[Article] Presidential election petition: Reasons for judgement (Part 1A)

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Constitutional law – Supreme Court – Original jurisdiction – Challenging election of the President – Grounds for – Duplicate serial numbers, duplicate polling station codes and unknown polling stations – Meaning and effect of such grounds – Such grounds not conflicting with any constitutional or statutory regulation and not impacting adversely on 2012 electoral process – Public Elections Regulations, 2012 (CI 75), regs 21(11) and 32.

SUPREME COURT, ACCRA

(Writ No J1/6/2013)

Published Thursday, February 13, 2014

IN RE PRESIDENTIAL ELECTION PETITION;

AKUFO-ADDO, BAWUMIA & OBETSEBI-LAMPTEY (No 4)

v

MAHAMA, ELECTORAL COMMISSION  &

NATIONAL  DEMOCRATIC  CONGRESS (No 4)

BEFORE THEIR LORDSHIPS: ATUGUBA,  ANSAH, SOPHIA  ADINYIRA, R  C OWUSU,

DOTSE,  ANIN  YEBOAH, BAFFOE-BONNIE, GBADEGBE, AND VIDA  AKOTO-BAMFO JJSC

Judgment on August 29, 2013

On 7 and 8 December 2012, the second respondent, the Electoral Commission, the constitutional body established under article 43 of the 1992  Constitution to conduct elections and referenda in Ghana, conducted parliamentary and presidential elections in all the constituencies  of Ghana. At the end of the elections, the Electoral Commission, through its chairman, declared John Dramani Mahama, the Presidential Candidate on the ticket of the National Democratic Congress, a political party, as having been validly elected as President of the Republic of Ghana. Thereafter, on December 11, 2012, the Declaration of President-Elect Instrument, 2012 (CI 80), was published under the hand of Dr Kwadwo Afari-Gyan, the Chairman of the Electoral Commission.

Upon the declaration of the results of the presidential election, three persons: Nana Addo Dankwa Akufo-Addo, the Presidential Candidate of  the New Patriotic Party (NPP); his running mate,  ie the Vice-Presidential Candidate, Dr Mahamudu Bawumia; and Mr Jake Obetsebi-Lamptey, the Chairman of the NPP, filed in the Supreme Court, a petition, pursuant to article 64(1) of the 1992 Constitution,  for a declaration that: (i) John Dramani Mahama was not validly elected President of the Republic of Ghana; (ii) that Nana Akufo-Addo, the first petitioner, was rather validly elected President of Ghana; and (iii) for any consequential orders as the Supreme Court might seem appropriate.

The respondents to the petition

The first respondent to the petition, John Dramani Mahama, was the Presidential Candidate of the National Democratic Congress (NDC);  the second respondent was the Electoral Commission, the constitutional body mandated under article 45(c) and section 2(c) of the Constitution and the Electoral Commission Act, 1993 (Act 451), respectively, to conduct and supervise public elections and referenda in Ghana and to declare the results of the 2012 Presidential Election; whilst the third respondent National Democratic Congress (NDC), the political party on whose ticket the first respondent had contested the election, was later joined as a party to the action on its own application, following the six to three majority decision of the court given on January  22, 2013.

The case of the petitioners 

The case of the petitioners was that there were constitutional and statutory violations, malpractices and irregularities in the conduct of the 2012 Presidential Election; and that those violations, malpractices and irregularities, affected the outcome of the elections.

The petition was based on six categories of violations,  malpractices and irregularities, namely:

(i) over-voting, ie widespread instances of polling stations where votes cast exceeded the total number of registered voters; or  votes exceeded the total number of ballot papers issued to voters on voting day in violation of article 42 of the 1992 Constitution and regulation 24(1) of the Public Elections Regulations, 2012 (CI 75);

(ii) absence of signatures of presiding officers or their assistants on the statements of poll and declaration of results (otherwise known as the pink sheets), in clear violation of article 49(3) of the Constitution and regulation 36(2) of CI 75;

(iii) voting without biometric verification in breach of  regulation 30(2) of (CI 75);

(iv) duplicate serial numbers, ie occurrence of the same serial numbers on pink sheets for two different polling stations, when the proper and due procedure established by the second respondent Electoral Commission  required that each polling station had a unique serial number in order to secure the integrity of the polls;

(v) duplicate polling station codes, ie occurrence of different results recorded on the pink sheets in respect of polling stations bearing the same polling station code, when by the second respondent’s established procedure, each polling station had been assigned a unique code in order to avoid confusing one polling station with another which could not be explained by a reference to special voting; and

(vi) unknown polling stations, ie results recorded for polling stations which were not part of the twenty-six thousand and two (26,002) polling stations created by the second respondent for purposes of the December 2012 Elections. Regarding the complaint of over-voting, the petitioners relied only on the entries on the pink sheets completed at the end of the elections at the various polling stations. No reference was made by the petitioners to the register of voters at any polling station.

The respondents’ case

The three respondents denied the substance of the petitioners’ claim. The first respondent John Dramani Mahama contended that even if there were violations, malpractices and irregularities in the December 2012 Elections, the declared results of the election would not be affected.

Regarding the absence of the signatories of the  presiding officers on the pink sheets, the first respondent further contended that such failure could not invalidate the results.  The claim of over-voting was also denied and so was the claim for voting without biometric verification.

The second respondent Electoral Commission, partly admitted the incidents of presiding officers not signing the pink sheets. However, the  Electoral Commission contended that, nobody voted without being biometrically verified.

Counsel  for the second respondent Electoral Commission further submitted that the absence of the signature of the presiding officer was not sufficient to annul the votes of persons who had exercised their franchise under the Constitution, particularly, in a situation where the accredited representatives of the parties or the candidates had duly signed to authenticate the regularity of the conduct of the polls.

The right to vote as guaranteed under the Constitution was paramount and not only must it ensure that persons qualified to vote exercise it, but it must also be ensured that peoples’ votes, once regularly exercised, were not annulled on the basis of technicalities. Failure to sign by the presiding officer, ought to be seen as an irregularity that did not affect any party or conduct of the polls.

The  case of the third respondent National Democratic Congress was substantially the same as that of the first respondent. Counsel for the third respondent NDC contended that nowhere in the petition or the affidavit of the second petitioner, Dr  Bawumia, was it alleged that any voter had voted more than once, thus infringing the one man, one vote principle.

The respondents also contended, inter alia, that a strict interpretation of regulation 30(2) of CI 75 would disenfranchise a lot of people especially those without fingers and those whose fingerprints have been so eroded that the biometric verification  device (BVD) could not pick them.

The issues for determination

On  April 2, 2013, the Supreme Court set down the following issues for trial:

(i) whether or not there were violations, omissions, malpractices and irregularities in the conduct of the Presidential Election held on 7 and 8 December, 2012; and

(ii) whether or not the said violations, omissions, malpractices and  irregularities, if any, affected the results of the election. And to expedite the trial, the court decided that same shall be by affidavit evidence.  The parties were, however, given the option to lead oral evidence  only where the court was satisfied that there were compelling reasons for so doing.

Counting of pink sheets (statement of poll and declaration of results)

The Supreme Court by its order given on  May 9, 2013, appointed Messrs KPMG, an International Accounting and Auditing Firm, to make a count of all the exhibits of pink sheets filed by the petitioners. KPMG duly carried out the order of the court.  Its report was tendered through its Partner, Nii Amanor Dodoo as court exhibits 1, 1A, 1B, 1C and 1D.

The report at least assisted in clarifying the issue of the number of “pink sheets” filed. The report indicated that 13,926 were counted from the set of the Registrar of the Supreme Court. The report indicated that out of that, 8,675 were unique as to its polling station name, code and exhibit numbers.

Out of that  were 5,470 which were not duplicated.  1,545 pink sheets could not be identified by the team because according to them, they were unclear and so marked by them as “incomplete data” in the registrar’s set. However, the petitioners were able to identify 1,219 whereas the second respondent Electoral Commission also identified fifteen more to make the total 1,234.

A control check, using the set of the President of the court showed that there were 2,876 pink sheets  which were not in the registrar’s set. Out of that, 804 of them were identified as unique and distinct by the petitioners.  From the remaining 1,366, which the team described as unclear, according to the petitioners, 60 more were counted. The petitioners finally based their case on 10,119 exhibits of pink sheets.

The issues for determination

On  April 2, 2013, the Supreme Court set down the following issues for trial:

(i)whether or not there were violations, omissions, malpractices and irregularities in the conduct of the Presidential Election held on 7 and 8 December, 2012; and

(ii)whether or not the said violations, omissions, malpractices and  irregularities, if any, affected the results of the election. And to expedite the trial, the court decided that same shall be by affidavit evidence.

The parties were, however, given the option to lead oral evidence only where the court was satisfied that there were compelling reasons for so doing.

Source: Graphic Online