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Opinions of Friday, 6 September 2013

Columnist: Ata, Kofi

Atuguba, Ansah and Adinyira Written Reasons: The Analysis

After five long and agonising days of waiting, the Supreme Court Justices’ written reasons on the presidential petition became available to the public. I have had the opportunity of reading those of the first three Justices and this is my personal analysis. I must point out that, I am not a lawyer and therefore the analysis is not through the microscopic eye and mind of a legal person. In other words, this is a common sense approach. I will therefore not attempt to support my opinions or challenge the reasons averred by the Justices with any legal authorities, especially, since this is not an appellant review. I will leave that to more qualified forum contributors (lawyers) to do that. It is also important to clarify that the analysis is restricted to the three claims that received 5-4 majority decisions.

My general comment is that, so far, the three written judgements were grounded in constitutional law, statutes with a plethora of cited authorities (case law). However, whilst Justices Atuguba and Adinyira dismissed the three claims of over voting, absence of presiding officers’ signatures and voting without biometric verification, Justice Ansah on the other hand, upheld all three claims. The beauty and complexity of law are such that, we can all rely on the same evidence, same primary legislation and same or similar authorities but draw different conclusion/s that would be equally persuasive and valid in law. Unfortunately, in panel adjudications, it is the majority view that wins the day. However, that does not mean that the dissenting or minority views, particularly by superior courts are irrelevant because they also become authorities and are later cited (unless discredited in subsequent ruling/s by the same or higher authorities).

I have cause to believe that the reason/s why Ansah (no disrespect) reached contrary views to those of Atugaba and Adinyira was his approach to interpretation and application of the constitution and statutes. He based his interpretation on the plain, necessary and historical meaning of constitutional text or letter, whilst the latter took the constructivist interpretation or spirit of the constitution. That is, the two relied more on arguments about the intent of the framers, constitutional theory, judicial precedent and moral or (state) policy values.

For example, on over voting, whilst all the three Justices considered the fact that both the petitioners and the second respondent did not provide a single witness by way of affidavits from party agents and presiding officers respectively, Ansah believed that this was a weakness only on the second respondent. This is because the second respondent had the originals of all the pink sheets but refused to make them available as exhibits, though it failed belatedly to supply some through an application that was over ruled. He went further to conclude that the C I 75 requirements for the recording of what happened at each polling station on the election day is non-negotiable because the word “shall”. Again, he agreed with Dr Bawumia that the evidence was on “the face of pink sheets” as well as “you and I were not there”. Finally, Ansah put high probative value on the pink sheets. In fact, he concluded that the changing numbers of pink sheets relied upon by the petitioners did not matter. Irrespective of whatever numbers presented by the petitioners, they met the evidential burden of proof test and it was for the respondents to put up a convincing rebuttal, which they failed, in his view.

On the other hand, Atuguba and Adinyira, placed less probative value on the two statements by Dr Bawumia. The fact that pink sheets numbers kept oscillating, the duplications and mislabelling as well as the possibility of the unreliability of the information recorded on the pink sheets being the direct consequences of incompetent election officials rather than deliberate fraud, persuaded them to put low probative value on the pink sheets. They also considered the fact that the results were countered and announced in public and no one, including the petitioners’ agents raised any objection or concerns regarding over voting. Having constructed the above, both concluded that despite what was required of presiding officers under C I 75, vis-à-vis what were on the face of the pink sheets, the claim could not be sustained on the balance of probability. The stakes of annulling votes were too high and therefore it should be beyond any reasonable doubt. So with doubts in their minds and persuaded by the spirit of the constitution, what was in the framers’ mind, moral and policy values, they could not allow the claim and accordingly rejected it.

My overall assessment the over voting claim was that Ansah took a restricted interpretation of statutes and gave the benefit of the doubt to the petitioners whilst Atuguba and Adinyira gave a wider consideration and raised the bar to beyond any reasonable doubt.

For me one issue that was missing in all the three judgements and perhaps throughout the hearing was the exact number votes alleged to be over votes on the face of the pinks sheets. For example, there could be a dilemma if instead of 19,999 valid votes 20,000 valid votes was recorded resulting in one (1) additional vote on the pink sheet. Would it be right and justified to annul all the votes of 19,999 citizens because of one single additional vote? Can the one extra vote be ignored and would that be fair to the particular candidate who received that one vote or would it be fair to reduce each candidate’s total votes received by one? I find it difficult to understand why all the Justices and especially, the respondents did not make the efforts to ascertain this quantum or proportion of actual over voting. Instead we were only told 730,212 votes were to be annulled because of the alleged over voting though the actual number of over vote that caused the annulment still remained an unknown known.

This is was a weakness on both the majority and dissenting Justices. I am very certain that the petitioners themselves did not know the exact number out of the 730,212 that actually constituted the over vote from the face of the pink sheets. Moreover, had the first petitioner’s share of the 730,212 to be annulled which was 226,198 been higher than that of the first respondent (504,014), would the petitioners have asked for the annulment of the whole 730,212? I appreciate the “law is the law” approach by Ansah but I disagree with him because interpreting constitutional conflicts when fundamental rights of citizens are at stake, the constitutional text approach is not the norm in contemporary democratic societies. That approach serves the interest of the few against those of the many.

On the claim of the absence of presiding officers’ signatures, my reading of the three written grounds did follow the same pattern as above. Atuguba and Adinyira followed the constructivist approach whilst Ansah relied on the strict interpretation of the CI 75 and the letter of the constitution. All the three relied on similar, if not the same authorities to support their reasoning. However, it appears Ansah did not apply one cardinal test that most judges are required to, in order to serve and give true meaning to justice, despite the fact that the authorities he cited all applied the test. That is, had the signatures been appended by the presiding officers, what would have been the outcome?

I know from personal experience as former Employment Tribunal panel member in England, posing and answering this question could be very uncomfortable and sometimes even lead or mislead judges into uncharted and dangerous territory. For example, we were required (mandatory) to pose and answer the question, especially, in unfair dismissal claims once we have found in favour of the claim. Sometimes, the end result is that the successful claim is reversed. A typical scenario is in a redundancy or reorganisation situation where the employer did not follow due process in dismissing the employee. At the end of the hearing, evidence adduced to the fact that, there were no consultations, no alternative employment was offered, no retraining or up-skilling for other roles that required skills which the claimant lacked at the time, coupled with a failure by the employer to offer reasonable defence and therefore found guilty as charged. However, when the question is posed, had the employer taken all the measures and followed the due processes to the letter, would there have been a job for the claimant (the spirit of the letter) and if the answer is equivocally, no, then, the panel would have no option but to reverse the original decision. Otherwise, there could be automatic ground for an appeal by the employer. All we could do is to disallow the claim and criticise the employer for not following due process.

I find it quiet strange that this basic principle was ignored and in total disregard for the authorities cited. Was it perhaps the final outcome would have been uncomfortable for him as I sometimes found myself to be reluctantly reversing a decision which on the face of the evidence (pink sheets) appeared very sound? I cannot be harsh on Justice Ansah as I suspect his answer to the question, that is the “outcome” was the final outcome of the presidential election and not limited to just the votes that were to be annulled. He might have been right to consider the bigger picture and not restrict himself to the over voting and the votes to be annulled only. I take consolation from the fact that, he did not annul the votes involved outright but ordered a re-run for the affected polling stations within the spirit of the constitution.

Regarding the claim of voting without biometric verification, I have nothing more to add because my views on the matter are well known. Prior to the hearing, I posited that it was not in consonance with the spirit of the 1992 Constitution because it unnecessarily disenfranchised citizens their constitutional right to vote. In addition to that because the petitioners failed to provide a single witness affidavit from a polling agent or even a voter who could testify that s/he witnessed voters who were allowed to vote without being biometrically verified in the affected polling stations, relying solely on the face of the pink sheets was problematic. Again, because there words “biometric verification” were “a process”, I am tempted to believe that one element of the processes could suffice, bearing in mind the unreliability of the recorded information on pink sheets. Last but certainly not the least, the strict interpretation of the word “shall” to mean “through” to the end process being compulsory, irrespective of the challenges on the day of election (December 7, 2012), is worrying. Notwithstanding these, I am happy that SCJ Ansah again, ordered a rerun.

My real disappointment with SCJ Ansah’s written reasons, is the fact that, despite finding faults to the extent that he allowed all the three claims, he is the only one out of the three who failed to make any recommendations for future improvement. I find that bizarre if not an anomaly. Could the converse be true for Justices Atuguba and Adinyira? That is, if they found that nothing serious happened to justify allowing the three claims and annulling the votes involved, why did they make recommendations for future improvement? Were their recommendations just a matter of, it could be better?

In conclusion, there are debates on the right approach/es to interpretation and application of constitutions and statutes amongst judges, lawyers, politicians, academics and activists. Different views have been postulated by different groups but they are divided into two main schools of thought. Those who prefer the purely restricted, historical and constitutional text or letter approach on one side and the other who take a more liberal approach to the constructivist interpretation of the constitution by relying more on arguments about the intent of the framers, constitutional theory, judicial precedent and moral or policy values (the spirit of the constitution).

What we should remember is that in today’s rights based democracy, the right approach should be the consideration of the interconnectivity between the two approaches, unless we want to create a society of two haves (the haves and have nots or the right wing conservatism versus the ultra leftist). After all, constitutions and statues are not an end by themselves but rather, the means to an end (the will of the people, democracy, the rule of law, good governance and accountability, etc.). Perhaps, Justice Atuguba and Justice Andyira were too flexible in their constructivist approach. Probably, Justices Ansah was not that restrictive because he ordered re-runs instead of the outright annulment sought by the petitioners. Is his approach within the spirit of the constitution? Are the two approaches separately and severally in danger of justifying the unjustifiable? I leave these questions to the reader to ponder over.

Kofi Ata, Cambridge, UK