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.
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.
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.
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.
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.
Writer’s email: firstname.lastname@example.org.