Ghana wins in pink sheets battle (Published in The Mirror)

SATURDAY, AUGUST 31, 2013 (Page 3 of The Mirror newspaper)

THE battle of pink sheets has officially ended and Ghana has emerged the victor.
This is particularly so because the losing side has conceded defeat, congratulated the victor and has decided not to file for review of the court’s judgement.
Legal matters related to the petition officially come to a close on August 29, 2013 after eight months of what is now known as the “pink sheet war”.
In exactly four minutes 16 seconds, the Supreme Court settled the legal dispute pertaining to irregularities on 10,119 pink sheets (statement of poll and declaration of results form) and declared President John Dramani Mahama as the validly elected President of the Republic of Ghana.
The legal battle has officially ended because the contender of the presidency, Nana Addo Dankwa Akufo-Addo, has since accepted the decision of the court, although he expressed unhappiness with the decision.

The Decision

In a 5-4 majority decision, the court dismissed the petitioners’ legal contest for the highest office of the land and maintained the status quo of President Mahama whose presidency has been under legal fire from December 9, 2012 till August 29, 2013 when the matter was finally settled.
Justices William Anam Atuguba, Mrs Justice Sophia Adinyira, Mr Justice Jones Victor M. Dotse, Mr Justice Paul Baffoe-Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo in an “overall” decision dismissed the petitioners claims for the annulment of a total of 3,931,339 due to electoral irregularities in the December 7 and 8, 2012 presidential election.
The dissenting justices who held the view that there were issues to be settled with allegations of over-voting, absence of presiding officers’ signature and voting without biometric verification are Mr Justice Julius Ansah, Ms Justice Rose Constance Owusu and Mr Justice Anin Yeboah.
They held the view that the votes affected by these allegations must be annulled and a re-run held.
But the court unanimously dismissed the claims relating to duplicate serial numbers, duplicate polling station codes, and unknown polling stations.
Reaction
Both stalwarts of the New Patriotic Party (NPP) and the National Democratic Congress (NDC) have expressed joy at Ghana’s thriving democracy.
Ghana’s national flag was distributed among members of the governing National Democratic Congress (NDC) who sang jubilant songs to praise God for the victory of the party’s flag bearer for the December 2012 presidential poll.
Lawyers for President Mahama, the Electoral Commission (EC) and the National Democratic Congress (NDC), Messrs Tony Lithur, James Quashie-Idun and Tsatsu Tsikata, respectively, expressed gratitude to the court while lead counsel for the petitioners in response to the court’s decision said, “As the court pleases.”

Unanimous Decision

On the allegations of some pink sheets having duplicated serial numbers and voting taking place in 22 unknown locations, the court unanimously dismissed the claims.
Exciting Journey
Although the legal tussle over alleged irregularities was fraught with vigorous arguments, objections, counter-objections and occasional face-offs, the journey has been sometimes humorous.
Members of the Supreme Court panel have in many instances thrown in a joke or two to calm down nerves anytime the lawyers are in the middle of a ‘fierce legal fight” or are nearing such state.
Words and phrases like “pink sheets,” “I put it to you,” “I suggest to you,” “you and I were not there,” “Bawumia calculator,” “Hurricane Sanity Atuguba,” “Objection,” “Objection sustained,” “Objection overruled”, “amicus curiae”, “contempt of court, “Illegal political galamsey”, “audit of insults” and “Gbeshie powers” among others will forever linger on the lips of Ghanaians who have found ways of introducing these phrases in their daily conversations.
Ghanaians from April 16, 2013 to August 14, 2013 had the opportunity to follow proceedings of the 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 that “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 Mahama and the subsequent declaration of the presidential candidate of the NPP, Nana Addo-Dankwa Akufo-Addo, as President of the Republic of Ghana.
Pink sheets supremacy at election petition
At the heart of the election petition were pink sheets. They are so called because they are pink in colour.
 The petitioners 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 the EC required that each polling station has 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 Act, 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 (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 argued that they had 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 President Mahama, the Electoral Commission (EC) and the National Democratic Congress (NDC) refuted the claims and stated that the petitioners had failed to discharge their burden of proof.
Issues for determination
Two issues that the court set out for determination were 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 also ascertained 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 that the court had to eventually order for 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.
The Beginning
Ghanaians, on December 7 and 8, 2012, exercised their right under Article 42 of the 1992 Constitution by joining long queues to cast 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
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 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 box that, “I hope you’ve seen that ‘go to court, go to court’ is not easy.”