Justice Julius Ansah
Posted on: www.dailyguideghana.com
By William Owusu
Friday, September 6, 2013
“The duty cast on the presiding officers to sign the
declaration was couched in mandatory terms and deserves obedience and not meant
to be disobeyed.”
“I hold in my concluding comments on this ground,
that the failure to sign the pink sheet was a monumental irregularity
unmitigated by any circumstances.”
These were some of the conclusions reached by
Justice Julius Ansah, the second most senior on the nine-member panel that
heard the just-concluded Presidential Election Petition.
Justice Ansah together with three others justices among
other claims, granted the unsigned pink sheets by Presiding Officers, over
voting and voting without biometric which three petitioners sent to the Supreme
Court following the declaration of John Dramani Mahama by the Electoral
Commission Chairman Dr. Kwadwo Afari-Gyan on December 9, 2012.
The nine-member panel presided over by Justice William
Atuguba after eight months of intense proceedings in a 6-3 but later revised to
5-4 albeit through the media scrutiny as a result of over vote by Justice Paul
Baffoe-Bonnie, held that president John Dramani Mahama was validly elected as
declared by the EC.
The petition which was arguably the biggest test for
Ghana’s democracy yet was filed by New Patriotic Party (NPP) December 2012
presidential candidate Nana Addo Dankwa Akufo-Addo, his running mate Dr.
Mahamudu Bawumia and the party’s Chairman Jake Otanka Obetsebi-Lamptey after
Dr. Afari-Gyan’s declaration.
The petitioners insisted that there were widespread
instance of violation, malpractices and irregularities during the December 7
& 8 presidential elections and subsequently filed the petition on December
28, 2012.
Absence
of signatures of Presiding Officers
In his 55 page judgement, Justice Ansah in granting
the petitioners claim of absence of signatures of Presiding Officers of the EC
during the 2012 presidential election said “the facts surrounding this suit
have been fully played out in near epic dimensions before the public.”
“An election much more so, Presidential Elections,
are serious matters governed by well laid rules to preserve sanctity and
integrity of the elections, especially where a specific duty is imposed on
election officials.
“A breach of any of those duties meant the integrity
of the election was compromised and ultimately affected the exercise of the
right to vote as well as jeopardizing the sovereign will of the people. Because
of this, I am unable to accept the alibi put up by the respondents, like pressure
of work nature of carbon paper making the signatures look faint through over
use, and pressing the pen too often, too hard.”
According to the judge, the petitioners succeeded in
alerting the court that there widespread instances of polling stations where there
were no signatures by the presiding officers or their assistants on the pink
sheets in clear violations of Article 49(3) of the Constitution and Regulation
36(2) of CI 75.
“The words of Article 49 (3) and Regulation 36 (2)
of C.I.75 are the same. In fact the constitutional provision was lifted word
for word in C.I.75…I would say of these provisions that they are some of the
safeguards of the right to vote; the signature by the persons named in the
statutes authenticates the document and its contents and by the rules of
interpretation are to be read as enforcing each other.”
He said the EC admitted in court that 1,009 pink
sheets were signed by the Presiding officers at the polling station or at the
instance of the Returning officer at the collation center but 905 pink sheets
were found to have been left unsigned and the petitioners had insisted that
there were 1638 unsigned pink sheets, involving 65,9814 votes.
“It is not difficult to interpret the meaning of
these provisions. They mean that the persons named therein, namely the
presiding officer, the candidates or their representatives and the counting
agents, shall sign the declaration form stating the particularized items.”
Justice Ansah said that the presiding officer was
not “relieved from the duty to sign the declaration forms; it was a mandatory
duty cast on them by the constitutional and statutory provisions governing
elections in the country.”
“The legitimate inference is that failure by the
presiding officer to sign the declaration form is an irregularity which cannot
be excused or waived on the grounds that the pressure of time, prevailing atmospheric condition, etc, etc, did not
simply allow or permit them to sign the forms and thereby comply with the constitutional
duty.”
In considering mandatory ‘Shall’ as espoused in the
constitution, Justice Ansah said ‘Shall’ connotes an obligation, or mandatory
duty conveying a command bereft of a discretion adding “in consideration of
this well known interpretation, when the petitioners alleged these violations
of the constitution and enactments and went on to provide evidence in support
by way of the Exhibit MB-S series, the onus shifted by law on to the
respondents to lead evidence in rebuttal or to admit the allegations.”
“Considering the importance the nation attaches to
the exercise of conducting a national election, sustaining the integrity of the
election should be zealously guarded; this could best be done by the presiding
officer in charge of affairs at the polling station appending his signature to
the declaration to testify that the events on the face of the pink sheet took
place there.”
He said “all things considered, I am of the candid
opinion that the failure by the presiding officer to sign the pink sheet before
announcing the results constituted an omission to perform and a breach of his
constitutional duty. It vitiated the votes cast at the polling station, a more
monstrous irregularity no one can imagine.”
Over
Voting
On over voting, Justice Ansah said “I must observe
that the electoral laws of the land, the Constitution itself or any other
enactment, did not define the term.”
He said a careful reading of the evidence by Mr.
Asiedu-Nketiah and Dr. Afari-Gyan revealed a marked difference between their
definitions and that provided by Dr. Bawumia.
“It was that unlike theirs, the petitioners talked
about the number of ballots ‘issued to
voters’. Another real difference inherent in the definition by Dr. Bawumia
which did not seem to find favor with Dr Afari-Gyan was that it limited itself
to what was ‘on the face of the pink sheet’.
“The point I am striving to make is that the pink
sheet is a very vital document to consider when determining several issues in
this matter like the issue as to whether or not there was over voting at a
polling station; it contains a summary of information on what exactly took
place during the voting and the number of ballots issued for the day, what use
they were put to and the results of voting at the end of the poll.”
“It is for all these reasons that I prefer the definition
of ‘over voting’, as given by Dr. Bawumia to what the respondents gave.
Undoubtedly, I accept that in the web of electoral laws, over voting is where
the number of ballots in the ballot box after a poll exceed the number of
ballots issued before a poll.
He said that Dr. Afari-Gyan did not supply the
source of his so called ‘classical definition’, of over voting and his self confessed confusion and lack of
clarity in mind made it extremely impossible for the court to accept his
definition.
“Indeed, I reject it just as I do of the definition
by Mr. Johnson Asiedu-Nketiah. Both definitions were short, simple but very
wrong. There was nothing classical about it.
Both should have referred to the ballots issued before the voting began,
if they desired to make their definitions credible.”
Usefulness
of Pink Sheets
Justice Ansah said that apart from the pink sheets “there
is no other comprehensive record of how the polls were conducted at the polling
stations and the counting of the ballots.”
“These vital pieces of information are found on the
face of the pink sheet. The pink sheet contains information on the number of
people registered to vote at the particular polling station; the respondents
did not show by any evidence how a register shows more information on ballots,
let alone the events at a particular polling station,” he said.
“These are discernible from the face of the pink
sheet, an electoral document which I agree with Dr. Bawumia, is the primary
document for the 2012 Presidential elections. Of course, other documents like
the register for a polling station, collation forms, etc, etc may come in handy.”
“My overall assessment of the evidence on the ground
of over-voting is that the petitioners proved their case on the preponderance
of evidence and that looking at the weight of the votes affected by that
irregularity, it affected the outcome of the results so much that I have no
option other than annulling those votes and I do so annul them.”
Credibility
of Bawumia as Witness
Justice Ansah said that the fact that Dr. Bawumia
was not present at any of the polling stations from whose results were captured
on the pink sheets, did not detract from the admissibility of his testimony in
respect of the pink sheets.
“To put it bluntly, as I saw and heard Dr. Bawumia
as he gave his evidence on oath in the witness box my impression about him was
that he was a witness of truth. He frankly admitted salient facts and answered
questions put to him freely and unhesitatingly.”
Where it is shown that relevant legislation and
regulations governing elections were breached in the course of voting, the fact
that polling agents did or did not complain against the events or signed pink
sheets would not invalidate that which was invalid, or regularize that which
was irregular. The result would be that the evidence on record will be
evaluated for its probative value to be assessed.
Voting
without biometric verification
Justice Ansah said he was persuaded that regulation
30 (2) of C.I.75 was a mandatory provision in the enactment regulating the
conduct of elections in the country.
“Regulation 30 (2) (supra), stated that biometric
verification is a process to verify the identification of a voter which may
involve fingerprint or facial recognition that the particular voter standing or
appearing before the presiding officer, is the person whose name and voter
identification number and particulars appear in the register.”
He said that biometric verification is only by the
use of an electronic device called the biometric verification device (BVD) or
equipment, interpreted in C.I. 75 and added that the EC crafted a special
dispensation for those who could not vote biometrically and they were
identified by their face only and labeled Face Only ‘FO’.
“All witnesses before this court testified on this
and sang the same song in court to underscore the veracity in it. Dr Bawumia
said there were about 700 of such people (FOs) in the country, Dr. Kwadwo
Afari-Gyan said that figure was an understatement for they were more than
that.”
He said he was unable to agree with the EC’s
submission that in view of some provisions, biometric verification could not be
limited to only finger prints and added that the law was very clear on that the
voter except the FOs “shall mandatorily go through a biometric verification
process by a biometric verification equipment for the purpose of establishing
the identity of the voter by finger print.”
“I note there was a difference between ‘identifying’
and ‘verifying’ a voter. I agree biometric verification is a process under our
electoral laws. It begins with the process in regulation 30(1) and continues at
regulation 30(2). The two provisions mention identification and verification of
voters and truly they are to be read as forming one scheme even though it is a
process involving several steps, voters are verified with biometric
verification devises which establishes the identity of the voter by his her
fingerprints.”
“I conclude on the issue of voting without biometric
dispensation that where power is conferred, it ought to be exercised in terms
of the enabling statute. Anything done outside the power stands the risk of
being affixed with the ultra vires stamp and declared null and void.”
Unknown
Polling Stations
He dismissed the petitioners claim on unknown
polling stations saying “I find the petitioners’ case in this respect not
satisfactory…I also like my respected brethren, dismiss that part of the
petitioners’ claim against the 2012 presidential elections founded on that
ground.”
Duplicate
Serial Numbers and Polling Station Codes
On duplicate serial numbers and polling station codes
he said “in the result I hold they could not be used to annul the votes in the
polling stations specified. I rather dismiss the claim based on that ground,
just as my brethren have done.”
On
Errors
On the admission of errors on the part of the EC,
Justice Ansah said “I have read the evidence of the second respondent several
times over and on some occasions, he impressed me as telling the truth; one was
when he readily conceded that working with a large number of personnel who were
trained over a very short period of time, blunders were bound to occur;
blunders did in fact occur which he explained was more of arithmetical errors
than deliberate or out of mischief. But it was on the basis of these errors
that he declared the results.”
“So ‘arithmetical errors’, ‘trans-positional
errors’, ‘excess votes’ and the result is over-voting. Mr Asiedu-Nketiah even
spoke of ‘unidentified materials in the box’ whatever he meant by that. My
observation is that in these proceedings no party had an exclusive monopoly
over ‘arithmetical challenges’ or any other such challenges.”
Precedence
The court said per the evidence adduced, there was
proof that there was over voting in some polling stations and the EC annulled
the votes there holding that “this step by the commission was justified because
they apparently were violations of statutory provisions quoted above in this
opinion.”
“The fact that they had been cancelled for over
voting was not doubted; by that the second respondent set an example he ought
to follow wherever there was an over-voting.”
“I am of the view that our electoral laws will be
given a lot of impetus and strength and respect if they are given teeth to bite
and all breaches are given uniform treatment; what is good for the goose is
equally good for the gander.”
“Reduced to simple practical terms polling stations
where over voting took place the results were cancelled, and there was no
reason why the same thing ought not to be done to where the same thing took
place.”
Annulment
based on irregularities
Citing authorities, Justice Ansah said that “a
petitioner is not entitled to an order quashing election results merely upon
establishing some form of non-compliance with the rules governing the poll; the
non-compliance must further either be of a substantial proportion or the
non-compliance must produce a different outcome in the election, namely, result
in some person emerging victor who would but for the non-compliance not secure
such victory.”
He said that per the evidence adduced, the
irregularities associated with the 2012 presidential election were substantial
and that the non-compliance affected the results.
Impact
of annulment
In
the voting without prior biometric verification category, Justice Ansah said
President Mahama obtained 560,399 votes which were actually invalid and when subtracted
from total votes declared in his favour by the E.C., namely, 5,574,761 he was
left with 5,014,362 representing 49.25 of the total valid votes.
He said Nana Akufo-Addo had 5,48,898 votes declared
in his favour of which 234,970 fall in this category of irregularities and the
difference was 5,013,928 and this represents 49.25 of valid votes cast.
On
pink sheets not signed by presiding officers or their assistants, the judge
again said President Mahama had 382,088 invalid votes which when subtracted
from the total number of 5,574,761 votes declared in his favour left him with
5,192,673 valid votes.
“This
remainder accounts for 49.78% of the valid votes cast. Out of the 5,248,898
votes declared in his favour, Nana Akufo-Addo had 170,940 votes affected by
this category. This leaves him with 5,077,958 representing 48.68 of the valid
votes cast.”
On over voting, he said President Mahama had
5,574,761 declared in his favor by the E.C., in the over voting category, he
benefitted by 504,014 votes. When these are annulled, he had 5,070,747 valid
votes in his favor. That would leave him with 49.47%.
Nana Akufo-Addo had 5,248,898 votes declared in his
favor by the E.C., out of which he benefitted 226,198 in the over voting
category, which as they are being annulled left a total of 5,027,700 valid
votes in his favor. Expressed in percentages, that would be 49.00% of the valid
votes cast at the elections.
“The foregoing evaluation of the impact of the
nullified votes shows that they resulted in neither the first petitioner nor
the first respondent obtaining the critical fifty percent plus one valid vote
threshold.”
He
said as a result, he was granting the petitioners relief that a declaration be
made that Mr. John Dramani Mahama was not validly elected the President of
Ghana and added that “ a declaration be made that Nana Akufo-Addo be declared
the candidate who was validly elected the President of Ghana, is also refused.”
“The
consequential order I make is that the E.C. conducts a re-run of the
Presidential elections for the two leading candidates, Mr. John Dramani Mahama
and Nana Akufo-Addo, in all the polling stations affected and indicated in the
petition and its supporting documents, forthwith.”
No comments:
Post a Comment