Election Petition: What are the arguments?

All eyes will be on the Supreme Court tomorrow  when the court delivers judgement in the 2020 presidential election petition.

It is the second presidential election petition in the history of the country, call it “round two” between former President John Dramani Mahama (petitioner), and President Nana Addo Dankwa Akufo-Addo (second respondent).

At the centre of this legal battle is the Electoral Commission (EC) (first respondent), the independent constitutional body responsible for the organisation of public elections, whose decisions and alleged mistakes form the subject matter of the petition.

The petition was filed on December 30, last year, and over a period of 55 days, a seven-member panel of the apex court, presided over by the Chief Justice, Justice Kwasi Annin Yeboah, has also been hearing counter arguments from respondents (EC and Akufo-Addo) who have mounted a two-pronged response.

Former President Mahama  is challenging the declaration of President Akufo-Addo as the winner of the 2020 presidential election by the Chairperson of the Election Commission (EC), Mrs Jean Mensa, on December 9, 2020.

He contends that per the figures used in the declaration, no candidate obtained more than 50 per cent of the total valid votes cast as stipulated by Article 63 (3) of the 1992 Constitution and, therefore, the declaration by the Chairperson of the EC on December 9, was unconstitutional.

The respondents ( the EC and Akufo-Addo) have mounted a two-pronged response.

First, they argue that the figures on the declaration made by Mrs Mensa clearly show that President Akufo-Addo got enough valid votes to meet the constitutional threshold required by Article 63 (3) of the 1992 Constitution.

Second, it is their contention that the petition does not even satisfy the constitutional requirement for a presidential election petition within the remit of Article 64 (1) of the 1992 Constitution and, therefore, the petition is dead on arrival.

The petition is, therefore, one that can be described as a petition of calculations and alleged constitutional infractions.

Mahama’s calculations

In simple terms, the petitioner is using the figures announced by Mrs Mensa on December 9, 2020 to attack the constitutionality of her declaration that President Akufo-Addo is the President-elect.

This means the former President’s petition is centred on the declaration.

It is his case that per the figures announced by the Chairperson of the EC, none of the 12 candidates who contested the December 7, 2020 presidential election met the constitutional threshold of becoming a President, which is, obtaining more than 50 per cent of the valid votes as stipulated by Article 63(3) of the 1992 Constitution.

Mr Mahama, therefore, wants the Supreme Court to nullify the declaration as unconstitutional, and order the EC to conduct a runoff between him and President Akufo-Addo since in his estimation, they obtained the highest number of votes.

One crucial element of Mr Mahama’s case is a statement made by the Chairperson of the EC on December 9, to the effect that President Akufo-Addo still met the 50 per cent threshold even if all the votes from Techiman South were added to Mr Mahama’s votes.

On the day of the declaration, the results from Techiman South were still outstanding.

According to Mr Mahama, the EC Chairperson announced the total valid votes cast as 13,434,574, minus the results of Techiman South, with President Akufo-Addo obtaining 6,730,413 of the votes representing 51.595 per cent of the votes while he (Mahama) got 6,214,889 representing 47.366 per cent of the votes.

He argues that per the figures, the actual percentage for President Akufo-Addo minus Techiman South ought to be 50.098 per cent and not 51.595 per cent.

Also, he said his percentage minus Techiman South should have been 46.26 per cent and not 47.366 per cent.

Doing more calculations, he argued that the Techiman South Constituency has a total voting population of 128,018 and if that is added to the total valid votes cast as declared by the EC it will be 13,434,574 plus 128,018 (13,562,592).

“Consequently, if all the votes of Techiman South Constituency were added to the petitioner (Mr Mahama’s) votes, the second respondent’s (President Akufo-Addo’s) votes will remain the same at 6,730,413, translating to 49.625 per cent, while the votes of Mr Mahama would increase to 6,342,907, yielding 46.768 per cent,” he said.

From that, the NDC presidential candidate said it was erroneous for the EC to state that even if all the votes in Techiman South were added to his (Mahama’s) votes, President Akufo-Addo would still meet the constitutional threshold of more than 50 per cent of the total valid votes cast.

Mr Mahama insisted that the only declaration recognised in law was the one made by the Chairperson of the EC on December 9.

He also argued that the purported corrections made by the EC after the declaration were also riddled with errors, and lacked transparency.

Form

The two respondents have attacked the petition both in substance and form.

On the form, they described the petition as incompetent on the basis that it raised no cause of action, and, therefore, the petitioner had not properly invoked the jurisdiction of the apex court to adjudicate on presidential election petition as stipulated under Article 64 (1) of the 1992 Constitution.

According to them, any person who went to the apex court under Article 64 (1) of the 1992 Constitution must attack the validity of the election.

 Former President Mahama, they argue, is challenging the declaration on December 9, 2020, but fails to make any allegation of infractions in the actual voting that took place in the 38,622 polling stations and 311 special voting centres.

For President Akufo-Addo, such a move makes the petition “incompetent”, arguing that an alleged inaccuracy in the declaration of the results by the EC on December 9 does not mean the election of President Akufo-Addo on December 7 was invalid.

According to President Akufo-Addo, even if the declaration was faulty as described by the  petitioner, it did not mean the actual election was invalid and, therefore, unconstitutional.

The EC, on the other hand, argues that the petition is incompetent because it does not contest “the lawfulness of votes” obtained by any candidate in any polling station where the election was held.

In simple terms, President Akufo-Addo and the EC are making a case that former President Mahama’s petition cannot even be described as a presidential election petition within the confines of Article 64 (1) of the 1992 Constitution.

Substance

In terms of substance, the respondents say former President Mahama’s petition is frivolous because the figures he is using to make a case clearly make President Akufo-Addo the winner of the 2020 presidential poll.

The EC admits that Mrs Mensa inadvertently read the figure representing the total number of votes cast as the one representing the total number of valid votes cast, and also gave the percentage of the votes garnered by President Akufo-Addo as 51.59 per cent, instead of 51.295.

It, however, averred that the EC corrected the errors on December 10 and “the corrections and clarifications did not affect the overall results as declared”.

The EC, therefore, argues that former President Mahama’s “deliberate” reliance on the figures declared on December 9, 2020 to make a case that President Akufo-Addo did not obtain more than 50 per cent of the valid votes cast is “misleading, untenable and misconceived.”

For President Akufo, the petitioner’s reliance on an inadvertent mistake by the EC does not prove that no candidate won the election.

He argues that a summation of all the total valid votes of all the 12 candidates  as declared by the EC will add up to 13,121,111, which will become the total valid votes.

President Akufo-Addo said his total valid votes, as declared by the EC on December 9 was  6,730,413.

“A simple computation of the valid votes declared in favour of second respondent (President Akufo-Addo) as a percentage of the total valid votes of 13,121,111 yields a percentage of 51.295 per cent,” he added.

Writer’s email: emma.hawkson@graphic.com.gh