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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