Posted on: www.dailyguideghana.com
By William Yaw Owusu
Tuesday, August 13, 2013
The petitioners in the ongoing Presidential Election
Petition say the failure of the Electoral Commission’s (EC) Presiding Officers
to sign pink sheets during the December 2012 presidential election makes the
results declared invalid.
According to the petitioners, the number of votes
affected by the failure of presiding officers to sign the pink sheets is
659,814.
“It has always been the law that an unsigned
document, in circumstances where signature is essential, is bad in law and
void,” petitioners stated in their address filed at the Supreme Court at the
close of evidence.
The three, Nana Addo Dankwa Akufo-Addo presidential
candidate of the opposition New Patriotic Party (NPP) in the December 2012
election, his running mate Dr. Mahamudu Bawumia and the party’s Chairman Jake
Otanka Obetsebi-Lamptey are in court seeking a declaration that Mr. John
Dramani Mahama was not validly elected as President of Ghana.
They also added that “Nana Addo Dankwa
Akufo-Addo, the 1st petitioner herein, rather was validly elected
President of the Republic of Ghana.”
They are alleging that during the December 7
& 8 presidential election, there widespread instances of over-voting,
voting without biometric verification, unsigned pink sheets by EC’s Presiding
Officers as well as duplicate serial
numbers and the petitioners called them violation, malpractices, omissions and
irregularities.
According to the petitioners, “in order to regulate
or govern the manner in which the Electoral Commission organizes and supervises
public elections and referenda in the Republic, the Constitution devotes a full
article to steps that mandatorily ought to be taken by the Electoral Commission
in the conduct of polls, the counting of votes, recording of ballots and
declaration of results.”
“These are enshrined in article 49. Article 49 (2)
and (3) entrust the presiding officer, the representative of the Electoral
Commission, with certain duties. These duties, most importantly, relate to
counting the ballots and recording the votes cast in favour of each candidate
or question (if it is a referendum) in the presence of polling agents, if any,
and signing the declaration form on which the votes are recorded.”
“ It is only after this that the presiding officer,
in accordance with the same article 49 (3), is constitutionally mandated to
announce the results of the voting at that polling station, before
communicating the results to the returning officer,” the petitioners alerted
the court.
According to the petitioners, President Mahama and
the NDC’s principal witness Johnson Asiedu-Nketiah had had made arguments to
the effect that there was a lot of pressure on the presiding officers which
accounted for the failure to sign the pink sheets while Dr. Kwadwo Afari-Gyan,
Chairman of the EC had told the court that some pink sheets were signed by the
polling agents without the presiding officer signing.
“Since the requirement of the law is that the
presiding officer should sign before handing over to the polling agents, it is
difficult to see how, in spite of the alleged pressure on him/her, the
presiding officer found time to give the pink sheet to the polling agents.”
“It ought to be respectfully noted that the
requirement for presiding officers to sign pink sheets, is not onerous. In
reality, every presiding officer at any polling station fills only one
declaration form and is required to sign that one declaration form, in order to
show that it is the act or deed of that presiding officer. It is not as if the
presiding officers are supposed to fill a number of declaration forms at one
polling station.
“It is, therefore, unfathomable how the presiding
officers appointed by the 2nd respondent could not proceed to sign the pink
sheets after taking the pain and time to fill the pink sheets in question, with
information relating to ballot accounting and results,” the petitioners argued.
The petitioners held that the signing of declaration
forms by the presiding officers, apart from being in fulfilment of a
constitutional duty, was also to authenticate the results of the elections,
adding “it is submitted that any announcement of the results of the polls, when
same have not been recorded and duly signed in accordance with article 49, will
render the subsequent communication of the results to the returning officer
unconstitutional, null, void and of no effect.”
“This is because the returning officer, before
acting on the declaration containing the results of the polls at a particular
polling station, must be satisfied and ensure that the constitutional
requirement of a signature on the declaration form has been discharged, and
that the pink sheet is, in truth, the act or deed of the official
representative of the Electoral Commission, i.e. the presiding officer at the
polling station.”
According to the petitioners, Dr. Afari-Gyan, in his
evidence under cross-examination by Mr. Addison on 12th June, 2013, told the
Court that he himself, in making a declaration of the presidential election
results, will have to sign the instrument by which he so makes and when asked
as to whether without his signature the declaration can be made, he answered
“No my Lords”.
“The reason why Dr. Afari-Gyan stated that, without
signing the declaration, the declaration made by him cannot be made, is simple.
It is that it is his signature validates the declaration he makes. If Dr.
Afari-Gyan, the returning officer for the December 2012 presidential elections,
has to sign the declaration he makes before same will be valid, it cannot be
contended that the presiding officers on whose results he bases his declaration,
do not have to sign the pink sheets.”
“In an election petition, such as this, where the
result of the elections as declared by the 2nd respondent is being questioned,
this Honourable Court, it is respectfully submitted, cannot uphold the validity
of the results from polling stations where declaration forms were not
authenticated by the signatures of the official heads of the polling stations,
i.e. the presiding officers,” the petitioners argued.
The petitioners contended that the due execution of
the declaration by the presiding officers before the results of the polls are
announced to the public “will avoid situations where results are swapped and
also situations where different results are entered on different declaration
forms for the same polling stations.”
“It is pertinent to note that, in this case, there
are examples where different results, in areas where the presiding officers did
not sign, are entered for the same polling stations. Instances can be found
where two pink sheets exist for the same polling stations, with one having
different names of polling agents at the back.”
They said “the need for an official document to be
duly executed, in order for its contents to be binding, has been affirmed by
this Honourable Court.”
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