LAWYER SHREDS VERDICT

Gabby Asare Otchere-Darko with Kissi Agyabeng before the lecture

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Monday, September 30, 2013

“The so-called majority appear to suggest that the pink sheets were so unreliable that it led the petitioners into error. I humbly ask a rhetorical question: If the pink sheets were so unreliable would they form the basis for the declaration of a President?”

This was some of the intrigue thought-provoking queries of Kissi Agyabeng, a senior lecturer at the Faculty of Law at University of Ghana when he spoke at a symposium organized by Danquah Institute (DI), a media, research and policy analysis group to review the Supreme Court’s decision of August 29 in the landmark Presidential election petition.

According to the young but experienced lawyer, the nine member panel abandoned the issues it set for the trial and appeared to have approached the issues from a flawed angle.

He also said that the judges especially the majority on the panel appeared to abandon the constitution and used their own individual discretions in to deciding the petition.

“No matter how frivolous a judge may conceptualize the election petition to be, the judge should always bear in mind that elections are about numbers, not merely numbers but the number of valid votes cast in favour of each candidate.

“That is why we have that constitutional threshold in Article 63 (3) and it puts the matter beyond debate. This is so especially where both the petitioners and respondents strived over the actual figures validly obtained by their preferred candidates as recorded on thousands of results and declaration forms aka pink sheets.

“It seems to me that a judge no matter how exhorted cannot reasonably conclude that a person whose election is under challenge was validly elected or otherwise without engaging in a mathematical exercise whether the person in question obtained the valid votes which satisfies the constitutional threshold.”

“I want to tell their lordships that it is not merely easy to say that by some rebuttable presumption of evidentiary set-up that official acts are presumed to have been validly done. Therefore the figures as provided by the EC are presumed to be incorrect especially where in this case the EC itself admitted though tenuously, that irregularities were recorded in respect of the elections and indeed the results of some polling stations were cancelled.

Issues Abandoned

Mr. Agyabeng said that it was in satisfaction of the constitutional threshold that Article 63 was posed to be resolved by the court.

He said the question of “Whether or not there were statutory violations in the nature of omissions, irregularities and malpractices in the conduct of the December 2012 Presidential Election and whether or not the said statutory violations affected the results declared” was never answered by the court.

“I would have thought that the verdict would have run along these lines and the judges would have voted on these two issues.”

“It becomes therefore perplexing that instead of voting on the two issues, the verdict delivered on 29^th August was rather a vote on the various categories or irregularities on statutory and constitutional infractions that was complained of by the petitioners,” adding that “indeed, I stand to be corrected but I do not find any basis as to how a court can in announcing the verdict will ignore the issues before it.”

“But in fairness to them, I am inclined to say that all of them answered the first question in the affirmative although they did not know they were doing that. That is, all the nine judges concluded that there were statutory violations in the nature of omissions, irregularities and malpractices in the conduct of the election.”

“I say so because I have to make sense of what they said. The first issue begets the second issue. If the answer to the first issue is negative, then there is no need for proceedings to second issue. So having delivered the verdict as a vote on the effect s of the various categories of infraction complained of, it becomes a logical conclusion that all the nine judges found violations or infractions. I say this though with some diffidence because the reasoned opinions do not necessarily bear this out.”

“If you are going to vote on the categories then you are telling us that you have found infractions. The net effect of this unhappy posture is that several of the judges concluded their opinions without addressing the very important question as to whether the person declared as elected actually crossed the constitutional threshold.”

Approaches to Interpretation

Mr. Agyabeng said that “I have heard it said that the judges who dismissed the petition adopted the purposive approach to interpretation while those who upheld it engaged in a strict literal interpretation. After reading the reasoned opinions, it seems to me that all the judges either claimed to be adopting the purposive approach or they appeared to be professing so.”

“Then again, after reading the opinions, it seems to me that, indeed it is very easy to tag what the person engages in with any label that sounds right. So a judge may say this is my preferred approach to interpretation when in practice, the effect of what he/she is doing is the exact opposite of what he claims to be doing or at least set out.”

Cat & Dog Scenario

He said that “In our judicial dispensation, I venture to say especially where a lot of cases which have the capacity to undo our democracy, we should always be reminded that a cat does not become a dog just because one chooses to call it so.”

“I am sounding this to all in our judicial capacities: It should be received in good faith because immediately one labels a cat as a dog it becomes almost irresistible to proceed to treat the cat as a dog. Such treatments can only produce undesired results.”

Interpretative Skills

Mr. Agyabeng said that it is said to be now settled that the Supreme Court’s preferred approach to interpretation is purposive or objective one adding “simply put, the first creature called the purposive or objective approach to interpretation is that under which statutory or constitutional provisions are interpreted in light of the purpose for which they were enacted.”

“Perhaps, no other issue apart from the category of violation which mostly required the judges to exercise their interpretative skill was that of the absence of signatures of Presiding Officers on a number of the pink sheets.

“The question became the effect in law of the refusal or neglect of the Presiding Officer to sign the pink sheet.  This question brought into sharp focus the role and importance of polling agents in the general scheme of affairs.

He said the so-called majority opinion appeared to have decided that the signature of the Presiding Officer is immaterial while the minority held that the absence of the Presiding Officer’s signature is fatal.

“What was the intention of the framers of the constitution when they require in such a mandatory manner under Article 49 (3) which says the Presiding Officer SHALL sign the declaration form. Was it just for decorative purposes or was it meant to have biting effect?” he asked.

“First, it appears that all the judges have knowledge that the absence of the Presiding Officer’s signature is a clear constitutional breach. However, the so-called majority thought that this could be an administrative error when they did not say it was. They said it could be an administrative error which error should not be visited on the voter.

“Fair enough but mind you, no one knows for sure what informed the decision of the several Presiding Officers to refuse or neglect to sign the declaration forms.”

Creating Super Agent

He said the effect of the judgement was that the Supreme Court has set a dangerous precedent by creating a monster called Super Polling Agent who will call the shots at polling stations in future elections.

“Then again, the so-called majority takes a view that clear constitutional breach is cured by the signatures of the polling agents. That is to say the polling agent signed then the absence of the signature of the Presiding Officer does not matter.

Quoting from the judgement of Atuguba JSC, the lawyer said inherent in the Presiding judge’s dictum was a clear admission that the required signature is meant not for decorative purposes but to authenticate the results at the polling station, adding “If that is so then no premium can be put on an unauthenticated declaration. It cannot form the basis for the declaration of a person as President.”

“How is it that their lordships in the so-called majority welcomes so gladly the signature of the polling agent as authenticating the declaration form but so unhappily downplaying the signature of the Presiding Officer as immaterial and relegating to a mere technicality? I find this perplexing.”

“How they came to this conclusion remains in my opinion in the imagination only. This is because the effect of the majority decision is that the signature of the polling agent who, mind you is not an electoral officer by any stretch of the legal imagination, is now said to legalize what is clearly a constitutional breach.”

“So the net effect of what we have created now is a creature I call a Super Polling Agent who will call the shots at polling stations. This is because when he sees that things are not going on well for his candidate, he will fold his and say I won’t sign.”

“Because of the tenor of the decision, now the rule will become: when in doubt, just fill a complaint form because if you don’t it will be held that because you did not complain at the polling station you have waived your right to complain.”

“So now Super Polling Agent will do what he pleases. Your signature validates absence of the signature of the Presiding Officer. Whether the Presiding Officer signs or not is immaterial where as the polling agent signs it will be accepted.”

Deafening Silence

He said the judges were silent on certain issues that needed solutions saying “there is a rather deafening silence on the majority on the position in law when the signatures of both the Presiding Officer and the Polling Agent are missing. No one said anything on that.”

“If you say that the signature of a polling agent validates the absence of the signature of a Presiding Officer yet you do not tell us if both signatures are missing, the position in law would be, what can polling conjecture.”

“The position is now not clear whether a person’s agent can waive that person’s constitutional right. Can you by your action waive my constitutional right? It was just a blanket position…your agents signed so don’t complain.”

Voting Without Biometric Verification

He said claim of voting without biometric verification was not decisively determined adding “the so-called majority took the view that there was no evidence to this. I venture to say that C.I. 75 put it in very mandatory terms that every voter shall go through biometric verification which end with finger printing except for those who did not have fingers.”

“We cannot create laws and apply them as and when we please. If we do not voters to be biometrically verified, then we should scrap the law that requires them to do so. But if we want biometric verification then we should apply the law and apply it fairly.

“We cannot permit others to vote without biometric verification while we turn away others. The constitution guarantees the equal protection of all votes and equal weight should be accorded to each vote. One person’s vote cannot be valued more than another person’s vote.”

Over voting

Mr. Agyabeng also said that “what we have on over voting is an inconclusive decision as to what amounts to over voting.”

“In my opinion, a proper definition is not far-fetched. All in all, it appears to me that the underlying current of the so-called majority decision is borne on the consideration that annulling the entire votes in specified polling stations affects the right to vote and unfairly disenfranchises the voters who were not at fault.

“But the voter is hardly ever at fault. Unless you go do something on your own volition, you would never be at fault. All you have to do is to show up vote and go. How else can election be annulled if we are looking for voters to be at fault.

“The same laws that enable or entitle voters to cast their ballot also serve a purpose of annulling votes when those votes are tainted by irregularities and violations. Constitutional and statutory infraction at the polling stations in my opinion renders the votes cast there as illegal votes notwithstanding the possibility that the individual voter may not have been at fault.

“Such votes as tainted cannot be rendered as legal votes because to do so we will be turning our one-man one-vote system of representative government on its head. Instances of over-voting, voting without biometric verification taints the entire votes cast in at the polling station.

He said that in the case of over voting, it is impossible to determine which voters cats more than one ballot and in the case of voting without biometric verification it is impossible to isolate the votes cast by the unverified voters from those cast by verified voters.

“In all these cases, the impossibility of the isolation of the votes cast in violation of the constitution and statutes renders the entire ballots cast at the polling station invalid and no candidate can take the benefit of the votes cast at such a polling station.”

Right To Vote

He said that the right to vote cannot be situated in what he called “a standard less system,” adding “the right of suffrage is limited by predetermined standards set by our constitution and the statutes. The rights should be exercised within those confines.”

“Once the franchise is granted to the electorate, it cannot be exercised in a manner that inconsistent with the predetermined standards prescribed by the constitution and by statutes.

He said that ballots in the box tainted with infraction “cannot be clothed with a garb of legal votes no matter the legal gymnastics.”

“It appears we were confusing the qualification to vote and the right to vote as far as the judgement goes. Whether the person is qualified to vote is a distinct question from whether he is entitled to vote.”

He said ballots should be invalidated if election officers fail to follow the processes aimed at establishing a person’s entitlement to vote.

“Such irregularity totally undermines the basis of the determination of a person’s right to vote and hence open up the probability that anyone can vote notwithstanding the constitutional and legislative injunctions.

The Article 64 Test

“The net effect of the decision of the Supreme Court is that it is a veiled but very strong suggestion that the court does not have power to nullify elections. The power granted by the Supreme Court under Article 64 to declare the election of a President invalid envisages the annulment of votes.

“Per the judgement, if you are declaring someone’s election as invalid it means you are annulling votes but if you are afraid of annulling votes then there can never be a situation where any election of a person can be declared invalid to the extent that the Supreme Court’s decision espouses the outlined principles.

“I cannot find any semblance of this principle in the so-called majority decision,” he charged.

AHLUSSUNNA CONDEMNS TERRORIST ATTACK IN KENYA

Westgate Shopping Mall in Nairobi was attacked by al-Shabaab terrorists in September

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday, September 27, 2013

The Ahlussunna Wal-Jama’a (ASWAJ) in Ghana has unreservedly condemned the terrorist attack on Westgate Shopping Mall in Nairobi, Kenya that led to the deaths of scores of people.

Al-Shabaab militants from neighbouring war-torn Somalia claimed responsibility for last Saturday’s attack that lasted almost four days, a siege in which renowned Ghanaian poet, academic and diplomat Prof. Kofi Awoonor lost his life.

According to the Kenyan authorities, 67 people had died, including six security personnel and five militants. At least 18 foreigners are among the dead. They include six Britons as well as citizens from France, Canada, the Netherlands, Australia, Peru, India, Ghana, South Africa and China.

About 175 people were wounded, including 62 who remain in hospital. The Somali Islamist group al-Shabab said it had carried out the attack in retaliation for Kenyan army operations in Somalia.

At a news conference, Sheikh Umar Ibrahim Imam, National Imam said, “We would like to put on record with all the emphasis at our command that these acts are un-Islamic in all ramifications and cannot be justified with any Islamic jurisprudence.”

He said that it was clear from some of the verses of the Holy Quran that “Islam enjoins us to do things collectively only in righteousness and piety and not in atrocities and murderous acts.”

He said “that the same Holy book enjoins us to be just even to our enemies.”

“Where therefore lies the justification for the barbaric killing of people in the mall?”

“The acts of terrorism such as was visited on the innocent people working and shopping in the Westgate Mall in Kenya can only come from ignorant and bigoted criminals, whose agenda has absolutely nothing to do with Islam and the name-tag ‘Islamist’ notwithstanding.”

“It is the opinion of the hierarchy of Ahlussunna Wal-Jama’a of Ghana that Muslim leaders all over the world rise up to this challenge and work diligently towards uprooting this serious disease that groups like al-Shabaab and their ilk have infested on Islam.”

 Prof. Kofi Awoonor, renowned Ghanaian poet, academic and diplomat lost his life in the attack

According to the National Imam, “The most painful aspect of the situation is the deceit with which they draw innocent youth who would otherwise serve as future leaders for their nations and communities into this despicable cause they have chosen for themselves.”

“We urge all Muslim countries and communities to take a second look at their educational curricula and insert subject/topics aimed at protecting and insulating the youth from falling into the traps of these terrorist organizations.”

He urged peace-loving people not to allow “this barbaric act to disrupt the prevailing peaceful co-existence between Muslims and people of other faith.”

He said the killing of innocent people is frown upon by the Holy Quran and those terrorists should be condemned without any reservation.

“This is the stand of the Holy Quran and therefore the stand of Islam. We, Ahlussunna Wal-Jama’a, will therefore condemn any act that violates this cardinal teaching of Islam.”

The National Imam expressed their readiness to partner the media to expose what he called “perpetrators of heinous crimes against humanity in any form.”

OKUZDETO SLAMS ATUGUBA

Sam Okudzeto

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday, September 27, 2013

A veteran lawyer Sam Okudzeto has said after carefully analyzing the various judgments, the Supreme Court should have declared Nana Addo Dankwa Akufo-Addo and his co-petitioners winner in the recently-concluded Presidential Election Petition.

“My reading of this judgement is the fact that it was 5-4 rather in favour of the petitioners.

“How did the President (Atuguba JSC) come by the statistics of giving this 5-3 which came to 5-4 which I have seen that to be 5-4, the other way round. I did not know how that came about.” the veteran lawyer cum politician queried.

Mr. Okudzeto was a guest speaker at a symposium organized by Danquah Institute (DI), a media, research and policy analysis group  to review the Supreme Court’s decision of August 29 in the landmark Presidential election petition filed by New Patriotic Party (NPP) December 2012 presidential candidate Nana Akufo-Addo, his running mate Dr. Mahamudu Bawumia and the party’s Chairman Jake Otanka Obetsebi-Lamptey after the Electoral Commission through its Chairman Dr. Kwadwo Afari-Gyan declared National Democratic Congress (NDC) candidate John Dramani Mahama as President-elect.

The Analysis

Analyzing the issue on Wednesday night at the National Theatre in Accra to a packed audience, Mr. Okudzeto said he came up with the 5-3 and 5-4 conclusion because Justices Atuguba, Adinyirah, Gbadegbe and Akoto-Bamfo are supposed to have unanimously dismissed all the claims brought by the petitioners while Justices Ansah, Owusu and Anin Yeboah held that President Mahama was not duly elected per three of the claims.

According to him this means that four judges had ruled for Mr. Mahama whilst three had ruled that the President was not duly elected and asked that “What happened to the other two (Justices Dotse and Baffoe-Bonnie)? This is where the issue becomes dicey.”

He said that interestingly, the court set out two issues for determination which were (1) Whether or not there are statutory violations in the nature of omissions, irregularities and malpractices in the conduct of the Presidential Elections held on the 7th and 8th December 2012; and (2) Whether or not the said statutory violations, if any, affected the results of the election.

He noted, however, that when the judgement was delivered there was no indication that the two issues were addressed by the court in the various judgments’.

Dotse & Baffoe-Bonnie

He quoted portions of judgements of Justices Doste and Baffoe-Bonnie and said some of them were intriguing.

He said the ‘strange’ part of Justice Baffoe-Bonnie’s judgement on dismissing the petitioners claim that some pink sheets were unsigned by some Presiding Officer was that “he did not give any figure so the question to ask is how did he come by that conclusion?”

“Both Justices Dotse and Baffoe-Bonnie were asking votes to be cast in certain areas where these malpractices had occurred…some were calling it infractions. They have given all manner of names to them and we say an infraction is infraction no matter the vituperative etiquette you give to it. An error is an error no matter which way you put it.”

“More importantly, there is a fourth reason that Baffoe-Bonnie gave and this will intrigue you the more.”

He said the judge had held that the petitioner had been able to discharge the burden of proof that voting took place in some polling stations without prior biometric verification adding “The question now is that how did they come by the assumption that the petitioners lost the case…The judgement does not establish that.”

Mr. Okudzeto said he was surprised when the court decided that it was not going to allow the petitioners to use gadgets that would have assisted the judges to understand the figures quoted by the petitioners during the trial.

“I realized that some people are afraid of Mathematics and if you recollect, Dr Bawumia had wanted to use electronic gadgets to illustrate these things and they were rejected. I was astounded and shocked because this is the standard practice all over the globe now. We are in the technological age. You can’t understand. There is no way you can understand figures without getting it illustrated and since I am much older than they and I use electronic in everything that I do, why can’t they?.”

50 % Plus 1

“The constitution is very clear. It says that if a candidate does not obtain more than 50 per cent plus, the election must be re-run so you cannot say the election should be re-run in the affected areas. This is because once the 50 per cent plus was not attained, there should be a re-run of the whole election.”

“So I believe that at the time they were making those statements they had not properly addressed their minds to the constitutional provisions.”

SHALL as a provision

Mr. Okudzeto said that the ‘strangest’ part of all this is that those who gave judgement for the respondents spent so much time dwelling on the word SHALL when the issue of absence of signatures of Presiding Officers came into play.

 He said that Blacks Law dictionary widely accepted in the legal world gives meaning of the word SHALL to be mandatory and denotes obligation adding “It imputes a duty which may be enforced…it is inconsistent with the concept of discretion… it operates where public interest is involved.”

He said for instance that Justice Akoto-Bamfo actually agreed with the definition of SHALL in her judgement when she said it was mandatory since it was an entrenched provision but then when the time came for her to enforce it, “she went on an excursion.”

Justice Date-Bah

He said all the judges appeared to quote Prof Justice Date-Bah a distinguished retired Supreme Court judge’s literal approach to statutory and constitutional interpretation in their judgments because “they all got married to him in tort.”

“Prof Date-Bah says these days literal approach to statutory and constitutional interpretation is not recommended but the truth is that I think they went off the mark and I will tell you why I said so.”

“I have not been able to get a computer to make a count but I can tell you that in this Constitution, the word SHALL must have appeared about a million times and in each instance you see why it is so stated. It is because of our past history. I know what had happened and why it was important for this mandatory word to be in the constitution.

“The SHALL is mandatory and obligatory. It is not open to anybody to start talking about  purposeful view of the constitution because that only arises when there is an ambiguity. When the words of the constitution are clear. It is an error for anybody to interpret it to the contrary.”

Mr. Okudzeto said those who mocked or opposed the organization of the symposium did not know what they were doing adding “those who thought that what we are doing here today is an exercise in futility, let me remind them that it is not everybody who can discern what I have discerned and so many lawyers would have read the judgement without noticing these things. Therefore all of us are open to education all the time.”

He also commended DI for its efforts in deepening constitutional democracy in Ghana.

PINK SHEETS ARE NOT CONCLUSIVE - AKOTO-BAMFO

Justice  Vida Akoto-Bamfo

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Tuesday September 24, 2013

Justice Mrs. Vida Akoto-Bamfo, one of the judges who dismissed all the claims brought by the petitioners in the just-concluded landmark Presidential Election Petition, appear to de-emphasize the importance of pink sheets in elections in her judgement.

Dr. Afari-Gyan declared John Dramani Mahama winner of the December 2012 using results recorded on Statement of Poll and Declaration of Results forms popularly called pink sheets as basis for the declaration.

However, in Justice Akoto-Bamfo’s opinion, pink sheets cannot solely be relied on without recourse to the register or the verification machine if one wants to trace incidence of over voting or voting without biometric verification, two of the claims that formed the basis for the petition.

Justice Akoto-Bamfo also held in her 21-page judgement that there would be perpetuation of injustice on the people if the petitioners request that because some Presiding Officers failed to sign pink sheets the results should be annulled, was granted.

 “Should any dispute arise as to whether persons who cast the ballot did exceed the number on the voters register, disregarding the register, the genesis of the pink itself will result in an error,” she held when dismissing the claim of over voting.

“Although it is not disputed that the pink sheet was the basic document for the elections it cannot however, be said to be conclusive. It is important to note that an election is not an event, but a process and that the pink sheet derived its source from the Biometric Voters Register. It should therefore be the reference point for a discussion of any issue under this category,” she added.

She also said that “therefore where a dispute arises as to whether a voter had been verified, the best evidence should be the verification machine. Even if the pink sheet were the primary document, it is not conclusive; for it is  my respectful view that  prints out from the verification device would have put to rest any arguments as to whether those persons went through the verification process or not,” Justice Akoto-Bamfo held.

Defending the failure of Presiding Officer to sign pink sheets, Justice Akoto-Bamfo said “in my view, visiting the sins of some public official on innocent citizens who have expressed their choice freely would run counter to the principle of universal adult suffrage, one of the pillars of our democracy, and perpetuate an injustice.

According to Justice Akoto-Bamfo, it should not be for the court to determine who occupies the highest office of the land, the presidency, but rather the citizenry must have that preserve.

“Government, in a democratic system of governance, derives its life from the people and that sacred nexus is made manifest in the electoral system. Among the fundamental precepts in a democracy is the ability to hold periodic free and fair elections together with an effective judicial oversight, bearing in view however, that, as a basic principle, it should not be for the court to determine who occupies the highest office of the land, the presidency; it the preserve of the citizens.”

“Elections therefore offer the citizenry the opportunity to express their satisfaction or otherwise with an incumbent leader or a political party, it is no wonder that this challenge, arising out of the exercise of those rights, has caught the imagination of all Ghanaians.”

Over voting

Touching on over voting Justice Akoto-Bamfo held that it was clear in circumstances that the total number of polling stations under the category had been reduced by at least 2 by virtue of the KPMG Report; “neither the 128,262 nor the 130,136 could have remained unchanged.”

“In Court Dr. Bawumia testified that there had been a number of deletions. He tendered various lists of deleted polling stations. Under Exhibit C-C1-C11, he listed 44 polling stations under this category as having been deleted. These deletions would certainly have   affected the number of votes to be annulled. Subsequent thereto another list of 704 polling stations was tendered as Exhibit D.”

“Clearly the number of polling stations to be affected, and more importantly, the numbers of votes to be affected would see a reduction. One has to bear in mind that numbers are of the essence since they must be used to measure the effect of the irregularity, if any. In this instance however, one cannot determine with precision the number of votes in issue.”

“It bears stating that whereas the 2^nd respondent denied that there was over-voting; the 3^rd Respondent did not only deny but went further to assert that there were patent, clerical and sometimes arithmetical errors in the recording which had no material effect on the actual votes publicly cast, sorted counted and recorded (Paragraph 15(iii) of the affidavit of Johnson Asiedu filed on 15^th April 2013).”

Defining over voting

Justice Akoto-Bamfo said that even though, in the main, the various definitions offered by both the petitioners and the respondents placed emphasis on the register and ballot paper; the petitioners limited themselves exclusively to what appears on the face of the pink sheet.

“I am fortified in this view by the fact that all the political parties were   given copies of the voters register which the various polling agents of the major political parties carried t to the polling stations on the days the elections were held. These pieces of evidence were not challenged.”

“Indeed it is common knowledge that the polling agents who were at the polling stations checked the names of persons who were verified and issued with the ballots. Having regard to their role as watchdogs to check impersonation, multiple voting and certification of the results (they had the right to protest by refusing to sign the pink sheet) as provided for under C. I. 75 Regulation 19 (3) coupled with the voting procedures, publicly sorting and counting etc; it would not be safe to rely solely on the entries on the face of the pink to establish the incidence of over-voting.”

She said that should any dispute arise as to whether persons who cast the ballot did exceed the number on the voters register, disregarding the register, the genesis of the pink itself will result in an error.

“Indeed there was ample evidence that several errors were made by the presiding officers in making the entries. Many of the entries were made in error.”

She held that in some cases, columns were wrongly filled, others were left blank; while yet in others, the figures and words hardly matched adding “it was evident that some of the errors could simply be corrected by entering the figures in the right columns. Others were sheer were errors in the arithmetic.”

“Dr. Bawumia left the Court in no doubt that the petitioners were  relying solely on the pink sheet to establish cases of over-voting, for, he averred  that there were neither  protests nor complaints lodged, in terms of the complaints  procedures laid out in the governing statute at the polling stations.”

“Having regard to the fact that credible evidence was led to show that statistics of ballots issued by the 2^nd Respondent to each Region, Constituency and Polling Station were provided to all the political parties  whose agents were at the polling station and ticked the names of those verified (in these elections) I am of the view that  over-reliance on the pink sheet in the face of errors detected clearly led to a dead end , for one cannot use wrong assumptions or data  to arrive at the right conclusions.”

Justice Akoto-Bamfo held that “certainly such multiple inaccuracies cannot be the basis for a finding that there was over-voting. Owing to the mistakes, the pink was manifestly unreliable as a basis for establishing the phenomenon of over voting.”

She said that “none of the polling agents made a report of any irregularity; no evidence was led on ballot box stuffing. And more importantly the ballots were cast and their polling agents attested to the results.”

“While the presiding officers obviously did make some mistakes and clerical errors, no mischief or advantage can be attributed thereto. Substantially the voting, counting and tallying of votes were carried to a high degree of accuracy.”

Justice Akoto-Bamfo concluded on over voting that the questions of which polling stations were affected and how many results have to be annulled were questions that the petitioners failed to answer under the category of over voting and therefore declined the invitation to annul any votes under the category.

Absence of signatures of Presiding Officers

On absence of signatures, Justice Akoto-Bamfo said that even though the petitioner has claimed some of the pink sheets were unsigned by some Presiding Officers, the respondents essentially did not deny that in some cases the Presiding Officers failed to sign the pink sheets.

“Indeed the 2^nd respondent tendered Exhibit SA4, a National Summary by Region Results of sheets not signed by the Presiding Officers. According to the said Exhibit, 905 of the pink sheets were indeed not signed by the Presiding Officers. Of the2009 of the pink sheets the petitioners claimed were not signed by the presiding officers, 1, 989 were signed by the agents of the candidates.”

“Having admitted that there were at least, 905 polling stations in which presiding officers failed to append their signatures, the petitioners were relieved of the duty to call further evidence on the issue.”

“Article 49 is couched in mandatory terms. Undoubtedly it is an entrenched provision, which can properly be amended in accordance with the procedure set out under Article 290 of the Constitution. Article 49 sets out in detail the duties of the presiding officers and the polling agents immediately after the close of the poll in any public election or referenda. Under Article 45(c) of the Constitution, the Electoral Commission is vested with the power to conduct and supervise all public elections and referenda.”

“Article 51 stipulates that the 2^nd respondent shall make regulations for the effective performance of its functions; particularly for the conduct of public elections among others.”

“It is evident that even though Article 51 vests the power in the E.C to make regulations for the conduct of the elections; it is only under Article 49 that the steps to be followed by the presiding officers and the polling agents, after the close of the polls, are set out in detail.”

Justice Akoto-Bamfo said that since the provision is couched in mandatory terms, clearly where the signature of the presiding officer fails to appear, it does not admit of any argument, on a literal interpretation, of the said article, that there has been a breach and therefore the results ought to be nullified.

“However, it has been held in a long line of decisions that a strict, narrow, technical and legalistic approach to interpretation of the Constitution, the embodiment of our hopes and aspirations, must be avoided.”

“Was it the intention of the framers of the Constitution that persons who have exercised their rights under art. 42 by going through the electoral procedures, registered as voters,  had their names on the register, participated in the election by casting their  votes which have  been publicly counted,  recorded and announced, should have such votes not ‘counted’ on account of the sins of one public officer?”

“We have freely chosen the democratic form of governance in which sovereign power resides in the people as a whole. Under that system each citizen must be afforded a genuine opportunity, through the conduct of free and fair elections, to determine who his leaders or representatives should be.”

“An election being a process as opposed to it being an event, where all the stages have been gone through and therefore the elections could be said to have been substantially held in accordance with the regulations, to nullify the results on this ground per se, would amount to putting in the power of some unscrupulous presiding officer in some polling station to nullify the solemn act of the whole constituency by his single act of omission.”

She said that since the Constitution requires that both the Presiding Officers and polling agents sign,  looking at their duties; and obviously the reason for signatures in terms of the credibility of the process  i.e. the polling agent vis a vis the presiding officer, in the event of the presiding officer’s failure to sign , “a purposive interpretation would not defeat the objectives of Article 49(3) in that even though the Presiding Officer had failed to sign, the polling agent’s signature, to my mind, is a bold declaration for the integrity of the whole electoral process.”

How She Sees Polling Agents

Justice Akoto-Bamfo appears to put the role to be played by the Presiding Officer and the polling agent on the same level saying “the notion that polling agents are ornamental pieces adorning the polling stations must be discarded.”

“Their roles are clearly defined by the Constitution and other statutes governing the elections. A vigilant polling agent would detect some of the wrongful acts at the polling station. He could then set in motion the complaint mechanism in the governing statute, designed at addressing the complaints, at the polling stations or collation centers’ with minimum delay. This costly exercise of combing through a mountain of election materials, with a view of unearthing irregularities, well after the declaration of the results, would be greatly reduced.”

Voting without biometric verification

Touching on voting without biometric verification, Justice Akoto-Bamfo said “it is obvious that the petitioners simply went through the pink sheets and totaled all the figures in Form C3.”

“The issue is whether that sole exercise discharges the burden placed on the petitioners, in terms of Sections 10 and 11 of the Evidence Act, 1973.

Dr. Afari-Gyan in his testimony stated that the column C3 was not required to be filled by the presiding officers.”

She said that “even if the pink sheet were the primary document, it is not conclusive; for it is  my respectful view that  prints out from the verification device would have put to rest any arguments as to whether those persons went through the verification process or not.”

“It is to be noted that when the petitioners made the allegation which was denied by the 2^nd respondent, it was not enough for the 2^nd petitioner to have mounted the witness the box and repeated the averments since those facts are capable of proof by some other means i.e. producing the prints out of the machine as a form of proof. It could be argued that since the evidence led was documentary, parole evidence was inadmissible to vary or contradict same.”

“That there are exceptions to the rule is beyond doubt. Dr. Afari-Gyan tendered the form 1.C. With the introduction of the said document the question in C3 became meaningful. It became obvious, that one could not answer the question in that column without any reference to E. C. 5 which were not taken to the polling stations, in other words, E, C. 5 was consistent with the contents in C.3.”

She said that the 2^nd respondent was emphatic that no person voted without being verified and, that, while admitting that there challenges with the equipment, voting in those areas were adjourned to the next day in those areas.

“It is a notorious fact that the poll was adjourned in some areas and therefore there were two days of voting. If persons were allowed to vote without verification would there have been any need for the adjournment? I think not. In the absence of any credible evidence to the contrary (some polling agent or voter testifying) I would prefer the pieces of evidence of the respondent’s on this issue to the bare assertions of the petitioners based on the face of the pink sheets.”

“It became obvious that the attack mounted under that category was premised on a misconception and therefore impossible to stand. I would accordingly decline the petitioner’s invitation to annul the votes under that category.”

Duplicate Serial Numbers

“Under this head the petitioners request that 3,508,491 votes be invalidated. In answer the respondents asserted that the serial numbers had nothing to do with the Declaration Form; that its unique features were the name of the polling station and its unique code. I must say that the pieces of evidence offered by both Mr. Johnson Asiedu-Nketiah and Dr. Afari-Gyan shredded into pieces the petitioners’ case under this head. It became evident that Dr. Bawumia was not too familiar with the processes and procedures leading to the conduct of the presidential elections.”

Justice Akoto-Bamfo said that the exact nature of the malpractice under duplicate serial numbers was not clear from Dr. Bawumia’s testimony, how the serial numbers affected the recording of the results, but more importantly how the alleged opportunity offered by the duplicate series got exploited so as to result in any irregularity was never established.

“It is trite learning that an election cannot be overturned on the basis of mere speculation, for it is not about what could have happened; but what did take place. I do not therefore feel able to grant the prayer of the petitioners under this category.”

Unknown polling stations

She said that the petitioners had a duty to establish that those polling stations did not exist adding “Exhibit EC 3 showed that the petitioners knew about the existence of those polling stations and had indeed appointed agents to thereto.”

“If they did not know of the existence of those polling stations, they obviously could not have sent their agents there. I must say that no evidence was led on when those polling stations were created. I would in the circumstances, find that the petitioners have failed to lead evidence sufficient for a finding in their favour on this ground.”

Duplicate polling station codes on different pink sheets

Under this category, Justice Akoto-Bamfo said that even though the petitioners took the view that the votes were insignificant, “I would only find the explanation by the 2^nd respondent credible; that some were polling stations were so large as to be divided into sections A and B; while the others, constituted polling stations where special voting took place, I would so find and dismiss the petitioners’ case under this ground as well.”

In her conclusion she said among other things that “the political parties have been active participants. Even though the IPAC is not backed by law, it has played a pivotal role at every stage of the process. The registration of voters, printing of ballot papers, training of polling agents, the sorting and counting done publicly, the transparent ballot boxes and the photo identification cards raise the level of transparency to a very high degree.”

“It became evident however, that the myriad of errors and blunders were committed by the election officials. Such errors did no credit to the system. It is therefore recommended the caliber of persons recruited for the exercise.”