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.
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 29th 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.”
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.”
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.”
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.