Feature Article of Sunday, 23 December 2012
Columnist: Kuruk, Paul
Nana Akufo-Addo v. Electoral Commission?: Matters Arising (Part 1)
By Professor Paul Kuruk
It was reported that Nana Akufo-Addo, the Presidential Candidate of the New Patriotic Party (NPP) met with the leadership of the Trade Union Congress on Wednesday, December 19, 2012, to explain why the party had decided not to accept the results of the 2012 elections. He was reported to have said “the NPP came to the conclusion after examining the evidence available to us, that the results that were put out by the Electoral Commission (EC) are not a true reflection of what actually transpired, and that is why we have chosen to challenge in the constitutionally designated forum, the Supreme Court, the results of the December 7 polls.” (The news report is available at http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=260021).
Nana Akufo-Addo offered no specific details about the evidence the NPP examined, or how the 2012 results did not reflect “what actually transpired.” However, other media reports have alluded to general claims by various NPP officials that the vote tallies in some constituencies had been padded in favour of President John Mahama and /or reduced to the detriment of Nana Akufo-Addo. The alleged padded vote tallies have varied widely, from estimates of 53,000 by Deputy Communications Director John Boadu, to 150,000 by Minority Leader Osei Kyei-Mensah Bonsu, and more than 1 million by General Secretary Kwadwo Owusu Afriyie. (See for example, reports at http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=259045; and also at http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=259903).
This article discusses issues arising from Nana Akufo-Addo’s intention to challenge the EC’s declaration of President John Mahama as the President-elect. They include the constitutional provisions for determining “what actually transpired” in the elections, the role of party polling agents in preventing electoral fraud, the legal effect of filing a petition, and possible legal outcomes if a petition is filed.
I. CONSTITUTIONAL PROVISIONS FOR DETERMINING THE WILL OF THE ELECTORATE
Article 49 of the Constitution provides the rules for determining the will of the electorate during an election. It requires that “immediately after the close of the poll, the presiding officer shall, in the presence of such of the candidates or their representatives and their polling agents as are present, proceed to count, at that polling station, the ballot of that station and record the votes cast in favour of each candidate....” (Article 49(1). Furthermore, the “presiding officer, the candidates or their representatives....shall then sign a declaration stating (a) the polling station; and (b) the number of votes cast in favour of each candidate...and the presiding officer shall, there and then, announce the result of the voting at the polling station before communicating them to the returning officer.” Article 49(2). The Public Elections Regulations adopted in 2012 pursuant to Constitutional Instrument 75 (hereinafter referred to as CI 75), also requires the presiding officer to “give each candidate, or the representative of the candidate or counting agent a copy of the declaration of the results.” CI 75, Section 36(3)(b).
Furthermore, “immediately after the results of the poll for all the polling stations in the constituency of the returning officer have been given to the returning officer, the returning officer shall, in the presence of the candidates or the representatives of the candidates or not more than two counting agents appointed by each candidate (a) assemble the results from the polling stations without recounting the ballots in the ballot boxes, except where there is a challenge by a candidate or counting agent in respect of a specific box; [and] (b) give public notice of the total number of votes cast for each candidate.” CI 75, Section 40(1).
Thus, the most important piece of evidence in any challenge of the results of the 2012 election will be the declarations signed at each polling station. Any discrepancies in the figures as reported in the declarations at the polling stations on the one hand, and the figures as reported for collation purposes at the constituency level, would introduce errors into the vote tallies and potentially could affect the outcome of the election. Indeed, the discrepancies would have this effect if a revision of the figures previously declared by the EC (on the basis of collations after the voting on December 7 and 8, 2012) would reduce the percentage of votes for President John Mahama to 50% or less, and /or increase Nana Akufo Addo’s vote tallies to more than 50%.
However, it is also clear from the constitutional provisions that no weight is to be attached to evidence other than the polling station declarations in ascertaining the will of the electorate. Therefore, it is not permissible to refer to extraneous evidence such as interviews with polling agents, etc., to attempt to reconstruct the votes of the electorate and then to allege a discrepancy with the EC vote tallies based on such reconstructed figures.
Absent a court order, the electoral laws of Ghana do not permit a recount of ballot papers once the results of the voting at the polling stations have been communicated to the returning officers and collated at the constituency centres. The claims of the NPP appear to center more on the accuracy of the collated figures as opposed to the accuracy of the counting of votes at the polling stations. If this is the case, then there will be no need for the Supreme Court to order a recount of votes. Instead, the Supreme Court could order a recollation of polling station results and make a ruling on the validity of the election of President John Mahama after analysing the recollated results.
However, if the NPP case also includes an attack on the accuracy of the votes as declared in the polling stations, then the Supreme Court may order a recount of the votes if proper grounds exist for doing so. Unless the NPP also makes the claim that errors were made in counting the votes in all the 26,000 polling stations, any Supreme Court order in this context will not be for a recount of ALL the votes cast in the Presidential election, but would be limited to only votes cast in polling stations with respect to which the NPP is able to convince the Supreme Court there were indeed counting problems.
Thus, to succeed in its quest to invalidate the results of the 2012 election that confirmed a first round victory for President John Mahama, the NPP must demonstrate that after adjusting for alleged errors in reporting the polling station results as declared on the election days or following a recount of votes ordered by the Supreme Court, President John Mahama did not obtain more than 50% of the valid votes cast.
So far, the NPP has presented no such evidence.
II. VIGILANCE OF POLLING AGENTS AS AN ANTIDOTE TO ELECTORAL FRAUD
The NPP has accused the EC of manipulating or rigging the electoral process to the advantage of the NDC and the detriment of the NPP. However, such accusations reflect a fundamental misunderstanding of Ghana’s electoral system and especially of the critical role played by party polling agents in ensuring fair and transparent elections. Each step of the process of counting votes, collating and transmitting results to the EC is required to be carried out under the watchful eyes of party aligned polling agents. This would ensure the honesty and integrity of the process and eliminate the potential of fraud so long as the party polling agents remained vigilant.
Any claims by the NPP of manipulation of results by the EC will have to be assessed against the numerous safeguards in the electoral regulations to prevent such abuse as provided for in Article 49 of the Constitution and Sections 35, 36, 37 and 40 of CI 75:
(1) At the polling stations, ballots are counted publicly in front of everyone who cares to watch.
(2) Each presidential candidate is allowed to appoint one counting agent at the polling station to attend to the counting at the polling station.
(3) The presiding officer and polling agents are required to sign a declaration stating the name of the polling station; the total number of persons entitled to vote at that polling station; and the number of votes cast in favour of each candidate.
(4) The presiding officer is required to announce publicly the results of the voting at the polling station.
(5) At the polling station, the presiding office is required to give to the counting agent a copy of the declaration of the results of the polling station.
(6) The counting agent can request an automatic recount of the ballot papers at the polling station if not satisfied with the original counting.
(7) The counting agent can request a second recount of the ballot papers at the polling station but the presiding officer may refuse to perform the second recount if he determines it to be inconvenient.
(8) Where the presiding officer refuses to perform a second recount of the ballot papers at the polling station, the request should be passed on to the returning officer who must perform that second recount of the ballot papers of that polling station only at the constituency collation centre.
(9) After the announcement of the results at the polling station and in the presence of the counting agents, the ballot boxes are to be sealed with the seals of the presiding officer and the polling agents to prevent introduction of additional ballot papers.
(10) The presiding officer is required to deliver the sealed ballot papers to the returning officer with a statement indicating the number of ballot papers entrusted to the presiding officer.
(11) No recount of ballot boxes is permitted at the constituency collation centres except where there is a challenge by a counting agent in respect of a specific ballot box.
(12) At the constituency collation centre, the results of all polling stations in the constituency are assembled publicly by the returning officer.
(13) Each presidential candidate is allowed to appoint at least two counting agents to represent him at the constituency centre during the collation of results from the polling stations.
(14) The returning officer is required to publicly announce the total number of votes cast for each candidate, and in parliamentary elections, declare as elected the candidate to whom most votes have been given.
(15) The counting agents are authorized to sign the declaration of result form and can check for any errors made in adding up the results from the polling stations.
(16) When signed, a copy of the declaration of result form is posted at the constituency collation centre by the returning officer.
(17) Finally, the returning officer is required to forward figures from the constituency collation sheets to the EC headquarters.
Any political party that fails to take advantage of these opportunities to monitor the electoral process through the appointment of effective polling agents to represent its interests cannot lay the blame on the EC for any alleged acts of malfeasance. The law states quite emphatically that the absence of a polling agent or counting agent will not invalidate the results at the polling station or constituency collation center. CI 75, Section 44(2).
III. RULES OF PROCEDURE FOR HEARING OF ANY PETITION
There has been a great deal of public interest in the procedures to be put in place for hearing of the petition by the NPP, in particular, whether the proceedings should be televised.
Article 64(3) of the Constitution provides: “The Rules of Court Committee shall by constitutional instrument, make rules of court for the practice and procedure for petitions to the Supreme Court challenging the election of a President.” It is not clear whether specific rules have already been enacted to govern such petitions. However, even in the absence of such laws, and until the rules are made, the Supreme Court pursuant to CI 75 “may direct the procedure to be followed in relation to the presentation and hearing of a petition...” challenging the election of a President.
Therefore, the Supreme Court is authorized to specify the procedures to be followed for hearing the petition, including whether to allow television cameras into the court room. But should the Supreme Court do so if a petition is filed?
Very cogent reasons can be advanced both for and against the use of television cameras to cover proceedings of the highest courts of some countries. In the United States for instance, cameras are never allowed in its Supreme Court although audiotapes of oral arguments and opinions are made available to the general public. Proponents for the use of cameras point out that because the Supreme Court makes pronouncements on constitutional issues that have direct impacts on the rights of citizens, it is useful to televise the proceedings so that the public can see and hear the issues presented. On the other hand, opponents contend that requiring proceedings of the Supreme Court to be televised would be a threat to judicial independence and could compromise the anonymity and security of judges.
IV. LEGAL EFFECT OF FILING OF A PETITION
In an article posted on the Ghanaweb on December 12, 2012 discussing allegations that Nana Akufo-Addo would petition the Supreme Court with respect to the just concluded elections, Professor Kwaku Asare concludes on that “once the writ is filed, the President must stop acting as the President-elect and desist from any and all actions that will be contemptuous of the Court, including, but not limited to the transition arrangements that has put in motion.” (The article is available at http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=259175)
Nothing could be further from the truth. If the mere filing of a petition operated as an immediate stay, anybody could cause mischief and disrupt the transition to a new administration by simply filing a frivolous petition challenging the results of a presidential election.
As a matter of law, the filing of a petition would not necessarily operate as a stay of any duties or plans of the President-elect. Indeed, as pointed out in the next section, even a declaration of the Supreme Court invalidating the results of the presidential election will not affect official acts performed by the President prior to the declaration.
V. ARMAGEDDON: OPTIONS FOR THE SUPREME COURT
Should the Supreme Court summarily dismiss the petition (and all the publicly available evidence points in that direction), there will be no change in the status quo. President John Mahama, having already been declared the President-elect by the EC and sworn into office by the time of any Supreme Court decision, will continue to perform the functions of President as envisaged under the Constitution.
However, in the most unlikely event the Supreme Court declared the results of the 2012 Presidential election to be invalid, the legal consequences are not going to be as clear cut. A lot will depend on the findings of the Supreme Court regarding the number of votes cast for each presidential candidate and the specific orders the Supreme Court may make as a result of its findings. Two types of findings are pertinent in this context. First, that Nana Akufo-Addo is adjudged to have garnered more than 50% of the total valid votes cast, or second, that President Mahama and Nana Akufo-Addo are each determined to have obtained less than 50% of the total valid votes cast. Assuming the former position prevails, it will not be too farfetched to expect the Supreme Court to go ahead to declare that Nana Akufo-Addo was elected President of Ghana.
Where the latter situation prevails, and President John Mahama and Nana Akufo-Addo are each found to have received less than 50% of the total valid votes cast, a run-off election may not necessarily be ordered as some might assume. This is because a run-off election has to be held within twenty-one days after the date of the first election, that means no later than December 28, 2012. Constitution, Article 63(4). Each single day that goes by without the NPP carrying out its threat to file a petition, means the window for a timely Supreme Court resolution (if the petition is eventually filed) so as to permit a run-off on December 28, 2012 grows considerably narrower. At this stage, given the deliberate manner the NPP has proceeded with its plans to file a petition coupled with the logistical difficulties the EC would have with organising elections in the remaining time-frame, it can be concluded with virtual certainty that no run-off elections can be conducted within the time period specified by the Constitution.
In the meantime, who should rule Ghana if the Supreme Court found that no presidential candidate won more than 50% of the total valid votes cast in the December 2012 elections? Ordinarily, the Speaker of Parliament will assume the office of President under Article 60 where “the President and Vice-President are both unable to perform their functions of President.” Article 60 (11). However, this presupposes that both the President and Vice-President were validly elected but due to an unforeseen turn of events were no longer able to perform their functions. But can this constitutional provision be interpreted to cover the case where a President-elect is subsequently determined by the Supreme Court not to have been validly elected in the first place? This is rather doubtful if the provision is read to apply only to a duly elected President. For this reason, the Speaker is unlikely to assume the office of President in the event the results of the December 2012 elections were invalidated by the Supreme Court based on a finding that President John Mahama had received 50% or less of the valid votes cast.
Significantly, under Article 64(2) a “declaration by the Supreme Court that the election of the President is not valid shall be without prejudice to anything done by the President before the declaration.” Contrary to the claims of some NPP legal pundits, this means the declaration will not affect the legality of anything done by the President prior to the declaration. (See for example statements attributed to Nana Akomea, NPP Communications Director at http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=259671). Therefore, every official act performed by the President at least up to the time of the declaration is presumed to be legal.
However, the constitutional provision stops short of saying what would happen to acts of the President after the declaration by the Supreme Court. Although an argument could be made that the President should not perform any functions after such declaration, it is equally plausible to argue that given the absence of a specific constitutional provision prohibiting him from doing so, the President may continue to act pending the holding of new elections. Because Article 63(2)(b) of the Constitution requires elections to be held within 3 months to fill vacancies in the office of President, that provision could apply to permit the President to stay in office until such elections were held.
It is submitted that such a resolution of the constitutional lacuna, (whether the omission is inadvertent or deliberate) would provide for continuity in the governance of the country and minimise the disruption and uncertainty that may follow in the wake of a ruling from the Supreme Court invalidating the results of the December presidential elections.
Any elections held within 3 months of the Supreme Court ruling will not be restricted to only the presidential candidates in the 2012 elections, but would allow for primary contests in all political parties to select the respective flag bearers and the submission of names of independent candidates to the EC.
Professor Paul Kuruk,
Cumberland School of Law of Samford University, Birmingham, Alabama; Former Visiting Professor, Oxford University (St. Peter’s College), England; Former Visiting Professor, GIMPA Law School, Accra; Executive Director, Institute for African Development (INADEV) Accra.