Justice Rose C. Owusu
Posted on: www.dailyguideghana.com
By
William Yaw Owusu
Monday, September 9, 2013
“Article
49 (of the 1992 Constitution) is an entrenched provision and Parliament by
itself cannot even amend it. How can a court, under the guise of interpretation,
give any other meaning to Article 49 (3), other than what is stated in the
clause?”
This
was contained in the judgment of Justice Rose Constance Owusu, one of the
justices on the panel that heard the just concluded landmark Presidential
Election Petition.
Justice
Owusu, together with three other justices, among other claims, granted the
reliefs regarding unsigned pink sheets by Presiding Officers, over-voting and
voting without biometric verification, which three petitioners sent to the
Supreme Court following the declaration of John Dramani Mahama as winner of the
2012 presidential election.
Absence of signatures of Presiding Officers
Tackling
the claim by the petitioners that some Presiding Officers did not sign the pink
sheets that were used in the declaration of the results of the 2012
presidential election, Justice Owusu said “the golden rule of interpretation is
that words must be given their ordinary meaning unless same shall lead to
absurdity.
“The
clause is clear and unambiguous and does not call for the interpretative
jurisdiction of this court. None of the conditions as laid down in Tuffour vrs
The Attorney-General [1980] SCLR is present here and I would therefore not even
attempt to embark on that exercise of interpreting the ‘shall’ or find reasons
why the presiding officer might have failed to sign.”
She held that “if even a law
properly so-passed cannot co-exist with the constitution, if it is inconsistent
with any provision of the constitution, that law to the extent of its
inconsistency is null and void. How can the court give effect to that which is
unconstitutional?”
In all, she said, the
petitioners relied on 924 pink sheets which they presented to Dr.Afari-Gyan, who
admitted them. “He also conceded that 905 more pink sheets were unsigned. Among
these are 191 included in the petitioners’ 924. The pink sheets without the
presiding officers’ signatures therefore came to 1,638 involving 659,814. (sic)”
Justice Owusu said the
constitution mirrored the will and aspirations of Ghanaians and it was the
supreme law of the land adding.
“Article 49 (3) therefore
imposes an obligation on the presiding officer to sign before the declaration
of the results. The reason for this cannot be farfetched. He must sign to
authenticate the results. If he does not sign, but goes ahead to declare the
results, what will be their probative value?
“Dr. Afari-Gyan told the
court that failure to sign is an irregularity. He did not go ahead to say what
flows from this irregularity. If the presiding officers failed to sign the pink
sheets, that constituted infringement of Article 49 (3) of the constitution and
to me that is fatal. It renders the result declared null and void.
“What then happens to the
results declared by the presiding officers in contravention of Article 49(3) by
failure to sign the pink sheets?” she asked.
She said Dr. Afari-Gyan told
the court that in spite of the failure to sign, he would accept the results
because the polling agents did sign and that brought her to do proper scrutiny
of the situation.
“The polling agent is not an
electoral officer and the fact that he has signed the pink sheet cannot
legalize that which is otherwise an illegality,” she held.
“The respondents’ case is
that annulling the votes of Ghanaians who have exercised their franchise in
accordance with Article 42 will be disenfranchising them and thus deny them
their right to vote. In this petition however, where the evidence on the pink
sheets on their faces indicates that the election was not conducted
substantially in accordance with the law as to the election, and that the act
or omission did affect the result, then the result will be invalidated.”
Justice Owusu said the
citizen’s right to vote had been upheld by the court in numerous cases and in
particular Ahuma Ocansey and Tehn-Addy, adding, “I happened to be part of the
decision in Ahuma Ocansey’s case and I still stand by my opinion therein
expressed.
“For this reason, I will not
by annulling votes under the three categories indirectly deny the voters their
fundamental and inalienable right to vote as enshrined in the constitution.”
She said “consequently,
where votes have been annulled as a result of violations, irregularities, etc,
I will call for a run off of the elections.”
Over Voting
Addressing the claim of
over-voting, Justice Owusu said Dr Afari-Gyan, apart from his ‘classical’
definition, did not dismiss the second instance of over-voting given by Dr
Bawumia where the Economist said over-voting is ‘where the ballots found in the
ballots box at the end of polls is more than the number of votes actually issued
by the voters who turned up to vote’ even though the commissioner had said he
had problem with it.
“Nothing is said on what
constitutes over-voting in C. I. 75, so I will go by both definitions,” the
judge said.
According to her, the
petitioners contended that over-voting constituted an abuse of the franchise
under the supervision of the 2nd Respondent saying, “it means that the
integrity of the polls at the particular polling station has been compromised
and the results at the polling station in question cannot be guaranteed and
therefore same must be annulled.”
She said The 1st
Respondent (President Mahama) had contended that there was no over-voting and
that the entries on the pink sheets did not constitute sufficient proof of over-voting.
She said in determining
whether the entries alone constituted sufficient proof, the 1st
respondent’s counsel argued that it should be done against the background of
the constitutionally guaranteed right to vote under Article 42 of the
constitution.
On
this, the 3rd Respondent (NDC) had contended that in the absence of
any person being alleged to have voted twice or illegally, or any person having
been identified as having made a complaint of over voting, whether formally or
informally merely invoking entries on the administrative portion of pink sheets
which had been shown to contain errors, could not meet the burden of proof on
the petitioners.
“The petitioners did
introduce the evidence of over-voting from the face of the pink sheets
exhibited by them. Admittedly, it is not on the face of all pink sheets that
they established the over voting. In
paragraph 44 of the 2nd petitioners’ affidavit, the pink sheets
exhibited exclusively in the case of over-voting are 310 polling stations.”
Justice Owusu said “the
petitioners introduced evidence from which the infringement could be found. The
entries on the face of the pink sheets constitute prima facie evidence in proof
of the evidential burden. At that point, the burden shifts onto the Respondents
to lead evidence from which it may reasonably be inferred that no over-voting
took place.
“Whereas the 1st
and 3rd Respondents contended that there was no such over-voting,
the 2nd Respondent (EC), when confronted with some pink sheets, did
admit that the entries showed that there were over-voting.
“Much as the 2nd
Respondent would not readily admit on over vote, he told the court that an over
vote if established will result in annulment of the results as it cannot be
determined which candidate had benefited from the illegal vote and the
integrity of the election would have been compromised.
“There is no gain saying
that over-voting if established would affect the result of the election and
impact a sufficient number of votes to have done so. Dr. Afari-Gyan told the
court that before annulling results because of over-voting he would do a check
on the face of the pink sheet. However his evidence is that he did not see any
pink sheet before declaring the presidential election results.
So therefore he
did not have the opportunity to do any check to determine from the face of the
pink sheets that there was no over voting.
“Where therefore, the
evidence of over-voting was introduced on the face of the pink sheets, and the
error/mistake as the Respondents contend, cannot be explained on the face of
the pink sheet, then that is an irregularity that affects the result.
“I will consequently hold
that where there is over-voting the results must be annulled.”
Voting without biometric verification
According to Justice Owusu,
the biometric verification process supervised by the EC came under C. I. 75,
regulating the conduct of public elections.
She said that Regulation 18 (1)
makes it mandatory for every polling station to be provided with a biometric
verification device.
After
citing the various regulations regarding the use of biometric verification,
Justice Owusu said that “biometric verification process is therefore a
mandatory component of the 2012 presidential election.”
She said, “Dr. Afari-Gyan’s
explanation as to how column C3 appeared on the ‘pink sheets’ turned out to be
false under cross-examination as indeed he later admitted that C. I. 75
(mandating the use of biometric verification came into force long before 20th
October, 2012 when the order for printing the ‘pink sheets’ was given.
“It was the evidence of Dr.
Afari-Gyan that the commission instructed that the form 1C should not be taken
to the polling station at all. How come
then that they were taken to the polling stations? If they were not taken, how
come column C3 was filled with reference to the form?” she queried.
“It will be recalled that
Dr. Afari-Gyan earlier on in answer to a question by my brother Dotse JSC as to
how the alleged instructions to presiding
officers not to fill in question C3 was given (whether written or oral),
he told the court he could not remember.”
She said the petitioners
introduced the evidence on the pink sheets, adding that “it was for the 2nd
Respondent to establish how the alleged error came about.
“Where a defence goes beyond
mere denial then the burden shifts to the defendant - here, the Respondent- to
prove the error.”
She said that the pink
sheets were generated by the 2nd Respondent, photocopies of which
were given to the petitioners and the entries thereon constituted prima facie
evidence which needed to be rebutted by the 2nd Respondent, and
“failure to rebut same is fatal to the defence of error/ mistake.
“Indeed Dr. Afari-Gyan told
the court in one case where the same figure was entered in C3 as it was entered
in C1, that it was either or situation meaning either all the voters voted
without being biometrically verified or they all went through the biometric
verification process.
“To find exactly what
happened, he said there should be a resort to the Biometric Verification
Device. The Devices were not resorted to tell the court that indeed the figures
entered in column C3 were entered in error. These Devices are in the custody of
the 2nd Respondent.”
Justice Owusu said that the
EC’s case was that even if voters voted without going through the verification
process a call for annulment of the votes must be considered in the light of
their fundament Right to vote as enshrined under Article 42 of the
constitution.
“The Chairman of the 2nd
Respondent told the court that in some cases, the presiding officers were given
the discretion to permit certain persons who are well- known in the community
to vote without biometric verification. This is in contrast distinction to the
NO VERIFICATION NO VOTE Slogan and an infringement of Regulation 30 of C. I. 75.”
“Like the Gazette notice
published by the 2nd Respondent, the discretion given to presiding
officer to allow people like Omanhene to vote without going through Biometric
verification Device is ultra vires C. I.
75 and therefore same is void.”
Justice Owusu said that
“voting without being biometrically verified is an infringement of the Law
which cannot be countenanced under the present dispensation in an election
petition. For this and other reasons, I am inclined to annul votes in all
polling stations where the violation occurred.”
Duplicate Polling Station Codes
Dismissing the claim on
duplicate polling stations, she said Dr. Afari-Gyan was able to explain that in
some instances, special voting had taken place at the same polling station or
where the registered voters there were too many the polling station would be
split into two – A and B adding “This is plausible enough.”
“If therefore there are any
such polling stations with the same polling station code, the number will be
few and therefore as Dr Bawumia himself told the court, same will be
statistically insignificant. The
malpractice if anything at all, will not affect the result so that malpractice
is disallowed.”
Unknown Polling
Stations
In the unknown polling
station claims, the judges said that the representative of the 3rd
Respondent answer to this allegation was that the 22 polling stations, formed
part of the 26,002 polling stations for the 2012 Presidential election.
“His explanation is that the
petitioners got the spelling of the polling station names and code numbers
wrong. He filed Ex “JAN 5” in which he
supplied the correct names and code numbers.”
“What is more, the
petitioners sent their polling Agents to these polling stations where voting
took place in the presence of their polling Agents.I find no substance in this
claim and so disallow same.”
Duplicate Serial
Numbers
Touching on the duplicate
serial numbers claim, Justice Owusu said “in fact the petitioners did not say
that no voting took place in those polling stations. If the pink sheets are
questionable, what questions were asked and were answered by the petitioners?”
“No case was made under this
head and I am inclined to dismiss same,” she held.
Conclusion
She concluded that the
number of votes annulled for the three irregularities and violations of over
voting, voting without Biometric verification will negatively impact on the
result declared by the 2nd Respondent having regard to the votes
margin between the 1st petitioner and the 1st Respondent.
“If the invalid votes are
deducted from the votes of the two, the 1st Respondent who was
declared winner on 50.7% of the votes cast will not cross the threshold of
50%+1,” she said.
“For this reason, I will and
hereby declare that the 1st Respondent was not validly declared
winner of the 2012 presidential election.
The first relief of the petitioners is hereby granted.”
The 2nd relief
for a Declaration that Nana Addo Dankwa Akufo-Addo the 1st
petitioner herein rather was validly elected president of the Republic of Ghana
cannot be granted because of the order for re-running the election in polling
stations where the votes are to be annulled.”
“The 3rd relief
has been granted in the polling stations where the election is to be
re-run. The petition succeeds in part.”
No comments:
Post a Comment