Justice Victor Jones Mawulom Dotse
Posted on: www.dailyguideghana.com
By
William Yaw Owusu
Tuesday, September 10, 2013
“This in effect means that, every
prospective voter must go through the process of biometric verification before
casting his or her vote. Any votes that are therefore found to have been cast
without this biometric verification stands the risk of being nullified.
This was contained in the 234-page
judgement of Justice Victor Jones Mawulom Dotse, one of the judges who
dismissed almost all the claims brought by the petitioners in the
just-concluded landmark Presidential Election Petition.
Justice Dotse’s judgement appeared to support
the petitioners’ claim that people voted without biometric verification in the
2012 Presidential election in which Electoral Commission Chairman Dr. Kwadwo
Afari-Gyan declared John Dramani Mahama as validly elected.
However, in winding up, he dismisses the
claim without any compelling argument such as the one he had advanced in favour
of the petitioners when addressing the same issue.
Digging deep into the issues, Justice
Dotse held that “voting without being biometrically verified is an infringement
of the law which cannot be countenanced under the present dispensation in an
election petition.”
He went to the extent of indicting Dr.
Afari-Gyan for testifying in court that the Election Officers were given
discretion to allow well-know people (Omanhene scenario) to vote without going
through the biometric verification process but could still not grant the claim
of the petitioners.
“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,” he held.
“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.”
He held that some of the arguments
canvassed by the EC with respect to biometric verification was in direct
contrast to the evidence of Dr. Afari-Gyan that it could be possible for all
prominent persons like Chiefs to vote without a biometric verification.
“I must concede that this statement
coming from the Electoral Commission Chairman is very unfortunate and
completely nullifies the effect of the provisions of Regulations 30 (1) and (2)
of C. I. 75, which states that ‘The voter shall go through a biometric
verification process’.”
He said that “there are certain things
and practices as a nation we ought to have confidence and trust in its
administration, and a typical one is this biometric verification device. Once
we asked for it and it was provided, at huge cost, we must accept it and learn
to rely on it for the verification that it was meant to provide.”
“As was rightly stated by the
petitioners, biometric verification is basically the fact of verifying that a
person is whom he says he is and it is a unique way of indentifying some
distinct biological traits of the person,” he said.
“Thus, where the
regulations enacted by the 2nd Respondent, in this instant, C.I. 72
and C. I. 75 have been properly and validly enacted by the legislature in
accordance with the requirements of the Constitution reference article 11 (7)
(a) (b) and (c) of the Constitution, 1992, it possesses all the trappings of
validity.”
He said the subsidiary legislations must
be read alongside the Constitution to give meaning and content to it adding “it
must therefore be well understood that, once the enactment of C.I. 72 and C.I.
75 have not been proven to have infringed the rights of persons or any
constitutional provisions protecting the rights of citizens to vote, those
provisions must be given their full legal effect and force.”
Switching the argument in favour of the
respondents, Justice Dotse said “The 2nd Respondent in particular
has stated that, having examined all the pink sheets in this category, their
analysis confirmed that no voters were allowed to vote without verification at
any polling station.”
He said there was ample proof that, the
petitioner’s themselves recognise and admit the use of the verification machine
to establish the tallies of the election results, stating “this is the main
reason why I have stated that, it was wrong first for learned counsel for the
petitioner’s (Philip Addison) to have objected to the tendering of the print
outs from the Biometric machines to verify anomalies whilst they themselves had
requested for it as far back as 9th December 2012.”
“Perhaps, at that time, because of the
contemporaneous nature of the request and the conclusion of the election being
almost at the same time, they did not think about the problems of tampering
with the machines.”
He said that another contention by the 2nd
petitioner (Dr. Mahamudu Bawumia), despite his “sterling performance in the
witness box which I find puzzling is that, all entries made in CI – wrongly
should equal zero or dash.”
“Having considered this analysis
vis-à-vis the evidence of Dr. Afari-Gyan on why the C3 column was initially
created but later abandoned at the insistence of the political parties, I am
left in no doubt that the whole contention of voting without biometric verification
has not been properly made out.”
“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, 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 Dotse said that the respondents case
is that even if voters voted without going through the verification process a
call for annulment of the votes might be considered in the light of their
fundamental right.
“I will therefore for this and other
reasons stated elsewhere in this judgment, reject this voting without biometric
verification as not having been properly made out by the Petitioners. It is
accordingly dismissed.”
Over
voting
Touching on over voting which he granted,
Justice Dotse said Regulation 24 (1) of C. I. 75 frowns on people voting more
than once saying “When the above provision is compared with the entries in columns
A,B & C that are required to be filled in on the pink sheets by the
Presiding Officers before the commencement of polls and in the case of Column C
after polls but before counting, then a somewhat clearer picture of what
exactly over voting means can be imagined.”
He said if columns A, B and C are
entered correctly on the pink sheets, then the number of ballots issued to the
polling station will be known, the range of the serial numbers of the ballot
papers will also be known as well as the number of voters on the polling
station register, including the number of ballots issued to voters on the
polling station register.
After going through all the definitions
proffered by both the petitioners and the respondents, Justices Dotse said that
“So far as I am concerned, the real issue for determination is whether there
was any instance of over-voting as denoted by the definition of over-voting and
whether those particulars exhibits i.e. polling station pink sheets had been
captured by the KPMG report, and is also part of the range of exhibits mentioned
in the affidavit.”
“What has emerged from the very
extensive and rigorous cross-examination of Dr. Bawumia by Counsel for 3rd
respondents is that, there were indeed entries on some of the pink sheets of
the polling stations which on the face of it gave the impression that there was
over voting. But the respondents contend that these are only clerical errors.”
He also said that “the evidence of the
petitioners on over voting is really not based on directly accusing anyone of
voting more than once as is prohibited by law, but solely on the basis of
entries made on the pink sheets.”
“Whilst not downplaying the
constitutional significance of the above cases, it must also be observed that,
the importance of entries made on the pink sheets should also not be glossed
over as being of no significance.”
“In the instant case, it would appear
that once the directives of what constitutes over voting are in Regulation 24
(1) of C. I. 75, the Courts also have a duty to purposively look at the effect
of those provisions and the constitutional right to vote.”
He said that “any mechanical
interpretation of the entries on the pink sheets will not only be absurd but
lead to incongruent results and consequences."
“The Court should however use
information on the face of the pink sheets to correct this latent error.
However, if the information to correct the error on the pink sheet cannot be
verified from the pink sheet, and that figure had been used to declare the
result, and if the wrong result has had an effect on the declared result, then
it should be possible to annul it, if there are no credible primary sources of
evidence like the polling station register to be used to cross-check such an
error entry.”
He said in the instant process, “ I will
define over voting to mean an instance where total votes cast as found in the
ballot box exceeds the total number of ballots issued out to voters at that
particular polling station,” and it was a clear acceptance of the definition
given by the petitioners.
He said that “when the ballots issued
out cannot be reconciled with the ballots found in the box using all available
means of verification on the pink sheet then the conclusion is reached as an
over- vote.”
He said if the EC had been able to
furnish the court with the original pink sheets, some of the problems faced by
the court would not come up.
Absence
of signatures of Presiding Officers
Granting the claim of the absence of
signatures of Presiding Officers, Justice Dotse said “it must be noted that,
any constitutional provision, especially one that deals with the ground rules
for the exercise of our democratic choice of our leaders in pursuit of the
principles of universal adult suffrage is not to be taken for granted.”
“In this respect
therefore, it is quite clear that the provisions in article 49 are so precise
and mandatory that it requires no other meaning other than what has been
attributed therein. That is why this particular provision is one of the few
entrenched provisions.”
He said if due
consideration was given to the “pride of place that the Constitution occupies
in the laws of Ghana as the Grundnorm or basic law, then such provisions should
not be treated with careless and reckless regard. In my opinion, and I dare say
the opinion of all those who have due regard to the principle of
Constitutionalism, the Constitution 1992 must be regarded and considered as
sacrosanct.”
“As such it must be given it due pride
of place in the scale of laws of Ghana as article 11 of the Constitution
stipulates. This article puts the Constitution first among the laws of Ghana
and in descending order to Acts of Parliament, Constitutional Instruments and
others of similar nature, the existing law and the common law.”
He said there is evidence on record from
the EC that, when some of the Returning Officers detected the phenomenon of the
non-signing by the Presiding Officers at the collation centres, they as it were
called the erring Officers to order and requested them to sign.
It should however be noted that, at that
stage, all the party agents must have left with their unsigned copies of the
pink sheets by those Presiding Officers.
Justice Dotse said it must be noted
that, any results declaration form that is not signed by the Presiding Officer
is in breach of article 49 (3) of the Constitution 1992.
“The issue that begs for an answer is
whether the failure of the Presiding Officers to sign the results declaration
form (pink sheets) being a constitutional requirement was a violation,
omission, malpractice or irregularity of the Presidential election held on 7th and 8th
December 2012 and whether these affected the outcome of the results of the
elections.”
“What is the purpose of the provisions
in article 49 of the Constitution being inserted therein instead of leaving it
for the Electoral Commission to make rules and regulations as provided for in
article 51, 63 (2) and 65 of the
Constitution 1992?” he asked.
He said “it must also be assumed rightly
that the Constitution did not want to leave these provisions contained in
article 49 to the whims and caprices of any institution or body of persons to
meddle and toy with that is why such detailed provisions on procedure at voting
during public elections have been made. If these provisions in article 49 are
compared with the provisions in article 63 and 65 of the Constitution 1992, the
difference in approach is clear and without doubt. Being an entrenched
provision, article 49 cannot even be amended by a party with an overwhelming
majority in Parliament, unless by a referendum.”
He said that it was forcefully argued by
all the Respondents that because the Party agents signed the pink sheets, and
the results declared after they had been sorted and counted in public, the
complaint of the petitioners was not well founded and must be dismissed.
He however held that “since it is to
this Supreme Court that the Petitioners have come to for the interpretation and
enforcement of the breach of this article 49 (3) of the Constitution 1992, I
hold that notwithstanding the conduct of the Petitioner’s agents in signing the
pink sheets that act, cannot clothe the unconstitutional conduct of presiding
officers in not signing the pink sheets with constitutionality.”
He said that any pink sheet, which was
not been signed by the Presiding Officer lacked ‘crucial authentication’ and
must be rejected as not satisfying the requirements of the Constitution and the
law.
“As
a consequence, I am of the very considered view that, not having signed and
authenticated the entries made by them on the pink sheets, the non signature of
same by the Presiding Officers has invalidated the offending pink sheets, and
to that extent, by virtue of article 49 (3) of the Constitution 1992, same are
declared null and void, and of no effect.”
“The
result therefore is that all votes at all the polling stations where this
phenomenon of no presiding officer signature has occurred is hereby annulled
and or cancelled. If they are annulled, then all votes attributed to any
candidate at those polling stations will be deducted from the total tally.”
“I
will therefore urge the application of the sanctions provided for in this
section 30 of PNDCL 284 to any breach of article 49 (3) of the Constitution.
This is because the conduct of the presiding officers in not signing the pink
sheets amounted to a failure to act in the performance of their official duties
as provided for in section 30 (a) and (e) of PNDCL 284 I will further direct
that aside the punishment of a fine and imprisonment, the 2nd
respondents should as a matter of policy blacklist all such offending presiding
officers to prevent them from ever acting for the 2nd respondents in
future. This I believe will serve as a deterrent.”
He
recommended that, henceforth, the EC should apply merit based criteria to the
appointment of their key electoral staff, albeit temporary to avoid the
appointment of people who appear to be crass illiterates.
Commenting
on Duplicate Serial numbers, Voting without biometric verification, Unknown
polling station categories as well as Duplicate polling station results amid
citation of authorities, Justice Doste said “I reject those claims outright and
no consequence arises. They are therefore dismissed.”
Documents
for inspection
He said as a matter of fact, now that
evidence had been concluded, he was of the view that, in future, in all
Presidential election petition hearings, the Electoral Commission should be
mandated to produce for inspection all the documents being contested by the
Petitioners. This will help solve problems of ineligibility or otherwise of
“pink sheets” exhibited by the petitioners.
“This
is very important because, as the custodian of the original copies of these
primary documents, the 2nd Respondents owe a duty to the good people
of Ghana to make a clean breast of the documents if they really do not have any
skeletons in their wardrobes to hide, reference the Exhibits E. C. 11A - E.C
11A2 series referred to supra.”
On Collation
Sheets
Justice
Dotse said that in the course of the testimony by Dr. Afari-Gyan, an attempt
was made by him to introduce some collation forms which was objected to and
upheld by this court. Then further during the trial, it came to light that some
polling stations like the “Finger of God”,
“Juaso Court Hall” and others had more than one pink sheet, and in some
cases triple pink sheets, reference exhibit X, which are pairs of serial
numbers appearing more than once and exhibit Y, duplicate polling station
codes.
“When
the 2nd Respondent’s, rightly in my view sought to tender the
collation sheets for those constituencies for the Court to be satisfied that
not more than the required number of pink sheet results were taken into account
in the collation for those constituencies, the objection was again upheld. This
denied the 2nd respondents the opportunity to explain that not more
than one pink sheet was used to collate the results.”
“I
am however of the opinion that, those objections were upheld because the court
had previously denied the Petitioners the same opportunity when they first
sought to introduce them into the case. For purposes of consistency, the court
persisted in its previous ruling by denying the introduction of the collation
sheets.”
Infractions All
Over
He
said that when the 2nd Respondent’s also sought to introduce pink
sheets from Ashanti Region during the cross-examination of the 2nd
Petitioner, Dr. Bawumia an objection was raised and upheld by the Court which
denied the opportunity to the Respondent’s to tender pink sheets from the
stronghold of the petitioners.
“If
indeed there were similar malpractices and or irregularities and constitutional
violations in other parts of the country, then equity would have demanded that
uniform rules of application be made to apply to all such infractions of the
law.”
Amendment of
Petition
Justice Dotse said it is not for nothing
that the Constitution 1992 and C.I. 74 provided that the petition challenging
the validity of an election should be filed within 21 days after the
declaration of the results by the Electoral Commission.
“If therefore, a Petitioner has not been
able to comprehensively assemble all the allegations which he intends to use
for the petition within the 21 days at his disposal, such a Petitioner should
not be permitted to amend his case as and when he discovers new evidence after
the 21 days has lapsed,” adding “this definitely contributed to delay in the
petition hearing.”
Basis for
challenging Presidential Election
Citing
a number of constitutional provisions that gives the petitioners the right to
challenge the validity of the election of a President, Justice Doste said “I
have had to deal with this subject at some length because it appears to me that all the respondents are of the view
that, because the right to vote is a constitutional right, no court, not even
this Supreme Court has power to invalidate the exercise of that right when
infractions are made not of the voters making but of administrative officials.”
The judge said “I am of the considered
opinion that such a way of thinking is not only absurd but will completely
defeat the provisions in article 64 (1) of the Constitution 1992 which provides
for the challenge of the validity of the
election of a President.”
What
triggered court action
Justice Dotse said “evidence abounds in
this Court that the first point of call by the Petitioners was to send a letter
of complaint to the Chairman of the 2nd Respondents in which they
catalogued a number of irregularities and sought his intervention.”
The judge went ahead to quote verbatim
from the letter written by the 3r petitioner (Jake Obetsebi-Lamptey) to Dr.
Afari-Gyan, when the NPP wanted the EC to hold on to the declaration and
investigate their concerns.
“In the light of the above scenario, it
is my opinion that, the Petitioners were pushed to this court albeit
prematurely by the indecent haste of the Chair of the 2nd Respondent
who took less than a day to address the concerns raised in the above petition
and asked the petitioners to go to court.
“Perhaps, if the 2nd
Respondent had exercised a little bit of tolerance and discretion which are
hallmarks of the type of office which the Chairman occupies, the quick resort
to this court may have been avoided.
“It should also be clear to all and
sundry that time begins to run immediately the Presidential Elections results
have been declared by the chairman of the Electoral Commission. This is further
buttressed by article 64 (1) which provides a 21 day period within which the
petition to challenge the election of the President must be presented. As far
as I am concerned, the petitioners having been pushed to the wall by the 2nd
Respondent, they then had to act timeoulsy to ensure that time does not run
against them.
“In the circumstances I am unable to
accede to learned Counsel for 1st Respondent, Mr. Tony Lithur’s
submissions in this respect, questioning the proprietary or improprietary of
the request considering the independent nature of the Electoral Commission
vis-à-vis the Administrative bodies intended in article 23 of the Constitution
1992.
“I am of the firm conviction that, the
petitioners have lawfully and validly invoked this courts jurisdiction under
article 64 (1) of the Constitution 1992 and this court rightly assumed
jurisdiction in the matter.”
He
described the petition as “a monumental and epoch making era for the Ghana
Judiciary. This is because, for the first time in the history of the 4th
Republic, the Ghana Supreme Court has been called upon to make pronouncement on
whether the declaration made by the Chairman of the Electoral Commission in the
President-Elect Instrument, 2012 (C. I. 80) of 11-12-2012 which declared John
Dramani Mahama, the 1st Respondent herein as having been validly
elected as President of Ghana is sustainable or not.”
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