ATUGUBA VERDICT OUT

Justice William Anaam Atuguba

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday, September 5, 2013

Details are emerging about how the nine justices that that heard the landmark presidential election petition ruled on Thursday, August 29.

In Justice William Atuguba’s judgement for instance, he made startling revelations including the definition of over voting which was one of the claims complained about by the petitioners.

“The first is where the number of those who voted at a polling station exceeds the number of voters contained in the relevant polling station register.  The second situation is where the number of ballots in the ballot book exceeds the number of ballot papers issued to the relevant polling station.  Pondering over these two categories closely I would think that the second category of over voting is rather an instance of ballot stuffing as testified by Johnson Asiedu-Nketia,” the presiding judge held in his 48-page opinion.

The nine-member panel presided over by Justice Atuguba after eight months of intense proceedings in a 6-3 but later revised to 5-4 albeit through media scrutiny as a result of over vote by Justice Paul Baffoe-Bonnie, held that president John Dramani Mahama was validly elected as declared by the Electoral Commission, chairman Dr. Kwadwo Afari-Gyan on Sunday, December 9, 2012.

The petition which was arguably the biggest test for Ghana’s democracy yet was filed by New Patriotic Party (NPP) December 2012 presidential candidate Nana Addo Dankwa Akufo-Addo, his running mate Dr. Mahamudu Bawumia and the party’s Chairman Jake Otanka Obetsebi-Lamptey after Dr. Afari-Gyan’s declaration.

The petitioners insisted that there were widespread instance of violation, malpractices and irregularities during the December 7 & 8 presidential elections and subsequently filed the petition on December 28, 2012.

For the first time in Ghana’s judicial history, the petition was beamed live on television and other radio networks.

Initially, the petitioners cited President Mahama and the EC as 1^st and 2^nd respondents but the NDC later argued its way to become the 3^rd respondent.

There six issues looked at by the court included over-voting, voting without biometric verification, absence of the signature of  presiding officers, duplicate serial numbers (occurrence of the same serial number on pink sheets for two different polling stations), duplicate polling station codes(occurrence of different results/pink sheets for polling stations with the same polling station codes) as well as unknown polling stations (results recorded for polling stations which are not part of the list of 26,002 polling stations provided by the 2nd respondent for the election).

The Verdict

The breakdown was that over-voting was dismissed by a majority of 5 to 4, voting without biometric verification was dismissed by 6 to 3 (later changed to 5-4), absence of signature of presiding officers on pink sheets was dismissed by 5 to 4.

Duplicate serial numbers, duplicate polling station codes and unknown polling stations were all dismissed unanimously.

Atuguba’s Decision

Justice Atuguba as well as three others dismissed all the claims that the petitioners brought to the court.

Absence Of PO’s Signature

Touching on the absence of presiding officer’s (PO’s) signature on the pink sheets, Justice Atuguba described the claim as one which “divided the court.”

“By far the irregularity which has engaged and sharply divided this court as to its consequence is ‘absence of the signature of a presiding officer.’ this irregularity is anchored in article 49 of the 1992 constitution.”

The judge admitted that per the evidence adduced during the trial some of the declared results on the pink sheets had not been signed although the petitioners’ agents did sign.

“The crucial question that has devastated this court is whether those results should be annulled. To arrive at an answer to this question a number of considerations are relevant. To some minds the sacred nature of the constitution and the clarity of article 49 so far as the requirement of the presiding officer’s signature is concerned warrant the unmitigated annulment of the votes involved.”

He said however, that outright annulment had not been “the approach of this court and its predecessors to constitutional construction or application.”

After a citing series of authorities to back his refusal to grant the petitioners claim, Justice Atuguba held that “in this case it would be unfair and fraudulent for the petitioners to authenticate the results through their polling agents’ signatures and turn round to seek to invalidate on the purely technical ground of absence of the presiding officer’s signature.”

The judge supported the EC and NDC widely-held view that the failure by the presiding officers to sign the pink sheets was due to administrative error.

“It is judicially acknowledged that failure to sign an official document could be due to an administrative error,” adding “the court however, did not base its judgment on the absence of the presiding judge’s signature but on the merits of the case.  It however issued this practice direction for future guidance.”

“Clearly the underlying purpose of the signatures of the presiding officer and the polling agents on the pink sheets is to provide evidence that the results to which they relate were those generated at the relevant polling station in compliance with the constitutional and other statutory requirements, otherwise each ‘signature in itself has no magic about it’.”

“The evidence in this case clearly shows that absent of the presiding officer’s signature, those of the polling agents are there. ..indeed the petitioners have not on any ground approaching prejudice of any sort questioned the authenticity of the results which do not bear the presiding officer’s signature.”

Over Voting

On the claim of over voting, Justice Atuguba said “there is a question as to what constitutes over-voting.  The evidence of Dr. Mahamudu Bawumia, the 2^nd petitioner, Johnson Asiedu-Nketiah, general secretary of the national democratic congress and of Dr. Kwadwo Afari-Gyan, chairman of the electoral commission the 2^nd respondent, is said to establish two types of over voting.”

“The first is where the number of those who voted at a polling station exceeds the number of voters contained in the relevant polling station register.  The second situation is where the number of ballots in the ballot book exceeds the number of ballot papers issued to the relevant polling station.  Pondering over these two categories closely i would think that the second category of over voting is rather an instance of ballot stuffing as testified by Johnson Asiedu-Nketiah.

Justice Atuguba said per the evidence adduced, where the votes in the ballot box are exceeded by even one vote the integrity of that vote is said to be compromised and must be annulled and depending on the impact of that vote on the overall results, the election in that polling station must be rerun.

In the circumstances i do not think that the petitioners have established their allegations of over voting and voting without biometric verification, except to the limited extent admitted by the electoral commission’s chairman, which cannot impact much on the declared results.

Burden Of Proof

According to Justice Atuguba, “it is said that election petitions are peculiar in character hence the question of burden of proof has evoked various judicial opinions in the common law world.”

“However, upon full reflection on the matter, i have taken the position that the provisions of the evidence act, 1975 (N.R.C.D 323) with the appropriate modifications, where necessary, suffice.

He said that unless the contrary was proved the president is presumed to have been validly elected adding “the cardinal question therefore is whether the petitioners have been able to rebut the presumption of validity created by the presidential declaration of results instrument.

Justice Atuguba said “the evidence led by the petitioners is almost exclusively that of the pink sheets.  Dr. Mahamudu Bawumia chiefly in his evidence relied on his evidential maxim ‘you and i were not there’ ‘the evidence is on the face of the pink sheets’ which to him are the primary record of the election.”

“the petitioners also sought to rely on extractive evidence from cross-examination of Johnson Asiedu-Nketia and Dr. Kwadwo Afari-Gyan, chairman of the electoral commission and Mr. Nii Amanor Dodoo the KPMG representative.  They also relied on certain aspects of the pleadings supported by affidavits.”

“However, Dr. Afari-Gyan made it clear to this court in his evidence that the entries on the pink sheets were in such a state of omissions, repetitions etc that one would have to read them as a whole and construe them carefully and if necessary resort to the relevant polling station register of voters, the serial numbers of the ballot papers and even the data base of the biometric verification machines themselves etc. To see one’s way clear as to the course of voting.”

Voting Without Biometric Verification

According to the presiding judge, the evidence clearly established that the 2012 election started on 7/12/2012 and due to difficulties with the biometric verification machines, continued on 8/12/2012.

“The evidence also shows that form 1c which was meant for those voters who had biometric voter id cards but their names were not on the register, was not taken to the polling stations due to opposition from the political parties.  In consequence form c3 was not to be filled but a few presiding officers still filled it in error.”

“Dr. Afari-Gyan’s conflicting evidence as to the date of the printing of the pink sheets and the instructions concerning form C3 is such a technical error of recollection that not much weight should be attached to it. The complaint about voting without biometric verification cannot, in addition to the foregoing reasons, therefore hold in the absence of some other contrary evidence.”

He held that the pink sheets contained errors of omission of e.g. proxy votes, blanks, repetitions, wrong grammatical renditions etc;  adding, “indeed, dr. Bawumia admitted under cross-examination that the pink sheets cannot alone supply answer to issues arising from them, in all situations.”

“The pink sheet or its equivalent in other jurisdictions has been judicially regarded as the primary record of an election.  But no one has given it a conclusive effect.  Neither the constitution nor any other statute, substantive or subsidiary has accorded the pink sheet any particular status.  I would not infer from the constitution and electoral laws that its reputation as the primary record of the election means anything more than that it is the ready and basic document to resort to, for a start, when one wants to ascertain how the elections fared in a particular polling station.”

He said the petitioners rather belatedly, towards the end of the case, realised the need for the adduction in evidence of vital documents like the voters registers, collation sheets, etc and tried to do so, sometimes with the indulgence of the court, through cross-examination of Dr. Afari-Gyan and also through unsuccessful applications for leave to serve on him notices to produce such documents.

Polling Agents

According to Justice Atuguba, it was sought to devalue the status of the polling agents to that of mere observers but “that is certainly unacceptable.”

Placing premium on the polling agents signature against the presiding officer, he said “If they were such passive attendants at an election it is inconceivable that the constitution would have considered their signatures to the results sheet significant enough to merit express constitutional requirement.”

He said the signatures of the polling agents to the declaration of results “have high constitutional and statutory effect and authority, which cannot be discounted.”

Dimensions Of An Election Petition

Justice Atuguba said an election petition is ‘multidimensional’ and added that “there are several legitimate interests at stake which cannot be ignored.  In Ghana this is fully acknowledged.  The fundamentality of the individual’s right to vote and the need to protect the same have been stressed by this court in several cases.”

Principles For Annulling Results

He said that the judiciary in Ghana, like its counterparts in other jurisdictions, did not readily invalidate a public election but “often strives in the public interest, to sustain it.”

In concluding, justice Atuguba said that in modern times the courts do not apply or enforce the words of statutes but their objects purposes and spirit or core values.

“Our constitution incorporates its spirit as shown for example, in article 17(4) (d).  This means that it should not be applied to satisfy its letter where its spirit dissents from such an application.”

Atuguba’s Reforms

Even though, Justice Atuguba dismisses all the six claims brought by the petitioners, he nonetheless recommends some kind of reforms saying “this petition however, has exposed the need for certain electoral reforms.”

According to the presiding judge, the voters register must be compiled and made available to the parties as early as possible and a supplementary register may cater for late exigencies.

He said the calibre of presiding officers must be “greatly raised up”, the pink sheet is too elaborate, a much simpler one to meet the pressures of the public, weariness and lateness of the day at the close of a poll while the carbon copying system has to be improved upon.

Finally, the biometric device system must be streamlined to avoid breakdowns and the stress on the electorate involved in an adjournment of the poll and invalidating wholesale votes for insignificant excess numbers is not the best application of the administrative principle of the proportionality test.