From left: Nana Akufo-Addo, first petitioner; John mahama, first respondent
The final verdict of the Supreme Court in the ongoing election petition
challenging the declaration of Mr John Mahama as winner of Ghana's 2012
presidential election is likely to be delivered by the end of this
month.
Mr Justice William Atuguba, President of the nine-member panel of
judges hearing the case, gave the indication after lawyers for the
petitioners and the respondents wound up their
oral addresses yesterday.
According to Mr Justice Atuguba, the court would return on August 14,
2013 to enable the panel to ask questions and to seek further
clarifications from the parties before fixing a date for the delivery of
its judgement.
The Supreme Court (Amendment Rules), 2012, C. I. 74 indicates that
judgement should be delivered in a presidential election petition 15
days after the close of the case.
Earlier at yesterday’s sitting, it was a battle of wits, when each of
the four lawyers for the petitioners and the respondents attempted to
use 30 minutes to justify why the claims of electoral irregularities in
10,119 polling stations during the presidential election should be
upheld or be declined by the highest court of the land.
Case of the President
The first to address the court was lead counsel for the President, Mr
Tony Lithur, who argued that the petitioners had failed to discharge
the burden of proof to warrant the annulment of 3,931,339 votes.
Counsel told the court that in the heat of the voting and after it
had become apparent that the biometric machines were not working,
several prominent personalities, including President Mahama and other
noticeable chiefs, made an appeal for qualified voters to be allowed to
vote without being verified.
Following from that, he said, the EC, on December 8, 2012, allowed
voting to take place at polling stations where biometric verification
machines had broken down the day before.
Mr Lithur said the NPP issued press statements in which it made all
manner of allegations when it emerged that it was losing the elections
when the results were trickling in.
However, counsel stated that the issues the petitioners brought to
court differed from the allegations they had made before the filing of
the petition.
Desk-Bound Exercise
Counsel told the court that the star witness of the petitioners, Dr
Mahamadu Bawumia, headed the task force which collected computers and
sat in an office to begin what he termed a “desk exercise on the face of
pink sheets”.
Mr Lithur said it was clear from Dr Bawumia’s evidence that there was no polling agent present during the investigations.
He submitted that no polling agent was questioned on what was found
on the face of the pink sheets, adding that the petitioners “poured over
paper” to make a request that votes be annulled according to evidence
on the face of pink sheets.
He also made reference to what he termed Dr Bawumia’s mantra of “You
and I were not there” and said such a serious exercise had been limited
to the face of pink sheets.
Mr Lithur was of the view that if there were irregularities, the
polling agents knew what they had to do and asked if the polling agents
saw anybody voting more than once.
He said there was no claim that persons whose names were not on the
voters register were allowed to vote and also asked if polling agents
had seen anybody voting without undergoing biometric verification.
According to Mr Lithur, per the petitioners’ claims, they were
inviting the court to ignore the role of the polling agent, as enshrined
in the Constitution, as well as ignore the fact that not a single
complaint was lodged at the polling station or at the constituency
level.
He argued that seeing a case of over-voting on any pink sheet was
clearly an error and emphasised the importance of the right to vote.
Describing allegations of some pink sheets having duplicate serial
numbers as “amazing”, counsel held that polling stations were known by
their names and codes.
Biometric Verification and Absence of Signatures
Responding to allegations of persons voting without undergoing
biometric verification, counsel said that was not true because voting
was adjourned to the next day due to the breakdown of some biometric
verification machines.
He also wondered where petitioners’ polling agents were when persons
were allegedly allowed to vote without undergoing biometric
verification.
On the issue of absence of signatures of presiding officers, counsel
said the omission of a presiding officer to sign a pink sheet should not
be visited on the voter who joined long queues to vote on voting day.
Mr Lithur agreed with the assertion of the Chairman of the EC, Dr
Kwadwo Afari-Gyan, that the December election was the most transparent
Ghana had ever had, adding that President Mahama won “fairly and
squarely”.
Counsel, accordingly, prayed the court to maintain the status quo.
The Case of the EC
Arguing for the EC, Mr Quashie-Idun made reference to Dr Bawumia’s
testimony that the NPP thought it was winning on December 7, 2012 when
everything changed on December 8, 2012.
After reading excerpts from the court proceedings on Dr Bawumia’s
testimony, Mr Quashie-Idun said Dr Bawumia could not tell the court what
actually changed after December 7, 2012.
However, counsel was of the view that nothing had changed, pointing
out that the votes were counted in the full glare of the public and in
the presence of polling agents.
He also argued that representatives of the various candidates were
present in the strong room of the EC when results from the
constituencies were presented.
Those tenets, Mr Quashie-Idun argued, were the pillars of
transparency in elections in Ghana and, accordingly, prayed the court to
“sceptically” look at attempts to undermine the results on the face of
the pink sheets.
Touching on duplicated serial numbers on some pink sheets and the
failure of presiding officers to sign some pink sheets, Mr Quashie-Idun
asked, “Did presiding officers
stop signing? Did serial numbers pop up?”
He made reference to Dr Afari-Gyan’s testimony that representatives
of political parties were allowed 24-hour access to monitor the printing
of ballot papers, among other processes leading up to the polls.
He also stated that the voters register was given to all the
political parties who, in turn, gave it to their polling agents to use
on election day and prayed the court to “imagine the issue of counting
not taking place in public”.
Mr Quashie-Idun was of the view that Ghana’s electoral system was
very transparent and said “verifiably” Ghana’s electoral system was not
questionable.
He said the petitioners had not established “the casual link between
their allegations, even if established, and the results as declared by
the EC”.
He further held that the level of participation made it impossible to
falsify results and cited the Dome Kwabenya example where an allegation
of vote padding in favour of President Mahama was made.
At that constituency, Mr Quashie-Idun said, counting was done nine times and the results entered after parties were satisfied.
Counsel denied allegations of over-voting and said no ballot stuffing
took place due to vigilance on the part of observers at the polling
stations and added that out of the 26,002 polling stations, only one
discrepancy was recorded.
That discrepancy, which involved 80 votes, according to Mr
Quashie-Idun, was not enough to change the results declared by the EC.
He said the petitioners had failed to prove their case and,
accordingly, prayed the court not to annul “one single vote” because
there was no justification for annulment in each category.
Voters did nothing wrong
Making his submissions for the NDC, Mr Tsikata Tsatsu said the
request of the petitioners for the annulment of votes must be dismissed.
Counsel said the petitioners admitted that voters did nothing wrong
and further admitted that no one voted more than once and yet they were
asking that valid votes be annulled.
He said the petitioners were in court to depose a “retroactive penalty” on persons who stood for hours in queues to vote.
According to counsel, the Constitution was very clear that the courts
should not “countenance retroactive penalisation” and made reference to
Article 42 of the 1992 Constitution which touched on the right of
persons to vote.
Dr Bawumia disqualified himself
According to Mr Tsikata, Dr Bawumia disqualified himself with his
“You and I were not there” assertions during his testimony on what might
have happened at polling stations, adding, “He had no capacity to give
testimony to seek the declarations he was seeking.”
Counsel told the court that Dr Bawumia had stated in his affidavit
evidence that irregularities occurred at 11,842 polling stations and
further insisted in court that he did his analysis based on 11,842
polling stations.
That claim, according to Mr Tsikata, turned out to be false after the
international audit firm submitted its final report which indicated
that the polling stations were not more than 8,675.
He said what was now in the closing address was 10,119 polling
stations and said on the last but one day of the hearing, a figure of
10,081 was given by the petitioners.
That, according to counsel, could not be a legitimate basis to annul votes.
Counsel argued further that the court could not rely on the exhibits
provided by the petitioners because they fell outside the range of the
affidavit of Dr Bawumia.
Rules of Court
Counsel argued further that the rules of the court were clear and
said the petitioners were required by law to provide not less than seven
sets of exhibits to the justices, adding that “in many instances they
have only provided one”.
He said 93 of the exhibits were not within the ‘further and better
particulars’ and argued further that more than 5,000 out of the 8,000
pink sheets were not properly before the court as evidence.
Those issues, according to counsel, went to the heart of the
petition, adding, “They have not even discharged the burden of evidence
and the judges cannot be asked to assess those evidence.”
Over-voting
Counsel also argued that no evidence was led to prove that a person
voted more than once, while Dr Bawumia acknowledged that a person could
not make allegations of over-voting on the basis of what was on the pink
sheets alone.
On the failure of presiding officers to sign pink sheets, Mr Tsikata
said it was not fair for publicly declared votes to be annulled because a
presiding officer did not sign and held further that polling agents
were also required to sign the pink sheets.
According to counsel, the “most outrageous claim” was that of
duplication of serial numbers, adding that it was “the weakest link in
an already weak claim”.
He also accused the petitioners of selecting polling stations favourable to their case.
Urging the court to dismiss the petitioners’ claims, Mr Tsikata said,
“The petitioners’ claim is factually empty, with no supportable
evidence being produced. It is legally pathetic; the petition is poor in
arithmetic and extremely poor in logic.”
Declare Nana Akufo-Addo President
Making a case for the petitioners, Mr Phillip Addison said the
petitioners had led substantial evidence to warrant the annulment of
votes in the 10,119 polling stations and the subsequent declaration of
Nana Akufo-Addo as President.
He said the respondents had persistently maintained that the 2012
elections were credible and had argued for the court to uphold the
results, yet when they were confronted with the pink sheets, which were
the primary records of the poll, they shied away.
Counsel held that what was bizarre was that the defective pink sheets
were used in the declaration of the results and submitted that Mr
Tsikata had resurrected a dead issue on the number of pink sheets
submitted by the petitioners.
He said according to the KPMG, 8,675 unique pink sheets in the court
registrar's lot were discovered, out of which 1,545 were excluded, and
upon the order of the court, 1,234 were also discovered as unique by the
EC.
Mr Addison said another set of 804 pink sheets were found to be
unique in Mr Justice Atuguba’s set. He said 648 pink sheets used by the
respondents to cross- examine Dr Bawumia were found to be unique.
According to him, the addition of those pink sheets proved that the petitioners filed 11,000 plus pink sheets.
According to counsel, President Mahama did not win more than one per
cent of the total votes and not the total valid votes cast at the
election.
Difference in votes is 325,863
Counsel told the court that President Mahama beat Nana Akufo-Addo by
325,863 and said the total votes annexed by the Minority in Parliament
were more than the votes annexed by the Majority in Parliament.
“For the first respondent, he garnered 5,574,761, as against 5,127,
641 by all his parliamentary candidates, which showed a difference of
447,120. What accounted for this difference? It cannot be the
skirt-and-blouse phenomenon because the NDC is in the majority. The
Majority in Parliament secured 121,221 votes less than the Minority.
This is curious and undermines the one man, one vote spelt out in the
Constitution,” Mr Addison pointed out.
He said when all the categories of violations and irregularities were
combined for the 10,119 polling stations, 3,931,339 votes were deemed
to be invalid, and not five million votes, as the respondents had sought
to make the court believe.
He said when the results were annulled, President Mahama’s votes
would be reduced by at least two million, while those of Nana Akufo-Addo
would be reduced by one million votes.
He said by the computations, President Mahama would get 41.79 per
cent of the valid votes cast, while Nana Akufo-Addo would have 56.85 per
cent of the valid votes cast.
He said the respondents’ claim that there was no evidence of over-voting was a bit “curious.”
“Voting is a secret affair and the only time one can find cases of
over-voting is only after voting had taken place and the results
counted,” counsel added.
Petitioners proved infractions
Mr Addison argued that the petitioners were able to prove each
infraction of over-voting, persons voting without undergoing biometric
verification, presiding officers not signing signatures and duplicated
serial numbers on pink sheets.
For instance, he said, the signing of pink sheets was mandatory,
adding that the petitioners were able to prove that more than 900 pink
sheets were not signed, aside from the 905 admitted by the EC.
He said although no explanation had been given as to why some pink
sheets had duplicated serial numbers, “not a word was said about
triplicate and quadruplicate serial numbers”.
That, according to counsel, was because those issues were
“unanswerable”, pointing out that the petitioners were also able to
prove that some polling stations with the same code but different
results went into the declaration of results.
Critical admissions
Counsel said Dr Afari-Gyan made some critical admissions, including
the admission which enhanced and reinforced the concept of one man, one
vote.
He said Dr Afari-Gyan also told the court that he had not seen a
single pink sheet before declaring the results, as well as some results
in some polling stations being annulled due to infractions, among
others.
He admitted that presidential election petitions in Kenya, Zambia,
Sierra Leone and Nigeria had not been successful because of
technicalities and the lack of numbers.
In the instance of Ghana, counsel argued that each infraction was
enough to unseat President Mahama and, accordingly, prayed the court to
uphold the case of the petitioners.
The petitioners want the presidential candidate of the NPP in the
December 2012 presidential election, Nana Addo Dankwa Akufo-Addo,
declared President on the grounds that President Mahama would not chalk
50 per cent plus one vote when invalid votes he benefited from were
annulled by the Supreme Court.
By Mabel Aku Baneseh
Writer’s email:
mabel.baneseh@graphic.com.gh.
Justice William Atuguba
