presidential election petition: reasons for judgment (part 2)
Constitutional law – Supreme Court – Original jurisdiction – Challenging election of the President – Grounds for – Over-voting – What constitutes over-voting – Whether or not one or two instances of over-voting can lead to annulment of entire votes – Burden of proof on issue of over-voting – Whether or not entire process of voting was regular by the conduct of polling agents of petitioners signing all the pink sheets – CI 75, regs 35(4) and 38 – Effect of over-reliance on pink sheets in proof of over-voting – Evidence Act, 1975 (NRCD 323), s 26.
Advertisement
SUPREME COURT, ACCRA
(Writ No J1/6/2013)
Published Thursday February 20, 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
Ruling on August 29, 2013
The relevant facts were the same as the facts published in PART 1A on Thursday February 13, 2014. On these facts, the Supreme Court dismissed (per holding (2)) by a five to four majority decision, the petitioners’ claims based on over-voting (per Atuguba, Sophia Adinyira, Baffoe-Bonnie, Gbadegbe and Vida Akoto-Bamfo JJSC — Ansah, R C Owusu and Anin Yeboah JJSC dissenting and Dotse JSC dissenting in part and upholding in part the claim) for the following reasons:
Per Atuguba JSC. There is a question as to what constitutes over-voting. The evidence of Dr Mahamudu Bawumia, the second petitioner; Johnson Asiedu Nketia, General Secretary of the National Democratic Congress; and of Dr Kwadwo Afari-Gyan, Chairman of the Electoral Commission the second respondent, is said to establish two types of over-voting: The first is where the number of those who voted at a polling station exceeds the number of voters contained in the relevant polling station register. The second situation, is where the number of ballots in the ballot box exceeds the number of ballot papers issued to the relevant polling station. Pondering over these two categories closely, I would think that the second category of over-voting is rather an instance of ballot stuffing as testified by Johnson Asiedu Nketia.
Per Sophia Adinyira JSC. The petitioners have not led sufficient evidence for me to come to the conclusion that there was clearly a mathematical chance that the results could change; in which case, the votes would have to be annulled and a re-run held. But then in many instances, the over-voting was either one or two, and certainly that cannot lead to annulment of the entire votes...It is my considered opinion that with the margins of over-vote involved in each of the impugned polling stations, it was possible to determine the winner at each polling station where over-voting occurred...The petitioners have not been able to discharge the burden of persuasion in accordance with the Evidence Act, 1975 (NRCD 323). Accordingly, I would also dismiss this category of irregularity.
Per Baffoe-Bonnie JSC. I have noticed that the petitioners have identified some 180 pink sheets where C1=blank or C1=0. The votes tally on that list alone is over 93,000 votes. There were also several pink sheets in this category which clearly, on second look, did not reflect over-voting. While in the box, Dr Bawumia admitted to several such pink sheets which they had originally selected to contain over-voting, actually did not reflect over-voting upon second look...However, aside of these many errors which may be described as clerical, there were also very many pink sheets which recorded cases of actual over-voting, ie where rejected ballots and valid votes put together were more than persons actually verified to vote. However, sifting the ones actually affected by over-voting from the many affected by the many clerical errors, one is left with very few pink sheets whose results will not impact positively on the outcome of the overall results. I will therefore dismiss the claim on account of this ground.
Per Gbadegbe JSC. In my opinion, as the counting agents for the petitioners signed all the pink sheets in evidence without exception, although by regulation 35 (4) of CI 75, they can withhold their signature and provide reasons therefor, their conduct in signing the declarations means that, in their view, the entire process of voting was regular...Further, I have no doubt that, if indeed, there were over-votes in the disputed elections as the petitioners allege, 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.
Per Vida Akoto-Bamfo JSC. Having regard to the fact that credible evidence was led to show that statistics of ballots issued by the second respondent Electoral Commission 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 sheets 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. Certainly such multiple inaccuracies cannot be the basis for a finding that there was over-voting. Owing to the mistakes, the pink sheets were manifestly unreliable as a basis for establishing the phenomenon of over-voting.
Per Ansah JSC dissenting. 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.
Per R C Owusu JSC dissenting. There is no gainsaying that over-voting, if established, would affect the result of the election and impact a sufficient number of votes to have done so. Dr Afari-Gyan told the court that before annulling results because of over-voting, he would do a check on the face of the pink sheet.
However, his evidence is that he did not see any pink sheet before declaring the Presidential Election results. So therefore he did not have the opportunity to do any check to determine from the face of the pink sheets that there was no over-voting. Where therefore, the evidence of over-voting was introduced on the face of the pink sheets, and the error/mistake as the respondents contend cannot be explained on the face of the pink sheets, then that is an irregularity that affects the result. I would consequently hold that where there is over-voting the results must be annulled.
Per Dotse JSC dissenting in part and upholding the claim in part. I will define over-voting to mean an instance where total votes cast as found in the ballot box exceeds the total number of ballots issued out to voters at that particular polling station...My decision on the over-voting category is that in so far as the entries on the pink sheets constitute over-voting in line and consistent with relevant statutes, and the definition of over-voting as has been stated... those votes on the pink sheets that qualify under this definition and clean up exercise under the road map agenda should be annulled after due examination. In all other cases, where the entries on the pink sheets indicating over -voting are errors in the filling of those pink sheets and the information on the primary source is clear and verifiable to correct the errors, then no over-voting occurs. In such instances, there is no over-voting.
Per Anin Yeboah JSC dissenting. Apart from the Principle of Universal Adult Suffrage boldly stated in the Preamble to the Constitution, Cl 75 which regulates elections also grants “statutory injunction” against the abuse of electoral process when one voter cast more than one vote as required by law. As the second respondent Electoral Commission failed to prevent the abuse of the electoral process, it stands to reason that its own regulations governing the elections was clearly breached when it recorded several instances of over-voting as presented by the petitioners. It is a clear case of illegality proved to my satisfaction on the evidence presented to this court in the nature of documentary evidence, that is, the pink sheets...I am of the opinion that no matter the number of votes involved that may constitute over-voting; it is a clear illegality and should not be endorsed by a court of law, more so by the highest court of the land. I will therefore proceed to annul all votes which were proved by the petitioners to be so.
Editorial Note:
The next publication of the Digest being PART 3A dealing with part of the reasons given by the majority on the petitioners’ claims relating to absence of signature of presiding officer on the pink sheets is scheduled for Thursday February 27, 2014.