Election Petition: Judgment August 29

AUGUST 15, 2013 (Front Page)

From left: Tsatsu Tsikata (Counsel for third respondent); Philip Addison, Counsel for Petitioners; Quarshie Idun, Counsel for second respondent; Tony Lithur, Counsel for first respondent 











It has been eight months of a long drawn-out legal clash to justify the removal or retention of Mr John Dramani Mahama as the President of the Republic of Ghana.
After the Supreme Court had disposed of more than 20 interlocutory applications, gathered evidence for four months, as well as received 344-page written addresses from lawyers in the petition, it has finally fixed August 29, 2013 as the date for judgement.
On that day, by the powers conferred on the Supreme Court by the 1992 Constitution, it will decide whether or not to annul 3,931,339 votes as a result of the petitioners’ claims of gross and widespread irregularities recorded at 10,119 polling stations during the 2012 presidential poll.
Its decision will also be premised on whether or not to maintain that the declaration of Mahama as the winner of the December 7 and 8, 2012 presidential election was invalid.
Another decision to be considered by the court will be whether or not to declare Nana Addo Dankwa Akufo-Addo as the validly elected President.
It is also expected to make consequential orders it deems fit in the petition.
Issues complained of by Nana Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the National Chairman of the New Patriotic Party (NPP), Mr Jake Obetsebi-Lamptey, are that some persons were allowed to vote without undergoing biometric verification, some presiding officers did not sign pink sheets (statement of poll and declaration of result form for the office of President), there was over-voting and some pink sheets had duplicate serial numbers.
But the respondents, namely, President Mahama, the Electoral Commission (EC) and the National Democratic Congress (NDC), have denied the claims on the grounds that the petitioners have failed to prove the said infractions.
They also argue that the election was won by President Mahama on a clean slate and for that reason he should be maintained as President of Ghana.

Clarifications Sought and Given
The court fixed the date after the lawyers for the petitioners and the respondents had answered questions and given clarifications on issues of the actual number of polling stations affected by the request for annulment, over-voting, pink sheets with the same serial numbers, presiding officers not signing pink sheets and persons being allowed to vote without undergoing biometric verification.
Messrs Philip Addison, Tony Lithur, James Quashie-Idun and Tsatsu Tsikata took turns to answer questions from some of the panel members.

Issues for determination
The judgement will be given by Mr Justice William Atuguba, with  Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Constance Owusu, Mr Justice Jones Dotse, Mr Justice Anin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.
Article 64 (2) of the 1992 Constitution states, “A declaration by the Supreme Court that the election of the President is not valid shall be without prejudice to anything done by the President before the declaration.”
Hence, the court has all-encompassing powers to declare the election valid or invalid, affirm and/ or set new ground rules for the holding of elections in future.
On April 2, 2013, the court set out two issues for determination after the parties had officially written to the court on March 19, 2013 informing it that they had been unable to reach a consensus on the issues to be set out for determination.
Consequently, the court, on August 29, 2013, will decide whether or not there had been statutory violations, omissions, irregularities and malpractices in the December 7 and 8, 2012 presidential poll as complained of by the petitioners.
The second issue to be determined by the court is whether or not those statutory violations, omissions, irregularities and malpractices (if any) affected the outcome of the presidential election.

Details of Petitioners’ Analysis
The petitioners indicate that over-voting occurred at 1,722 polling stations, while voting without biometric verification occurred at 2,020 polling stations, using pink sheets from the 10,119 polling stations.
The irregularity of absence of presiding officers’ signatures occurred at 1,638 polling stations, while the use of duplicate serial numbers on pink sheets affected 8,987 polling stations.
In all, 3,931,339 votes, according to the petitioners, were affected by the various irregularities at the 10,119 polling stations being challenged.
They also insist that when the results of those polling stations are annulled, President Mahama’s votes will be reduced by 2,622,551, which will result in him securing 41.79 per cent of the new tally of valid votes.
According to them, Nana Akufo–Addo’s votes will also be reduced by 1,233,186, and 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 poll.
The petitioners also showed in their addresses that all the four main irregularities on their own had a material impact on the results declared and that annulling the results at polling stations affected by any of the four irregularities would mean that the declared winner, Mr Mahama, did not secure the required 50 per cent + 1.

Respondents Disagree
Lawyers for President Mahama, the EC and the NDC, have argued that the petitioners failed to prove their case to warrant the annulment of votes and the subsequent declaration of Nana Akufo-Addo as the winner of the presidential poll.
According to them, there was no legal, logical or arithmetical basis for the call for the annulment of votes.
They also argue that allegations of over-voting, persons voting without undergoing biometric verification, some presiding officers not signing pink sheets and duplicate serial numbers on some pink sheets have not been proved by the petitioners.
Lawyer Lithur fought to convince the court to maintain Mr Mahama as the President, while Mr Quashie-Idun legally assisted the EC to stand by its declaration of President Mahama as the winner of the poll.
Mr Tsikata is guarding the interest of the NDC, which fielded President Mahama for the December 2012 elections.
These three lawyers were up against Mr Addison, who led a 12-member legal team to justify the removal of President Mahama through the Constitution.

Witnesses in the Petition
The court began taking evidence in the petition on April 17, 2013. On April 16, 2013, it gave the nod for live television and radio coverage of the petition.
Dr Bawumia testified on behalf of the petitioners; the General Secretary of the NDC, Mr Johnson Asiedu Nketia, gave evidence on behalf of President Mahama, while the Returning Officer of the December 2012 presidential election, Dr Afari-Gyan, testified on behalf of the EC.
All the witnesses were subjected to cross-examination.
Six additional witnesses testified on behalf of the petitioners, while more than 4,000 people testified on behalf of President Mahama and the NDC through sworn written affidavits.

Background to the Petition
The petition, which was filed on December 28, 2012, initially alleged that the stated irregularities occurred at 4,709 polling stations.
It was later amended to indicate that the irregularities occurred at 11,916 polling stations.
However, after more scrutiny, the petitioners reduced the number to 11,842, 11,138, 11,115, 10,081 and finally to 10,119 polling stations.
The petition was filed on December 28, 2012 and three days after its filing, the NDC applied to join.
On January 22, 2013, the court, in a 6-3 majority decision, allowed the NDC to join the petition as the third respondent.

Pink Sheets Controversy
At the heart of the election petition are pink sheets. The petitioners studied 24,000 out of the 26,002 pink sheets and arrived at their analysis of gross and widespread irregularities.
Matters surrounding the actual number of pink sheets filed by the petitioners were so sensitive and controversial that the court had to eventually order an audit to be conducted into the definite number filed at the Supreme Court Registry.
An audit firm, KPMG, was on May 9, 2013, accordingly directed to audit the pink sheets and subsequently submitted its final report in five volumes on June 24, 2013.å

Merger of Brains
Perhaps this petition can claim credit for being the only case that has, on a daily basis, managed to pool the highest number of legal brains.
Aside from the team of lawyers who are representing the parties in the case, it is common, on a daily basis, to find lawyers filling the gallery of the Supreme Court simply to observe proceedings.
The petitioners, for instance, are being represented by 12 lawyers, namely, Mr Addison; Ms Gloria Akuffo, a former Deputy Attorney-General and Minister of Justice;  Mr Stephen Dapaah-Addo, Mr Frank Davies, Mr Alex Quaynor, Mr Akoto Ampaw, Nana Asante Bediatuo, Mr Kwame Akuffo, Mr Kwaku Asirifi, Mr Godfred Yeboah Dame, Mr Egbert Faibille and Professor Ken Attafuah.
President Mahama is being represented by Mr Lithur and Dr Abdul Baasit Aziz-Bamba, while the NDC’s interest is being protected by Mr Tsikata and Mr Samuel Codjoe.
The EC, on the other hand, is being represented by Mr Quashie-Idun, Mr Stanley Amarteyfio, Ms Freda Bruce-Appiah and Ms Stephannie Amarteyfio.