Justice Vida Akoto-Bamfo
Posted on: www.dailyguideghana.com
By
William Yaw Owusu
Tuesday September 24, 2013
Justice Mrs. Vida
Akoto-Bamfo, one of the judges who dismissed all the claims brought by the
petitioners in the just-concluded landmark Presidential Election Petition,
appear to de-emphasize the importance of pink sheets in elections in her
judgement.
Dr. Afari-Gyan declared
John Dramani Mahama winner of the December 2012 using results recorded on
Statement of Poll and Declaration of Results forms popularly called pink sheets
as basis for the declaration.
However, in Justice
Akoto-Bamfo’s opinion, pink sheets cannot solely be relied on without recourse
to the register or the verification machine if one wants to trace incidence of
over voting or voting without biometric verification, two of the claims that
formed the basis for the petition.
Justice Akoto-Bamfo also held in her 21-page
judgement that there would be perpetuation of injustice on the people if the petitioners
request that because some Presiding Officers failed to sign pink sheets the
results should be annulled, was granted.
“Should any dispute
arise as to whether persons who cast the ballot did exceed the number on the
voters register, disregarding the register, the genesis of the pink itself will
result in an error,” she held when dismissing the claim of over voting.
“Although it is not
disputed that the pink sheet was the basic document for the elections it cannot
however, be said to be conclusive. It is important to note that an election is
not an event, but a process and that the pink sheet derived its source from the
Biometric Voters Register. It should therefore be the reference point for a
discussion of any issue under this category,” she added.
She also said that “therefore where a
dispute arises as to whether a voter had been verified, the best evidence
should be the verification machine. Even if the pink sheet were the primary
document, it is not conclusive; for it is
my respectful view that prints
out from the verification device would have put to rest any arguments as to whether
those persons went through the verification process or not,” Justice
Akoto-Bamfo held.
Defending the failure of Presiding
Officer to sign pink sheets, Justice Akoto-Bamfo said “in my view, visiting the
sins of some public official on innocent citizens who have expressed their
choice freely would run counter to the principle of universal adult suffrage,
one of the pillars of our democracy, and perpetuate an injustice.
According to Justice Akoto-Bamfo, it
should not be for the court to determine who occupies the highest office of the
land, the presidency, but rather the citizenry must have that preserve.
“Government, in a
democratic system of governance, derives its life from the people and that
sacred nexus is made manifest in the electoral system. Among the fundamental
precepts in a democracy is the ability to hold periodic free and fair elections
together with an effective judicial oversight, bearing in view however, that,
as a basic principle, it should not be for the court to determine who occupies
the highest office of the land, the presidency; it the preserve of the citizens.”
“Elections therefore
offer the citizenry the opportunity to express their satisfaction or otherwise
with an incumbent leader or a political party, it is no wonder that this
challenge, arising out of the exercise of those rights, has caught the
imagination of all Ghanaians.”
Over
voting
Touching on over voting
Justice Akoto-Bamfo held that it was clear in circumstances that the total
number of polling stations under the category had been reduced by at least 2 by
virtue of the KPMG Report; “neither the 128,262 nor the 130,136 could have
remained unchanged.”
“In Court Dr. Bawumia
testified that there had been a number of deletions. He tendered various lists
of deleted polling stations. Under Exhibit C-C1-C11, he listed 44 polling
stations under this category as having been deleted. These deletions would
certainly have affected the number of
votes to be annulled. Subsequent thereto another list of 704 polling stations
was tendered as Exhibit D.”
“Clearly the number of
polling stations to be affected, and more importantly, the numbers of votes to
be affected would see a reduction. One has to bear in mind that numbers are of
the essence since they must be used to measure the effect of the irregularity,
if any. In this instance however, one cannot determine with precision the
number of votes in issue.”
“It bears stating that
whereas the 2nd respondent denied that there was over-voting; the 3rd
Respondent did not only deny but went further to assert that there were patent,
clerical and sometimes arithmetical errors in the recording which had no
material effect on the actual votes publicly cast, sorted counted and recorded
(Paragraph 15(iii) of the affidavit of Johnson Asiedu filed on 15th
April 2013).”
Defining
over voting
Justice Akoto-Bamfo
said that even though, in the main, the various definitions offered by both the
petitioners and the respondents placed emphasis on the register and ballot
paper; the petitioners limited themselves exclusively to what appears on the
face of the pink sheet.
“I am fortified in this
view by the fact that all the political parties were given copies of the voters register which
the various polling agents of the major political parties carried t to the polling
stations on the days the elections were held. These pieces of evidence were not
challenged.”
“Indeed it is common
knowledge that the polling agents who were at the polling stations checked the
names of persons who were verified and issued with the ballots. Having regard
to their role as watchdogs to check impersonation, multiple voting and
certification of the results (they had the right to protest by refusing to sign
the pink sheet) as provided for under C. I. 75 Regulation 19 (3) coupled with
the voting procedures, publicly sorting and counting etc; it would not be safe
to rely solely on the entries on the face of the pink to establish the
incidence of over-voting.”
She said that should
any dispute arise as to whether persons who cast the ballot did exceed the
number on the voters register, disregarding the register, the genesis of the
pink itself will result in an error.
“Indeed there was ample
evidence that several errors were made by the presiding officers in making the
entries. Many of the entries were made in error.”
She held that in some
cases, columns were wrongly filled, others were left blank; while yet in
others, the figures and words hardly matched adding “it was evident that some
of the errors could simply be corrected by entering the figures in the right
columns. Others were sheer were errors in the arithmetic.”
“Dr. Bawumia left the
Court in no doubt that the petitioners were
relying solely on the pink sheet to establish cases of over-voting, for,
he averred that there were neither protests nor complaints lodged, in terms of
the complaints procedures laid out in
the governing statute at the polling stations.”
“Having regard to the
fact that credible evidence was led to show that statistics of ballots issued
by the 2nd Respondent to each Region, Constituency and Polling
Station were provided to all the political parties whose agents were at the polling station and
ticked the names of those verified (in these elections) I am of the view that over-reliance on the pink sheet in the face
of errors detected clearly led to a dead end , for one cannot use wrong
assumptions or data to arrive at the
right conclusions.”
Justice Akoto-Bamfo
held that “certainly such multiple inaccuracies cannot be the basis for a
finding that there was over-voting. Owing to the mistakes, the pink was
manifestly unreliable as a basis for establishing the phenomenon of over
voting.”
She said that “none of
the polling agents made a report of any irregularity; no evidence was led on
ballot box stuffing. And more importantly the ballots were cast and their
polling agents attested to the results.”
“While the presiding
officers obviously did make some mistakes and clerical errors, no mischief or
advantage can be attributed thereto. Substantially the voting, counting and
tallying of votes were carried to a high degree of accuracy.”
Justice Akoto-Bamfo
concluded on over voting that the questions of which polling stations were
affected and how many results have to be annulled were questions that the
petitioners failed to answer under the category of over voting and therefore
declined the invitation to annul any votes under the category.
Absence
of signatures of Presiding Officers
On absence of
signatures, Justice Akoto-Bamfo said that even though the petitioner has
claimed some of the pink sheets were unsigned by some Presiding Officers, the
respondents essentially did not deny that in some cases the Presiding Officers
failed to sign the pink sheets.
“Indeed the 2nd
respondent tendered Exhibit SA4, a National Summary by Region Results of sheets
not signed by the Presiding Officers. According to the said Exhibit, 905 of the
pink sheets were indeed not signed by the Presiding Officers. Of the2009 of the
pink sheets the petitioners claimed were not signed by the presiding officers,
1, 989 were signed by the agents of the candidates.”
“Having admitted that
there were at least, 905 polling stations in which presiding officers failed to
append their signatures, the petitioners were relieved of the duty to call
further evidence on the issue.”
“Article 49 is couched
in mandatory terms. Undoubtedly it is an entrenched provision, which can
properly be amended in accordance with the procedure set out under Article 290
of the Constitution. Article 49 sets out in detail the duties of the presiding
officers and the polling agents immediately after the close of the poll in any
public election or referenda. Under Article 45(c) of the Constitution, the
Electoral Commission is vested with the power to conduct and supervise all
public elections and referenda.”
“Article 51 stipulates
that the 2nd respondent shall make regulations for the effective
performance of its functions; particularly for the conduct of public elections
among others.”
“It is evident that
even though Article 51 vests the power in the E.C to make regulations for the
conduct of the elections; it is only under Article 49 that the steps to be
followed by the presiding officers and the polling agents, after the close of
the polls, are set out in detail.”
Justice Akoto-Bamfo said
that since the provision is couched in mandatory terms, clearly where the
signature of the presiding officer fails to appear, it does not admit of any
argument, on a literal interpretation, of the said article, that there has been
a breach and therefore the results ought to be nullified.
“However, it has been
held in a long line of decisions that a strict, narrow, technical and
legalistic approach to interpretation of the Constitution, the embodiment of
our hopes and aspirations, must be avoided.”
“Was it the intention
of the framers of the Constitution that persons who have exercised their rights
under art. 42 by going through the electoral procedures, registered as
voters, had their names on the register,
participated in the election by casting their
votes which have been publicly
counted, recorded and announced, should
have such votes not ‘counted’ on account of the sins of one public officer?”
“We have freely chosen
the democratic form of governance in which sovereign power resides in the
people as a whole. Under that system each citizen must be afforded a genuine
opportunity, through the conduct of free and fair elections, to determine who
his leaders or representatives should be.”
“An election being a
process as opposed to it being an event, where all the stages have been gone
through and therefore the elections could be said to have been substantially
held in accordance with the regulations, to nullify the results on this ground
per se, would amount to putting in the power of some unscrupulous presiding officer
in some polling station to nullify the solemn act of the whole constituency by
his single act of omission.”
She said that since the
Constitution requires that both the Presiding Officers and polling agents
sign, looking at their duties; and
obviously the reason for signatures in terms of the credibility of the
process i.e. the polling agent vis a vis
the presiding officer, in the event of the presiding officer’s failure to sign
, “a purposive interpretation would not defeat the objectives of Article 49(3)
in that even though the Presiding Officer had failed to sign, the polling
agent’s signature, to my mind, is a bold declaration for the integrity of the
whole electoral process.”
How
She Sees Polling Agents
Justice Akoto-Bamfo appears to put the
role to be played by the Presiding Officer and the polling agent on the same
level saying “the notion that polling agents are ornamental pieces adorning the
polling stations must be discarded.”
“Their roles are clearly defined by the
Constitution and other statutes governing the elections. A vigilant polling
agent would detect some of the wrongful acts at the polling station. He could
then set in motion the complaint mechanism in the governing statute, designed
at addressing the complaints, at the polling stations or collation centers’
with minimum delay. This costly exercise of combing through a mountain of
election materials, with a view of unearthing irregularities, well after the
declaration of the results, would be greatly reduced.”
Voting
without biometric verification
Touching on voting
without biometric verification, Justice Akoto-Bamfo said “it is obvious that
the petitioners simply went through the pink sheets and totaled all the figures
in Form C3.”
“The issue is whether
that sole exercise discharges the burden placed on the petitioners, in terms of
Sections 10 and 11 of the Evidence Act, 1973.
Dr. Afari-Gyan in his
testimony stated that the column C3 was not required to be filled by the
presiding officers.”
She said that “even if the pink sheet
were the primary document, it is not conclusive; for it is my respectful view that prints out from the verification device would
have put to rest any arguments as to whether those persons went through the
verification process or not.”
“It is to be noted that when the
petitioners made the allegation which was denied by the 2nd
respondent, it was not enough for the 2nd petitioner to have mounted
the witness the box and repeated the averments since those facts are capable of
proof by some other means i.e. producing the prints out of the machine as a
form of proof. It could be argued that since the evidence led was documentary,
parole evidence was inadmissible to vary or contradict same.”
“That there are
exceptions to the rule is beyond doubt. Dr. Afari-Gyan tendered the form 1.C.
With the introduction of the said document the question in C3 became
meaningful. It became obvious, that one could not answer the question in that
column without any reference to E. C. 5 which were not taken to the polling
stations, in other words, E, C. 5 was consistent with the contents in C.3.”
She said that the 2nd
respondent was emphatic that no person voted without being verified and, that,
while admitting that there challenges with the equipment, voting in those areas
were adjourned to the next day in those areas.
“It is a notorious fact
that the poll was adjourned in some areas and therefore there were two days of
voting. If persons were allowed to vote without verification would there have
been any need for the adjournment? I think not. In the absence of any credible
evidence to the contrary (some polling agent or voter testifying) I would
prefer the pieces of evidence of the respondent’s on this issue to the bare
assertions of the petitioners based on the face of the pink sheets.”
“It became obvious that
the attack mounted under that category was premised on a misconception and
therefore impossible to stand. I would accordingly decline the petitioner’s
invitation to annul the votes under that category.”
Duplicate
Serial Numbers
“Under this head the petitioners request
that 3,508,491 votes be invalidated. In answer the respondents asserted that
the serial numbers had nothing to do with the Declaration Form; that its unique
features were the name of the polling station and its unique code. I must say
that the pieces of evidence offered by both Mr. Johnson Asiedu-Nketiah and Dr.
Afari-Gyan shredded into pieces the petitioners’ case under this head. It
became evident that Dr. Bawumia was not too familiar with the processes and
procedures leading to the conduct of the presidential elections.”
Justice Akoto-Bamfo said that the exact
nature of the malpractice under duplicate serial numbers was not clear from Dr.
Bawumia’s testimony, how the serial numbers affected the recording of the
results, but more importantly how the alleged opportunity offered by the
duplicate series got exploited so as to result in any irregularity was never
established.
“It is trite learning that an election
cannot be overturned on the basis of mere speculation, for it is not about what
could have happened; but what did take place. I do not therefore feel able to
grant the prayer of the petitioners under this category.”
Unknown
polling stations
She said that the
petitioners had a duty to establish that those polling stations did not exist
adding “Exhibit EC 3 showed that the petitioners knew about the existence of
those polling stations and had indeed appointed agents to thereto.”
“If they did not know
of the existence of those polling stations, they obviously could not have sent
their agents there. I must say that no evidence was led on when those polling
stations were created. I would in the circumstances, find that the petitioners
have failed to lead evidence sufficient for a finding in their favour on this
ground.”
Duplicate
polling station codes on different pink sheets
Under this category,
Justice Akoto-Bamfo said that even though the petitioners took the view that the
votes were insignificant, “I would only find the explanation by the 2nd
respondent credible; that some were polling stations were so large as to be
divided into sections A and B; while the others, constituted polling stations
where special voting took place, I would so find and dismiss the petitioners’
case under this ground as well.”
In her conclusion she
said among other things that “the political parties have been active
participants. Even though the IPAC is not backed by law, it has played a
pivotal role at every stage of the process. The registration of voters,
printing of ballot papers, training of polling agents, the sorting and counting
done publicly, the transparent ballot boxes and the photo identification cards
raise the level of transparency to a very high degree.”
“It became evident
however, that the myriad of errors and blunders were committed by the election
officials. Such errors did no credit to the system. It is therefore recommended
the caliber of persons recruited for the exercise.”
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