This article was first published on September 4, 2013
The Supreme Court has released the full judgement on the 2012 presidential election petition, four days after leaving the public in suspense.
In a 588-paged judgement, the court by a 5-4 majority decision justified why President Mahama was validly elected.
There were four and three consistent judges who voted against and for the annulment of more than two million votes due to what the petitioners described as gross and widespread irregularities recorded during the election.
Justices William Atuguba, Mrs Justice Sophia Adinyira, 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 votes due to electoral irregularities in the December 7 and 8, 2012 presidential election.
The dissenting justices who held the view there were issues to be settled with allegations of over voting, absence of presiding officers’ signature and voting without biometric verification were Mr Justice Julius Ansah, Ms Justice Rose Constance Owusu and Mr Justice Anin Yeboah.
They declined to declare the presidential candidate of the New Patriotic Party (NPP) Nana Akufo-Addo as the validly elected president, but held the view that the votes affected by these allegations must be annulled and a re-run held.
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.
Messrs Justice Victor M. Dotse and Paul Baffoe-Bonnie, changed their voting patterns. For instance while Mr Justice Dotse upheld the petitioners allegation of over-voting and non-signing of pink sheets by presiding officers – Mr Justice Baffoe-Bonnie upheld the petitioners case of voting without biometric verification.
Mr Justice Baffoe-Bonnie dismissed the allegations of over-voting and non-signing of pink sheets while Mr Justice Dotse dismissed the allegations of voting without biometric verification.
The Majority Decision
(1)Transparency of the Voters Register
According to the majority decision, signed by Mr Justice Atuguba, although the petitioners complained about the transparency of the voters’ register and its non or belated availability before the elections, this line of their case did not seem to have been strongly pressed.
It said in any event, the evidence clearly showed that the petitioners raised no such complaint prior to the elections nor had any prejudice been shown therefrom.
“ Indeed even in this petition the petitioners claim that the 1st petitioner was the candidate rather elected, obviously upon the same register. So also their allegations that there were irregularities and electoral malpractices which “were nothing but a deliberate, well-calculated and executed ploy or a contrivance on the part of the 1st and 2nd respondents with the ultimate object of unlawfully assisting the 1st respondent to win the 2012 December Presidential Elections.” Indeed the 2nd petitioner for and on behalf of all the petitioners, testified that the first respondent did no wrong with regard to the conduct of the elections but was merely the beneficiary of the alleged malpractices, irregularities and violations.
Absence of presiding officer’s signature
According to the majority, the irregularity which had engaged and sharply divided the court as to its consequence is “absence of the signature of a presiding officer.”
“This irregularity is anchored in Article 49 of the 1992 constitution,” adding that “it is undoubtable that in some instances the declared results were not signed by the presiding officer though the petitioners’ polling agents did sign. The crucial question that has devastated this court is whether those results should be annulled.”
“Unfair and Fraudulent”
It said it would be unfair and fraudulent for the petitioners to authenticate the results through their polling agents’ signatures and turn round to seek to invalidate on the purely technical ground of absence of the presiding officer’s signature.
“Clearly the underlying purpose of the signatures of the presiding officer and the polling agents on the pink sheets is to provide evidence that the results to which they relate were those generated at the relevant polling station in compliance with the constitutional and other statutory requirements, otherwise each “signature in itself has no magic about it.
“In those circumstances even if the failure by the presiding officer to sign the same is condemned as unconstitutional yet the polling agents’ signatures, the public glare of the count and declaration of the results in question, the provision of copies of the same to the polling agents and their sustenance at the constituency’s collation centre and all the way to the strong room of the 2nd respondent (the Electoral Commission) and the cross checking of the same by the parties; representatives should satisfy the policy objective of Article 49(6) regarding signature,” it said.
It said the petitioners had not on any ground approaching prejudice of any sort questioned the authenticity of the results which do not bear the presiding officer’s signature.
It said there was a question as to what constitutes over-voting.
“The evidence of Dr. Mahamadu Bawumia, the 2nd petitioner, Johnson Asiedu Nketia, General Secretary of the National Democratic Congress and of Dr. Kwadwo Afari Gyan, Chairman of the electoral Commission the 2nd respondent, established two types of over voting.
“The first is where the number of those who voted at a polling station exceeds the number of voters contained in the relevant polling station register. The second situation is where the number of ballots in the ballot box exceeds the number of ballot papers issued to the relevant polling station. Pondering over these two categories closely I would think that the second category of overvoting is rather an instance of ballot stuffing as testified by Johnson Asiedu Nketia.”
It said according to the evidence where the votes in the ballot box were exceeded by even one vote the integrity of that vote was said to be compromised and must be annulled and depending on the impact of that vote on the overall results, the election in that polling station must be rerun.
Burden of Proof
According to the majority, before tackling the issues of over-voting and voting without biometric verification at length the question of the burden of proof had to be settled.
It is said that election petitions were peculiar in character hence the question of burden of proof had evoked various judicial opinions in the common law world.
“This means that unless the contrary is proved the president is presumed to have been validly elected. The cardinal question therefore is whether the petitioners have been able to rebut the presumption of validity created by the presidential Declaration of Results Instrument, “ it said.
Voting without Biometric Verification
It said the complaint about voting without biometric verification cannot therefore hold in the absence of some other contrary evidence.
“The pink sheets contained errors of omission of e.g. proxy votes, blanks, repetitions, wrong grammatical renditions, etc. Indeed Dr. Bawumia admitted under cross-examination that the pink sheets cannot alone supply answer to issues arising from them, in all situations,” it added.
It said the pink sheet or its equivalent in other jurisdictions has been judicially regarded as the primary record of an election.
“But no one has given it a conclusive effect. Neither the constitution nor any other statute, substantive or subsidiary has accorded the pink sheet any particular status.
“It appears that the petitioners rather belatedly, towards the end of the case, realised the need for the adduction in evidence of such vital documents like the voters registers, collation sheets, etc and tried to do so, sometimes with the indulgence of this court, through cross-examination of Dr. Kwadwo Afari Gyan, Chairman of the Electoral Commission and also through unsuccessful applications for leave to serve on him notices to produce such documents.
“It is felt, and the petitioners so submit, that the pink sheets do operate as estoppel as to the facts therein contained and therefore, inter alia, extrinsic evidence is inadmissible. The shortest answer to this is that the constitution being the supreme law of the land doctrines of estoppels do not apply to constitutional litigation.
“In the circumstances I do not think that the petitioners have established their allegations of over-voting and voting without biometric verification, except to the limited extent admitted by the Electoral Commission’s chairman, which cannot impact much on the declared results,” it stated.
According to the majority, the petitioners sought to devalue the status of the polling agents to that of mere observers, pointing out that “That is certainly unacceptable.”
“If they were such passive attendants at an election it is inconceivable that the constitution would have considered their signatures to the results sheet significant enough to merit express constitutional requirement, “ it held.
It thus held that polling agents have a special role to play in a free, equal and secret poll.
“The signatures of the polling agents to the declaration of results therefore have high constitutional and statutory effect and authority, which cannot be discounted.
It said the petition however had exposed the need for certain electoral reforms. I mention same of them.
• The Voters register must be compiled and made available to the parties as early as possible.
• A supplementary register may cater for late exigencies.
• The calibre of presiding officers must be greatly raised up.
• The pink sheet is too elaborate, a much simpler one to meet the pressures of the public, weariness and lateness of the day at the close of a poll etc.
• The carbon copying system has to be improved upon.
• The Biometric Device System must be streamlined to avoid breakdowns and the stress on the electorate involved in an adjournment of the poll.
• Invalidating wholesale votes for insignificant excess numbers is not the best application of the administrative principle of the proportionality test.
Jr Justice Julius Ansah
In a minority decision read by Mr Justice Julius Ansah said the duty of the court was to determine how the evidence supported the facts alleged.
It said since the respondents denied each and every averment of the petitioners in the petition, this imposed on the petitioners the duty of proving every single allegation they made in order to obtain a favourable finding thereof by the court.
CATEGORIES OF IRREGULARITIES
UNKNOWN POLLING STATIONS
The petitioners’ claim here concerns the 22 so-called unknown polling stations. This was a reduction of the petitioners’ initial allegation of 28 unknown polling stations.
The 2nd respondent showed that the flag bearer of the political party to which the petitioners belong, who is also the 1st petitioner herein, himself signed letters appointing polling agents to these same polling stations. It is difficult to fathom how in light of this the petitioners could maintain a claim that these polling stations were unknown.
“I find the petitioners’ case in this respect not satisfactory. There was evidence that following the aforesaid appointment letters, the petitioners sent their agents to the polling stations, voting took place there, the votes were counted and results declared, and finally the agents signed the result forms.
“ In the face of these overwhelming evidence, no one will doubt that the allegation of voting taking place at stations outside the 26,002 polling stations created by the second respondent was ill founded and remained unproven at the end of the trial,” it said.
B. PINK SHEETS NOT SIGNED BY PRESIDING OFFICERS OR THEIR ASSISTANTS
It said the presiding officer was not relieved from the duty to sign the declaration forms, since it was a mandatory duty cast on them by the constitutional and statutory provisions governing elections in the country.
According to the minority, the legitimate inference was that failure by the presiding officer to sign the declaration form was an irregularity which cannot be excused or waived on the grounds that the pressure of time, prevailing atmospheric condition, etc, etc, did not simply allow or permit them to sign the forms and thereby comply with the constitutional duty.
“The duty cast on the presiding officers to sign the declaration was couched in mandatory terms and deserves obedience and not meant to be disobeyed,” it added.
“An election much more so, Presidential Elections, are serious matters governed by well laid rules to preserve sanctity and integrity of the elections, especially where a specific duty is imposed on election officials. A breach of any of those duties meant the integrity of the election was compromised and ultimately affected the exercise of the right to vote as well as jeopardizing the sovereign will of the people.
“Because of this, I am unable to accept the alibi put up by the respondents, like pressure of work, nature of carbon paper making the signatures look faint through over use, and pressing the pen too often, too hard.
“I hold in my concluding comments on this ground, that the failure to sign the pink sheet was a monumental irregularity unmitigated by any circumstances.
“I am emboldened to come to this conclusion following upon the holding that: “the Ghana Supreme Court has recognised the concept of the spirit of the constitution as a tool of constitutional interpretation……to ensure that Ghana succeeds in her fourth attempt at democratic and constitutional system of government, both the government and the people should observe not only the written provision of the constitution but it’s spirit as well.”
It expressed the opinion that the failure by the presiding officer to sign the pink sheet before announcing the results constituted an omission to perform and a breach of his constitutional duty.
“It vitiated the votes cast at the polling station, a more monstrous irregularity no one can imagine,” it held.
“It was as unpardonable as it was inexcusable that presiding officers should fail to sign declaration portion of pink sheets they worked with on the polling day from the beginning to the end of polls on the election day.
“Based on the foregoing discussion under this head of irregularities, I find that all votes cast and declared during the 2012 presidential elections which involved pink sheets not signed by presiding officers or their assistants are to be nullified and I so declare,” it further held.
C. VOTING WITHOUT PRIOR BIOMETRIC VERIFICATION
According to the minority, it was unable to agree with the submission by the respondents that biometric verification could not be limited to only finger prints.
“A reading of regulation 30 of C.I. 75 shows that the voter shall mandatorily go through a biometric verification process by a biometric verification equipment for the purpose of establishing the identity of the voter by finger print.
“In order to ensure that those who through no fault of theirs have no fingers at all, or have fingers but whose finger prints could not be taken for one reason or the other, special provisions/arrangements were made for them. Those voters are labeled ‘FOs’ and are excused from undergoing biometric verification by the equipment.
“In evaluating the evidence by the petitioners, I note that when the petitioners were ordered by the court to provide further and better particulars on the allegation of voting without biometric verification, they stated the irregularity took place at 2,279 polling stations.
“However, by the close of trial and addresses stage, they deleted 148 of them from the list relied on 2,131 polling stations. I have said these reductions in figures did not prove fatal to the petitioners’ case and will be considered by the court.
In the result, the minority declared that all votes cast at the 2012 presidential elections which were affected by this irregularity of voting without prior biometric verification were nullified.
The minority said Mr. John Mahama, had 5,574,761 declared in his favour by the E.C. in the over voting category, and thus he benefitted by 504,014 votes.
“When these are annulled, he had 5,070,747 valid votes in his favour. That would leave him with 49.47%.
“Nana Akufo-Addo had 5,248,898 votes declared in his favor by the E.C., out of which he benefitted 226,198 in the over voting category, which as they are being annulled left a total of 5,027,700 valid votes in his favor. Expressed in percentages, that would be 49.00% of the valid votes cast at the elections.
“The foregoing evaluation of the impact of the nullified votes shows that they resulted in neither the first petitioner nor the first respondent obtaining the critical fifty percent plus one valid vote threshold.
“As neither the first petitioner nor the first respondent had the required number of votes by the constitution to be declared the President of the Republic of Ghana,
I make the following conclusions and directions:
1. That the relief that an declaration be made that Mr. John Dramani Mahama was not validly elected the President of Ghana, is hereby granted;
2. That a declaration be made that Nana Akufo-Addo be declared the candidate who was validly elected the President of Ghana, is also refused.
3. The consequential order I make is that the E.C. conducts a re-run of the Presidential elections for the two leading candidates, Mr. John Dramani Mahama and Nana Akufo-Addo, in all the polling stations affected and indicated in the petition and its supporting documents, forthwith.
Source: Graphic Online