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Feature Article of Thursday, 12 September 2013

Columnist: Tamakloe, Kojo

2012 election, petition judgment & NPP disinformation

A lay persons view

Kojo Tamakloe

I find it a big shame that after the verdict, the NPP in particular has gone into its usual denial and hence insulting, disinformation and disparagement mode. To my mind when NPP goes around organizing marches in the West and “ aping” the so called civilized behavior , it behooves them to practice that behavior of civility and decorum. What do they want? How do you demonstrate in front of Prez Obama who comes from the minority but rode to office on the wings of a majority of a different race for sympathy? Does he not know the feeling of hate, rejection and racism from the racist KKK , similar to the tribal cabal of the NPP who daily label Prez Mahama as a “ pepeni , ntani, a cowherd” and so being unfit to run the country and head a “ superior tribe”?

It is a known fact that elections for a new government were held December 7&8 , 2012. It is also known the NPP as usual being the losing party raised claims of fraud and conspiracy to defraud between the winner and current President ,and Dr Afari Gyan , an ex room mate of the loser whose name and qualifications I am not sure of as he goes by several aliases. Unfortunately the EC did not identify which one was standing for the position of President and the court did not query that either. The court should have ordered a biometric verification or a DNA identification to ascertain the person of 1st petitioner before proceeding with the case . For the sake of brevity let us put that aside. But let me remind you, Ex Prez Rawlings was challenged as to his citizenship status in 1991 and this had to be resolved before he could stand as the Presidential candidate

Now to the case in contention .

Let us again just summarize the Petitioners claims

“Indeed even in this petition the petitioners claim , the 1st petitioner was the candidate rather elected, obviously upon the same register. So also their allegations that there were irregularities and electoral malpractices which “were nothing but a deliberate, well-calculated and executed ploy or a contrivance on the part of the 1st and 2nd Respondents with the ultimate object of unlawfully assisting the 1st Respondent to win the 2012 December Presidential Elections.” As there was lack of proof whatsoever , an alteration to the petitioners claim had to be changed effected after they, the petitioners admitted, Prez Mahama had done no wrong” . This was after publicly and universally subjecting the President, a” primus inter pares” to humiliation, ridicule and insults both inside and outside parliament through boycotts and howling “ stealer” before the press , television cameras, other broadcasting and publishing media . Thus it was with great surprise that the 2nd petitioner for and on behalf of all the
petitioners, testified that the first respondent did no wrong with regard to the
conduct of the elections but was merely the beneficiary of the alleged malpractices, irregularities and violations. So they changed it to ,that HIS ELECTION WAS TAINTED BY IRREGULARITES , not unlawful
To my mind at this point the case should have been thrown out . Justice Anim Yeboah in his summary also came close to that as he stated that in the absence of witnesses there could be no case and wondered why the NDC and Mahama’s attorney did not use that

Be it as it may, they finally agreed on the following
“Eventually the core grounds of their case are as summarized at p.125 of their counsel’s Written Address as follows:
“I. over-voting
II. voting without biometric verification
III. absence of the signature of a presiding officer
IV. duplicate serial numbers i.e. occurrence of the same serial number on
pink sheets for two different polling stations
V. duplicate polling station codes, i.e. occurrence of different results/pink
sheets for polling stations with the same polling station codes
VI. unknown polling stations i.e. results recorded for polling stations
which are not part of the list of 26,002 polling stations provided by the
2nd respondent for the election.”
In the ruling it was concluded that ,at (conference) we “unanimously” saw no merit in ground IV relating to “duplicate serial numbers i.e. occurrence of the same serial number on pink sheets for two different polling stations.”

So even before the case began one could see the petitioners case falling apart and the very SC that NPP is insulting, directing them as to what they should be bringing before them . Just take a look “ at conference we saw no merit” .

So we are left with 5 points of contention . 1 Over voting: An over vote, which is when one votes for more than the maximum number of selections allowed in a contest. The result is a spoilt vote which is not included in the final tally. No where was it found that votes exceeded voters or ballot papers issued or multiple selection?. In any case you could not adduce that from the pink sheets and as “ you and I were not there “
2 .Voting without biometric verification or voting without verification . What did the constitution stipulate? Is finger printing the only way to verify some one ?

Verification is the establishment of truth: the establishment of the truth or correctness of something by investigation or evidence or by standard definition of verification , the evidence that proves something is true or correct . In this case establishment of the identity of the person. Can this be done in a variety of ways? How do we verify a child belongs to a person.? Apart from the Solomonic version of splitting them up, one can use a DNA or through a birth certificate or other documentary proof. Orally by close relatives or other authoritative persons in our communities? How were we doing it before and as stipulated in the 1992 constitution when the biometric verification did not exist?. Legality is not just from the constitution but from common law, precedence and statute from which the constitutional law emanates. So the question here should have been the broader version of verification . The EC to arrive at a true winner needed to correctly identify the voter and then permit that person to vote . Even the USA being widely quoted does not solely use biometric verification . Justice Yeboah Anim alludes to this and goes on to use “NVNV” , he did not use NBVNV , that is no biometric verification , no vote . It is therefore surprising he goes on to order a re run by upholding the petitioners claim when all voters had gone under NVNV

• 3 Absence of signatures of presiding officers What is the effect of a signature? A signature has the legal effect of signifying that a party has read, understood and assents to the contract. Hence a party who has signed a contract will be bound by it.
I want us to focus on the word , ASSENTS or agrees to a contract and so is bound by it .Being bound means “certain to do something: certain to happen or do something because custom, experience, or common sense dictates it or is obligated: obliged to do something or behave in a particular way, e.g. for legal or moral reasons or it is determined: firmly resolved. So here one talks about it as is determined or firmly resolved . We have parties who are in contest and the contest is over and the results finalized and announced , and whose representatives have signed the results , signifying assent and therefore, being FIRMLY bound . They therefore cannot now turn round and say,” oh, no we do not agree” . Their signatures are there as proof and the lack of signatures of the presiding officer cannot redeem them . The signature of the presiding officer in this case is more of a witness, who is not a party to the contract and so cannot invalidate the contract . That contract seizes to be voidable , it is enforceable.

Let us look at other scenarios In a paperless environment parties often execute contracts and submit governmental paperwork via the internet and other electronic media. Original signatures gave way to faxed signatures and now electronic signatures are an accepted method of execution
Are there situations when signatures can be by passed ? In a will of a deceased that will be difficult as the person making the contract is dead and cannot now show his will or preference. But there are many instances of contracts that are valid without signatures. If I walk into a shop and the price reads GhC 100 and I pick the item , inspect it and go to pay to the cashier , I have just transacted a valid contract even without speaking a word. That contract is valid . That is a contract by our actions . So if we apply this to the presiding officers , what were their actions? They went ahead and publicly announced the results signed by the contesting parties and followed it up by transmitting those results to their employers the EC. as required .They did not signify any dissent and even with the passage of time still remained silent. That showed consent . They may have disobeyed their employer or been negligent who could take disciplinary action but law the contract is legal and seizes to be voidable . In common law we see this kind of action taking place every day. They used to shake hands on it . Then we can also take a game of soccer in which one team wins but the referee in his report forgets or neglects the sign the report. Does that invalidate the score ?
Let us now dwell on the last two points of Unknown polling stations and duplicates codes at different polling stations . As much as I am happy the way these have been handled by the Judges one can say what is unknown to the NPP? Why were the other parties present at the polling stations ? Was NPP being discriminated against?. Again this to me is where the petitioners needed to come with proof again that they were not made aware of the existence of the stations. It is thus this kind of porous falsity and deceit that should have confirmed that the petitioners are NOT CREDIBLE . That hollow lie should have made them all throw the case out . Instead the respondents had to bring in a letter of appointment of polling agents written and signed by the 1st petitioner himself . Holy cow , how low can the NPP descend? It was for the NPP to show negligence or malfeasance or discrimination on the part of the respondent , not stop at an allegation . Prove it NPP
• Duplicate codes . Coding is writing statements in a programming language or markup language. Essentially synonymous with programming, coding is the foundation behind all software . So in essence these are just soft ware tools or verbiage . In accounting software , one can have different departments having overlapping codes . Take Human resource as department . This will have sub sections that will haves codes similar to other similar subsections in other departments. Will that be duplication? So what will be the code for IT is finance ministry, agriculture ministry, education ministry ? All will be the same . Will that be duplication? So how do you rule for a rerun based on that?

Declaration of a winner : Even in the extreme case of Justice Yeboah Anim , he gave President Mahama , the winning percentage but then concluded there was no one with the 50 + 1 percentage . How and why then is the NPP pouring insults on Justice Atubuga? Justice Yeboah Anim says they have had to accept evidence which is secondary as they were not there . This is “ circumstantial evidence” . This type of evidence by its very nature is weak and needs a higher degree of proof. Based on the scale of probabilities , did the NPP reach that? To my mind , NO

This is why . If the constitution says you are dissatisfied you can go to court , this must be read within the context of smooth and orderly governance. Frivolous challenges would make governance impossible and so the judges who threw the petitioners claim out got it right within the purvey of legality, ‘ what will a reasonable person do or not do”.

Other considerations . On the same day and at the same polling stations with same polling officers elections took place that have been accented to as fair, transparent and credible . These were the parliamentary results .
Why accept the results of the parliamentary election held under same conditions and supervised by the same persons and with the same flaws and throw out the other?. This also goes for the “ unknown polling stations” of which the NPP won 23 of the 45 polling stations .Why accept the results you won and dispute the ones you lost? What was “Unknown”, about them?

We also must invoke, then also the flaws in the NPP petition. Where there flaws ? Yes ,relating to the petition itself as stated in the beginning. Where was the fraud and collusion? The star witness admitted under oath Prez Mahama is innocent , goes on to say the “ evidence is in the pink sheets” as “ you and I were not there” ,which means he has no proof and all he says is speculation as the pink sheets do not talk
Finally all the pink sheets should have come under scrutiny, both as to number submitted and the polling stations involved “ What is good for the goose is good for the gander’ . Why limit the petition claim to Prez Mahama strong holds and not extend it to the challengers’ strong holds. If those results with the same flaws are held as good , then why should the ones from the other side not be held as good ?Then also if errors and mistakes on the part of the EC renders their work invalid, then the errors and mistakes of the petitioners renders their petition invalid. The standards need to be the same

I wish to congratulate the justices for their high degree of intellect . They made a lot of research looking for precedence in case law . But I felt as in the case of justice Adinyira they should have concentrated on the broader aspects of components of law , and the reason for the existence of law, which is “orderly conduct of humans in society , preservation of peace and security” I am sure Lord Dennings would have agreed with the majority of going into “ what did the framers of the constitution have in mind”? . Let us all answer this question, suppose the opposite had prevailed and NPP won ,what would have been the consequences for governance? Would NDC in the case of a loss go on to challenge the results in the case of a re run and what would have been the effect on the governance and development of the State? I leave that to your judgment

PS Instead of jumping on Mr Tsikata on the comments about Justice Yeboah Anim , does it occur to us that Mr Tsikata may have held Justice Yeboah Anim in high regard and was trying to rationalize how such a brilliant mind may have arrived at his conclusion? As a lay person and reading through the high standards the Justices have exhibited, I ask myself the same question. It is the same way I asked how the jury in the Trayvon Martin case, came up with their verdict. You see justice kpegah once said “if a snake bites you in the forest at night you are guilty , but if the snake bites you in your living room , the snake is guilty” . NPP had polling agents at the stations , watched and attested to the truth and accuracy . NPP cannot now come and shout “ we was wuz robbed “ .

The writer Kojo Tamakloe is an Nkrumaist who believes African Unity is the solution to Africa’s’ underdevelopment

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