Justice Sule Nasiru Gbadegbe
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Friday September 13, 2013
“The
interpretation of Article 49 of the Constitution that has been urged on us in
these proceedings does not commend itself to me. That interpretation seeks to
constitute Presiding Officers into a special class of actors in the electoral
process.”
“I am
unable to understand that although they actually presided over the elections
and the counting of the ballots and caused polling agents to sign the
declaration of the results, which they thereafter openly announced to the
public and had a copy thereof posted at the polling station by merely not
signing the results sheets, the entire process that but for this singular act
omission complied with the law should be invalidated.”
This was
contained in the 25-page judgement of Justice Sule Nasiru Gbadegbe, one of the
judges who dismissed all the claims brought by the petitioners in the
just-concluded landmark Presidential Election Petition.
In Justice Gbadegbe’s
opinion, “such an approach is not rooted in shared common sense and undermines
the entire process of elections by having innocent voters disenfranchised on
purely technical grounds.”
“Therefore, in
my thinking a mere breach of a constitutional provision does not by itself
result in invalidating an election but it must be proved of the said
non-compliance that it has materially affected the declared result at the
election.”
Absence
of signatures of Presiding Officers
Digging deep
into the claim of absence of signatures of Presiding Officers, Justice Gbadegbe
said he was adopting what he called substantive approach to address the issue
instead of the procedural approach urged on him by the petitioners.
“The procedural
approach that is urged on us by the petitioners does not commend itself to me
and I prefer to adopt the substantive approach in a matter that touches and
concerns no mean a right as the right to vote.”
“Perhaps,
because our electoral history has not had the experience of other jurisdictions
where for several years a certain section of the population was not entitled to
vote, we tend to take its conferment on us as a people lightly.”
Justice Gbadegbe
said that in the area of legislation regarding requirements of the Constitution
that utilise the word ‘ Shall’, Courts
in the United States of America have tended to hold that the mandatory
requirement means substantial and not
complete and literal compliance.
“In my view, if
such an interpretation could be given regarding the exercise by the legislature
of a power conferred on it under the constitution to make laws on behalf of the
sovereign people of the United States of America then by parity of reasoning as
regards merely administrative acts such as the failure to sign pink sheets that
do not raise any issue that calls in question the totality of votes declared at
a polling station such a failure cannot operate to deprive the declared results
of validity.”
He said “I think
to accede to this urging would be subversive of the right to vote and treating
its exercise as not being as important as the breach to which the absence of
signatures relate. The right to vote according to one’s choice is in my opinion
the fundamental pillar of our constitutional democracy and should not be
trivialised.”
Justice Gbadegbe
said that said the suggested approach has been given statutory endorsement in
section 20 (2) (b) of Representation of People Law, 1992 PNDC law 284.
“Although the
court to which reference is made above is the High Court, the amendment to the
law that is contained in PNDC Law 296 makes the application of section 50 of
the law to cover all public elections.”
“I think that
the law maker must have been inspired by the substantive approach in
jurisdictions outside Ghana, which though not binding on us but of persuasive
effect only were delivered in countries with a long and established history of constitutional
democracy.”
“In my view the
approach that considers the nature of the irregularity and its likely effect on
the election is quite frankly preferable to the procedural approach that looks
only at the breach of a provision without more. In fact, even in the rules of
court of the High Court there has been since the coming into being of the High
Court (Civil Procedure Rules), 2005, CI 47 a legislative shift from the purely
technical approach to the substantive approach that is embodied in Order 81 of
the Rules. This approach is purposive as it attempts to unravel the objective
that the law was intended to achieve and to effectuate same.”
“Several
decisions of our courts have over the years adopted the purposive and or
substantive approach to construction of statutes in our jurisdiction. Reference
is made to a few such instances. (1) Tuffuor v Attorney-General [1980] GLR 367;
(2) Asare v Attorney- General [2003-2004] 2 SCGLR 823; (3) Ampiah- Ampofo v Commission
on Human Rights and Administrative Justice [2003-2004] 1 SCGLR 227; (4)
Republic v Fast Track High Court; Ex parte Commission on Human Rights and
Administrative Justice [2007-2008] SCGLR
213.”
Justice Gbadegbe
said those developments were not accidental but intended to emphasise the “substantive
approach in our jurisdiction.”
“The failure to
sign the results sheets in question not having been proved in the slightest
manner to have tainted the election or the results declared should be held to
be directory and not mandatory.”
“I do not think
that we can adopt an approach to the interpretation of election laws that is
not informed by the experience of jurisdictions that have a considerable
jurisprudence that has facilitated the growth of strong and enduring
democracies that we aspire to achieve.”
He said that democracy
was an evolving phenomenon and elections could not be perfect adding “so when we are faced with the consideration
of irregularities that are alleged to
have occurred in an election, we should
exercise a reluctance in striking down every single vote just by reference to a
provision of the law.”
“On the
contrary, the irregularity must have affected the integrity of the elections.
The substantive approach serves the same purpose as the purposive approach to
the interpretation of statutes that our courts have come to embrace in several
decisions in this country.”
He said that a careful
reading of the provisions revealed quite clearly that the duty that it creates is not exclusive to only the
presiding officer and involves not only the execution of the declaration of
results but beyond that openly announcing the results and communicating them to
the returning officer who is the
Chairman of the Electoral Commission.
Over
voting
Touching
on the claim of over voting, Justice Gbadegbe said the petitioners based their
claim on two interpretations being the number of ballot papers at the end of
the elections exceeds the number of registered voters at the polling station
was when there is excess of ballot papers over the number of ballots issued at
the polling station.
“To
prove their claim of over voting, the petitioners relied on entries on the pink
sheets at the end of the elections at the various polling stations. No
reference was made to the register of voters at any of the polling stations to
sustain this ground of complaint.”
“On
the contrary, great reliance was placed on portions of the pink sheets which
were required to be filled by the presiding officers in answer to questions
numbered as A1, C1, C3 and C6. The
questions that presiding officers were required to answer are as follows. C1:
What is the total number of ballots issued to voters on the polling station
register? C3: What is the number of ballots issued to voters verified by the use
of Form 1C (but not by the use of BVD)?”
He said that “C6
asks a question that provides a formula that adds C1, C2, C3 and C4 to get an
aggregate that must be equal to A1, the total number of ballots issued to the
polling station,” adding “from the two interpretations placed before us, it is
clear that they each seek to protect the integrity of the electoral process.”
“It
is also plain that as the total number ballot papers issued at any polling
station is based primarily on the registered list of voters both
interpretations seek to ensure that no person is enabled to vote who is not on
the register of voters.”
“Although
the word over vote and or over voting do
not come within any of the specifications in the electoral laws, it does appear
to me that as a matter of common sense, votes that come within any of the two
interpretations are evidence of over
votes.”
He
said that it looked to him that as the petitioners did not rely on the list of
registered voters at the various polling stations, they relied mainly on the
answer to C3- the total number of ballots issued to a particular polling
station and added “I think that the exhibits in the MB-C series were offered to
prove this.”
“And
in the evidence to sustain this head of
irregularity, the petitioners case appears simply to be that whenever the
ballots cast as found in the ballot box exceed the ballots issued then there is
an over vote for which reason the results must be annulled. In this regard,
great reliance was placed on the information contained in the pink sheets and
in particular the space provided for ballot accounting.”
Justice Gbadegbe
said that from the available evidence, there were matters of great weight,
which rendered it “unreliable to rely on the second interpretation of over
voting on which the claim of the petitioners is planked.”
“When one
carefully peruses the ballot accounting section of the pink sheets in evidence
before us, the question numbered C6 has a formula provided by which the
aggregate of C1, C2, C3, and C4 is to be equal to A1, the total number of
ballot papers issued to the polling station. A careful reading of the sheet
reveals that C5, unused ballots has been left out of the constituent elements
of C6 that is to be equal in number to A1. In the face of this obvious error
that was admitted by the Chairman of the Electoral Commission in the course of
his oral testimony, it is interesting if not surprising that notwithstanding
the absence of C5 which had the effect of making it impossible going by the
formula provided to have C6 being equal to A1, most of the pink sheets were
filled for the purpose of having C1 + C2+ C3+ C4 making up C6 that should be
equal to A1.”
“As
the formula provided in C6 is incorrect it stands to reason that when the
question to which it relates is answered it cannot be right.”
“I am
of the opinion that this is in an area of arithmetic, this is a classic
instance of the convergence of an answer in arithmetic converging with the oft
quoted statement that you cannot put something on nothing as it cannot hold.
Therefore, the objective sought to be attained by way of ballot accounting
cannot be achieved.”
“This,
in my view renders the interpretation of over voting that leaves out unused
ballots, C5 out of the equation not worthy of the great reliance that is sought
to be placed on it.”
“Clearly,
in the midst of this many presiding officers must have transferred the missing
information elsewhere in order to get a
healthy balance sheet regarding the ballots at the end of the polls. In this regard, I am of the opinion that
utilising the portion on the pink sheets for the purpose of ballot accounting
is quite unreliable. One needs to be more than a human being to be able to
achieve a balance on the sheet but many attempted to do this without taking
account of C5.”
“In
the circumstances the question that arises is: Can the Court rely on the
answers therein to determine over votes without a process of careful tally of
the ballots cast? I think that in view of the incorrect formula and the
consequences flowing from it one needs evidence beyond the pink sheets to prove
the allegation of irregularity to which they relate.”
He
said that the question of an over vote in the circumstances not being a matter that is plain from the face of
the pink sheets is a matter which could be established only by evidence through
a careful inquiry under the law through the process of ballot accounting to
enable such ballots to be rejected.
“In my opinion
as agents for the petitioners who signed all the pink sheets in evidence without
exception, although by Regulation 35 (4) they can withhold their signature and
provide reasons therefore, their
conduct in signing the declarations
means that in their view that the entire process of voting was regular. These
signatures bring into being the evidential attribute provided for in section 26
of the Evidence Act, NRCD 323 of 1975.”
“By the rules of
evidence, we are precluded from considering any other fact to the contrary. I
also venture to say that issues relating to elections are intended to be
quickly resolved and that the procedure laid down in Regulations 35-37 of CI 75
serves the purpose of ensuring that the votes counted satisfy the various
rules laid down for the conduct of
elections.
Justice
Gbadegbe said that he had no doubt that, if indeed, there were over votes in
the disputed elections as the petitioners alleged, by resort to the elaborate
procedure under the Regulations they would have been discovered and rejected in
the course of ballot accounting subject to the right of appeal that is
conferred on an aggrieved party under Regulation 38 of CI 75.
“I do
not think that it is proper for us to ignore the laid down procedures provided
by the electoral laws in the absence of compelling evidence to the contrary. I
think it is important that we give effect to the legitimate expectations of the
law in this matter.”
Voting
Without Biometric Verification
Justice Gbadegbe
said that in the course of the trial it became clear that the process of
biometric verification that was provided for in regulation 30 was captured by
the verification equipment and as such the primary evidence on whether or not a
voter was verified before voting was
recorded therein.
“In such a case,
I am surprised that the information regarding the important process of
verification is sought to be proved by reference to C3 only. I am unable to
accept that piece of evidence as the primary evidence as it is in its nature
secondary. In order to be able to rely on the pink sheets as evidence of what
they purport to be, the petitioners ought to have shown that the better or best
evidence to which they relate are not available.”
Justice
Gbadegbe said that even the originals of the pink sheets in the instant case “belong
to the category of secondary evidence as the information they seek to prove is
obtainable in the best form in the register of voters at polling stations and
the biometric verification equipment.”
“The
record of list of voters verified by the biometric verification equipment is
the primary evidence and it is the one from which the information contained in
the pink sheets was made.”
He
said that proof of that information to be of evidential value “must satisfy
section 163 of the Evidence Act, NRCD 323 of 1975.”
The
purpose of the rules is to enable the court as the trier of fact and in keeping
with the prime duty placed on it under section 2 of the Evidence Act to decide
all questions of fact.
“By
not placing the best or primary evidence before the court, the petitioners have
sought their inferences from the information that is available elsewhere to be
the basis of our decision. But that is not sanctioned by law. The rule of
evidence to which reference is made here is that inferences about
irregularities can be drawn from facts, but not from inferences.”
“As
the said record of the voters verified at every polling station is available
and capable of proof in the manner acceptable, I am unable to fall upon
information from pink sheets that are based on some other primary source as
evidence of irregularity.”
Justice Gbadegbe
said that another reason that rendered the evidence of voting without biometric
verification unproven was the petitioners, who bore the initial burden of proof
on the allegation of absence of biometric verification, unfortunately did not
file any process that had the effect of challenging those depositions brought
by the 3rd respondents.
“The
effect of this is that in the face of the depositions by persons who actually
voted at some of those polling stations and testified from their own knowledge
to what actually they saw and participated in, the evidence of the 2nd
Petitioner who was not at any of those polling stations cannot be preferred.”
“The
circumstances of this case in as far as the positive allegation of absence of
biometric verification is concerned is that those agents have a duty to speak
in the face of the depositions made by witnesses for the Respondents and as
such their silence has the effect of rendering the version testified to by
their adversaries unchallenged and also deemed to be an admission.”
He
said that there was the evidence that the disputed elections were postponed to
a second day, 8 December 2012 at polling stations where the verification
machines had broken down saying “a legitimate inference to be made from this
unchallenged fact is that voting at all polling stations took place after
biometric verification of those entitled to vote.”
Serial Numbers
“The
contention regarding serial numbers though apparently attractive, appear to me
on closer examination to be untenable,” adding “the petitioners unfortunately
did not place before the court in what manner the mere repetition of the slight
number of duplicated pink sheets that was proved in evidence affected the
declared results.”
“There
was no challenge to the fact that the results declared were in respect of
elections held at designated polling stations. Also not in dispute is that
there occurred no infraction or violation of any of the electoral laws. Added
to these, none of the results declared at any of the polling stations is under
challenge.”
Serial
Number Suggestions
Justice Gbadegbe
in spite of dismissing the claim suggested that the political actors needed to
take a second look at the way they place emphasis on serial numbers on pink
sheets.
“In my view if
the actors in the political scene consider the issues arising from the serial
numbers that have just been considered
of some importance to the integrity of the electoral process then they
should consider for the purpose of
future elections the adoption either by way of an amendment to the existing
regime of laws on elections, or by a clear understanding and or agreement between all the stakeholders in our electoral
system that serial numbers of pink sheets be better protected in the same
manner as is the case regarding ballot papers and polling stations.”
He said that “until
then, the complaint regarding serial numbers in the form that they have been
revealed in the petition herein is a constraint that is unknown to the law and
as such lacks the nature of an irregularity and accordingly, I am unable to
yield to it as a legitimate ground.”
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