The use of biometric verification was to ensure that only persons entitled and properly accredited to vote exercise their franchise in accordance with the law as voting without biometric verification is also linked to the protection of the integrity of the electoral process as well as to the principle of “one man one vote.”

This is contained in the 176-page “written address of counsel for petitioners”, where they explained that on Election Day, the election official needs to be sure that the person arriving at the polling station, apart from the mere production of the required ID card, is the same person whose biometric details are captured on the biometric voters register.

According to the petitioners, the evidence led at the trial shows that 508,837 people voted without prior biometric verification, which in their opinion was unconstitutional, a violation of the law and a malpractice.

“If the President is not voted for in a manner that is not secure, then the country will head into an abyss for, the election would not have represented the will of the people. The will of the people can only be exercised by the eligible voter,” the petitioners state.

The Petitioners explained that the history of Ghana’s electoral system is replete with numerous instances of people voting with fake ID cards, impersonation and multiple voting, thus, there can be no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters.

“The electoral system cannot inspire confidence if no safeguards exist to detect or deter fraud or to confirm the identity of voters,” the petitioners maintain.

Every voter shall undergo biometric verification

The petitioners argued that the 1992 Constitution does not prescribe all the steps by which voting is done in Ghana, nor does it prescribe how registration of voters for public elections and referenda is to be carried out, what procedures should be employed, or what kind of registration prospective voters should undergo.

Thus, by virtue of Article 45, the Constitution vests the Electoral Commission with the power regarding the performance of functions as described above, and also in relation to how public elections are to be conducted and supervised.

“It cannot be contended that an unconstitutionality is occasioned when the 2nd respondent, pursuant to powers conferred on it by the Constitution, enacts regulations (C. I. 75), prescribing how registration of voters should be done in this country and regulating the conduct of public elections, and those regulations impose any reasonable requirements for prospective voters to comply with, such as the establishment their identity before voting,” the petitioners note.

Whilst regulation 18(1) of C.I. 75, makes it mandatory for every polling station to be provided with a biometric verification device; Regulation 30 (2) of C.I. 75 also states that “the voter shall go through a biometric verification process. In addition to these, Regulation 34(1) of C.I. 75 adds states that upon “the breakdown of an equipment, the presiding officer shall in consultation with the returning officer and subject to the approval of the Commission, adjourn the proceedings to the following day.”

“The combined effect of Regulations 18(1), 30(2) and 34(1) is that the use of the Biometric Verification Device (BVD) was made a mandatory component of the 2012 presidential election…. Thus, for the first time in our Fourth Republican journey, voting in a general election spanned two days and it so happened because of reported incidents of alleged breakdown of BVDs. That unprecedented adjournment underlines the significance that the nation attached to biometric verification for the 2012 general elections,” the petitioners note.

Unconstitutionality in the use of BVD debunked

Citing authorities from the UK, USA, South Africa, Canada and India, the petitioners debunked claims by the 1st and 3rd respondents that the use of the biometric verification device was unconstitutional.

It is recalled that after the attention of the 1st and 3rd respondents were been drawn to the fact that, voting without biometric verification occurred throughout the country and that, even in certain polling stations, the EC’s officers in accordance with the acknowledged rules for the conduct of the December 2012 elections annulled results in four (4) polling stations for failure of certain voters to go through biometric verification, Johnson Asiedu Nketiah, who testified for and on behalf of the 1st and 3rd respondents, stated in paragraph 15B of his affidavit filed on 15th April, 2013 that the decision to make voters vote only after going through biometric verification is unconstitutional.

The petitioners thought it strange and striking that the “1st and 3rd respondents who, at the material time of the passage of C.I. 75, were the President of the Republic and the ruling majority party in Parliament respectively were, together with 2nd respondent [EC] principally responsible for the enactment of C.I. 75, should now through a species of weak constitutional argument attempt to undermine the constitutional validity of C. I. 75 by seeking to legitimize illegal conduct to justify the questionable declaration of 9th December 2012 by the EC.”

“Such contradictory behaviour does not enhance the democratic governance of our State under the Rule of Law,” the petitioners stressed.

EC Claims exposed

The petitioners explained that contrary to claims made by Dr Afari Gyan that “no one voted without biometric verification”, his admissions in the witness box that he would allow certain persons like the Omanhene to cast his vote without biometric verification, exposes the untruths made by the EC boss. In addition to this, Dr Afari Gyan also admitted that he had instructed his officials to allow certain “prominent persons” to vote without biometric verification.

In the view of the petitioners, “such cases would promote the uneven application of the law on biometric verification. The 2nd respondent [EC], by turning others who could not be verified away and permitting others who were well-known in the community, but who could also not be verified biometrically, to vote, could be said to be valuing the vote of one person over the other. It is an uneven application of the law.”

They continue, “It implies that the main guarantee of one’s right to vote, after having registered, is whether one is well-known in one’s community. If one is not and one’s biometric details cannot be captured, one will be turned away even though, in another instance, an Omanhene or a prominent person will be allowed to vote even though he has not been verified biometrically.”

Further debunking the claims of Dr Afari Gyan about no one voting without biometric verification, the petitioners stated that the evidence led at the trial showed, the incidence of people voting without biometric verification was evident on the face of the pink sheets.

It is recalled that the EC boss stated that the pink sheets for the December 2012 elections were designed and printed before the decision to compel voters to be verified biometrically before voting was taken. Hence the appearance on the form of the question C3 as follows: “What is the number of ballots issued to voters verified by the use of Form 1C (but not by use of BVD)”?

The EC also further stated that, in view of the late decision regarding verification, all presiding officers were instructed to leave question C3 on the pink sheet blank as verification would be carried out for each voter at the polling station. However, according to the EC, some presiding officers mistakenly filled question C3.

“This averment of the 2nd respondent, was also belied by the unimpeachable evidence consisting of admissions by the Chairman of 2nd respondent, on 6th June, 2013, that C. I. 75 (mandating the use of biometric verification) came into force on 28th September, 2012, long before the Chairman of 2nd respondent on 20th October, 2012, gave the order for the pink sheets to be printed,” the petitioners explain.

The explanation simply, according to the petitioners, cannot be true because, if it is, then it raises grave concerns over the capacity of presiding officers the 2nd respondent with the resources of the State employed.

“C3 (“What is the number of ballots issued to voters verified by the use of Form 1C (but not by the use of BVD”)) is clear and so simple to understand that it leaves no room for ambiguity or multiple interpretations. Thus, if over 2000 presiding officers trained with state resources could not be trusted by the 2nd respondent to understand and act properly on such a simple instruction only to fill column C3 in “error”, then one can imagine the number of other “errors” committed on the pink sheets which culminated in the 9th December, 2012 declaration that 1st respondent won the election, the address reads.