent’s stronghold, and bingo! Fortunes are turned. This will be carrying strict interpretation to absurd limits,” Mr Justice Baffoe-Bonnie submitted.
In his considered view, the non-signing by the presiding officer “is a mere irregularity that does not go to the root of the matter. It did not affect the conduct of the polls and, therefore, should not lead to the annulment or even cancellation of votes.”
He accordingly dismissed the petitioners call for the annulment of votes in 1,638 polling stations across the country due to the non-signing of pink sheets.
Justice Baffoe-Bonnie also refused to grant the petitioners call for the annulment of votes in instances of some pink sheets having duplicated serial numbers, over-voting, voting taking place at 22 unknown locations and some polling stations having duplicated polling station codes.
He, however, upheld the petitioners’ claim of persons being allowed to cast their ballots without undergoing biometric verification.
Published summarised judgements
The Supreme Court, on August 29, 2013, in overall decision, declared President John Dramani Mahama as the validly elected President in the December 7 and 8, 2012 presidential election.
The petition brought was by the presidential candidate of the New Patriotic Party (NPP) in the December 2012 presidential election, Nana Addo Dankwa Akufo-Addo together with his running mate, Dr Mahamadu Bawumia and the National Chairman of the NPP, Mr Jake Otanka Obetsebi-Lamptey.
Summarised judgements of Justices William A. Atuguba and Julius Ansah were published in the September 4, 2013 edition of the Daily Graphic,while that of Justices Anin Yeboah and Sophia Adinyira were published on September 6, 2013.
The opinions of Justices Rose Owusu and N. S. Gbadegebe were published in the September 7, 2013 edition of the paper, while that of Justices Jones Victor M. Dotse and Vida Akoto-Bamfo got published on Monday September 9, 2013.
Summarised judgement of Justice Baffoe-Bonnie
Duplicated Serial numbers
“I dismiss the petitioners claim to annul votes on account of claim of duplicate serial numbers as frivolous,” Justice Baffoe-Bonnie held under this category.

Over voting

On over voting, he said, “I uphold the principle that once over voting is detected in a polling station, the elections there are compromised and should be cancelled but the voters there should be given a second chance to cast their votes. However, I find that in view of the admissions made by the 2nd petitioner with regard to some pink sheets and the many clerical errors, I find that the number of pink sheets affected in this category has so reduced that the votes affected are not too significant to make any impact even if they are cancelled. I dismiss the claim on this ground too.” Dr Bawumia was the second petitioner.
Biometric Verification allegation upheld
On the issue of persons voting without undergoing biometric verification, Mr Justice Baffoe-Bonnie was of the view that “the petitioners have discharged the burden of proof on them that voting took place in some polling stations without prior biometric verification. This was discriminatory since other persons had been turned away for their inability to be verified. All those stations affected by this phenomenon should have their votes cancelled and the voters given a second chance to vote again.”
Justice Baffoe-Bonnie held that the “the long explanation by the 2nd respondent flies in the face of the recordings on the pink sheets. They, presiding officers were not expected to fill them because nobody was expected to vote without biometric verification.”
“But they have filled them. Where did they get the figures from? If the figures reflecting that all voters at a polling station voted without going through BVD was lifted, how about those pink sheets which show figures unrelated to any other figures on the pink sheet?,” he queried and said from the totality of evidence adduced by the petitioners, the EC (second respondent) violated Regulation 30 (2) of C.I. 75 which said required persons to undergo biometric verification before voting.
“I will, therefore, uphold the petitioners claim on this ground only to the extent that those voters that have their votes cancelled should have the chance to recast their votes lest they be disenfranchised,” Justice Baffoe-Bonnie held but his position formed part of the minority and for that reason, voting will not take place in the affected areas.
??????The Chairman of the EC, Dr Kwadwo Afari-Gyan had told the court that presiding officers were not required to fill out the part on the pink sheet which required information on the number of persons not biometrically verified to vote on the grounds that political parties had kicked against the idea to allow persons whose biodata got lost but had been issued with voter identity cards to vote.??????

Struggle for the right to vote

In his 21-page judgement, Justice Baffoe-Bonnie said the right to vote and, thereby, partake in governance and decision making had been fought for by some democrats from of old and indicated that, “some have paid the ultimate price to ensure that no category or class of people are disenfranchised.”
Emphasising the right to vote, Justice Baffoe-Bonnie held that “it is not too long ago that the blacks of South Africa were given the right to vote. The same thing applies to USA. In some countries, women were given the right to vote not too long ago.”
“We in Ghana have had the universal adult suffrage since independence. Even though some countries prohibit prisoners from voting, in Ghana we don’t. This is how far we have come in our quest for democratic governance. We should do everything possible to protect this right. And the least we could do is not to disenfranchise people through technical or administrative lapses over which they have no control,” Justice Baffoe-Bonnie stressed.
Duplicate pink sheets
Giving his opinion on allegations of pink sheets having duplicated serial numbers, he upheld the respondents’ explanation that the numbers are not security numbers that can be used to track the polling stations in which they are actually used.
He also accepted the explanation that polling stations were known by their unique codes and names and for that reason any pink sheet with any number could be sent to any region, constituency or polling station.
 “In their address, the second respondent said this category can properly be described as the weakest link in an already weak chain. I couldn’t agree more. Throughout the proceedings, the petitioners failed to show how this so called irregularity affected the conduct of the polls,” adding that, “the petitioners failed to convince me about the veracity of their claim as far as this irregularity is concerned and I reject same,” Justice Baffoe-Bonnie stated.

Petitioners claim flawed
The petitioners on December 28, 2012 dragged President Mahama and the EC which declared President Mahama winner of the poll to the Supreme Court but the National Democratic Congress (NDC) applied to join albeit opposition from the petitioners.
In a 6-3 majority decision, the court on January 22, 2013 gave the NDC the nod to join the petition which later indicated that using pink sheets from 10,119 polling stations, a total 3,931,339 votes were affected by the various irregularities.
According to the petitioners, when the results of these polling stations are annulled, President Mahama’s votes would be reduced by 2,622,551 which will result in him securing 41.79 per cent of the new tally of valid votes, while Nana Akufo–Addo’s votes would also be reduced by 1,233,186 but that will still see him securing 56.85 per cent of the new tally of valid votes, much more than the needed 50 per cent + 1 to be declared as winner of the Presidency.
Responding to that line of argument, Justice Baffoe-Bonnie held that it was his opinion that the basis of the petitioners’ claim that Nana Akufo-Addo be declared as the winner after annulment of votes “is completely flawed.”
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How the judges ruled in the election petition - Judgement of Justice Akoto-Bamfo

Monday, September 9, 2013 (Page 47)

THE youngest in terms of seniority among the panel of justices who sat on the presidential election petition has justified why she dismissed all the six claims of electoral irregularities at 10,119 polling stations across the country.
Dismissing each claim of over-voting, voting without biometric verification, absence of the signature of some presiding officers, duplicate serial numbers on pink sheets, duplicate polling station codes and voting taking place at 22 unknown locations in her 15-page judgement, Justice Akoto-Bamfo held that the petitioners had failed to discharge their burden of proof to warrant the annulment of 3,931,339 votes.
The presidential candidate of the New Patriotic Party (NPP) in the December 2012 presidential election, Nana Addo Dankwa Akufo-Addo, his running mate, Dr Mahamadu Bawumia and the National Chairman of the (NPP), Mr Jake Otanka Obetsebi-Lamptey,  had prayed the court to annul votes due to gross and widespread irregularities on pink sheets (statement of poll and declaration for the office of president) from 10,119 polling stations.
But the court in an overall decision on August 29, 2013 declared president Mahama as the validly elected president in the December 7 and 8, 2012 poll.

Justice Akoto-Bamfo’s opinion

Touching on the petitioners’ changing the number of polling stations where irregularities occurred from 4,709 to 11,916, 11, 842, 11, 138, 11,115, 10, 081 and finally to 10,119 – Mrs Justice Akoto-Bamfo held that, “thus, in situations where there are deletions and reclassifications of the facts in dispute, in the course of the hearing, without the leave of the Court to amend; the party could be said to have breached some cardinal rules of pleadings.”       

Allegation of Over-voting

Citing her reasons for the dismissal of the allegation of over-voting, Justice Akoto-Bamfo said the petitioners had failed to lead evidence to pinpoint which polling stations and results needed to be annulled due to over-voting.
“None of the polling agents made a report of any irregularity; no evidence was led on ballot box stuffing. And more importantly the ballots were cast and their polling agents attested to the results.
While the presiding officers obviously did make some mistakes and clerical errors, no mischief or advantage can be attributed thereto. Substantially the voting, counting and tallying of votes were carried out to a high degree of accuracy,” she pointed out.
She said questions like “which polling stations were affected? How many results have to be annulled,” were not answered by the petitioners and for that reason, “I would, therefore, decline the invitation to annul any votes under this category.”

 Absence of signatures

She said it was evident that although, Article 51 of the 1992 Constitution vested the power in the Electoral Commission (EC) to make regulations for the conduct of the elections; it was only under Article 49 that the steps to be followed by the presiding officers and the polling agents, after the close of the polls, were set out in detail.
According to her the right to vote was enshrined in Article 42 of the 1992 Constitution, and stressed that, “universal adult suffrage is, without a doubt, one of the pillars of our democracy. Significantly, Article 42 is equally an entrenched provision.“
“Was it the intention of the framers of the Constitution that persons who have exercised their rights under Article 42 by going through the electoral procedures, registered as voters,  had their names on the register, participated in the election by casting their  votes which have  been publicly counted,  recorded and announced -  should have such votes not counted on account of the sins of one public officer?
We have freely chosen the democratic form of governance in which sovereign power resides in the people as a whole. Under that system each citizen must be afforded a genuine opportunity, through the conduct of free and fair elections, to determine who his leaders or representatives should be,” Mrs Justice Akoto-Bamfo emphasised.
She also stressed the vital role played by the polling agent in the electoral process and stated that, “as a representative of a candidate or a party, by appending his signature to the declaration; he serves notice to his principal and the   generality of the citizenry that the presiding officer has complied with the rules; there has been the casting of the ballot, counting, recording and the declaration of the results.”
Justice Akoto-Bamfo held that there was no evidence that the persons who voted in the election ought not to have voted, neither was there any evidence that some people voted more than once.
“Indeed, there was no evidence that any of the voters or the respondents engaged in any fraudulent act. In other words, there was a real election by ballot,” she emphasised.
“In my view, visiting the sins of some public official on innocent citizens who have expressed their choice freely would run counter to the principle of universal adult suffrage, one of the pillars of our democracy, and perpetuate an injustice. The omissions of a presiding officer should not disenfranchise the voter.
I would, therefore, decline the invitation to invalidate the votes cast on account of the absence of the signature of the presiding officers,” she added.

General Comment on Importance of Polling Agents

Justifying the importance of polling agents at polls, Justice Akoto-Bamfo held that “the notion that polling agents are ornamental pieces adorning the polling stations must be discarded.”
She said “their roles are clearly defined by the Constitution and other statutes governing the elections. A vigilant polling agent would detect some of the wrongful acts at the polling station,” and then added that, “this costly exercise of combing through a mountain of election materials, with a view of unearthing irregularities, well after the declaration of the results, would be greatly reduced.”

Duplicate serial numbers
Giving her reason for dismissing the petitioners call for the annulment of votes due to some pink sheets having duplicated serial numbers, she said, “I must say that the pieces of evidence offered by both Mr Johnson Asiedu Nketiah and Dr Afari Gyan shredded into pieces the petitioners’ case under this head. It became evident that Dr Bawumia was not too familiar with the processes and procedures leading to the conduct of the presidential elections.”
Mr Nketia, General Secretary of the National Democratic Congress (NDC), and the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, had told the court that polling stations were known by their names and unique codes and, not by serial numbers.

Voting without biometric verification

Deciding on claims of persons voting without undergoing biometric verification, Justice Akoto-Bamfo held that it was a “notorious fact” that the poll was adjourned in some areas due to breakdown of biometric verification and, therefore, there were two days of voting.
“If persons were allowed to vote without verification would there have been any need for the adjournment? I think not.  In the absence of any credible evidence to the contrary (some polling agent or voter testifying) I would prefer the pieces of evidence of the respondent’s on this issue to the bare assertions of the petitioners based on the face of the pink sheets. It became obvious that the attack mounted under that category was premised on a misconception and, therefore, impossible to stand,” she held and, accordingly, declined the petitioner’s invitation to annul the votes under that category.

Unknown polling stations
Refusing to grant claims that voting took place at 22 unknown locations, Justice Akoto-Bamfo submitted that, “if they did not know of the existence of those polling stations, they obviously could not have sent their agents there.”
Same polling station codes on different pink sheets
Justice Akoto-Bamfo indicated that although the petitioners took the view that votes under that category were insignificant, “I would only find the explanation by the 2nd respondent credible; that some polling stations were so large as to be divided into sections A and B; while the others, constituted polling stations where special voting took place, I would so find and dismiss the petitioners’ case under this ground as well.”
The second respondent was the EC.
Petition dismissed in its entirety
“For the foregoing reasons I would dismiss the petition in its entirety. I must say that on paper, we seem to have a transparent electoral system which has evolved over the years,” but suggested that the calibre of electoral officials must be improved to prevent avoidable errors in future elections.
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How the judges ruled in the election petition - Judgement of Justice Dotse

BACKED by the 1992 Constitution, legal authorities, evidence adduced and his favourite childhood poem, a Supreme Court judge, Mr Justice Victor M. Dotse, has explained why he upheld two of the six claims of electoral irregularities complained of by the petitioners in the just ended presidential election petition.
Mr Justice Dotse endorsed the claims of over-voting and the failure of presiding officers to sign pink sheets (statement of poll and declaration of results for the office of president) but dismissed allegations of persons voting without undergoing biometric verification, pink sheets having duplicate serial numbers, duplicated polling station codes and voting taking place at 22 unknown locations.
The overall effect of the August 29, 2013 judgement was that President John Dramani Mahama, who stood on the ticket of the National Democratic Congress (NDC), was validly elected in the December 7 and 8, 2012 presidential election.
His declaration as the winner of the poll was challenged by the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, his running mate, Dr Mahamadu Bawumia, and the National Chairman of the NPP, Mr Jake Otanka Obetsebi-Lamptey, but the court settled the matter on August 29, 2013 after eight months.
The summarised judgements of Justices William Atuguba, Julius Ansah, Sophia Adinyira, Rose Owusu, Anin Yeboah and N. S. Gbadgebe have been published by the Daily Graphic.

Summarised 125-page  judgement of Mr Justice Jones Victor M. Dotse
Stating his position on allegations of bloated voters register, he said, “The effect of these infractions in the registration exercise has not been proven to have had any effect on the final outcome of the election, I will dismiss it.”

Biometric Verification
The presidential candidate of the New Patriotic Party (NPP) in the December 2012 presidential election, Nana Addo Dankwa Akufo-Addo, his running mate, Dr Mahamadu Bawumia, and the National Chairman of the (NPP), Mr Jake Otanka Obetsebi-Lamptey,  had prayed the court to annul votes in 2,020 polling stations because some voters voted without undergoing biometric verification but Justice Dotse disagreed.
Quoting from the record of proceedings, Justice Dotse accepted the explanation offered by the Chairman of the Electoral (EC), Dr Kwadwo Afari-Gyan, who said entries on pink sheets which said some persons had voted without undergoing biometric verification were an error.
Dr Afari-Gyan had told the court that data of some persons who registered to vote got lost, although they had been issued with voter identity cards and for that reason Form 1C was issued to such persons to fill them out in order to be able to vote.
However, the political parties kicked against the idea and for that reason presiding officers were directed not to take the Form 1Cs along to polling stations.
Despite the directive, some presiding officers entered portions on the pink sheets which required the number of persons who had voted without undergoing biometric verification.
Dr Afari-Gyan explained to the court that that was done in error. Mr Justice Dotse found his explanation plausible and accordingly held that “the no biometric verification, therefore, in my estimation fails in its entirety”.

Conclusion on Over-voting

Since the meaning of over-voting has not been provided in any statute, Justice Dotse said, for purposes of transparency, the time had come for the Electoral Commission (EC) “to come out with a Constitutional Instrument to regulate and direct the officers it engages for the conduct of elections in the country, such that severe sanctions can be applied to them when flagrant and inexplicable infractions in their performance of their duties has been proven to have occurred”.
He said a detailed study and analysis of pink sheets submitted by the petitioners in their address clearly showed that “there were some clear instances of over-voting”.
“Secondly, the study and analysis revealed that there was either wrong addition made of the entries on the pink sheets, or there was error on the pink sheets. In such a situation, I think the errors have to be corrected if possible by reference to primary sources of information,” he submitted.
According to Justice Dotse, there were instances where the entries made on pink sheets had not been completed while some errors were committed in the filling process, adding that “if the evidence to correct the errors can be gotten from the pink sheet, or from records available to the polling station, then it should be used”.
Justice Dotse pointed out that it was desirable for concerns on errors on pink sheets to be raised at the polling station with the view that they be corrected at the polling station level.
He accordingly annulled votes on pink sheets that had shown instances of over-voting and called for a re-run but his decision forms part of the minority opinion of the court and for that reason there would no re-run.

No signature category

Upholding the petitioners claim of presiding officers not signing 1,638 pink sheets, Justice Dotse said “since it is to this Supreme Court that the Petitioners have come to for the interpretation and enforcement of the breach of this article 49 (3) of the Constitution 1992, I hold that the conduct of the Petitioners agents in signing the pink sheets notwithstanding cannot clothe the unconstitutional conduct of presiding officers in not signing the pink sheets with constitutionality”.
He said the Supreme Court in two landmark decisions upheld the supremacy of the Constitution in the hierarchy of legal norms and laws in the legal system and stated that these principles had to be preserved and jealously guarded.
“See the unreported cases of Martin Amidu v The Attorney-General and 2 others (aka The Woyome case) S.C. No. J1/15/2012 dated 14th June 2013 and Martin Amidu v Attorney-General and 2 others, (aka Isofoton case) S.C J1/23/2013 dated 21st July 2013.
In view of this and the other cases listed supra, I uphold the petitioners’ claims under the category of presiding officers not signing the pink sheets,” Justice Dotse said.

Concluding remarks

Justice Dotse, in his concluding remarks, urged political parties as major stakeholders to liaise with the EC to review the entire electoral system with particular reference to entries on the pink sheets. 
“This has become very critical in view of the many errors that have become a routine feature of the pink sheets,” Mr Justice Dotse pointed out.
He said, “If it is understood that these pink sheets are the documents that are used to declare the results if no objections are raised, then the method of recruitment, training and general orientation of the staff, be they temporary or permanent, engaged in performing critical core functions on election day has to be revised.”

Appeal to Political Parties

On the same breath, Justice Dotse appealed to political parties and/or candidates to ensure that “those persons they engage as agents to observe the elections at the polling stations are not only loyal and dedicated party persons, but persons who are competent enough to understand the implications of the recordings on the pink sheets and the sequential nature of the said recordings”.
“I will also take this opportunity to congratulate the parties and their Counsel on their conduct and assistance to the Court. This was despite the fact that, even though tension was initially very high with loss of confidence and trust among the Lawyers, with the passage of time, those barriers were removed and the case progressed apace to its conclusion,” he held.

Victory for Ghana’s Democracy

“Today’s judgement is a victory I believe once again for Ghana’s democratic credentials, to wit, the rule of law and our pursuit of governance-related issues,” Justice Dotse pointed out, and accordingly concluded his judgement with Lord Alfred Tennyson poem titled “THE BROOK”. He said the brook was his childhood poem.
After enacting the full poem in his judgement, Justice Dotse likened the river in the poem to the Volta and other rivers and streams and said, “I add, for NPP and NDC may come and go, but Ghana goes on forever as a country.”
Summing up, Justice Dotse said, “I will, therefore, entreat all my countrymen and women to bear this happy thought about The Brook, which goes on forever but we the players, i.e. those of us who benefit from The Brook, we come and go. Life must definitely continue to go on forever despite the reverses we suffer one way or the other. God bless Ghana.”
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How the judges ruled in the election petition- Judgement of Justice Owusu

September 7, 2013 (Page 28)

ONE of the nine justices of the Supreme Court, who adjudicated in the 2012 presidential election petition, Ms Justice Rose Constance Owusu, has given reasons why she called for the annulment of votes in some polling stations due to electoral irregularities recorded.
In her 38-page judgement, Ms Justice Owusu said incidents of over-voting, voting without biometric verification and some presiding officers not signing pink sheets infringed on the 1992 Constitution and for that reason votes must be annulled and a re-run held.
She, however, joined Justices William Atuguba, Julius Ansah, Sophia Adinyira, Jones V. M. Dotse, Anin Yeboah, Paul Baffoe-Bonnie, N. S. Gbadegbe and Vida Akoto-Bamfo to unanimously dismiss three out of the six claims of the petitioners.
The three claims of the petitioners which were unanimously dismissed on August 29, 2013 were allegations of some pink sheets (statement of poll and declaration of results form for the office of president) having duplicated serial numbers, duplicated polling station codes and voting taking place at 22 unknown locations.

What is the effect of over voting on results?
She said much as the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, would not readily admit an over-vote, “he told the court that an over-vote if established will result in annulment of the results as it cannot be determined which candidate had benefited from the illegal vote and the integrity of the election would have been compromised.”
According to her, Dr Afari-Gyan told the court that before annulling results because of over-voting, he would do a check on the face of the pink sheet, adding, however, that “his evidence is that he did not see any pink sheet before declaring the presidential election results. So, therefore, he did not have the opportunity to do any check to determine from the face of the pink sheets that there was no over voting.”
“Where, therefore, the evidence of over-voting was introduced on the face of the pink sheets, and the error/mistake as the respondents contend cannot be explained on the face of the pink sheet, then that is an irregularity that affects the result. I will consequently hold that where there is over voting the results must be annulled,” she added.

Absence of presiding officer’s signature
According to the petitioners, a total of 1,638 pink sheets were not signed by presiding officers, but Dr Afari-Gyan had admitted 905 pink sheets were unsigned.
Ms Owusu indicated that the “the constitution mirrors the will and aspirations of the Ghanaian people and it is the supreme law of the land,” and stated that, “Article 49 (3) therefore imposes an obligation on the presiding officer to sign before the declaration of the results. 
“The reason for this cannot be farfetched.  He must sign to authenticate the results. If he does not sign, but goes ahead to declare the results, what will be their probative value?”
She stressed that the polling agent was not an electoral officer and “the fact that he has signed the pink sheet cannot legalise that which is otherwise an illegality.”
Article 49 of the 1992 Constitution, she emphasised, was “an entrenched provision and parliament by itself cannot even amend it.  How can a court under the guise of interpretation give any other meaning to 49(3) other than what is stated in the clause.  The golden rule of interpretation is that words must be given their ordinary meaning unless same shall lead to absurdity.  The clause is clear and unambiguous and does not call for the interpretation jurisdiction of this court.  None of the conditions as laid down in TUFFOUR VRS THE ATTORNEY-GENERAL [1980] SCLR is present here and I would therefore, not even attempt to embark on that exercise of interpreting the “shall” or find reasons why the presiding officer might have failed to sign.”
She went on to state that the respondents did not deny the failure of the presiding officers to sign but contended that that should not be a basis for annulling lawfully cast votes. 
Responding to argument by lead counsel for the National Democratic Congress (NDC), Mr Tsatsu Tsikata, that if votes were annulled due to non-signing of pink sheets voters would be punished retroactively, she said,  “I wholly agree with counsel in that regard.  In the circumstances, what is the way out?”
She affirmed Article 42 of the 1992 Constitution which provides that “Every citizen of Ghana of 18 years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda.”
Justice Owusu stated that “in this petition, however, where the evidence on the “pink sheets” on their faces indicates that the election was not conducted substantially in accordance with the law as to the election  and that the act or omission did affect the result, then the result will be invalidated.”
She further held that the citizen’s right to vote had been upheld by the Supreme Court in numerous cases and “in particular AHUMA OCANSEY and TEHN-ADDY already referred to. I happened to be part of the decision in AHUMA OCANSEY’s case and I still stand by my opinion therein expressed.”
“For this reason, I will not by annulling votes under the three categories indirectly deny the voters their fundamental and inalienable right to vote as enshrined in the constitution. Consequently, where votes have been annulled as a result of violations, irregularities, etc. I will call for a run off of the elections,” she concluded.

Voting without biometric verification
Citing authorities to buttress her decision to annul votes cast due to persons casting their ballots without undergoing biometric verification, Ms Justice Owusu said “voting without being biometrically verified is an infringement of the Law which cannot be countenanced under the present dispensation in an election petition.
“For this and other reasons, I am inclined to annul votes in all polling stations where the violation occurred,” she concluded .

Duplicate polling station code
She indicated that Dr Afari-Gyan was able to explain that in some instances, special voting had taken place at the same polling station or where the registered voters there were too many the polling station would be split into two – A and B.
That she explained was  “plausible enough,” adding that the “malpractice if anything at all, will not affect the result, so that malpractice is disallowed,” she stated.

Unknown polling stations
Touching on the allegation of voting taking place at 22 unknown locations, Ms Justice Owusu submitted that the General Secretary of the NDC, Mr Johnson Asiedu Nketia, was able to supply the court with a list which proved that the said 22 polling stations indeed formed part of the 26,002 polling stations for the 2012 Presidential election.
“What is more, the petitioners sent their polling agents to these polling stations where voting took place in the presence of their polling agents. I find no substance in this claim and so disallow same,” she said.

Duplicate serial numbers
She dismissed the petitioners’ claim of some pink sheets having duplicate serial numbers by accepting explanations from the respondents that polling stations were known by their unique names and codes.
She also accepted the explanation that the numbers on the pink sheets were generated by the printer.
“In fact the petitioners did not say that no voting took place in those polling stations. If the pink sheets’ are questionable, what questions were asked and were answered by the petitioners? No case was made under this head and I am inclined to dismiss same,” she added.       

She accordingly upheld the petitioners allegations of over-voting, voting without biometric verification and presiding officers not signing pink sheets, cancelled the votes involved and ordered for a re-run of the elections.
Her views, however, formed part of the minority and for that reason the court held in an overall decision that President John Dramani Mahama was validly elected in the December 2012 presidential poll.
Writer’s email: mabel.baneseh@graphic.

How the judges ruled in the election petition - Judgement of Justice Gbadegbe

September 7, 2013 (Page 20)

ONE of the justices who sat on the presidential election petition has given reasons why he dismissed all the six claims of electoral irregularities at 10,119 polling stations across the country.
In his 16-page judgement which lent support to the overall decision declaring President John Dramani Mahama as the validly elected President in the December 7 and 8, 2012 presidential election, Mr Justice Sulley Nasiru Gbadegbe is of the view that the petitioners failed to discharge their burden of proof to warrant the annulment of 3,931,339 votes cast in 10,119 polling stations.
He has accordingly dismissed each claim of over-voting, voting without biometric verification, absence of the signature of some presiding officers, duplicate serial numbers on pink sheets, duplicate polling station codes and voting taking place at 22 unknown locations.
Mr Justice Gbadegbe elaborated on the evidence adduced, cited authorities and came to the conclusion that, “for these reasons, I am unable to yield to the reliefs set out in the petitioners’ demands before us and proceed to dismiss same.  In the result, the declaration under the hand and signature of the Chairman of the Electoral Commission dated 9 December 2012 and numbered as C.I. 80 is hereby declared valid.”
The judgements of Justices William Atuguba and Julius Ansah were published in the September 4, 2013 edition of the Daily Graphic, while that of Mrs Justice Sophia Adinyira and Mr Justice Anin Yeboah, were published in the September 6, 2013 edition of the paper. Summarised judgements of Justices Rose Owusu, Jones V. M. Dotse, Paul Baffoe-Bonnie and Vida Akoto-Bamfo will be published in the coming days.
Below is the summarised arguments advanced by Mr Justice Gbadegbe in dismissing the case of the presidential candidate of the New Patriotic Party (NPP) in the December 2012 presidential election, his running mate, Dr Mahamadu Bawumia and the National Chairman of  the NPP, Mr Jake Otanka Obetsebi-Lamptey -  who had challenged results declared in 10,119 due to what they termed  gross and widespread electoral irregularities.

Touching on the claim of over-voting,Mr Justice Gbadegbe said it was not enough for the petitioners to rely solely on pink sheets to prove that allegation without making reference to the voters register at the various polling stations.
He said he observed that the petitioners greatly relied on the information contained on the pink sheets and, in particular the space provided for ballot accounting and held the view that “the pink sheets must if they are to be used in the 2016 election undergo a careful weeding out of the obvious errors to make it serve the purpose for which they were intended.”
Role of Polling Agents
 He was of the opinion that “as agents for the petitioners who signed all the pink sheets in evidence without exception, although by Regulation 35 (4) they can withhold their signature and provide reasons therefore, their conduct in signing the declarations means in their view, the entire process of voting was regular.”

Biometric Verification

According to Mr Justice Gbadegbe, the evidence which was not controverted was to the effect that Form 1C was originally intended to be used by registered voters who though issued with ID cards had their biometric data lost due to no fault of theirs.
“I accept the explanation offered by the Chairman of the Electoral Commission as a genuine attempt to prevent the disenfranchisement of registered voters. It is, therefore, plain that those portions of the pink sheets were filled in error and cannot be the basis of any legitimate attack on the regularity of the polls as conducted,” Mr Justice Gbadegbe noted.
He said one of the reasons for which claim of persons voting without undergoing biometric verification had not been proven was because unlike the National Democratic Congress (NDC) which tendered in evidence affidavits of several persons who swore oaths to have voted at various polling stations in the country by being verified biometrically, the petitioners, “who bore the initial burden of proof on the allegation of absence of biometric verification, unfortunately did not file any process that has the effect of challenging those depositions.”
“Since the petitioners had polling agents at all the polling stations as appear from the pink sheets exhibited before us, the reasonable inference therefrom is that the said agents are available. It being so, the failures to have them testify to affidavits in support of the allegation of absence of biometric verification has a decisive evidential attribute,” Mr Justice Gbadegbe pointed out.
He said the agents of the petitioners had “a duty to speak in the face of the depositions made by witnesses for the Respondents and as such their silence has the effect of rendering the version testified to by their adversaries unchallenged and also deemed to be an admission. See: BESSELA v STERN (1877) 2 C P D 265.”
According to him, the evidence that the disputed elections were postponed to December 8 2012 at polling stations where the verification machines had broken down was proof that, “voting at all polling stations took place after biometric verification of those entitled to vote.”

No Signatures

He said the role of the presiding officers and polling agents were collective and said it was not proper for the petitioners to invite the court to look at the act of non-signing of pink sheets in isolation “as the petitioners have invited us to do in these proceedings.”
According to him, it had not been proven that the non-signing of pink sheets had in the “slightest manner tainted” the election or the results declared.
 “Democracy is an evolving phenomenon and elections cannot be perfect so when we are faced with the consideration of  irregularities that are alleged to have occurred in an election, we should exercise a reluctance in striking down every single vote just by reference to a provision of the law. On the contrary, the irregularity must have affected the integrity of the elections,” Mr Justice Gbadegbe opined, adding that there was no justification for the annulment of votes.

Presiding Officers not special class

  “The interpretation of article 49 of the Constitution that has been urged on us in these proceedings does not commend itself to me. That interpretation seeks to constitute presiding officers into a special class of actors in the electoral process,” Mr Justice Gbadegbe stated.
He said he was unable to understand why votes should be annulled after presiding officers had presided over the elections, counted ballots, caused polling agents to sign the declaration of the results and, thereafter, openly announced the results to the public.
According to him, the singular omission of non-signing of pink sheets was not enough to warrant the annulment of votes.
 “I think that such an approach is not rooted in shared common sense and undermines the entire process of elections by having innocent voters disenfranchised on purely technical grounds,” Mr Justice Gbadegbe pointed out.
He said he was of the estimation that the evidence placed before the court clearly pointed “in the direction of a substantive approach un-blinded by strict adherence to technicalities.”

Unknown polling stations and Duplicate Polling Station Codes

Touching on claims by the petitioners that voting took place at 22 unknown locations, Mr Justice Gbadgebe stated that, “uncontroverted evidence before us is that the petitioners assigned poling agents to those polling stations,” adding that, “In my thinking, this ground, like that turning on duplicate polling station code numbers raise no point of relevance for our consideration in these proceedings.”
He accordingly dismissed the entire claims of the petitioners and declared President Mahama as the validly elected President in the December 2012 presidential election.
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Conduct of 2 lawyers referred to GBA for disciplinary action

Saturday, September 7, 2013 (Page 17)

THE conduct of two lawyers purported to be contemptuous has been referred to the Ghana Bar Association (GBA) for disciplinary action.
A letter dated September 4, 2013 and signed by Dr. Charles Wereko-Brobby, on behalf of the Ghana Institute for Public Policy Options is urging the GBA to refer the conduct of Messrs Tsatsu Tsikata, and Gabby Asare Otchere-Darko, to the General Legal Council for disciplinary action.
Mr Tsikata, who was the lead counsel for the National Democratic Congress (NDC) in the just ended presidential election petition publicly accused Justice Anin Yeboah, one of the justices who sat on the election petition of being persistently biased towards the NDC during the hearing.
The Executive Director of the Danquah Institute and a member of the Communication team for the petitioners, Mr Otchere-Darko, described the court’s affirmation of President John Dramani Mahama as the validly elected president of the Republic of Ghana as “corrupt and farcical.”
Not satisfied with the comments of the two lawyers, Dr Wereko-Brobby is accordingly urging the GBA to refer the conduct of the two lawyers, which he deemed contemptuous to the General Legal Council for action.
Mr Tsikata has urged Ghanaians to objectively analyse his comments which were made on TV3 network on August 31, 2013 while Mr Otchere-Darko has lampooned Dr Wereko-Brobby’s letter.
The President of the GBA, Nene Amegacher told the Daily Graphic that he was yet to site the said letter.
According to him, he would be at the GBA Secretariat on Monday, September 9, 2013 and in the event that the GBA could handle the issue, it would do it at its level.
“But, if the matter has to be handed over to the General Legal Council, the GBA would do so,” Nene Amegacher added.

The Letter

The letter said it was the view of the institute that the comments of the two lawyers bordered “on the integrity of the overall judgement of the court, provide sufficient grounds and basis for misconduct and unprofessional behaviour by both lawyers.”
“We also believe that the insistence of both Mr. Tsikata and Mr. Otchere-Darko on the validity and merits of their comments, and their flat refusal to withdraw them or apologise to the Court, do provide additional compelling grounds for the intervention of both the Ghana Bar Association and the General Legal Council to interrogate this matter and take appropriate actions to maintain sanity, decorum and above all the highest standards of professional conduct and upholding the rule of law in Ghana,” the letter pointed out.
The letter which was addressed to the GBA and copied to the General Legal Council said it was the assessment of the institute that the comments made by the two lawyers “fundamentally violates their ethical responsibilities as lawyers and officers of the court and the same ought to be redressed.”
It gave the assurance that the institute was ready “to provide whatever assistance and support the GBA and the General Legal Council might require to “commence and conclude the investigation in the shortest possible time.”

Reaction of Mr Otchere-Darko

Reacting to the institute’s request in an interview with the Daily Graphic,  Mr Otchere-Darko, said “My reaction: that's very patriotic of him. Maybe we should nickname him Busy Body Brobbey. I hope he will make himself available for tutorials since he has recent experience when it comes to appearing before a disciplinary committee. I could do with some help.”
“You may add: I thought for a person who set up Radio Eye to promote free speech, he would be the first to protect my right to critique a decision of a court, even if harshly. I do not see anything wrong with what I said and will be prepared to defend it anyday, anywhere.
Maybe the likes of the NGO reporting me to the GLC needs to broaden their lexicon. To say a decision is corrupt is not the same as saying a judge is corrupt. I would be the first to criticise a decision harshly but the last to accuse a judge without any evidence,” he added.
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How the judges ruled in the election petition- Judgements of Justices Adinyira and Yeboah

September 4, 2013 (Page 44)

ALL the nine justices of the Supreme Court who sat on the presidential election petition have written individual opinions to buttress their position on why some votes should or should not be annulled.
They all quoted the 1992 constitution extensively, cited both local and foreign authorities, rules of court and statutes to support their claim for and against the annulment of votes.
Although, the court in an overall decision on August 29, 2013 declared President John Dramani Mahama as the validly elected president in December 7 and 8, 2012 presidential elections, the nine justices decided to give their varied interpretations to enrich the country’s laws.
Thus the 588-paged composite judgement of Justices William A. Atuguba, Julius Ansah, Sophia Adinyira, Rose Owusu, Jones Victor M. Dotse, Anin Yeboah, Paul Baffoe-Bonnie, N. S. Gbadegbe and Vida Akoto-Bamfo, encompasses all their legal opinions.
Vote patterns
On the allegations of some pink sheets having duplicated serial numbers, duplicate polling station codes and different results and voting taking place in 22 unknown locations, the court unanimously dismissed the claims.
However, Justices Atuguba, Adinyira, Gbadegbe and Akoto-Bamfo dismissed the entire claims of the petitioners for the annulment of a total of 3,931,339 while Justices Ansah, Owusu and Yeboah felt votes should be annulled and a re-run held because of allegations of over voting, absence of presiding officers’ signature and voting without biometric verification.
  The three also declined to declare the presidential candidate of the New Patriotic Party (NPP) Nana Akufo-Addo as the validly elected president.

The Deciders

Messrs Justice Victor M. Dotse and Paul Baffoe-Bonnie, changed their voting patterns.  Mr Justice Dotse upheld the petitioners allegation of over-voting and non-signing of pink sheets by presiding officers while Mr Justice Baffoe-Bonnie upheld the petitioners case of voting without biometric verification.
Mr Justice Baffoe-Bonnie dismissed the allegations of over-voting and non-signing of pink sheets but Mr Justice Dotse dismissed the claims of voting without biometric verification.

Lead Opinions

The lead opinions of the majority and minority which were written by Justices Atuguba and Ansah respectively, was published in the September 3, 2013 edition of the Daily Graphic.
The following is the dissenting positions of Justices Adinyira and Yeboah.

 Mrs Justice Sophia O. A. Adinyira

Absence of signatures by presiding officers
According to her, the issue of some presiding officers not signing pink sheets was “outside the voter’s control, and is caused solely by the error or omission on the part of the presiding officer. Article 49 (3) supra, and Regulation 36 (2) supra requires the presiding officer, the candidate or their representatives to sign a declaration stating that the results are a true and accurate account of the poll at that polling station, the name of the polling station, the total number of votes cast in favour of each candidate and the total number of rejected ballots.”
She held that “It should respectfully be noted that article 49 (3) does not place any premium on the presence of the signature of the agent on the declaration forms unlike that of the presiding officer. That is why it stipulates that “the polling agents (if any)” shall then sign the declaration form after the signing by the presiding officer.”
According to her, the language of Article 49 (3) did not speak or imply that polling agents were required to sign the declaration form as witnesses to the signature of the presiding officers because, “a polling agent who represents the candidate is obliged to sign the declaration together with the presiding officer.”
She said both the presiding officer and the polling agent had the same obligation to certify the regularity of the conduct of the poll in accordance with the laws and regulations adding that, “that is why the polling agent has to pay attention to the sorting and counting of the votes and rejected ballots have to be shown to him and he is entitled to object to the rejection of a ballot paper.”
Mrs Justice Adinyira argued in her 49-page judgement that the role of the polling agent as shown in the constitution paragraphs was “not a mere spectator at the polls. The Presiding officer is obliged to give him space to observe the poll and where a polling agent has any complaint, he can refuse to sign the declaration form and give reasons in the column provided on the declaration form and/or file a complaint which must be resolved at the collation centre. “
“It is noteworthy that in a majority of the pink sheets where there is no presiding officer’s signature the polling agents of the two contesting parties signed the pink sheets, because they are required by the constitutional and statutory regulations to do so,” Mrs Justice Adinyira opined.
She upheld argument raised by counsel for President Mahama, Mr Tony Lithur who said “it would be misdirecting punishment indeed for entitled voters who stayed in long queues to cast their votes, and whose vote had been counted, entered onto a declaration form and publicly declared to be deprived of the right to have those votes counted as a result of an act of omission by an electoral officer (not wilfully done), over whose conduct the voters have no control.”

Presiding Officer should be held liable

She held that the failure by Presiding Officers to sign declaration forms did not affect the results of the elections at the respective polling stations adding that, “the presiding officers who did not sign the declaration forms are liable to be sanctioned.”
“I am conscious of the role of this Supreme Court to interpret and enforce the Constitution, which is one of its underlying concepts of the Constitution. Ghana has progressed immensely in electoral laws and processes and we are in fact the beacon of light in Africa in the conduct of elections,” Mrs Justice Adinyira held.
Gone were the days
Arguing further to buttress her decision to declare President Mahama as the validly elected President, she said “gone were the days when counting was not done at the polling station but taken to a collation centre that led to abuses like ballot stuffing and in extreme cases dumping opponents’ ballot boxes.”
“With the kind of peaceful election that we experienced on the 2 polling days 7 and 8 December are we setting the clock back by a narrow interpretation of electoral laws? A strict interpretation would curtail and erode the gains we have made so far.
 What Ghanaians need to do is to shun and shame the growing violence that has come about as a result of irresponsible, impudent, disrespectful and chauvinistic persons, whose unguarded utterances, and machinations at times bordering on treason are causing disunity in this our dear country all in the name of politics,” Mrs Justice Adinyira emphasised.

Voting without biometric verification

Regulation 30 of Public Elections Regulations, 2012, C.I. 75 sets out procedures that a voter goes through before casting his/her vote in accordance with article 42.
She said it was obvious that the Biometric Verification Device (BVD) was not only for fingerprint identification but also for face or picture verification by wiping of the bar-coded identification card on the machine.
Mrs Justice Adinyira held that the fact that the Form 1C of the affected persons were not sent to the polling centres was also unchallenged and concluded that no one voted without going through biometric verification.
“Furthermore, even though the 1st Petitioner had polling agents at all the 26,002 polling stations there was not a single complaint of non-verification by BVM filed by any of them,” she stated. Nana Akufo-Addo was the first petitioner.

Affidavit evidence

She said the NDC filed thousands of affidavits from its polling agents and other persons who testified that they participated in the election that was regularly conducted at their various polling stations and all who voted went through biometric verification.
“ Even though Counsel for the Petitioners tried to downplay the evidential value of  their affidavits, I am of the view that some weight is to be attached to them as they recounted the procedure that everyone went through at the polling stations,” Justice Adinyira held.
According to her, the petitioners had polling agents at all the 26,002 polling stations and, “yet they did not produce a single affidavit evidence to support their allegation that some voters did not go through finger verification before voting. “
She said they also failed to apply to have any of the witnesses of the NDC to be cross-examined to test their credibility adding that, “having failed to call a single person for cross-examination, the Petitioners cannot turn round to say the evidence was untested.”
Justice Adinyira said the court had taken judicial notice of the fact that voters with valid ID cards whose photo and bio data had been verified by the BVD but could not be verified by fingerprints due to technical defects were turned away.
“The elderly, especially women were the major victims. Breakdown of the BVM resulted in long queues making some people go away without voting. It is a pity that technical difficulties disenfranchised some citizens,” she pointed out.
She found the reasons given by the Chairman of the EC, Dr Kwadwo Afari-Gyan plausible and added that, “elections were postponed to the next day due to failure of the BVD machines attest to the fact that all who voted went through biometric verification.”


She said the Petitioners failed to persuade her that there were votes cast that exceeded the number of voters entitled to vote at these polling stations.
“It seems to me that Dr Afari Gyan and Mr Asiedu Nketia demonstrated that it is misleading for the Petitioners simply to look at the entries on the face of the pink sheets without checking the figures against other available and reliable information contained in the voters register, ballot booklets and even the biometric verification device which recorded the number of people who were verified and thus entitled to vote.; before coming to a conclusion that there was over vote,” she added.
She submitted that the number of registered voters could be easily verified or ascertained from the Voters register of the particular polling stations which every candidate /Party had copies.
Justice Adinyira was of the view that the petitioners failed to provide empirical evidence to show that there was over-voting on the pink sheets through the entry of columns on the pink sheets.
She took judicial notice of the fact that there was immense pressure on the presiding officers, election officials and even the polling and counting agents on the day of the elections, the majority of whom had no previous experience in election procedures. 
“The EC officials and presiding officers may have made some clerical errors; but there is no evidence upon which mischief or advantage can or should be attributed thereto. This is not a phenomenon peculiar to Ghana alone,” she argued.


“Overturning an election is a very serious matter. In order to uphold the grounds for annulling votes that the Petitioners are requesting to be annulled for irregularities, malpractices and statutory breach, this court must be satisfied that the petitioners have successfully discharged the onus they bore right from the onset,” which she said they had failed to do.
“The Petitioners relied on pink sheets and no other evidence, and in view of the fact that the Petitioners kept changing categorization, number of exhibits they are relying, admission of mislabelling and double counting, I cannot be confident that these slips did not affect their case,” Mrs Justice Adinyira held.
“Using the yardstick of the principles of Electoral Justice, I am satisfied that the elections were conducted substantially in accordance with the principles laid down in the Constitution, and all governing law; that there was no breach of law such as to affect the results of the elections; and that the said elections do reflect the will of the Ghanaian people.
I accordingly hold that John Dramani Mahama was validly elected as the President of Ghana. I will also dismiss the petition,” and ended her judgement with the epilogue “Acceptance”-Where the foregoing principles of Electoral Justice have been substantially observed, the electoral processes reflect the will of the people. It is then an overriding principle of Electoral Justice that everyone abides by the outcome; that the outcome be given effect by the institutions of government; and that the legitimacy of the results be acknowledged by the international community.”

Opinion of Justice Anin Yeboah

In his 26-page jugement, Mr Justice Yeboah said, he was “very uncomfortable” with the way and manner the court was left unassisted by the Electoral Commission (EC) being the custodian of pink sheets (statement of poll and declaration of results form for the office of president).
“Surprisingly, the second respondent opted for filing no pink sheets leaving this court unassisted and thereby placing reliance only on the pink sheets supplied to the agents of the petitioners at the various polling stations in issue,” adding that “why the second respondent elected to deny a court of law in search of the truth in a monumental case of this nature is beyond my comprehension,” Mr Justice Yeboah emphasised.

Over - voting

He admitted that a look at all the statutes governing elections in this country including even the Constitution was bereft of the definition of over-voting adding, “the Peoples Representative Law PNDCL 284 of 1992, Cl 75 and any other statutes, touching on elections have not defined over-voting.”
He said the lack of any statutory definition presented an invidious situation for the court to decide the fate of several polling stations which the petitioners had presented the court “to annul the votes on the simple but cogent grounds that the results had been compromised and that there was clear want of transparency at the affected polling stations.”
Anin Yeboah’s views on over-voting
He limited himself to over-voting occurring when the total number of ballot papers issued to voters at a particular polling station was exceeded by the total number of ballot papers in the ballot box.
“I am of the opinion that no matter the number of votes involved that may constitute over-voting; it is a clear illegality and should not be endorsed by a court of law, more so by the highest court of the land. I will, therefore, proceed to annul all votes which were proved by the petitioners to be so. The figures and the polling stations would be addressed later in this delivery,” he added.

No signature of presiding officer
According to Mr Justice Yeboah, the presiding officer was enjoined to sign the declaration stating the name of the polling station, the number of votes cast in favour of each candidate, and the total number of rejected ballots, before proceeding to announce the results to the public.
He said the signature of the presiding officer was mandatory in the Constitution and the regulations made thereunder which was under consideration.
“I am of the firm view that the framers of the constitution inserted the word shall there for a purpose and should be construed as imposing a mandatory duty on the presiding officers to perform their statutory duty which appears clearly as a condition for the declaration of the results at the polling stations,” he stressed adding that, “when there is clear breach of mandatory provisions of a constitution it must be so declared and no effect is given to the act performed in breach of the provisions in issue.”
He said the arguments that the agents signed and the result publicly declared by the presiding officers would not hold because there was a clear breach of a vital constitutional provision which was a condition precedent to the declaration of the results involved in the affected polling stations.

Voting without biometric verification devices
He indicated that the petitioners discharged the burden of proof as none of the pink sheets supplied in respect of lack of biometric verification attracted any objection on admissibility.
Mr Justice Yeboah indicated that the respondents who on the pleadings and the evidence doubted what was officially recorded on the pink sheets did not satisfy him that the recordings which said persons voted without undergoing biometric were incorrect or suffer from any defects known to admissibility of evidence.
He was also of the opinion that the EC failed to produce documents which required presiding officers not to fill out the section of the pink sheet which required the number of persons who had voted without undergoing biometric verification.
“In my opinion the various affidavit filed against this issue of lack of biometric verification do not in the least rebut the documentary evidence duly prepared by the second respondent's agents, signed by them and duly used for the declaration of the results which is in controversy. I feel that this is not the type of evidence needed to rebut the presumption of regularity raised in favour of the pink sheets covering lack of biometric verification.
Having found that the clear regulation has been flouted by the second respondent, I will uphold the claim of the petitioners on this category and proceed to annul votes cast without the biometric verification as required by law,” Mr Justice Yeboah concluded.

Deferring votes to be annulled

He deferred the computation of the voters whose votes were to be annulled under the three categories because he said figures kept changing on several occasions.
In conclusion, Mr Justice Yeboah found that there were statutory violations, irregularities, omissions and malpractices in the presidential election and also held the view that they were enough to affect the outcome of the polls.
“I would have readily proceeded to grant the reliefs sought in its entirety but the ONLY problem is that from the available evidence, the widespread violations, omissions and malpractices appeared to be of such proportions that it would not be proper for me to declare the first petitioner as winner of the elections in controversy in terms of the reliefs sought.
I find the malpractices, omissions and violations enormous which rock the very foundation of free and fair elections as enshrined in our constitution which was itself breached through over-voting, lack of presiding officer's signature and lack of biometric verification which takes its validity from Article 5l of the very constitution,” he added.
He accordingly refused to declare Nana Akufo-Addo as the winner of the December 2012 elections and proceeded to annul votes affected by non-signing of pink sheets, no biometric verification and over-voting.
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Gbagbo ally commends Ghana for upholding rule of law

 September 5, 2013 (Page 17)

A former Minister of Budget in Cote d’Ivoire, Dr Justin Konin Katinan, has commended Ghana for the peaceful manner in which it has resolved its election dispute.
He advised Ghanaians to accept the Supreme Court’s judgement and move on with the development of the country.
“I am pleading with Ghanaians to respect the Constitution and institutions and co-exist with one another,” Dr Katinan, who is also the Spokesperson of former Ivorian President Laurent Gbagbo, stated in an interview with the Daily Graphic in Accra.
Expressing gratitude to Ghana’s justice system for upholding the rule of law when it refused to extradite him to his home country to face trial, an elated  Dr Katinan urged Ghanaians to continue to respect the Constitution because “Cote d’Ivoire would not be where it is now if Ivorians had taken a cue from Ghana’s democracy”.
He was particularly happy that the Osu District Magistrate Court had ruled that he (Dr Katinan) had proved that he would face political persecution in Cote d’Ivoire when he was extradited to that country. 
That, to him, was a clear indication that former President Gbagbo and more than 750 of his allies were languishing in jail because of political persecution.
He was full of praise for his lawyer, Mr Patrick Sogbodjor, whose argument that Ghana and Cote d’Ivoire had no extradition agreement was upheld by the court.

Not pleasant to live as a refugee
 He said it was not pleasant to live in another country as a refugee, adding, “My prayer is that Ghana should never experience what happened in Cote d’Ivoire.”
Dr Katinan congratulated the opposition New Patriotic Party (NPP) and the governing National Democratic Congress (NDC) on challenging and defending the outcome of the December 2012 presidential election through the court system.
“Ghana has gone through an election and the results were challenged without any violence. If this wisdom had prevailed in Cote d’Ivoire, we would not be here as refugees,” he stressed, and thanked the government for providing refuge for Ivorian refugees in the country.

Special thanks to former President J. J. Rawlings
Dr Katinan expressed gratitude to former President Jerry John Rawlings for visiting him when he was in custody, adding, “I appreciate that very much.”

Will he go back?
Asked if he would go back to his home country one day, Dr Katinan sighed and said that was his wish, noting, however, that under the circumstances, it was impossible.
“There is an arrest warrant on most of us. Our bank accounts have been frozen; our homes have either been taken over or destroyed,” Dr Katinan disclosed.

Message to Presidents Ouatarra and Mahama
Dr Katinan pleaded with current Ivorian President Alassane Ouatarra to do all he could to unite Ivorians in order to promote peace, as well as book a place in the history books.
He urged President John Dramani Mahama to promote the re-integration of the sub-region and stressed that there could not be stability without the integration of countries in the sub-region.

Brief Profile
Dr Katinan was born on November 14, 1965 and entered active politics at age 21. He rose through the ranks in his party and was eventually appointed Minister of Budget in December 2010.
But the government in which he served was toppled in April 2011.
He fled to Ghana on April 13, 2011 and has since been living under a refugee status.

Court “trotting”
Dr Katinan was picked up by the International Police Organisation ( INTERPOL) Section of the Criminal Investigations Department (CID) of the Ghana Police Service on September 28, 2012, three days after he had been granted bail by the Osu District Magistrate Court.
He was first arrested by operatives of the Bureau of National Investigations (BNI) at the Kotoka International Airport (KIA) on August 24, 2012  following a warrant issued for his arrest by an Ivorian court for him to face robbery charges.
Katinan was picked up by security forces following a request from the Ivorian government for him to be extradited to face prosecution for alleged economic crimes he committed during the recent post-election violence in Cote d’Ivoire.
After being trundled among the Human Rights Court, the AMA District Court and the Osu District Court, Dr Katinan finally breathed the air of freedom on August 30, 2013.
He was the second top official in Gbagbo's government to be arrested while living in exile.
The first case was the extradition of Moise Lida Kouassi, a former Defence Minister, who was picked up in Togo on June 6, 2012 and extradited the same day.
Katinan, who fled to Ghana after the collapse of Gbagbo’s regime, is alleged to have committed economic crimes when he was a Budget Minister during the three months of crisis and conflict that followed Gbagbo's refusal to cede power to his rival and current President, Mr Ouatarra, in December 2010.
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How the judges ruled in the election petition - Judgements of Justices Atuguba and Ansah

 September 4, 2013 (Page 17)

THE Supreme Court has released the full judgement on the 2012 presidential election petition, four days after leaving the public in suspense.
In a 588-paged judgement, the court by a 5-4 majority decision justified why President Mahama was validly elected.
There were four and three consistent judges who voted against and for the annulment of more than two million votes due to what the petitioners described as gross and widespread irregularities recorded during the election.
Justices William Atuguba, Mrs Justice Sophia Adinyira, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo in an “overall” decision dismissed the petitioners claims for the annulment of a total of 3,931,339 due to electoral irregularities in the December 7 and 8, 2012 presidential election.
The dissenting justices who held the view there were issues to be settled with allegations of over voting, absence of presiding officers’ signature and voting without biometric verification were Mr Justice Julius Ansah, Ms Justice Rose Constance Owusu and Mr Justice Anin Yeboah.
They declined to declare the presidential candidate of the New Patriotic Party (NPP) Nana Akufo-Addo as the validly elected president, but held the view that the votes affected by these allegations must be annulled and a re-run held.

Unanimous Decision

On the allegations of some pink sheets having duplicated serial numbers and voting taking place in 22 unknown locations, the court unanimously dismissed the claims.
The Switches
Messrs Justice Victor M. Dotse and Paul Baffoe-Bonnie, changed their voting patterns. For instance while Mr Justice Dotse upheld the petitioners allegation of over-voting and non-signing of pink sheets by presiding officers – Mr Justice Baffoe-Bonnie upheld the petitioners case of voting without biometric verification.
Mr Justice Baffoe-Bonnie dismissed the allegations of over-voting and non-signing of pink sheets while Mr Justice Dotse dismissed the allegations of voting without biometric verification.
The Majority Decision

(1)Transparency of the Voters Register
According to the majority decision, read by Mr Justice Atuguba, although the petitioners complained about the transparency of the voters’ register and its non or belated availability before the elections, this line of their case did not seem to have been strongly pressed. 
It said in any event, the evidence clearly showed that the petitioners raised no such complaint prior to the elections nor had any prejudice been shown therefrom.
“ Indeed even in this petition the petitioners claim that the 1st petitioner was the candidate rather elected, obviously upon the same register.  So also their allegations that there were irregularities and electoral malpractices which “were nothing but a deliberate, well-calculated and executed ploy or a contrivance on the part of the 1st and 2nd respondents with the ultimate object of unlawfully assisting the 1st respondent to win the 2012 December Presidential Elections.”  Indeed the 2nd petitioner for and on behalf of all the petitioners, testified that the first respondent did no wrong with regard to the conduct of the elections but was merely the beneficiary of the alleged malpractices, irregularities and violations.
According to the majority, the irregularity which had engaged and sharply divided the court as to its consequence is “absence of the signature of a presiding officer.” 
“This irregularity is anchored in Article 49 of the 1992 constitution,”  adding that “it is undoubtable that in some instances the declared results were not signed by the presiding officer though the petitioners’ polling agents did sign.  The crucial question that has devastated this court is whether those results should be annulled.”
“Unfair and Fraudulent”
It said it would be unfair and fraudulent for the petitioners to authenticate the results through their polling agents’ signatures and turn round to seek to invalidate on the purely technical ground of absence of the presiding officer’s signature.
Administrative Error
“Clearly the underlying purpose of the signatures of the presiding officer and the polling agents on the pink sheets is to provide evidence that the results to which they relate were those generated at the relevant polling station in compliance with the constitutional and other statutory requirements, otherwise each “signature in itself has no magic about it.
“In those circumstances even if the failure by the presiding officer to sign the same is condemned as unconstitutional yet the polling agents’ signatures, the public glare of the count and declaration of the results in question, the provision of copies of the same to the polling agents and their sustenance at the constituency’s collation centre and all the way to the strong room of the 2nd respondent (the Electoral Commission) and the cross checking of the same by the parties; representatives should satisfy the policy objective of Article 49(6) regarding signature,” it said.
It said the petitioners had not on any ground approaching prejudice of any sort questioned the authenticity of the results which do not bear the presiding officer’s signature.
It said there was a question as to what constitutes over-voting. 
“The evidence of Dr. Mahamadu Bawumia, the 2nd petitioner, Johnson Asiedu Nketia, General Secretary of the National Democratic Congress and of Dr. Kwadwo Afari Gyan, Chairman of the electoral Commission the 2nd respondent, established two types of over voting. 
“The first is where the number of those who voted at a polling station exceeds the number of voters contained in the relevant polling station register.  The second situation is where the number of ballots in the ballot box exceeds the number of ballot    papers issued to the relevant polling station.  Pondering over these two categories closely I would think that the second category of overvoting is rather an instance of ballot stuffing as testified by Johnson Asiedu Nketia.”
It said according to the evidence where the votes in the ballot box were exceeded by even one vote the integrity of that vote was said to be compromised and must be annulled and depending on the impact of that vote on the overall results, the election in that polling station must be rerun.

Burden of Proof

According to the majority, before tackling the issues of over-voting and voting without biometric verification at length the question of the burden of proof had to be settled.
It is said that election petitions were peculiar in character hence the question of burden of proof had evoked various judicial opinions in the common law world. 
“This means that unless the contrary is proved the president is presumed to have been validly elected.  The cardinal question therefore is whether the petitioners have been able to rebut the presumption of validity created by the presidential Declaration of Results Instrument, “ it said. 
Voting without Biometric Verification
It said the complaint about voting without biometric verification cannot therefore hold in the absence of some other contrary evidence.
“The pink sheets contained errors of omission of e.g. proxy votes, blanks, repetitions, wrong grammatical renditions, etc.  Indeed Dr. Bawumia admitted under cross-examination that the pink sheets cannot alone supply answer to issues arising from them, in all situations,” it added.
It said the pink sheet or its equivalent in other jurisdictions has been judicially regarded as the primary record of an election.
“But no one has given it a conclusive effect.  Neither the constitution nor any other statute, substantive or subsidiary has accorded the pink sheet any particular status.
“It appears that the petitioners rather belatedly, towards the end of the case, realised the need for the adduction in evidence of such vital documents like the voters registers, collation sheets, etc and tried to do so, sometimes with the indulgence of this court, through cross-examination of Dr. Kwadwo Afari Gyan, Chairman of the Electoral Commission and also through unsuccessful applications for leave to serve on him notices to produce such documents.
“It is felt, and the petitioners so submit, that the pink sheets do operate as estoppel as to the facts therein contained and therefore, inter alia, extrinsic evidence is inadmissible.  The shortest answer to this is that the constitution being the supreme law of the land doctrines of estoppels do not apply to constitutional litigation.
“In the circumstances I do not think that the petitioners have established their allegations of over-voting and voting without biometric verification, except to the limited extent admitted by the Electoral Commission’s chairman, which cannot impact much on the declared results,” it stated.

Polling Agents
According to the majority, the petitioners  sought to devalue the status of the polling agents to that of mere observers, pointing out that “That is certainly unacceptable.”
“If they were such passive attendants at an election it is inconceivable that the constitution would have considered their signatures to the results sheet significant enough to merit express constitutional requirement, “ it held.
It thus held that polling agents have a special role to play in a free, equal and secret poll.
“The signatures of the polling agents to the declaration of results therefore have high constitutional and statutory effect and authority, which cannot be discounted.

It said the petition however had exposed the need for certain electoral reforms.  I mention same of them.
•    The Voters register must be compiled and made available to the parties as early as possible. 
•    A supplementary register may cater for late exigencies. 
•    The calibre of presiding officers must be greatly raised up.
•    The pink sheet is too elaborate, a much simpler one to meet the pressures of the public, weariness and lateness of the day at the close of a poll etc.
•    The carbon copying system has to be improved upon.
•    The Biometric Device System must be streamlined to avoid breakdowns and the stress on the electorate involved in an adjournment of the poll.
•    Invalidating wholesale votes for insignificant excess numbers is not the best application of the administrative principle of the proportionality test.

In a minority decision read by Mr Justice Julius Ansah said the duty of the court was to determine how the evidence supported the facts alleged.
It said since the respondents denied each and every averment of the petitioners in the petition, this imposed on the petitioners the duty of proving every single allegation they made in order to obtain a favourable finding thereof by the court.
The petitioners’ claim here concerns the 22 so-called unknown polling stations. This was a reduction of the petitioners’ initial allegation of 28 unknown polling stations.
The 2nd respondent showed that the flag bearer of the political party to which the petitioners belong, who is also the 1st petitioner herein, himself signed letters appointing polling agents to these same polling stations. It is difficult to fathom how in light of this the petitioners could maintain a claim that these polling stations were unknown.
“I find the petitioners’ case in this respect not satisfactory. There was evidence that following the aforesaid appointment letters, the petitioners sent their agents to the polling stations, voting took place there, the votes were counted and results declared, and finally the agents signed the result forms.
“ In the face of these overwhelming evidence, no one will doubt that the allegation of voting taking place at stations outside the 26,002 polling stations created by the second respondent was ill founded and remained unproven at the end of the trial,” it said.
It said the presiding officer was not relieved from the duty to sign the declaration forms, since it was a mandatory duty cast on them by the constitutional and statutory provisions governing elections in the country.
According to the minority, the legitimate inference was that failure by the presiding officer to sign the declaration form was an irregularity which cannot be excused or waived on the grounds that the pressure of time, prevailing atmospheric condition, etc, etc, did not simply allow or permit them to sign the forms and thereby comply with the constitutional duty.
“The duty cast on the presiding officers to sign the declaration was couched in mandatory terms and deserves obedience and not meant to be disobeyed,” it added.
“An election much more so, Presidential Elections, are serious matters governed by well laid rules to preserve sanctity and integrity of the elections, especially where a specific duty is imposed on election officials. A breach of any of those duties meant the integrity of the election was compromised and ultimately affected the exercise of the right to vote as well as jeopardizing the sovereign will of the people. 
“Because of this, I am unable to accept the alibi put up by the respondents, like pressure of work, nature of carbon paper making the signatures look faint through over use, and pressing the pen too often, too hard.
“I hold in my concluding comments on this ground, that the failure to sign the pink sheet was a monumental irregularity unmitigated by any circumstances. 
“I am emboldened to come to this conclusion following upon the holding that: “the Ghana Supreme Court has recognised the concept of the spirit of the constitution as a tool of constitutional interpretation……to ensure that Ghana succeeds in her fourth attempt at democratic and constitutional system of government, both the government and the people should observe not only the written provision of the constitution but it’s spirit as well.”
Monstrous Irregularity
It expressed the opinion that the failure by the presiding officer to sign the pink sheet before announcing the results constituted an omission to perform and a breach of his constitutional duty.
“It vitiated the votes cast at the polling station, a more monstrous irregularity no one can imagine,” it held.
“It was as unpardonable as it was inexcusable that presiding officers should fail to sign declaration portion of pink sheets they worked with on the polling day from the  beginning to the end of polls on the election day. 
“Based on the foregoing discussion under this head of irregularities, I find that all votes cast and declared during the 2012 presidential elections which involved pink sheets not signed by presiding officers or their assistants are to be nullified and I so declare,” it further held.
Voting Without Prior Biometric Verification
According to the minority, it was unable to agree with the submission by the respondents that biometric verification could not be limited to only finger prints.
 “A reading of regulation 30 of C.I. 75 shows that the voter shall mandatorily go through a biometric verification process by a biometric verification equipment for the purpose of establishing the identity of the voter by finger print.
“In order to ensure that those who through no fault of theirs have no fingers at all, or have fingers but whose finger prints could not be taken for one reason or the other, special provisions/arrangements were made for them. Those voters are labeled ‘FOs’ and are excused from undergoing biometric verification by the equipment.                
“In evaluating the evidence by the petitioners, I note that when the petitioners were ordered by the court to provide further and better particulars on the allegation of voting without biometric verification, they stated the irregularity took place at 2,279 polling stations.
“However, by the close of trial and addresses stage, they deleted 148 of them from the list relied on 2,131 polling stations. I have said these reductions in figures did not prove fatal to the petitioners’ case and will be considered by the court.
In the result, the minority declared that all votes cast at the 2012 presidential elections which were affected by this irregularity of voting without prior biometric verification were nullified.
Over voting
The minority said Mr. John Mahama, had 5,574,761 declared in his favour by the E.C. in the over voting category,  and thus he benefitted by 504,014 votes.
“When these are annulled, he had 5,070,747 valid votes in his favour. That would leave him with 49.47%.
“Nana Akufo-Addo had 5,248,898 votes declared in his favor by the E.C., out of which he benefitted 226,198 in the over voting category, which as they are being annulled left a total of 5,027,700 valid votes in his favor. Expressed in percentages, that would be 49.00% of the valid votes cast at the elections.
“The foregoing evaluation of the impact of the nullified votes shows that they resulted in neither the first petitioner nor the first respondent obtaining the critical fifty percent plus one valid vote threshold.
“As neither the first petitioner nor the first respondent had the required number of votes by the constitution to be declared the President of the Republic of Ghana,

I make the following conclusions and directions:

1.    That the relief that an declaration be made that Mr. John Dramani Mahama was not validly elected the President of Ghana, is hereby granted;
2.    That a declaration be made that Nana Akufo-Addo be declared the candidate who was validly elected the President of Ghana, is also refused.
3.    The consequential order I make is that the E.C. conducts a re-run of the Presidential elections for the two leading candidates, Mr. John Dramani Mahama and Nana Akufo-Addo, in all the polling stations affected and indicated in the petition and its supporting documents, forthwith.