How the judges ruled in the election petition - Judgement of Justice Akoto-Bamfo

Monday, September 9, 2013 (Page 47)

THE youngest in terms of seniority among the panel of justices who sat on the presidential election petition has justified why she dismissed all the six claims of electoral irregularities at 10,119 polling stations across the country.
Dismissing each claim of over-voting, voting without biometric verification, absence of the signature of some presiding officers, duplicate serial numbers on pink sheets, duplicate polling station codes and voting taking place at 22 unknown locations in her 15-page judgement, Justice Akoto-Bamfo held that the petitioners had failed to discharge their burden of proof to warrant the annulment of 3,931,339 votes.
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 due to gross and widespread irregularities on pink sheets (statement of poll and declaration for the office of president) from 10,119 polling stations.
But the court in an overall decision on August 29, 2013 declared president Mahama as the validly elected president in the December 7 and 8, 2012 poll.

Justice Akoto-Bamfo’s opinion

Touching on the petitioners’ changing the number of polling stations where irregularities occurred from 4,709 to 11,916, 11, 842, 11, 138, 11,115, 10, 081 and finally to 10,119 – Mrs Justice Akoto-Bamfo held that, “thus, in situations where there are deletions and reclassifications of the facts in dispute, in the course of the hearing, without the leave of the Court to amend; the party could be said to have breached some cardinal rules of pleadings.”       

Allegation of Over-voting

Citing her reasons for the dismissal of the allegation of over-voting, Justice Akoto-Bamfo said the petitioners had failed to lead evidence to pinpoint which polling stations and results needed to be annulled due to over-voting.
“None of the polling agents made a report of any irregularity; no evidence was led on ballot box stuffing. And more importantly the ballots were cast and their polling agents attested to the results.
While the presiding officers obviously did make some mistakes and clerical errors, no mischief or advantage can be attributed thereto. Substantially the voting, counting and tallying of votes were carried out to a high degree of accuracy,” she pointed out.
She said questions like “which polling stations were affected? How many results have to be annulled,” were not answered by the petitioners and for that reason, “I would, therefore, decline the invitation to annul any votes under this category.”

 Absence of signatures
She said it was evident that although, Article 51 of the 1992 Constitution vested the power in the Electoral Commission (EC) to make regulations for the conduct of the elections; it was only under Article 49 that the steps to be followed by the presiding officers and the polling agents, after the close of the polls, were set out in detail.
According to her the right to vote was enshrined in Article 42 of the 1992 Constitution, and stressed that, “universal adult suffrage is, without a doubt, one of the pillars of our democracy. Significantly, Article 42 is equally an entrenched provision.“
“Was it the intention of the framers of the Constitution that persons who have exercised their rights under Article 42 by going through the electoral procedures, registered as voters,  had their names on the register, participated in the election by casting their  votes which have  been publicly counted,  recorded and announced -  should have such votes not counted on account of the sins of one public officer?
We have freely chosen the democratic form of governance in which sovereign power resides in the people as a whole. Under that system each citizen must be afforded a genuine opportunity, through the conduct of free and fair elections, to determine who his leaders or representatives should be,” Mrs Justice Akoto-Bamfo emphasised.
She also stressed the vital role played by the polling agent in the electoral process and stated that, “as a representative of a candidate or a party, by appending his signature to the declaration; he serves notice to his principal and the   generality of the citizenry that the presiding officer has complied with the rules; there has been the casting of the ballot, counting, recording and the declaration of the results.”
Justice Akoto-Bamfo held that there was no evidence that the persons who voted in the election ought not to have voted, neither was there any evidence that some people voted more than once.
“Indeed, there was no evidence that any of the voters or the respondents engaged in any fraudulent act. In other words, there was a real election by ballot,” she emphasised.
“In my view, visiting the sins of some public official on innocent citizens who have expressed their choice freely would run counter to the principle of universal adult suffrage, one of the pillars of our democracy, and perpetuate an injustice. The omissions of a presiding officer should not disenfranchise the voter.
I would, therefore, decline the invitation to invalidate the votes cast on account of the absence of the signature of the presiding officers,” she added.

General Comment on Importance of Polling Agents

Justifying the importance of polling agents at polls, Justice Akoto-Bamfo held that “the notion that polling agents are ornamental pieces adorning the polling stations must be discarded.”
She said “their roles are clearly defined by the Constitution and other statutes governing the elections. A vigilant polling agent would detect some of the wrongful acts at the polling station,” and then added that, “this costly exercise of combing through a mountain of election materials, with a view of unearthing irregularities, well after the declaration of the results, would be greatly reduced.”

Duplicate serial numbers
Giving her reason for dismissing the petitioners call for the annulment of votes due to some pink sheets having duplicated serial numbers, she said, “I must say that the pieces of evidence offered by both Mr Johnson Asiedu Nketiah and Dr Afari Gyan shredded into pieces the petitioners’ case under this head. It became evident that Dr Bawumia was not too familiar with the processes and procedures leading to the conduct of the presidential elections.”
Mr Nketia, General Secretary of the National Democratic Congress (NDC), and the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, had told the court that polling stations were known by their names and unique codes and, not by serial numbers.

Voting without biometric verification

Deciding on claims of persons voting without undergoing biometric verification, Justice Akoto-Bamfo held that it was a “notorious fact” that the poll was adjourned in some areas due to breakdown of biometric verification and, therefore, there were two days of voting.
“If persons were allowed to vote without verification would there have been any need for the adjournment? I think not.  In the absence of any credible evidence to the contrary (some polling agent or voter testifying) I would prefer the pieces of evidence of the respondent’s on this issue to the bare assertions of the petitioners based on the face of the pink sheets. It became obvious that the attack mounted under that category was premised on a misconception and, therefore, impossible to stand,” she held and, accordingly, declined the petitioner’s invitation to annul the votes under that category.

Unknown polling stations
Refusing to grant claims that voting took place at 22 unknown locations, Justice Akoto-Bamfo submitted that, “if they did not know of the existence of those polling stations, they obviously could not have sent their agents there.”
Same polling station codes on different pink sheets
Justice Akoto-Bamfo indicated that although the petitioners took the view that votes under that category were insignificant, “I would only find the explanation by the 2nd respondent credible; that some polling stations were so large as to be divided into sections A and B; while the others, constituted polling stations where special voting took place, I would so find and dismiss the petitioners’ case under this ground as well.”
The second respondent was the EC.
Petition dismissed in its entirety
“For the foregoing reasons I would dismiss the petition in its entirety. I must say that on paper, we seem to have a transparent electoral system which has evolved over the years,” but suggested that the calibre of electoral officials must be improved to prevent avoidable errors in future elections.
Writer’s email: mabel.baneseh@graphic.com.gh.