Wednesday, September 11, 2013

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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