Posted on: www.dailyguideghana.com
By William Yaw Owusu
Tuesday, August 6, 2013
Dr.
Kwadwo Afari-Gyan, Chairman of the Electoral Commission (EC) has suffered
credibility dent as a result of the conflicting evidence he gave at the yet to
be concluded Presidential Election Petition before the Supreme Court.
According
to the three petitioners challenging the EC’s declaration of John Dramani
Mahama as President, “Dr. Afari-Gyan who was the returning officer of the
presidential election cut an unconvincing figure with his bundle evasive, inconsistent
and contradictory answers during cross-examination. His credibility by the end
of the trial was all but gone.”
The
New Patriotic Party (NPP) presidential candidate in the election, Nana Addo
Dankwa Akufo-Addo, his running mate Dr. Mahamudu Bawumia and the party’s
Chairman Jake Otanka Obetsebi-Lamptey are challenging the validity of the election
of President Mahama and specifically want the nine-member panel to strike out
3,916,385 votes due to what they say are statutory violations, irregularities
and malpractices.
The
violations being complained about by the petitioners include over-voting,
voting without biometric, same serial numbers on pink sheets as well unsigned
pink sheets by Electoral Commission (EC) officials.
They
insist that per their analysis, President Mahama’s 5,574,761 as declared by the EC on December 9, 2012 should have been
2,952,210, representing 41.79% since
votes totaling 2,622,551 out of the figure announced were invalid.
In the same vein, the petitioners submitted that the
5,248,898 declared by the Dr. Afari-Gyan for Nana Akufo-Addo should have been
4,0157,12 representing 56.85%since1,233,186
of the votes were invalid and should be annulled.
According
to the petitioners, they have shown by the sheer depth and weight of the
evidence adduced at trial and the force of legal arguments advanced in this
address that “there were indeed, substantial constitutional and statutory
violations, malpractices and irregularities in the 2012 presidential election
and that these violations, malpractices and irregularities had a material
effect on the results of the election as declared by 2nd respondent.”
Petitioners
on EC
According to the petitioners, the EC who is the 2nd
respondent, by its 2nd Amended Answer filed on 3rd April, 2013, generally
denied the petitioners claims, saying “the thrust of the Answer filed by the
2nd respondent was to defend stoutly the elections it had conducted.”
Discrepancies
In Register
“The material averments of the 2nd respondent were
that the initial provisional figure it announced of the voters register was
13,917,366. After the conduct of registration of foreign service officials,
students abroad on government scholarships, other Ghanaians working abroad in
international organizations and the late registration of service personnel
returning from international peacekeeping duties, the figure increased to 14,
158, 890. After processing data to include persons who established that they
had valid voter cards and removing names which ought not to have been there on
account of multiple registrations and wrong inclusions, the figure came down to
14, 031, 793.”
They submitted that the EC had stated further that after
everything, “the correct figure that it forwarded to all parties and which was
used in the declaration of results in the December 2012 elections was 14, 031,
793.”
According to the petitioners, the EC “thus,
commenced its series of declaration of errors (that ostensibly characterised
the conduct of the December 2012 elections) by declaring the figure of 14, 158,
890 it announced as the total registered voters in the 2012 elections as an
error. In place of the statutorily mandated provisional voters’ register
[Regulation 21(2) of C. I. 72], 2nd respondent alleged that it
furnished to political parties daily printouts of the registration effected at
each registration centre.”
Biometric
Verification
The petitioners said the EC had submitted that “each
and every voter was verified once before being allowed to vote for the
candidate of his/her choice and that anyone who could not be verified
biometrically was turned away.”
However, the petitioners hold that in Dr.
Afari-Gyan’s own evidence at cross-examination, he told the court that some
important personalities in the society had special exemptions when it comes to
voting without biometric and even went ahead to give the famed Omanhene (traditional
leader) scenario.
Even though the EC denied that any person voted without
biometric verification and said upon receipt of the further and better
particulars it carried out an analysis of the pink sheets in question and the analysis
confirmed that no voters were allowed to vote without biometric verification at
any polling station.
“This statement of the 2nd respondent, in the humble
view of the petitioners, is very material because, as the evidence led at the
trial showed, the incidence of people voting without biometric verification was
evident on the face of the pink sheets. The 2nd respondent’s
averment, it is respectfully submitted, exposes the mischief with which that
claim by the 2nd respondent was laced.”
According to the petitioners what is material is
that the EC claimed that the pink sheets for the December 2012 elections were
designed and printed before the law requiring voters to be verified
biometrically was passed is false
They insisted that the C3 question on the pink sheet
asking: ‘What is the number of ballots issued to voters verified by the use of
Form 1C (but not by use of BVD)’? “would also prove to be false at the trial,
in the face of the clear, cogent evidence consisting of admissions by the
Chairman of 2nd respondent on 6th June 2013, that C. I. 75 (mandating the use
of biometric verification) came into force on 28th September, 2012, long before
the 2nd respondent on 20th October, 2012, ordered the printing of the pink
sheets.”
The EC according to the petitioners, had averred
that due to the late decision regarding verification, all presiding officers
were instructed to leave question C3 on the pink sheet blank, as verification
would be carried out for each voter at the polling station but held that “however,
some presiding officers mistakenly filled question C3.”
No
Signatures
According to the petitioners, on the absence of
signatures of some Presiding Officers on the pink sheets, the EC “presented yet
another interesting answer. It admitted partly the claims of the petitioners.
It stated that of the 2,009 pink sheets that were claimed not to have been
signed, 1,009 were in fact signed either at the polling station or at the
collation centre [contrary to the Constitution]; 905 (representing 3.5% of the
total number of pink sheets used in the election) were unsigned.”
They submitted that
the EC “however, failed to indicate how many pink sheets were signed at
the polling station and how many at the collation centres contrary to the
Constitution.”
The 2nd respondent claimed that 1,989 pink sheets
were signed by polling agents of candidates in the elections. The 2nd
respondent went on to deny the claim for invalidation of the results on the
pink sheets, which were not signed by its presiding officers.
Over-vote
The petitioners held that the EC in its 2nd amended answer
“was completely silent on the case of petitioners that over-voting occurred in
polling stations where total votes cast exceeded ballots issued to voters,”
they said “it restricted its answer to the claim of over-voting to saying that
the petitioners had not been able to show one single instance where the total
votes cast exceeded the number of voters on the register of the polling
stations.”
Duplicate
serial numbers
The petitioners said that on duplicate serial
numbers, the EC indicated that the need for it to print two sets of pink sheets
was due to its anticipation that it was going to receive nominations of between
12 and 18 candidates for the presidential election. It, further, stated that,
where the serial numbers of two pink sheets were identical, the names of the
polling stations and codes were different but both of these claims of the 2nd
respondent on serial numbers proved to be false at the trial.
Petitioners
Tackle Mahama
By his 2nd Amended Answer dated 26th February, 2013,
the 1st respondent, John Dramani Mahama, denied the claims of the petitioners
relating to the bloated and doubtful voters register used for the December 2012
elections, as well as the use of some unknown polling stations.
The 1st respondent stated that he considered as
irrelevant the various matters raised by the petitioners.
According to him, what was relevant was the actual
votes cast by registered voters in favour of each candidate. To the 1st
respondent the number of registered voters used in the elections was wholly
irrelevant to the determination of the Petition.
The 1st respondent, further, stated that a common
register, to the best of his knowledge, was used for both the presidential and
parliamentary elections.
Mahama’s
Voting without BV
The petitioners insist that President Mahama who is
the 1st respondent “had interesting answers” on the claim of people
having voted without undergoing biometric verification saying “he initially
denied the claim of voting having gone on without biometric verification in
some polling stations and required particulars of polling stations, where such
occurrences were registered and the number of persons who allegedly voted without
biometric fingerprint verification.”
However, when he was caught up with reality
according to the petitioners, the President asserted that failure of any
prospective voter to undergo fingerprint verification could not be a lawful
basis for denying that person his constitutional right to vote.
The petitioners submitted that when the 1st
respondent after denying the allegation turn around and sought to assign a part
of the blame for people voting without biometric verification unto Nana
Akufo-Addo by holding that the 1st petitioner ought to have had “polling agents
and/or counting agents who were part of the prescribed voter identification
processes prior to voting”.
According to the petitioners, in the view of President
Mahama, the polling agents of Nana Akufo-Addo “having participated in the
process and having, after public counting of the results, certified the
results” could not be heard to complain about the outcome of the election.
Different
Results on Same Polling Station Code
Even though, President Mahama denied the claim of
the petitioners about different results being recorded on pink sheets in
respect of polling stations bearing the same codes but went ahead to hold that assuming
there was such occurrences, the declared result of the election would not be
affected.
Unsigned
Pink Sheets
The submitted that even though President Mahama
initially denied that some of the pink sheets were not signed by the Presiding
Officers, the 1st respondent later asserted that such failure could
not invalidate the results of the election, and same did not also affect the
result of the elections.
They also submitted that the 1st
respondent denied the allegation of over-voting he later held that “in any
event, such occurrences could not have affected the outcome of the election.”
NDC’s
Position
According to the petitioners, the answer of the NDC
as 3rd respondent “was basically a rehash of the Amended Answer
filed by the 1st respondent. The new matters raised in its Amended Answer are
few.”
“The 3rd respondent stated that Members of
Parliament, including those who stood on the ticket of the NPP, had taken up
their seats in Parliament. It also claimed that the Petition was brought in bad
faith, even though it failed to give particulars of the bad faith, as required
by the Rules of Civil Procedure,” the petitioners held.
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