Wednesday, September 11, 2013

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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