By Professor Paul Kuruk



On December 28, 2012, the NPP finally filed a petition challenging the declaration by the EC of His Excellency John Mahama as the President-elect. According to media reports, the NPP complained that “there were diverse and flagrant violations of the statutory provisions and regulations governing the conduct of the election which substantially and materially affected the results of the elections as declared by the Electoral Commission on December 9, 2012.” Furthermore, “the NPP claimed that the EC permitted voting to take place in many polling stations without prior biometric verification by the presiding officers of the election or their assistants contrary to regulation 30(2) of CI 75...They said the irregularities were deliberate, well calculated and executed between John Mahama and the EC, leading to illegal votes of 1,342,845.” (Media report available at http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=260887)



At a press conference organised later the same day, Dr. Bawumia, the vice-presidential candidate of the NPP cited irregularities including “overvoting -when the votes in the ballot box exceeded the ballots issued to voters-, voting without verification, duplicate serial numbers. Overcounting alone accounted for 620,443 votes, voting without verification, 456,933, words and figures that did not match accounted for 3,841 votes.”



This article comments on two legal issues stemming from the filing of the petition: the propriety of making President John Mahama a party to the legal proceeding; and the validity of votes cast by voters who did not go through a biometric verification process.





I. PRESIDENT JOHN MAHAMA AS A RESPONDENT TO PETITION



The petition names President John Mahama and the Electoral Commission as the First and Second Respondents, respectively. The NPP notes that the case had been filed against President John Mahama “in his personal capacity as presidential candidate of the National Democratic Congress (NDC)”.



However, naming President John Mahama as a respondent in the action is problematic to the extent a sitting President enjoys absolute immunity from legal proceedings. Specifically, the Constitution provides in Article 57(5) that “[t]he President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court.” Therefore, President John Mahama was wrongly named as a party in the case filed by the NPP and on proper motion to the Supreme Court, his name should be stricken as a party to the case. If the motion to strike is granted, the case against the EC would of course proceed, but without further participation by the President John Mahama.

Some commentators have argued that the suit against President John Mahama can be maintained because he is being sued in his capacity as President-elect, but not in his capacity as President. (See for example, statements attributed to Mr. Kissi Ajabeng, at http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=260815). However, this view is erroneous because the immunity recognised by the Constitution extends to both the official and personal actions of a President so long as he is in office. The scope of the immunity is not limited to official actions as the commentators assume. Even though President John Mahama was declared in December to be the President-elect, he also continues in his role as President. Therefore, as President, he could invoke the defence of immunity if he was so inclined.



There may well be good reasons to subject a sitting President to a lawsuit that questions the validity of his election. However, under the current law, it is not legally possible to compel his participation in the lawsuit in light of the immunity granted to the President. To make the President a party to electoral petitions would require an amendment of the Article 57(5) of the Constitution waiving the immunity of the President in the context of elections. Of course, notwithstanding the availability of the defence of immunity, President John Mahama may choose for strategic reasons, to remain a party to the lawsuit.





II BIOMETRIC VERIFICATION AND THE DISENFRANCHISEMENT OF VOTERS



The NPP puts the number of people who voted without going through the biometric verification process at 456,933, a figure that the party includes in its count of 1,342,845 “illegal” votes. To sound a precautionary note, these claims are mere allegations and not much weight should be attached to them until they are thoroughly examined in the Supreme Court after the EC’s response.



However, for purposes of discussion, should a vote cast by a person who did not go through a biometric verification process necessarily be considered to be an illegal vote and therefore, not count during the elections? For the reasons stated below, the answer is an unqualified no.



The Public Elections Regulations adopted in 2012 pursuant to Constitutional Instrument 75 (hereinafter referred to as CI 75) provides that “[t]he voter shall go through a biometric verification process.” CI 75, Section 30(2). Significantly, the regulations do not impose specific legal penalties on the voter who fails to go through such a biometric verification process. The regulations certainly do not provide that a vote by such a person would be illegal and should not be counted to determine the results of an election.



Indeed, the types of acts that would invalidate the ballot of a voter are identified in CI 75, Section 37(1) which provides: “A ballot paper shall... be void and not be counted if the ballot paper (a) does not bear the official mark of the Commission; or (b) is not thumb printed by the voter to clearly identify the candidate for whom the vote was cast; or (c) is not thumb printed at all or (d) has on it a writing or mark by which the voter could easily be identified.”



It should be noted that the list in Section 37(1) does not include a ballot paper cast by a voter who has not gone through a biometric verification process. Furthermore, Section 37(1) deals exclusively with the acts and omissions of the individual voter and does not penalise the voter for acts and omissions of others.



Under Article 42 of the Constitution, “every citizen of Ghana of eighteen years of age and above and of sound mind has the right to vote...” A voter who did not go through the biometric verification process should not penalised by voiding his vote SOLELY on the grounds that the EC official allegedly committed an irregularity by failing to conduct a biometric verification prior to the vote. In the absence of concrete evidence that the voter had committed a specific fraud, his vote ought to be counted. To refuse to count his vote for reasons not related to clearly proven acts of misfeasance by the voter, but rather alleged omissions by the EC, would amount to an unconstitutional disenfranchisement of the voter.



The consequences of perceived acts of omission by the EC as alleged by the NPP should not be visited upon the innocent voter. Appropriate penalties are provided for in cases where EC officials flout the electoral laws and they could be sought where EC officials, without reasonable justification, may have allowed certain persons to vote without going through a biometric process of verification. For instance, Section 17(5) of CI 75 provides that a “presiding officer or polling assistant who contravenes the laws and regulations governing the conduct of elections commits an offence and is liable to sanctions applicable under the electoral laws of Ghana.”



According to media reports, the EC had an understanding with the political parties that the principle “No Verification No Vote” would apply during the December 2012 elections (hereinafter referred to as “Understanding”). It is unclear whether as part of the Understanding, ballots of persons who nevertheless voted without going through the process of verification were to be disregarded. Even if it was part of the Understanding not to count such votes, it must be pointed out that the Understanding has no force of law, and cannot be relied upon as part of an effort to disenfranchise voters.



The Understanding lacks the force of law because it was not made in accordance with Article 51 of the Constitution which empowers the EC “by constitutional instrument....[to] ... make regulations for the conduct of public elections...” Rules adopted by the EC in this manner will be binding as part of the law of Ghana under Article 11(7) of the Constitution. The principle of “No Verification No Vote” was never adopted pursuant to a constitutional instrument and accordingly cannot be given effect to as part of the laws of Ghana.



Therefore, like Section 30(2) of CI 75 described above, the Understanding will be no bar to the argument that the votes of persons who voted without going through the biometric verification process must be counted to determine who was elected President of Ghana during the elections in December.





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.