Justice Kwasi Anin Yeboah
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Wednesday, September 11, 2013
“In my respectful opinion, any attempt
to endorse a clear illegality in the nature of over-voting which is contrary to
and inconsistent with our constitution and the constitutional instrument made
there-under, would itself be unconstitutional in the sense that it would defeat
the principle of Universal Adult Suffrage stated in our constitution.”
This
was contained in the judgment of Justice Kwasi Anin Yeboah, one of the justices
on the panel that heard the just concluded landmark Presidential Election
Petition.
Justice
Anin Yeboah, 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.
Over-voting
Dealing with the claim of over voting, the
judge said “I am of the opinion that no matter the number of votes involved that
may constitute over-voting, it is a clear illegality and should not be endorsed
by a court of law, more so by the highest court of the land.
“I will therefore proceed to annul all
votes which were proved by the petitioners to be so. The figures and the
polling stations would be addressed later in this delivery,” he held in his 53-page judgement.
Definition Of Over-voting
Justice Anin
Yeboah said a look at all the statutes governing elections in the country
including even the Constitution “is bereft of the definition of over-voting. The
People’s Representative Law, PNDCL 284 of 1992, C.l. 75 and any other statutes,
touching on elections have not defined over-voting.”
He said in the course
of his evidence, the second petitioner (Dr. Mahamudu Bawumia) who gave evidence
for and on behalf of the other petitioners, stated that over-voting might occur
when the total number of votes cast exceeded the number of ballots issued to
voters.
“Another
instance of over-voting is when the total number of votes cast in the polling
station exceeded the number of registered voters at that particular polling
station,” the judge quoted the Economist as testifying.
“The
representative of the first and third respondents, Mr. Johnson Asiedu-Nketia
disagreed with the second petitioner on the definition. He was of the view that
over-voting would occur only when the total number of votes cast exceeds the
registered voters for the polling station in controversy.”
Justice Anin
Yeboah said the definition of over-voting by Mr. Asiedu-Nketia was supported in
its entirety by the second respondent (Electoral Commission) through its Chairman
(Dr. Kwadwo Afari-Gyan) when he said that a classical definition of over-voting
is when the total number of votes cast exceeds the total number of registered
voters.
“This so-called
classical definition prompted my brother Baffoe-Bonnie, JSC to question him
whether this definition holds, as there would never be hundred percent turnout
in any elections. The second respondent's representative, that is, Dr.
Afari-Gyan, insisted on this definition. However, when he was subjected to
rigorous and far-ranging cross-examination, he admitted that certain pink
sheets qualified to be declared as over-voting (sic) notwithstanding that the
total number of votes did not exceed the registered voters in some polling
stations.”
Justice Anin
Yeboah said the lack of any statutory definition “presents an invidious
situation for the court to decide the fate of several polling stations which
the petitioners have presented to us to annul the votes on the simple but
cogent grounds that the results had been compromised and that there was clear
want of transparency at the affected polling stations.”
He said the
representative of the first (President Mahama) and third respondents (NDC) , Mr.
Asiedu-Nketiah was of the view that in the course of voting a 'foreign
material' might be found in the ballot box to lead to over-voting.
“I must confess
that I found it very difficult
to agree with him on how a so-called transparent electoral process could be so.
In any case he was not re-examined on what a `foreign material' meant and I can
safely presume that a `foreign material' may be some material that is foreign
to the ballot paper in the ballot box or something different from the ballot
papers in the ballot box.
“In my opinion,
over-voting may occur when the total number of ballot papers issued to voters
at a particular polling station is exceeded by the total number of ballot
papers in the ballot box.”
He noted that
over-voting might occur when the total number of ballot papers in the ballot
box exceeded the number of registered voters on the polling station register,
adding that “to define over-voting by limiting it to the second part of the definition
would not hold, in that it is a fact of history that it is always impossible to
get a hundred percent turnout at any public elections.”
Justice Anin
Yeboah said, “I am of the opinion that in the exercise of the right to vote if
it turns out that an individual has voted more than once as required under the
constitution in an election, the whole electoral system is compromised by the
abuse of that right.”
Apart from the
principle of Universal Adult Suffrage boldly stated in the preamble to the
constitution, C.l. 75 which regulates elections also grants ‘statutory
injunction’ against the abuse of electoral process when one voter casts more
than one vote as required by law.
“As the second respondent failed
to prevent the abuse of electoral process, it stands to reason that its own
regulations governing the elections was clearly breached when it recorded
several instances of over-voting as presented by the petitioners….It is a clear
case of illegality proved to my satisfaction on the evidence presented to this
court in the nature of documentary evidence, that is, the pink sheets.”
He said it
should also be noted that all elections here and elsewhere, especially in
constitutional democracies, are regulated by statutes. “It is within the limits
of the statutes that elections elsewhere and in this country are conducted.
“In the very
recent case of Republic V High Court (Fast
Track Division) Accra; Ex-Parte National Lottery Authority (Ghana Lotto
Operators Association & Others,
Interested Parties) (2009) SCGLR, the worthy president of this court Atuguba
JSC said: “It is communis opinio among
lawyers that the courts are servants of the legislature. Consequently any act
of a court that is contrary to a statute such as Act 722 s 58(1)-(3) is unless
expressly or impliedly provided, a nullity’. The question is; if a court
of law does not give effect to the law, who will?”
Absence of Signatures of Presiding Officers
Digging deep
into the effect of the absence of signatures of Presiding Officers’ debate,
Justice Anin Yeboah said “if Article 49 (3) would work injustice against the
citizenry who registered, queued and voted, it is regrettable that I cannot in
upholding the very constitution engage in any manipulation of language and deny
its effect when it has been thrown to us for the first time ever in the history
of this court.
“I will uphold
the constitution and proceed to give effect to it by annulling the votes cast
which were not, on the face of the pink sheets, signed by the presiding officer
to reflect what actually took place at the various polling stations involved.
“The arguments
that the agents signed and the result publicly declared by the presiding
officers would not hold as in my opinion there is a clear breach of a vital
constitutional provision which is a condition precedent to the declaration of
the results involved in the affected polling stations.
“My
constitutional duties would be fulfilled as a judge if I enforce the
constitution. Our judicial oath taken on our appointment as judges enjoins us
to at all times uphold the constitution which is the supreme law as clearly
stated in the second schedule to the 1992 constitution,” the judge held.
He said it
should be clear beyond question that on this allegation of fact the parties did
not join issues adding that “the only disagreement on this issue was the legal
effect of the lack of signature of the presiding officers at the polling
stations involved.”
Justice Anin
Yeboah said it had been argued vigorously in the closing address of the
petitioners that the non-signing of the pink sheets by some of the Presiding Officers
amounted to a serious irregularity as it was a clear breach of a constitutional
provision.
“I think all the
respondents against whom this allegation of no signature of the presiding
officer has been made agree that it was a mere irregularity. It is to me the
duty of the court to form an opinion what would be the legal effect of lack of
signature of the presiding officer.”
Historical Fact
Digging deep
into history on the claim, Justice Anin Yeboah said that “in interpreting a
provision of a statute and constitutions for that matter, at times it would
assist the court for guidance if reference is made to the law as it then stood
before the coming into effect of the provisions under consideration.”
He said that the
requirement of the presiding officers’ signature on polling stations
declaration forms or Pink Sheets emerged as a constitutional requirement for
the first time in post-republican constitution of 1992.
“As a country
with a desire to entrench democracy based on universal adult suffrage and
transparency and accountability, the framers of the 1992 constitution had cause
to debate and insert this very important provisions in the constitution,” he
disclosed, adding that “care must be taken to avoid any attempt to multiply
words through linguistic manipulations to deny it effect as a constitutional
provision, entrenched for a purpose.”
Justice Anin
Yeboah took time to examine in detail the role of the presiding officer whose
lack of signature on “vital electoral document has sparked controversy.”
He said that apart
from Article 49 of the Constitution which deals with the role of presiding
officer in an election, nowhere in the constitution is presiding officer
mentioned.
“However,
Article 51 of the constitution mandates the second respondent to make
regulations for elections and referenda. It is a fact of electoral history that
several of such regulations were made by the second respondents prior to the
coming into force of the current one which is: Public Election Regulations,
2012 (CI 75). Regulation 17 spells out the functions of the Presiding officers
and polling assistants.”
Presiding Officer’s Role
“From the
functions imposed by the instrument on the presiding officer, it stands out
clearly that virtually all the administration and even including security
matters for the smooth running of the polls are vested in the presiding officer,”
he held.
Justice Anin
Yeboah said the constitutional duties imposed on the presiding officer apart
from signing a declaration stating the polling station and the number of votes
cast in favour of each candidate also includes announcing the results.
“It stands to
reason that he is deemed as the representative of the Electoral Commissioner at
the polling stations. In my respectful opinion, the signatures of the polling
agents and the representatives of the political parties at the polling station
may be dispensed with as from the available Pink sheets most of the political
parties never presented their representatives or polling agents at many polling
stations.
“From the
evidence on record apparent on the pink sheets, many political parties did not
send agents or representatives to many of the polling stations. None of the
parties herein is making a case out of that, in that, the interpretation one
can put on Article 49(3) is that political parties are not bound under the
constitution to send agents to the polling stations. Their absence at any
polling station and for that matter not signing any pink sheets as representatives
or agents of the political parties would not amount to any irregularities or
malpractice in the electoral process.”
He said a close
reading of regulation 19 Of C.1 75 showed the limited role the polling agents
play at the polling stations adding, “The polling agent does not have any major
role to play in the course of the elections. It is clear under regulation 44 of
C.l 7 that the non-attendance of the polling agent shall not invalidate the act
or a thing done. The role of the polling agent is to detect impersonation and
multiple-voting and certifying that the poll was conducted in accordance with
the laws and regulations governing elections.”
The judge noted that
the constitutional duties imposed on presiding officers at polling stations as
regards the result of elections are repeated in C.l 75 under regulation 36
saying, “The presiding officer is enjoined to sign the declaration stating the
name of the polling station, the number of votes cast in favour of each
candidate, and the total number of rejected ballots, before proceeding to
announce the results to the public.”
Mandatory Provision
“The signature
of the presiding officer is mandatory in the constitution and the regulations
made thereunder which is under consideration,” the judge held.
“Some statutory
provisions may express the performance of an act in several forms. It may be
permissive or mandatory. The courts in Ghana have shown remarkable consistency
in this regard. In all statutes, the courts apply mandatory provisions as
expected and failure of non-compliance are not waived in some circumstances.
The current constitution has been interpreted in line with the time-honoured
principle that mandatory provisions must be respected.”
“If in an
ordinary statute shall should be construed as imperative and mandatory,
what interpretation should we place on the same word shall if it appears in our
constitution and calls for construction?” he queried.
“I am of the
firm view that the framers of the constitution inserted the word shall there
for a purpose and should be construed as imposing a mandatory duty on the
presiding officers to perform their statutory duty which appears clearly as a
condition for the declaration of the results at the polling stations. When
there is clear breach of mandatory provisions of a constitution it must be so
declared and no effect is given to the act performed in breach of the
provisions in issue.”
“In my opinion,
the article under consideration, that is, Article 49(3) is very clear and
unambiguous it is trite law that when the provision of a statutes and
constitution for that matter is clear and unambiguous it is not the duty of a
court of law under the guise of interpretation to scan the provision to
interpret the clear and unambiguous provisions.”
“If the fundamental law of the
land which is the constitution has entrenched Article 49(3) to make it a
constitution precedent for the validity of the election results, I am of the
view that effect must be given to it notwithstanding the fact that Article 42
preserves the right to vote.”
Voting without biometric verification
Justice Anin
Yeboah said that in his respectful view the issue of voting without biometric
verification could be resolved by determining whether indeed some voters were
not biometrically verified and also whether or not lack of the biometric
verification should lead to the annulment of votes cast.
“The petitioners
contend that some voters did not undergo any verification as required under the
regulation as it then stood. The respondents deny vehemently this allegation of
lack of biometric verification,” holding that “like any other denials in civil
litigation it calls for proof by preponderance of probabilities.”
“On this issue,
it is clear that the petitioners bear the burden of proof to satisfy this court
that indeed some voters were not biometrically verified as pleaded in their
pleading based on which further and better particulars of the allegations were
filed later.”
“The
respondents, to be precise, the second respondent said the challenges which
emerged from the use of the biometric verification machines were later
successfully overcame and nobody voted without biometric verification and
therefore there was no breach of the regulations.”
Justice
Anin Yeboah said “I have gone very far to quote the crucial evidence of the
second respondent on this matter of no biometric verification. In his view C3
was not to be filled but they were filled by some presiding officers. The case
of the petitioners on this matter, as pointed out earlier in this delivery, is
only limited to the entries on the face of the pink sheets and no more.”
He
said that the second respondent on this issue tendered Exhibit EC 2 on 24th
April 2013. Exhibit EC 2 is: A guide to Election officials' E lection 2012
Presidential and parliamentary Elections.
“This book or
manual as one may call it, was prepared by the second respondent to guide the
public on voting procedure On the face of the pink sheets or the statement of
poll for the office of President of Ghana the C column of which C3 should be filled
or not to be filled is designated as the Ballot Accounting (To be filled in at
END of the poll before counting commences).”
“If indeed this
was what was officially used to train the presiding officers it does not
contain C3 but on the right hand side of it a provision is made for C3 to be
filled. On the left hand side column it commences from C 1, C2, C3, C4, C5 and
C6.”
“At
C6 it is stated thus: What is the total of Cl, C2, plus C3, plus C4? (This
number should equal A.1 above). Why the deletion of C3 appeared on the left
hand side and was stated on the right hand side is incomprehensible to me.
Whether it was as a result of bad printing was not explained. When it was
printed and how the training was done as regards this problem is still shrouded
in doubt.”
Presiding Officers Control Pink Sheets
“My problem is
that these pink sheets cumulatively form mass documentary evidence amassed by
the petitioners. They were filled and given to the agents of the parties after
the close of polls. The only contribution from the agents in generating pink
sheets at a polling station is that they sign the form if they are present. If
they also want to protest formally, this they could do, and no more.”
He said to him, pink
sheet is under the exclusive control of the presiding officer from the time
polls start till after he has signed them and issued them out saying “this is a
statutory document required by law and even under the constitution to be signed
by the presiding officer.”
“It stands to
reason that if entries are made thereon, prima facie, the entries are deemed as
the official recordings of whatever took place at the polling station and no
more. I do not think that any of the parties to this petition will dispute the
fact that the recordings on the face of the pink sheets are deemed to reflect
what the presiding officer in his official capacity recorded at the polling
station for the declaration of the results.”
“This is a
documentary evidence of a transaction very serious and vital in every respect.
To me it raises a strong presumption of regularity and satisfies, in my view
the best evidence under the circumstances provided the evidence is admissible,”
Justice Anin Yeboah held.
Prima Facie Evidence
He said that the
evidence by the presentation of the pink sheets by the petitioners “in my
opinion raises prima facie evidence of what officially took place at the
various polling stations,” adding “in my opinion the petitioners have
discharged the burden of proof as none of the pink sheets supplied in respect
of lack of biometric verification attracted any objection on admissibility.”
“The respondents
who on the pleadings and the evidence doubted what is officially recorded on
the pink sheets must satisfy this court that the recordings are incorrect or
suffer from any defects known to admissibility of evidence.”
Justice Anin
Yeboah said that as regards the EC whose agents, that is the presiding
officers, prepared, signed and issued the pink sheets to the petitioners agents
at the various polling stations “they are estopped from denying their
authenticity.”
“From the
evidence of the second respondent's representative he relied on all those pink
sheets to declare the results and he cannot just deny its contents. He is bound
by the entries on the face of the pink sheets.”
He continued
that “I find his explanation as most unsatisfactory in that he could not indeed
tell the court when and by which means it was officially made known to the
presiding officers not to fill C3.lf he was in serious doubt , a court of law
must not leave this vital evidence led in rebuttal to guess or conjecture. I am
aware of the submissions from counsel for the first and third respondents that
this evidence on the C3 was left unchallenged by counsel for petitioners.'
Justice Anin
Yeboah said that he accepts the proposition of law that when evidence led
against a party is left unchallenged under cross-examination the court was
bound to accept that evidence saying “but it was clear that Dr. Afari-Gyan who
gave evidence on this issue was just conjecturing and it would be a sad day for
me to believe such evidence, more so when throughout his evidence
under-examination be demonstrated want of credibility.”
“I find that the
respondents, especially the second respondent who led evidence to rebut a
documentary evidence prepared by his duly authorized agents failed to lead
credible evidence to rebut the presumption of regularity of officials acting in
their statutory capacity and performing their constitutional duty.”
Justice Anin Yeboah said that the
evidence on the face of the pink sheets that there were no biometric
verification “has not been rebutted by the second respondent as required by law
in civil cases.”
“I find as a fact that the petitioners
have proved that the entries show conclusively that those voters were not
verified biometrically.”
“In my opinion the various affidavit
filed against this issue of lack of biometric verification do not in the least
rebut the documentary evidence duly prepared by the second respondent's agents,
signed by them and duly used for the declaration of the results which is in
controversy. I feel that this is not the type of evidence needed to rebut the
presumption of regularity raised in favour of the pink sheets covering lack of
biometric verification.”
Unknown polling
stations, duplicate polling station codes, and duplicate serial numbers
Justice Anin Yeboah dismissed the claims of Unknown Polling Stations,
Duplicate Polling Station Codes, and Duplicate Serial Numbers saying “these categories
in my view could be dealt with together.”
“I had a draft copy of the opinion of my
esteemed brother Dotse JSC on these remaining categories. I took time to have
detailed discussion with him on his draft. It appeared that my learned brother
had put a lot of industry in preparing his opinion on these categories of
electoral irregularities or malpractices.”
“I find his reasons very convincing in
law based on the evidence adduced before us by the parties. I am in support of
the reasons canvassed by him for the dismissal of these categories and I cannot
multiply words to justify my agreement with him. I therefore, like my brother
proceed to dismiss these categories as not proved by the standard expected of a
suitor.”
EC
Lambasted
He said that “I must confess that I was
very uncomfortable with the way and manner this highest court of the land was
left unassisted by the second respondent in whose custody the original pink
sheets are kept.”
“It appeared from the reports of the
official referee (KPMG) that as many as 1,545 of the pink sheets supplied by
the petitioners as filed exhibits were not legible. In a serious matter in
which the mandate of the entire voters of this country is being questioned
through a judicial process one expected the second respondent as the sole body
responsible for the conducting of elections to have exhibited utmost degree of
candour to assist the court in arriving at the truth.”
Justice Anin Yeboah said “surprisingly,
the second respondent opted for filing no pink sheets leaving this court
unassisted and thereby placing reliance only on the pink sheets supplied to the
agents of the petitioners at the various polling stations in issue. Why the
second respondent elected to deny a court of law in search of the truth in a
monumental case of this nature is beyond my comprehension.”
Burden
of Proof
Justice Anin
Yeboah said that under the Evidence Act, NRCD 323 of 1975 a party who bears the
onus of proof has, an obligation to establish a requisite degree of belief
concerning a fact in the mind of the tribunal of fact or the court saying “it
has been urged on this court that the evidential burden has not been discharged
by the petitioners.”
“In an election
in which results were officially published, the results must be deemed as
correct and any person challenging same ought to prove that it wasn't so.”
“Another point
worthy of mentioning is that, the second respondent, which is the only
statutory body constitutionally charged to conduct such elections in its
official capacity must be presumed to have regularly performed its official
functions as it did in this case. This common law position is statutorily
supported by section 37(1) of the Evidence Act, NRCD 323 of 1975. The
presumption of regularity therefore holds in favour of the second respondent.”
“Applying basic
common law principles and the Evidence Act, it appears that the burden of proof
is squarely on the petitioners. This was indeed acknowledged by the petitioners
in their written address submitted to the court at the close of the case.”
Standard of proof
Justice Anin Yeboah said that the
petition was simply a civil case by which petitioners were seeking to challenge
the validity of the presidential elections saying “from the pleadings and the
evidence, no allegations of fraud or criminality were ever introduced by the petitioners.”
He said that “the standard of proof of
allegations in civil cases is proof by preponderance of probabilities. It is
only when crime is pleaded or raised in the evidence that the allegation sought
to be proved must be proved beyond reasonable doubt.”
“The
fact that this petition is brought under Article 64 of the 1992 Constitution
does not make any difference in the applicability of the standard of proof. The
allegations in the petition that were denied by the respondents in their
answers to the petition ought to be proved as required in every case. The fact
that the petition is a constitutional matter is also entirely irrelevant. The
standard of proof in all civil cases is the usual standard of proof by
preponderance of probabilities and no more.”
“From the
various written submissions on record, none of the parties has raised any
question or issue as to any higher standard of proof required to be applied in
a purely civil litigation of this nature.”
Conclusion
“I do not think
that from the evidence of the petitioners, both documentary and oral, any one
would doubt that the petitioners failed to prove multiple irregularities,
malpractices and statutory violations against the second defendant. I am of the
firm conviction that issue (1) was proved to my satisfaction by the available
evidence on record and I accordingly proceed to resolve same in favour of the
petitioners.”
“On
Issue (2), I find from the evidence that given the number of votes affected by
the violations, omissions and malpractices and the irregularities appear to be
such that they impacted adversely on the results, I would also resolve issue
(2) in favour of the petitioners.”
“I
would have readily proceeded to grant the reliefs sought in its entirety but
the ONLY problem is that from the available evidence, the widespread
violations, omissions and malpractices appeared to be of such proportions that
it would not be proper for me to declare the first petitioner as winner of the
elections in controversy in terms of the reliefs sought.
“I
find the malpractices, omissions and violations enormous which rock the very
foundation of free and fair elections as enshrined in our constitution which
was itself breached through over-voting, lack of presiding officer's signature
and lack of biometric verification which takes its validity from Article 5l of
the very constitution.”
He also
commented on the Canadian case of OPTIZ V BORYS WRZESNEWSKYS (2012)
SCC 55 which he said “so much reliance was placed on,” saying “it must be
pointed out that this Canadian case which was cited by all must be read within
its own context for its persuasive value.”
“It was decided
on the legislation as it then stood, that is, Canada Elections Act, S.C 2000,
C9, SS. 524 (1) (b), 531(2) involving an electoral petition in which a
candidate in federal election was defeated by margin of twenty-six votes
alleging irregularities.”
He concluded
that “no matter the persuasive effect of this decision which was split, care
must be taken not to allow foreign decisions to persuade us when our own
legislations or constitution are placed before us for interpretation.”
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