SUPREME COURT JUDGE RETIRES

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday, August 1, 2014

A justice at the Supreme Court who was part of the panel that adjudicated the landmark 2012 Presidential Election Petition has retired.

Justice Rose Constance Owusu is bowing out after six years on the highest court of the land.

A source at the Judicial Service in Accra said Justice Owusu will not return to the Supreme Court after the 2014 legal vacation.

“She is starting her leave prior to retirement. The justices had a conference and it was her last meeting with her colleagues,” the source told DAILY GUIDE.

Justice Owusu rose from the High Court serving in Kumasi then to the Court of Appeal before ending up at the Supreme Court.

Before becoming a judge, she worked at the Attorney General’s Department, rising to the rank of Chief State Attorney.

Justice Owusu was very instrumental during the Presidential Election Petition proceedings and was always insistent on legalities at the trial.

She was also one of the three justices that granted the petitioners request to annul votes due to irregularities in the election petition judgement of August 29, 2013 after about eight months of the live-telecast trial.

Justice Owusu, together with other justices, among other claims, granted the reliefs regarding unsigned pink sheets by Presiding Officers, over-voting and voting without biometric verification, which 2012 NPP flagbearer Nana Akufo-Addo and his running mate Dr. Mahamudu Bawumia as well as then NPP Chairman Jake Otanka Obetsebi-Lamptey took to the Supreme Court following the declaration of John Dramani Mahama as winner of the 2012 presidential election by Electoral Commission Chairman Dr. Kwadwo Afari-Gyan.

Absence of signatures of Presiding Officers

Tackling the claim by the petitioners that some Presiding Officers did not sign the pink sheets that were used in the declaration John Mahama as President, Justice Owusu had said “the golden rule of interpretation is that words must be given their ordinary meaning unless same shall lead to absurdity.

“The clause is clear and unambiguous and does not call for the interpretative jurisdiction of this court. None of the conditions as laid down in Tuffour vrs The Attorney-General (1980) SCLR is present here and I would therefore not even attempt to embark on that exercise of interpreting the ‘Shall’ or find reasons why the presiding officer might have failed to sign.”

“Dr. Afari-Gyan told the court that failure to sign is an irregularity. He did not go ahead to say what flows from this irregularity. If the presiding officers failed to sign the pink sheets that constituted infringement of Article 49 (3) of the constitution and to me that is fatal. It renders the result declared null and void.”

Over Voting

Addressing the claim of over-voting, Justice Owusu said Dr Afari-Gyan, apart from his ‘classical’ definition, did not dismiss the second instance of over-voting given by Dr Bawumia where the Economist said over-voting is ‘where the ballots found in the ballots box at the end of polls is more than the number of votes actually issued by the voters who turned up to vote’ even though the commissioner had said he had problem with it.

“Nothing is said on what constitutes over-voting in C. I. 75, so I will go by both definitions,” the judge said, adding “It means that the integrity of the polls at the particular polling station has been compromised and the results at the polling station in question cannot be guaranteed and therefore same must be annulled.”

She said the petitioners introduced evidence from which the infringement could be found and added that the entries on the face of the pink sheets constituted prima facie evidence in proof of the evidential burden, adding “at that point, the burden shifts onto the Respondents to lead evidence from which it may reasonably be inferred that no over-voting took place.”

“I will consequently hold that where there is over-voting the results must be annulled.”

Voting without biometric verification

According to Justice Owusu, the biometric verification process supervised by the EC came under C. I. 75, regulating the conduct of public elections and that Regulation 18 (1) made it mandatory for every polling station to be provided with a biometric verification device therefore biometric verification process was a mandatory component of the 2012 presidential election.

She said that “Dr. Afari-Gyan’s explanation as to how column C3 appeared on the ‘pink sheets’ turned out to be false under cross-examination as indeed he later admitted that C. I. 75 (mandating the use of biometric verification) came into force long before 20th October, 2012 when the order for printing the ‘pink sheets’ was given.

Justice Owusu said that “voting without being biometrically verified is an infringement of the Law which cannot be countenanced under the present dispensation in an election petition. For this and other reasons, I am inclined to annul votes in all polling stations where the violation occurred.”