Justice Sophia O. Adinyira
Posted on: www.dailyguideghana.com
By
William Yaw Owusu
Saturday, September 7, 2013
“With the kind
of peaceful election that we experienced on the two polling days 7 and 8
December are we setting the clock back by a narrow interpretation of electoral
laws? A strict interpretation would curtail and erode the gains we have made so
far.”
This was
contained in the 77-page judgement of Justice Sophia O. Adinyira, one of the
judges who dismissed all the claims brought by the petitioners in the
just-concluded landmark Presidential Election Petition.
In Justice
Adinyira opinion, interpreting the law strictly as a judge would erode the
democratic gains that Ghana has made so far.
According to the
judgement, a narrow interpretation of electoral laws and many other factors
accounted for the reasons why Justice Adinyira together with other Supreme
Court judges dismissed the petition that challenged the validity of the
Electoral Commission’s (EC) declaration of John Dramani Mahama as President.
She
said that “What Ghanaians need to do is to shun and shame the growing violence
that has come about as a result of irresponsible, impudent, disrespectful and
chauvinistic persons, whose unguarded utterances, and machinations at times
bordering on treason are causing disunity in this our dear country all in the
name of politics.”
She
said overturning an election “is a very serious matter,” adding “in order to
uphold the grounds for annulling votes that the petitioners are requesting to
be annulled for irregularities, malpractices and statutory breach, this court
must be satisfied that the petitioners have successfully discharged the onus
they bore right from the onset.”
Justice
Adinyira said that while it was conceivable that the law of elections could be
infringed, especially through incompetence, malpractices or fraud attributable
to the responsible agency, it rested on the person who alleged, to produce the
necessary evidence in the first place and added “I cannot be so satisfied that
the petitioners discharged the burden of proof.”
“The petitioners
relied on pink sheets and no other evidence, and in view of the fact that the petitioners
kept changing categorization, number of exhibits they are relying, admission of
mislabelling and double counting, I cannot be confident that these slips did
not affect their case.”
Justice
Adiyinra’s position on the number of exhibits was shocking because in open
court she said she was satisfied with the exhibits filed by the petitioners
when the respondents refused to disclose the number of pink sheets at their
disposal.
Burden
of Proof
According to
Justice Adinyira, the Petitioners bore the burden of proof to establish that
there were violations, omissions, malpractices and irregularities in the
conduct of the presidential election and that the said violations, omissions,
malpractices and irregularities, if any, affected the results of the election.
“It is after the
petitioners have established the foregoing that the burden shifts to the
respondents, to establish that the results were not affected. The threshold of
proof should, in principle, be above the balance of probability.”
Documentary
Evidence
The Petitioners
by their initial petition alleged that the stated irregularities occurred at
4,709 polling stations. It was later amended to indicate that, the irregularities
occurred at 11,916 polling stations. The Petitioners further reduced the number
to 11,842, 11,138, 11,115, 10,119 and finally 10, 081 polling stations.
She said that
the respondents throughout the trial disputed the exact number of pink sheets (11,842,
11,138, 11,115, 10,119 and finally 10, 081 polling stations) the petitioners
allege the irregularities could be and insisted that they were served with a
lower number and also cited instances of duplication in the exhibits they
received.
She said the disagreement
compelled the court to appoint an independent referee to count the pink sheets
involved.
Voters
Register
According to
Justice Adinyira, the petitioners cited variations in the register used at the
polling stations and double registration as factors of illegality in the
conduct of the Presidential election.
She said the EC
though conceded that there were instances of different figures in the register
as well as instances of double registration, the commission had been able to
explain itself in court that they did not affect the outcome of the election.
She also said
that those persons whose data appeared in the register could only vote once due
to the use of biometric verification as explained by the EC.
Interestingly
the Justice Adinyira ruled against voting without biometric verification,
meaning making it difficult to detect double voting if indeed it occured.
She said she was
dismissing the petitioners claims because as a demonstration of transparency in
the electoral process leading to the elections, an Interparty Advisory
Committee (IPAC) was established with the purpose of achieving consensus in
managing the elections which was to be organized under the auspices of the
Electoral Commission and the EC had series of meetings with IPAC at various stages
in the electoral process.
“The political
parties and the public were fully informed by the EC about the voter
registration exercise and the various steps taken to assure the integrity,
accuracy, impartiality, efficiency, simplicity and security of voter
registration. The print and electronic media covered the process.”
“Despite these
few setbacks, I find that the EC had conducted its affairs professionally and
transparently to produce a clean, credible and reliable voters register.
Information regarding the voters register is available on the EC’s Website. From
the foregoing I hold that the petitioner’s complaint that the compilation of
the voters register had an adverse impact on the 2012 December Elections cannot
be sustained.”
Constitutional
and Statutory Violations
Commenting on
constitutional and statutory violations, Justice Adinyira said per the evidence
before the court, the petitioners made no allegation of misconduct against
voters and the 1st and 3rd Respondents.
“The allegation
of collusion by the EC with STL was dropped. Allegation of vote padding was
dropped. The violation and irregularities complained about were as a result of
lapses on the part of presiding officers and polling/counting agents.”
“The election at
the polling stations was conducted by presiding officers and polling assistance
on behalf of the EC, and supervised on behalf of the candidates by their
appointed polling and counting agents. It is therefore pertinent to set out the
role of the presiding officer, the polling agents and counting agents on
Election Day.”
Role
of Presiding Officers and Polling/Counting Agents
She said Article
49 of the constitution articulates the constitutional roles of polling agents
alongside presiding officers at public elections.
After quoting expressly
on the whether or not a Presiding Officer needed to sign pink sheets to make
the results of an election in a particular polling station valid, she concluded
that “I notice that no mention is made of the signing of a declaration form and
giving a copy of the pink sheet to the candidate or his or her agents. This
omission is not fatal as they are covered by Article 49 (3) and Regulation 36 3
(b).”
She said Regulation
19 of C.I. 75 provides for the appointment and role of polling agents and
cannot be described as “mere or exalted observers” as claimed by the petitioners.
She also
appeared to put Presiding Officers and polling agents on the same level as far
as their roles are concerned saying “It is clear from the constitutional and
statutory regulations that the polling agent forms an integral part of the
conduct of the polls on Election Day. He has before the polls sworn to the same
oath that the presiding officer and polling assistance have sworn to abide by
the laws and regulations governing the conduct of the election.”
Absence
of signatures of Presiding Officers
Justice Adinyira
said “this category of irregularity is outside the voter’s control, and is
caused solely by the error or omission on the part of the presiding officer.”
“ Article 49 (3)
supra,
and Regulation 36 (2) suprarequires the presiding officer,
the candidate or their representatives to sign a declaration stating that the
results are a true and accurate account of the poll at that polling station,
the name of the polling station, the total number of votes cast in favour of
each candidate and the total number of rejected ballots.”
She said that there
was evidence that some forms were unsigned by the presiding officers and the
party agents but she found the petitioners argument misplaced since according
to her, the words the ‘polling agents if any’ in the law was taken out of
context.
“To single out
the words ‘the polling agents if any’ without reference to the remaining words
in section 49(3) of article 49 would be a totally wrong approach to the interpretation
of that subsection,” adding “for it is important in interpreting a provision of
a statute to take account of all the words used since the legislature is
presumed not to have used the words unnecessarily.”
“Contrary
to the petitioners submission, the language of Article 49 (3) does not speak or
imply that polling agents are required to sign the declaration form as
witnesses to the signature of the presiding officers. A polling agent who
represents the candidate is obliged to sign the declaration together with the
presiding officer.”
“Both
of them have the same obligation to certify the regularity of the conduct of
the poll in accordance with the laws and regulations. That is why the polling
agent has to pay attention to the sorting and counting of the votes and
rejected ballots have to be shown to him and he is entitled to object to the
rejection of a ballot paper.”
“It
is noteworthy that in a majority of the pink sheets where there is no presiding
officer’s signature the polling agents of the two contesting parties signed the
pink sheets, because they are required by the constitutional and statutory
regulations to do so.”
Justice Adinyira
said no evidence was adduced to show that the noncompliance were premeditated
and carried out by the presiding officers who were agents of the 2nd
Respondent, with the intent of causing prejudice to any particular candidate or
change the election’s outcome or to render it uncertain.
“Courts usually
apply the election code to protect—not defeat—the right to vote. Public policy
favours salvaging the election and giving effect to the voter’s intent, if
possible,” she added.
“I am conscious
of the role of this Supreme Court to interpret and enforce the Constitution,
which is one of its underlying concepts of the Constitution. Ghana has
progressed immensely in electoral laws and processes and we are in fact the
beacon of light in Africa in the conduct of elections.”
“Gone were the
days when counting was not done at the polling station but taken to a collation
centre that led to abuses like ballot stuffing and in extreme cases dumping opponent’s
ballot boxes.”
Voting
without biometric verification
She said that Regulation
30 of Public Elections Regulations, 2012, C.I. 75 sets out procedures that a
voter goes through before casting his/her vote in accordance with article 42.
Justice Adinyira
held that the BVD is not only for fingerprint identification but also for face
or picture verification by these wiping of the bar-coded identification card on
the machine.
“On Election Day
every voter with an ID card had to go through face verification before those
who are not listed as ‘Face Only’ went through finger print verification. The
system made special provision for those without fingers and fingerprints to be
verified by face only and such data is captured on the BVD machine as well as
on their voters ID card,” she said.
She held that
the sub-regulation (2) of Regulation 30 which provides that: ‘(2) [T]he voter
shall go through a biometric verification process’ “is therefore misleading as
a strict implementation of it would disenfranchise all persons who cannot go
through fingerprint identification.”
“In any event,
the compilation of a new voters register using biometric technology, plus the
mandatory use of biometric verification devices on polling day, as provided by
both C. I. 72 and C. I. 75 respectively, were the necessary mechanisms lawfully
put in place to enhance the integrity of the ballot in Ghana.”
She said that “what
has weighed on me to come to this conclusion is that the EC during the
registration exercise made special provisions to ensure that persons who
because of trauma cannot go through fingerprint verification are not
disenfranchised by being verified by face only.”
She said the petitioners
did not provide any evidence about any complaint lodged by the 1st
Petitioners polling agents in prescribed form or affidavit evidence as to
people voting without biometric verification, adding “on the face of the pink
sheets none of the NPP polling agents attested there was no biometric
verification of voters at the polling station.”
Justice Adinyira
said the account of the origin of the column C3 was unchallenged and said “I
find the EC’s explanation that the column was created to take care of persons
who had been registered during the biometric registration exercise that
preceded the election but whose biometric data was lost due to technical
hitches, plausible.”
She said that even
though the1st Petitioner had polling agents at all the 26,002 polling stations
there was not a single complaint of non-verification by BVM filed by any of
them.
She said the petitioners had polling agents at all
the 26,002 polling stations yet they did not produce a single affidavit
evidence to support their allegation that some voters did not go through finger
verification before voting.
“They also failed to apply to have any of the
witnesses of the 3rd Respondent to be cross-examined to test their
credibility. Having failed to call a single person for cross-examination, the
Petitioners cannot turn round to say the evidence was untested,” she added.
Justice Adinyira
held that the fact that elections were postponed to the next day due to failure
of the BVD machines attested to the fact that all who voted went through
biometric verification saying “from the foregoing I hold that the petitioners
have not discharged the burden of proof and this category also fails is hereby
dismissed.”
Over
Voting
Tackling the
claim of over voting, Justice Adinyira said nowhere in the petition or in the affidavit
of the 2nd Petitioner was it alleged that any voter voted more than
once, thus infringing the one man, one vote principle, adding “the petitioners
did not lead any evidence to prove that someone voted more than once in the
elections.”
There is some divergence
of opinion between the parties about what constitutes over-voting. Petitioners
claim there are three definitions saying “usually over-voting occurs primarily
through impersonation, multiple voting and stuffing of ballot boxes.”
She said that the
adoption of biometric registration was expected to have reduced to the barest
minimum impersonation and multiple voting and the use of finger print
verification and the marking of a voter’s finger with indelible ink before
casting his/her vote, use of transparent boxes placed in full public view were
measures to eliminate voting malpractices.
“This is one
area that the burden of persuasion weighed heavily on the petitioners as
election results benefit from a presumption of regularity. This reflects the
fact that the Petitioner bears the burden establishing, on a balance of
probabilities, that there was irregularities that were so substantial that it
affected the results of the election.”
“It happens that
the species of evidence the Petitioners relied upon were the entries on the
pink sheets. As Dr Bawumia stated he headed a task force whose duties, ‘was to
examine the election records in search of technical administrative errors in
the hope of getting a second chance’.”
By this method
the Petitioners capitalized on errors made in the entries in the statement of
polls form.
She said that there
were mistakes in the entries of ballot information, information about the
register, ballot accounting, rejected ballots and tallying of votes in ballot
boxes adding “there were silly arithmetically errors that was capable of being
detected by a simple scrutiny of the columns.”
Justice Adinyira
said the petitioners capitalized on entries in C3, which the court has held by
a majority decision that the entries were made in error as no one was verified
by Form 1C and accordingly such entries could not be used as basis for
over-voting.
“It seems to me
that Dr. Afari-Gyan and Mr Asiedu-Nketiah demonstrated that it is misleading
for the petitioners simply to look at the entries on the face of the pink
sheets without checking the figures against other available and reliable
information contained in the voters register, ballot booklets and even the
biometric verification device which recorded the number of people who were verified
and thus entitled to vote before coming to a conclusion that there was over
vote.”
She said she was
not convinced that no entry in B1 by itself was evidence of over-voting without
establishing the number of registered voters at the polling station. The number
of registered voters could be easily verified or ascertained from the Voters
register of the particular polling stations which every candidate /party had
copies.
She said the
‘classic’ definition of over voting as given by Dr. Afari-Gyan is “where the agreement
ends.”
She held that the
openness of the environment, with the presence of polling agents, the media and
in some places observers made up of civil society, domestic and international
observers and security personnel prevent malpractices at polling stations such
as violence and intimidation.
“The only thing
that is not done in the open but done in secret is the marking of the ballot
paper to preserve the sanctity of secret ballot as enshrined in Article 49 (1),
and the UDHR Article 21.3”
“We take judicial
notice of the fact that there was immense pressure on the presiding officers,
election officials and even the polling and counting agents on the day of the
elections, the majority of whom has no previous experience in election
procedures. The EC officials and
presiding officers may have made some clerical errors; but there is no evidence
upon which mischief or advantage can or should be attributed thereto. This is
not a phenomenon peculiar to Ghana alone.”
She said that
the petitioners led no evidence on events at the polling stations except by one
affidavit evidence of one Peter Awuni, a parliamentary candidate for the NPP,
that the 2nd Petitioner annulled the results of Kuligona, Nanyeri,
Bongni and Langbesi Police Station polling stations, in the Nalerigu- Gambaga
constituency because the ballots counted at the polling stations exceeded the
number of persons verified by the BVD by one or two people.
“In seeking to
annul votes, it needs to be clear which polling stations are being called into
question. The confusions about exhibits have undermined their case. As there is
insufficient clarity on the polling stations in question, the attempt to annul
certain votes cannot even get off the starting blocks.”
Subtle
Admission of over voting
“Moreover, the
few instances of over-voting that was demonstrated during the hearing, going by
the average of those votes; there is no mathematic chance that the results in
those polling stations would change the outcome of the results at the polling
station.
“Even if the
aggregate of the actual over-vote in polling stations where over votes is
established and proportionally deducted from the votes of each candidate, it
would not affect the results. Even if they are deducted from the winning
candidate’s vote it would still not affect the votes.”
She said “my
brethren who took the position that there was over- voting and so the votes are
to be annulled for a re-run of polls in the affected were unable to ascertain
and provide the total number of over votes from the pink sheets for me to
change my position on this claim.”
She said “the
Petitioner could not establish to my satisfaction whether the number of votes
cast in these polling exceeded the number of registered voters as indicated in
the Voters Register. They had copies of those registers but only produced one
to show there was double registration at the Mampong Anglican School.”
“The Petitioners
have not led sufficient evidence for me to come to the conclusion that there
was clearly a mathematical chance that the results could change then the votes
would have to be annulled and a re-run held. But then in many instances the
over-voting was either one or two, and certainly that cannot lead to annulment
of the entire votes.”
“Dr Bawumia
referred to a statement made by Dr Afari-Gyan before the election that if the
ballots are counted at the end of the day and it is found that even one ballot
exceeds what was issued to voters verified to vote; the results of that polling
station would be annulled.
“I find this
pronouncement disturbing as it is not based on any statute or any
constitutional instrument made by him as he is empowered to do under Article 51
of the Constitution. The directive that an over vote by one ballot would
invalidate the whole results of a polling station when despite the over
vote a winner is clearly ascertainable,
is contrary to both the letter and the spirit of the Constitution and
contravene articles 42 on the right to vote.”
Conclusion
Concluding, Justice
Adinyira said that “in my attempt to resolve these electoral issues, although
there may be an unlimited number of ways to guide me, the fundamental one, in
my opinion, is fidelity to the terms of the Constitution, and of such other law
as objectively reflects the intent and purpose of the Constitution, to uphold
the right to vote, and the enfranchising objective of the Constitution.”
“Using the
yardstick of the principles of Electoral Justice, I am satisfied that the
elections were conducted substantially in accordance with the principles laid
down in the Constitution, and all governing law; that there was no breach of
law such as to affect the results of the elections; and that the said elections
do reflect the will of the Ghanaian people.”
“I accordingly
hold that John Dramani Mahama was validly elected as the President of Ghana.”
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