August 26, 2013 (Centre Spread)
IT has been a long
torturous and sometimes exciting legal journey on the “corridors of pink
sheets.” Followers of the landmark presidential election petition have for the
past eight months been treated to pink sheet legal battles embedded with legal
jargon, humour, occasional legal fights and intermittent advice and warnings
from the Supreme Court panel for decorum.
Legal matters related
to the petition are expected to officially come to a close on August 29, 2013
barring the decision of the losing party to apply for review.
The journey has been
particularly exciting because Ghanaians from April 16, 2013 to August 14, 2013
were given the opportunity to follow proceedings of a landmark case challenging
the highest office of the land, live on television and radio stations across
the country.
Article 125 (1) of the
1992 Constitution states “justice emanates from the people and shall be
administered in the name of the Republic by the Judiciary which shall be
independent and subject only to this Constitution” while Article 125 (2)
states, “citizens may exercise popular participation in the administration of
justice through the institutions of public and customary tribunals and the jury
and assessor systems.”
On the premise of this
constitutional principle, viewers and listeners for the past eight months had
ample opportunity to witness lawyers for parties in the petition making a case
for and against the annulment of votes, the deposing of President John Dramani
Mahama and the subsequent declaration of the presidential candidate of the New
Patriotic Party (NPP), Nana Addo-Dankwa Akufo-Addo as President of the Republic
of Ghana.
Internet websites,
facebook, twitter and other social media platforms were not left out in the
hearing. Supporters of the governing National Democratic Congress (NDC) and the
opposition NPP gave and are still giving “their versions” of proceedings on
social media and other platforms.
The stakes are so high
both sides are challenging each other on social media, and are said to have gone to the length of betting huge sums
of money on the outcome of the petition.
There is an uneasy
calm among Ghanaians, businessmen, businesswomen and investors on the possible
violence after the delivery of judgement by the nine Supreme Court justices on
August 29, 2013.
But the security
agencies and leaders of the two contending parties have given numerous
assurances that their supporters would not cause mayhem after the delivery of
judgment.
With the enormous
powers vested in them by the 1992 Constitution, Justices William Atuguba,
Julius Ansah, Sophia Adinyira, Rose Constance Owusu, Jones Victor Dotse, Anin
Yeboah, Paul Baffoe-Bonnie, N. S. Gbadegbe and Vida Akoto-Bamfo will determine
the fate of the presidential candidates of the NDC and the NPP in the December,
2012 presidential election.
Justice Baffoe-Bonnie
precisely pointed out on July 2, 2013 when a member of the NDC Communication
team, Mr Stephen Atubiga appeared before the court to answer contempt charges
that, “there, will be a judgement, whichever way the axe falls.”
“You will live in a
fool’s paradise to think we won’t give a decision. People like you cannot stop
us from giving a decision,” Mr Justice Baffoe-Bonnie emphatically stated while
looking in the direction of an apologetic Atubiga, who has since served a
three-day jail term for contempt and is now serving as a peace ambassador.
Pink Sheets supremacy at election petition
At the heart of the
election petition are pink sheets (statement of poll and declaration of results
for the office of President and Parliament). They are so called because they
are pink in colour.
The petitioners say they studied 24,000 out of
the 26,002 pink sheets used in declaring President Mahama as the winner of the
polls and arrived at their analysis of gross and widespread irregularities of
over-voting, persons voting without undergoing biometric verification, some
presiding officers not signing pink sheets and some pink sheets having
duplicated serial numbers.
According to the
petitioners, their investigation uncovered six main categories of
constitutional/statutory violations, commissions, irregularities and
malpractices, namely: Over-voting,
widespread instances of polling stations where there were no signatures of the
presiding officers or their assistants on the pink sheets in clear violation of
Article 49 (3) of the Constitution and Regulation 36 (2) of C. I.75, widespread
instances of polling stations where voting took place without prior biometric
verification in breach of Regulation 30 (2) of C. I. 75 as well as widespread
instances where there were the same serial numbers on pink sheets with
different poll results, when the proper and due procedure established by EC
required that each polling station have a unique serial number in order to
secure the integrity of the polls and the will of lawfully registered voters.
The Rules and Onus
of Proof
The petitioners brought the petition under Article 64 of the 1992
Constitution; Section 5 of the Presidential Election Actr, 1992 (PNDCL 285);
and Rule 68 and 68 A of the Supreme Court (Amendment) Rules 2012, C.I. 74.
Article
64(1) of the 1992 Constitution provides: “The validity of the election of the
President may be challenged only by a citizen of Ghana, who may present a
petition for the purpose to the Supreme Court within twenty-one days after the
declaration of the results of the election in respect of which the petition is
presented” while Article 64(2) says: “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.’’
Part VIII
of the Supreme Court Rules — Challenge Of Election of President, Rule 68 —
provides: “A petition presented pursuant to Clause (I) of Article 64 of the
Constitution shall state (a) the full name and address of the petitioner and of
his counsel, if any, which shall be an address for service; (b) the grounds for
challenging the validity of the election; (c) a statement of the facts relied
on to be verified by affidavit, and of the law in support of the petition; (d)
the number of witnesses to be called, if any; and by (e) such other matters as
the court may determine.”
Since the petitioners
have alleged irregularities in 10,119 polling stations, the burden of proof is
on them to prove each of the alleged infraction.
At the close of the
case, the petitioners are arguing that they have succeeded
in producing a “mountain of evidence, sufficient to discharge the burden of proof”
that the law placed on them and to obtain a decision in their favour but the
respondents are of the opinion that the petitioners failed woefully to
discharge their burden of proof.
Issues for determination
After 10 sittings to
consider and resolve more than 21preliminary issues raised by parties in the
case; the nine-member court has set out two issues for trial.
They are whether or
not there were statutory violations, omissions, irregularities and malpractices
in the conduct of the elections held on December 7 and 8, 2012.
It will also ascertain
whether or not the said violations, omissions, irregularities and malpractices
(if any) affected the outcome of the results of the elections.
Controversy over pink sheets and KPMG audit
Matters surrounding the
actual number of pink sheets filed by the petitioners were so sensitive and
controversial, the court had to eventually order an audit to be conducted into
the definite number of pink sheets filed at the Supreme Court registry in order
to put the matter to rest.
While the petitioners
insisted they filed 11,842 pink sheets, the respondents insisted the
petitioners filed less than that.
International audit
firm, KPMG was on May 9, 2013 accordingly directed to audit pink sheets and
subsequently submitted its final report in five volumes on June 24, 2013.
Snippets of the Final Audit Report
The final report
stated that the registrar’s copy of the pink sheets was 13,926 with 3,593
duplicates.
It also indicated that
the count of Mr Justice Atuguba’s pink sheets revealed a total of 9,860 pink
sheets while 871 of pink sheets in Mr Justice Atuguba’s were sets not included
in the registrar’s set.
The Genesis
On December 7 and 8,
2012, Ghanaians exercised their right under Article 42 of the 1992 Constitution
by casting their ballots in the presidential and parliamentary elections.
Voting had to be
suspended and continued on December 8, 2012 at 412 polling stations across the
country due to the breakdown of newly introduced biometric machines.
The Declaration
The Declaration
With the powers
conferred on him under Article 63 (9) of the 1992 Constitution, the Chairman of
the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, on December 9, 2012
declared President John Dramani Mahama as the winner of the presidential poll
with 50.7 per cent of the valid votes cast, with the presidential candidate of
the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, placing second with
47.7 per cent.
Prior to the
declaration of the results, the NPP leadership had reportedly prevailed upon Dr
Afari-Gyan to suspend the declaration because they had uncovered some
discrepancies which could affect the final results of the presidential
election.
After a marathon
meeting with EC officials and members of the Peace Council, Dr Afari-Gyan
declined to suspend the announcement of the results on the grounds that the
party leadership had failed to prove why the declaration should be halted.
He, accordingly,
advised the leadership of the NPP to sue the EC if it felt dissatisfied with
the results he was billed to declare.
Reminding him of his
words to the party leadership to sue, the presiding judge of the petition, Mr
Justice William Atuguba, on July 17, 2013 said to Dr Afari-Gyan who had been
discharged from the witness that, “I hope you’ve seen that ‘go to court, go to
court’ is not easy.”
Threat to Sue and the Petition
Threat to Sue and the Petition
Irked by the EC’s
declaration of President Mahama as the winner of the presidential poll, three
leading members of the NPP, namely, Nana Addo Danquah Akufo-Addo, his running mate, Dr Mahamadu
Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, filed a
petition at the Supreme Court Registry on December 28, 2012.
They initially alleged
gross and widespread irregularities at 4,709 polling stations, but they later
amended their petition to indicate irregularities at 11,916, 11,842,
11,138, 11,115, 10,081 and finally settled on 10,119 polling stations.
In all, a total
3,931,339 votes are affected by the various irregularities in the 10,119
polling stations challenged by the petitioners.
Reduction in votes and Rebuttal
According to Nana
Akufo-Addo, his running mate, Dr Bawumia and the National Chairman of the NPP,
Mr Obetsebi-Lamptey, if 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.
They said 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 plus one to be declared as winner of the Presidency.
But the respondents
have argued that the petitioners have failed to meet their evidential burden of
proving the alleged infractions and are accordingly praying the court to
dismiss the petition and maintain the status quo.
Options for the court
The court will on
August 29, 2013 decide whether or not to annul votes, affirm President Mahama
or declare Nana Akufo-Addo president.
It will also determine
whether or not to order for a re-run in the event it finds that the
irregularities affected the outcome of the poll.
The Journey So Far
For the past eight
months, lawyers for the petitioners have led evidence seeking to justify why
votes in 10,119 polling stations should be annulled by the Supreme Court, but
the respondents have also led evidence, which they say, point out
inconsistencies in the case of the petitioners in their bid to maintain the
status quo.
As expected in
litigations, the lead counsel for the petitioners, Mr Philip Addison entered
into occasional altercations with Messrs Tony Lithur, James Quashie-Idun and
Tsatsu Tsikata, who are lawyers for President Mahama, the EC and the National
Democratic Congress (NDC) respectively.
The judges have in the
course of disagreements between the lawyers either ruled affably, arbitrated or
displayed their authority with firm decisions.
Interestingly, the
arbiters have also been caught in the crossfire on a few occasions, but those
did not undermine proceedings in any way.
This article attempts
to walk readers through events that transpired from December 7 and 8, 2013
being voting days, preliminary issues disposed of by the court, the filing of
the necessary documents including affidavits from witnesses for the parties,
the hearing of the petition, filing of addresses as well as other issues that
cropped up during the hearing of the petition.
DECEMBER 2012
December 7 and 8, 2012 – presidential and parliamentary elections
held.
December 9, 2012 – Dr Afari-Gyan declared President Mahama winner
of polls with 50.7 per cent with Nana Akufo-Addo 47.7 per cent.
Between December 8 and
27, 2012 – Both the NPP and NDC organised press conferences and counter press
conferences. Both said they won the elections.
December 28, 2012 – Petition filed challenging results in 4,709
polling stations
December 31, 2012 – Petition amended due to typo errors
December 31, 2012 – NDC applies to join petition on grounds that it sought to protect the
interest of President Mahama, who the party fielded for the presidential poll.
January 2013 Events
January 2, 2013 - President Mahama and
EC enter appearance in the petition. Mr
Lithur entered appearance on behalf of President Mahama while
Lynes-Quashie-Idun and Co entered appearance on behalf of the EC.
January 3, 2013 – Supreme Court
Registry sets date for hearing of NDC’s joinder application.
January 5, 2013 - Nana Akufo-Addo opposes NDC’s application for
joinder and says it was calculated to delay the trial.
January 10 – Hearing of joinder begins but petitioners object to the composition of
the panel. Mr Victor Jones Dotse, also denied claims that he was a member of
the NPP as was being alleged in some circles.
January 11, 2013 – Petitioners withdraw opposition to the
panel.
January 16, 2013 – The court heard NDC’s application to join
the petition as well as the petitioners’ opposition to it.
January 22, 2013 – The court in a 6-3 majority decision gave the
NDC the nod to join the petition.
Writer’s email: mabel.baneseh@graphic.com.gh.
To be continued.
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