How the judges ruled in the election petition (5)

A Supreme Court judge, Mr Justice Paul Baffoe-Bonnie, has contended that annulling votes because a presiding officer has not signed a pink sheet should not have a place in modern democracy.

“To disenfranchise hundreds of thousands of voters (through no fault of theirs) because a presiding officer fails to sign will not have a place in modern democratic governance,” Justice Baffoe-Bonnie held in his judgement which formed part of the 588-page composite judgement of the recently adjudicated presidential election petition.

Dismissing the call for the annulment of votes in 1,638 polling stations because presiding officers had not signed pink sheets (statement of poll and declaration of results forms for the office of president), Justice Baffoe-Bonnie held that to strictly interpret Article 49 (3) which required the presiding officer to sign pink sheets “is to take the importance away from the voter and give same to the persons who run the elections.”

That according to him was because, “if the absence of the single signature of the presiding officer can lead to the annulment of the votes of hundreds of thousands of voters, then the election ceases to be about the voters and shifts to the presiding officer.”

“So that if a presiding officer, either from pressure of work, oversight, or plain mischief fails to sign, then fatally, hundreds of voters are disenfranchised. Again a corrupt politician needs only to team up with a few hundred presiding officers in an opponent’s stronghold, and bingo! Fortunes are turned. This will be carrying strict interpretation to absurd limits,” Mr Justice Baffoe-Bonnie submitted.

In his considered view, the non-signing by the presiding officer “is a mere irregularity that does not go to the root of the matter. It did not affect the conduct of the polls and, therefore, should not lead to the annulment or even cancellation of votes.”

He accordingly dismissed the petitioners call for the annulment of votes in 1,638 polling stations across the country due to the non-signing of pink sheets.

Justice Baffoe-Bonnie also refused to grant the petitioners call for the annulment of votes in instances of some pink sheets having duplicated serial numbers, over-voting, voting taking place at 22 unknown locations and some polling stations having duplicated polling station codes.

He, however, upheld the petitioners’ claim of persons being allowed to cast their ballots without undergoing biometric verification.

Published summarised judgements

The Supreme Court on August 29, 2013 in overall decision, declared President John Dramani Mahama, as the validly elected president in the December 7 and 8, 2012 presidential election.

The petition was brought by the presidential candidate of the New Patriotic Party (NPP) in the December 2012 presidential election, Nana Addo Dankwa Akufo-Addo together with his running mate, Dr Mahamadu Bawumia and the National Chairman of the NPP, Mr Jake Otanka Obetsebi-Lamptey.

Summarised judgements of Justices William A. Atuguba and Julius Ansah were published in the September 4, 2013 edition of the Daily Graphic while that of Justices Anin  Yeboah and Sophia Adinyira were published on September 6, 2013.

The opinions of Justices Rose Owusu and N. S. Gbadegebe were published in the September 7, 2013 edition of the paper while that of Justices Jones Victor M. Dotse and Vida Akoto-Bamfo got published on Monday, September 9, 2013.

Summarised judgement of Justice Baffoe-Bonnie

Over-voting

On over-voting, he said, “I uphold the principle that once over-voting is detected in a polling station the elections there are compromised and should be cancelled but the voters there should be given a second chance to cast their votes. However, I find that in view of the admissions made by the 2nd petitioner with regard to some pink sheets and the many clerical errors, I find that the number of pink sheets affected in this category has so reduced that the votes affected are not too significant to make any impact even if they are cancelled. I dismiss the claim on this ground too.” Dr Bawumia was the second petitioner.

Biometric Verification allegation upheld

On the issue of persons voting without undergoing biometric verification, Mr Justice Baffoe-Bonnie was of the view that “the petitioners have discharged the burden of proof on them that voting took place in some polling stations without prior biometric verification. This was discriminatory since other persons had been turned away for their inability to be verified. All those stations affected by this phenomenon should have their votes cancelled and the voters given a second chance to vote again.”

Justice Baffoe-Bonnie held that the “the long explanation by the 2nd respondent flies in the face of the recordings on the pink sheets. They, presiding officers were not expected to fill them because nobody was expected to vote without biometric verification.”

“But they have filled them. Where did they get the figures from? If the figures reflecting that all voters at a polling station voted without going through BVD was lifted, how about those pink sheets which show figures unrelated to any other figures on the pink sheet?,” he queried and said from the totality of evidence adduced by the petitioners, the EC (second respondent) violated Regulation 30 (2) of C.I. 75 which required persons to undergo biometric verification before voting.

“I will, therefore, uphold the petitioners claim on this ground only to the extent that those voters that have their votes cancelled should have the chance to recast their votes lest they be disenfranchised,” Justice Baffoe-Bonnie held but his position formed part of the minority and for that reason, voting will not take place in the affected areas.

The Chairman of the EC, Dr Kwadwo Afari-Gyan, had told the court that presiding officers were not required to fill out the part on the pink sheet which required information on the number of persons not biometrically verified to vote on the grounds that political parties had kicked against the idea to allow persons whose biodata got lost but had been issued with voter identity cards to vote.

Struggle for the right to vote

In his 21-page judgement, Justice Baffoe-Bonnie said the right to vote and, thereby, partake in governance and decision making had been fought for by some democrats from of old and indicated that, “some have paid the ultimate price to ensure that no category or class of people are disenfranchised.”

Emphasising the right to vote, Justice Baffoe-Bonnie held that “it is not too long ago that the blacks of South Africa were given the right to vote. The same thing applies to USA. In some countries women were given the right to vote not too long ago.”

“We in Ghana have had the universal Adult suffrage since independence. Even though some countries prohibit prisoners from voting, in Ghana we don’t. This is how far we have come in our quest for democratic governance. We should do everything possible to protect this right. And the least we could do is not to disenfranchise people through technical or administrative lapses over which they have no control,” Justice Baffoe-Bonnie stressed.

Duplicate pink sheets

Giving his opinion on allegations of pink sheets having duplicated serial numbers, he upheld the respondents’ explanation that the numbers are not security numbers that can be used to track the polling stations in which they are actually used.

He also accepted the explanation that polling stations were known by their unique codes and names and for that reason any pink sheet with any number could be sent to any region, constituency or polling station.

“In their address the second respondent said this category can properly be described as the weakest link in an already weak chain. I couldn’t agree more. Throughout the proceedings the petitioners failed to show how this so called irregularity affected the conduct of the polls,” adding that, “the petitioners failed to convince me about the veracity of their claim as far as this irregularity is concerned and I reject same,” Justice Baffoe-Bonnie stated.

Petitioners claim flawed

The petitioners on December 28, 2012 dragged President Mahama and the EC which declared President Mahama winner of the poll to the Supreme Court but the National Democratic Congress (NDC) applied to join albeit opposition from the petitioners.

In a 6-3 majority decision, the court on January 22, 2013 gave the NDC the nod to join the petition which later indicated that using pink sheets from 10,119 polling stations, a total 3,931,339 votes were affected by the various irregularities.

According to the petitioners, when the results of these polling stations are annulled, President Mahama’s votes would be reduced by 2,622,551 which will result in him securing 41.79% of the new tally of valid votes while Nana Akufo–Addo’s votes would also be reduced by 1,233,186 but that will still see him securing 56.85% of of the new tally of valid votes, much more than the needed 50% + 1 to be declared as winner of the Presidency.

Responding to that line of argument, Justice Baffoe-Bonnie held that, it was his opinion that the basis of the petitioners’ claim that Nana Akufo-Addo be declared as the winner after annulment of votes “is completely flawed.”

By Mabel Aku Baneseh/Daily Graphic/Ghana

Writer’s email: mabel.baneseh@graphic.com.gh.