Justice Paul Baffoe-Bonnie
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Thursday, September 12, 2013
“It is my considered opinion that even
if any or all the categories of irregularities as identified by the petitioners
are upheld the results ought not be annulled, since the said infractions are
not traceable to the millions of people who will be disenfranchised.”
This was contained in the 34-page
judgement of Justice Paul Baffoe-Bonnie, one of the judges who dismissed almost
all the claims brought by the petitioners in the just-concluded landmark
Presidential Election Petition.
He instead of
annulment, rather the results should only be cancelled as having been
compromised or tainted by administrative lapses.
“In that case we
should not cancel the whole election (including the uncompromised parts), nor
should the election be called based only on the remaining untainted votes, as
being suggested by the petitioners, but the voters and polling stations whose
votes are cancelled as a result of the administrative lapses must be given the
second chance to exercise their constitutionally guaranteed right to vote
before the final results are declared.”
Right To Vote
He said “the petitioners’
novel legal theory of annulling so called tainted votes that would permit a
segment of the population ie. some 4 million voters, to be disenfranchised
finds no place in a democracy built upon principles of inclusiveness, equality,
and citizen participation.”
“The right to vote and thereby partake
in governance and decision making has been fought for by some democrats from of
old. Some have paid the ultimate price to ensure that no category or class of
people are disenfranchised.”
“It is not too
long ago that the blacks of South Africa were given the right to vote. The same
thing applies to USA. In some countries women were given the right to vote not
too long ago. We in Ghana have had the universal Adult suffrage since
independence. Even though some countries prohibit prisoners from voting, in
Ghana we don’t.”
“This is how far
we have come in our quest for democratic governance. We should do everything
possible to protect this right. And the least we could do is not to
disenfranchise people through technical or administrative lapses over which
they have no control. It is my opinion that the basis of the petitioners’ claim,
i.e. the declaration of the First petitioner as winner after annulment of some
4 million votes, is completely flawed.”
Absence
of signatures of Presiding Officers
He said that it
was the contention of the petitioners that failure to sign by the presiding
officer is an infraction that should lead to the annulment of votes saying “this
is because according to them once the signing is mandatory the consequence is
that the votes do not become valid without the signature.”
“I do not think
so. Though the article makes signing mandatory, it does not prescribe any
consequences for failure to sign. Looking at the said article critically, the
word shall as used go to show the sequence of events or series of things that
have to be done. And here the sequence is shall sign, shall there then announce
the results before forwarding same to the presiding officer.”
“The article
only uses the word shall to denote a series of things to be done and the
sequence in which it should be done. Failing to do it the way suggested by the
article makes it an irregular performance of duty.
He said that “it
is an irregularity that does not go to the roots. Then the question that has to
be asked are (1) has anybody been specifically adversely affected by this
irregularity that should lead to an annulment or even cancellation of votes
regularly cast?”
Justice
Baffoe-Bonnie said that the court’s attention had been drawn to its recent decisions
where the court strictly interpreted the word ‘shall’ in Article 181 of the
constitution and concluded that failure to secure parliamentary approval for a
loan was fatal as provided by the constitution.
“To strictly
interpret this article the way the petitioners are seeking to do is to take the
importance away from the voter and giving same to the persons who run the
elections. If the absence of the single signature of the presiding officer can
lead to the annulment of the votes of hundreds of thousands of voters, then the
election ceases to be about the voters and shifts to the presiding officer.”
“So that if a
presiding officer, either from pressure of work, oversight, or plain mischief
fails to sign, then fatally, hundreds of voters are disenfranchised. Again a
corrupt politician needs only to team up with a few hundred presiding officers
in an opponent’s stronghold, and bingo! fortunes are turned. This will be
carrying strict interpretation to absurd limits.”
Justice
Baffoe-Bonnie acknowledged an affidavit by a witness for the petition that
sought to explain the absence of signature on a pink sheet saying “this
affidavit put in by the witness of the petitioners is self-explanatory. The
witness did not sign the pink sheet at the polling station as required and he
was later tricked by the representative of the 2nd respondent to
sign.”
“Ostensibly,
this affidavit was put in to show that some pink sheets were not signed at the
polling stations and that long after the results had been declared the 2nd
respondent was clandestinely seeking to sign pink sheets.”
“It is my
considered view and I hold that non-signing by the presiding officer is a mere
irregularity that does not go to the root of the matter. It did not affect the
conduct of the polls and therefore should not lead to the annulment or even
cancellation of votes. The petitioners claim on this ground is dismissed.”
Over voting
According to Justice
Baffoe-Bonnie, all the figures that the petitioners are asking to be annulled in
relation to over voting are verifiable from the face of the pink sheets.
He said the
respondents disputed the three tier definition of over voting and said the
classical definition of over voting was where the ballot papers actually exceeded
the number of persons actually registered at the polling station.
“Even then when
it comes to over voting the pink sheet may not be the primary or only source of
information. And that if figures on the pink sheet indicates that the ballot
papers found in the box actually exceed the figure written for the number of
registered voters, one will have to cross check from the actual register of the
polling station.”
“It might well
be that the presiding officer might have made a mistake when writing the figure
of number of registered voters. MrAsieduNketiah for the 1st and 3rd
respondent denied the possibility of over voting and said this could be due to
the presence of foreign object in the ballot box which is weeded out at the
sorting out stage. In their estimation therefore there was no over voting and
so this category should also be rejected.”
“I do not think
the petitioners are describing overvote as objects found in the ballot box. I
cannot see how a foreign object as described by the witness be counted as
overvote. If an aggrieved votes tears off an A4 sheet and writes on it THEY ARE
ALL GREEDY BASTARDS, and places same in the ballot box, it is a foreign object.
This is not the type of paper that will feature in the petitioners overvote
column. My understanding of the petitioners over votes is that it relates to
the votes declared for candidates and those rejected for cause. That will be
A+B in the last column on the pink sheet against any of the columns already
mentioned.”
Accepting Petitioners Definition
“Seen this way I
must say that that I agree with the petitioners definitions of over voting. But
this expanded description of over voting is what runs the petitioners into
problems and that led to the two often touted mantras; ‘you and I were not
there” and “on the face of the pink sheet’.”
Pink Sheet As Primary Record
“I have no doubt
at all that the pink sheet is the primary source of information at the polling
station, after all it is the information on the pink sheet that is collated and
form the basis of any or final declaration.
“But I
definitely do not agree that other sources may not be referred to for
information if any doubt arises. Each polling station has the official
register, and each polling agent has the polling station register. So if the
question B1 has a blank, answer the correct figure is ascertainable from other
sources. There should not be the rush to declare over votes just because on the
face of the pink sheets the column shows blank.”
“I have noticed
that the petitioners have identified some 180 pink sheets where C1=blank or
C1=0. The votes tally on that list alone is over 93,000 votes. There were also
several pink sheets in this category which clearly on second look did not
reflect over voting.”
While in the
box, Dr Bawumia admitted to several such pink sheets which they had originally
selected to contain over voting, actually did not reflect over voting upon
second look.
“There were some
pink sheets on which errors had apparently occurred as a result of carbonation,
For example there were some pink sheets on which in the figures column two
candidates were said to have received 11, but in the words column it was “one”.”
“Aside of these
many errors which may be described as clerical, there were also very many pink
sheets which recorded cases of actual overvoting.ie where rejected ballots and
valid votes put together were more than
persons actually verified to vote.”
“However sifting
the ones actually affected by over voting from the many affected by the many
clerical errors, one is left with very few pink sheets whose results will not
impact positively on the outcome of the overall results. I will therefore
dismiss the claim on account of this ground.”
Voting Without Biometric Verification
Tackling the
petitioners claim on voting without biometric verification, Justice
Baffoe-Bonnie said that “The nation spent a lot of time and energy registering
eligible voters biometrically,” adding “There appeared in the political
landscape the popular slogan “NO VERIFICATION, NO VOTING.” C.I.75 Reg. 30(2)
this slogan.”
“Be that as it
may, constitutionality or otherwise, all the parties went into the general
election with the understanding that no verification, no voting. The whole
concept of biometric registration and verification before voting had been
introduced as a way of reducing to the barest minimum if not eradicate
completely, the incidence of claims of double voting and impersonation that
crop up after every election.”
“Indeed at one
of the numerous press conferences the electoral commissioner made it clear that
at the end of the polls, where the votes
cast exceed the number of persons verified to vote by even one vote, the results
of the said polling station will be cancelled.”
“The petitioners
have tendered quite a number of pink sheets on which this question had been
answered with figures and even sometimes figures reflecting the total number of
voters who cast their ballots in that polling station, indicating that every
person voted without being verified by the biometric devise.”
Justice
Baffoe-Bonnie said that the respondents agreed that the slogan NVNV was
actually coined for the election and was indeed used adding that they had
argued that nobody voted without being verified by the BVD.
“I do not think
that the petitioners failed to discharge the burden placed on them. As was said
in the beginning like any civil action the petitioner bears the burden of
proof.”
He said that the
onus was therefore on the petitioners to prove that some voters voted without
going through the BVD.
“We are told
that the BVDs still have embedded in their memories data reflecting the number
of voters that were actually verified by each machine. These devices are still
in the custody of the 2nd respondent. One would have thought that
the memories of the BVDs could have settled this problem. But they never felt
it necessary to tender them in evidence.”
“In the absence
of any credible explanation it is my opinion that the petitioners have
discharged the burden of proof placed on them. In spite of the agreement on the
NVNV, and despite Reg. 30(2) of CI 75, some people were allowed to vote without
verification. Viewed against the backdrop that some people were actually
prevented from voting because they could not be verified, to have allowed
voting in some polling stations was discriminatory and should lead to
cancellation of their votes.”
“I will
therefore uphold the petitioners claim on this ground only to the extent that
those voters that have their votes cancelled should have the chance to recast
their votes lest they be disenfranchised.”
The Order
“I dismiss the
petitioners claim to annul votes on account of claim of duplicate serial
numbers as frivolous,” adding “I dismiss the petitioners claim that votes
should be declared invalid on account of the non-signing by the presiding
officer. To disenfranchise hundreds of thousands of voters (through no fault of
theirs) because a presiding fails to sign will not have a place in modern
democratic governance.”
“I uphold the
principle that once over voting is detected in a polling station the elections
there are compromised and should be cancelled but the voters there should be
given a second chance to cast their votes.”
“However I find
that in view of the admissions made by the 2nd petitionerwith regard
to some pink sheets and the many clerical errors, I find that the number of
pink sheets affected in this category has so reduced that they votes affected
are not too significant to make any impact even if they are cancelled. I dismiss
the claim on this ground too.”
“I hold that the
petitioners have discharged the burden of proof on them that voting took place
in some polling stations without prior biometric verification. This was
discriminatory since other persons had been turned away for their inability to
be verified. All those stations affected by this phenomenon should have their
votes cancelled and the voters given a second chance to vote again.”
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