Tuesday, August 06, 2013

DON'T MIND NANA & CO...MAHAMA

Posted on: www.dailyguideghana.com
By William Yaw Owusu
Tuesday, August 6, 2013

John Dramani Mahama has urged the Supreme Court not to entertain the three petitioners claim that he is not the validly elected President of Ghana following the December 2012 presidential election.

New Patriotic Party (NPP) presidential candidate during the election Nana Addo Dankwa Akufo-Addo, his running mate Dr. Mahamudu Bawumia and the party’s Chairman Jake Otanka Obetsebi-Lamptey are alleging that there were widespread instances of violations, omissions, irregularities and malpractice and therefore the Electoral Commission’s declaration of Mr. Mahama as president was invalid.

At the close of evidence, the petitioners as well as the respondents namely: President Mahama, the EC and the ruling National Democratic Congress (NDC) were all ordered to file their addresses by July 30.

In the 106-page address containing 170 paragraphs, President Mahama who is the 1st respondent entreated the court to dismiss the petition since it is without merit.

No Prior Biometric Verification
According to the President, “the burden of proof therefore lies on petitioners to prove by credible evidence that indeed people voted at the various polling stations without having undergone biometric verification.”

“It is submitted that proof cannot be limited to the pink sheets, but must relate to actual events at the affected polling stations, testified to either orally or by affidavit by persons who were allowed to vote without biometric verification, or persons who were witnesses to such occurrences. This is particularly so since the respondents have strongly denied this allegation and there are patent clerical errors in the C Column of the pink sheet. No such evidence outside the pink sheets was proffered by the petitioners in support of their claim.”

President Mahama argued that “Presiding Officers could have provided such proof. It cannot be the case that it would be difficult to obtain such affidavit from a Presiding Officer because when it suited them, they managed to obtain an affidavit (filed on April 7, 20130) from Abdul Hamid, a Presiding Officer that he did not sign a declaration form.”

“Even assuming that the petitioners stated that it would be difficult to obtain any such affidavit, no such excuse could be given in respect of the petitioner’s own polling agents from whom they had obtained the pink sheets based on which they filed the petition.”

“There is not before the court a single affidavit sworn to by any of the petitioner’s own polling agents, attesting to any allegation of any voter being permitted to vote without prior biometric verification,” he argued.

“in the face of consistent absence of any proof of complaint in prescribed manner at any level of the electoral system of the irregularity alleged, it is submitted that the entries in C3 could not by themselves form a sound basis for annulling votes cast by eligible voter.”

He said that any order invalidating results of voters who voted without biometric verification must take into consideration Presidential Election Law, 1992 (PNDCL 285) and Section 6(2) which make the Public Election Regulations, 1996 (C.I 15) as replace by Public Election Regulation, 2012 (C.I 75) adding “In essence, the legal basis for invalidating a vote cast for the president at an election can, with the exception of statutes of general application such as those relating to criminal offences, can only be located in these two laws.”

Over-voting
The President said during the trial attempts were made to define over-voting as a situation the number of ballots in the sealed box exceeded the number of ballots issued to people verified to vote but the ‘classical’ situation in which the ballot in the sealed box exceeded the number of registered voters at a particular polling station was confirmed by all the parties.

He said Dr. Afari-Gyan’s classical definition of over-voting supported by Johnson Asiedu-Nketiah and even Dr. Bawumia “makes it wholly unnecessary to introduce into our electoral jurisprudence new definitions of over-voting without serious thought to their practical application in future elections.”

“Electoral irregularities and malpractices cannot be left to be defined by the parties to electoral dispute or even by this court. In a truly democratic society, irregularities and malpractices are stipulated ex ante in laws duly enacted by the authorities invested with the power to make laws and regulations so that all actors in the democratic process have foreknowledge of what may or may not constitute an infraction.”

“We therefore urge your Lordships to bear these policy considerations in mind in affirming the classic definition of over-voting as the applicable definition in the just ended election.”

He said proving that over-voting indeed occurred the petitioners should have led evidence to show that there was either ballot stuffing, double-voting, permitting persons not registered to vote as well as introduction of foreign ballots during voting but failed woefully.

“It is submitted that the deprivation of a constitutionally guaranteed right to vote cannot be taken lightly, and, therefore, where a party signs declared results of election at a polling station without complaining in prescribed manner, he cannot, merely by pointing at entries on the accounting section of the pink sheets, be taken to have discharged his burden of providing over-voting and seek to have annulled votes validly cast.”

“Over-voting assumes the occurrence of a deliberate act, the purpose of which is to determine the outcome of an election. We invite your Lordships to note that the petitioners do not allege that the voters whose votes they seek to annul engaged in any unlawful acts.”

Absence of Signatures of Presiding Officers
The President submitted that both the EC and the NDC throughout the trial denied that effect being placed on the failure by Presiding Officers to sign the declaration forms.

“The constitution doesn’t provide a remedy for the breach of the provisions. In resolving the issue, we invite your Lordships to adopt the purposive approach. Under Article 49 of the constitution the duty of the Presiding Officer to sign the declaration form is preceded, first, by a count of the votes validly cast, followed by the recording of the tallied results under Article 49 (2). In the present instance, the Presiding Officers had performed those duties, and the complaint by the petitioners is not about the counting, the tallying or the recording of those votes.”

He said that a Presiding Officer who omits to sign a declaration form “is compellable in law to perform those duties,” adding “the effect of his failure to sign the declaration form, however, should not be that the results he had declared should be annulled, unless the suggestion is that his failure to sign affected the results.”

Duplicate Serial Numbers
According to the President, the most ‘curious’ claim of the petitioners is the one relating to same serial numbers adding “in terms of sheer numbers, this category was the largest.”

He held that Dr. Bawumia in his evidence-in-chief was “unconvincing in demonstrating the exact nature of the malpractice that was alleged to have occurred at those polling stations.”

“He recited off the top of his head statistics linking over 70 per cent of the alleged irregularities to polling stations with duplicate serial numbers, without stating the exact nature of the malpractice or irregularity that had been occasioned by the use of the duplicate serial numbers on the pink sheets.”

According to the 1st respondent, Dr. Bawumia had  claimed that serial numbers were security features intended to be used to indentify polling stations without leading evidence as to how that affected results declared at the various polling stations at which they were allegedly duplicated.

Same Polling Station Code with Different Results
The President said Dr. Bawumia had testified that Same Polling Station Code with Different Results would not have any impact on the results declared since the number was very small, “it was clear from the testimony of Dr. Afari-Gyan that this was a bizarre claim that showed that the petitioners had insufficient understanding of the voting process.”

Unknown Polling Stations
The 1st respondent submitted that the burden of proof was on the petitioners to show that those polling stations did not exist since at the trial it was found that indeed the petitioners through a letter appointed agents to some of the so-called unknown polling stations.

The president urged the judges to exercise with circumspection the jurisdiction to adjudicate disputes relating to presidential elections under Article 64.


We take the respectful view that the true intent and purport of the broad grant of jurisdictional power under Article 64 is that its exercise must be subject to the overarching constitutional scheme, including the balance of institutional roles and the need to guard against excesses.”

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