By Kofi Ata, Cambridge, UK

The Supreme Court hearing of the 2012 Presidential Petition entered its second phase on Thursday with the key witness for the first and third respondents, in the person of Mr Asiedu Nketia, the General Secretary of NDC (popularly known as General Mosquito), taking the witness box. Giving evidence-in-chief, the witness provided his understanding of what over-voting is. In this short piece I will attempt to analyse his definition or understanding vis-à-vis Dr Bawumia’s definition when he took the witness box.

Before I do that, I want to take a diversion to make some general observations about General Mosquito’s performance in the witness box. First, I should say that my assessment is based only on the second session of the hearing as I did not listen to the first session in the morning. I must add that, it is premature to do an objective evaluation of his performance, if not unfair at this early stage.

I have heard and read about NDC claiming that the General’s performance as excellent and concluding that it’s the end of the game for the petitioners with others saying that he taught Dr Bawumia and NPP lessons on pink sheets and electoral laws. On the other hand, NPP also claimed that his performance was poor and actually strengthened the petitioners’ case. Some even criticised his command of the Queen’s language as bad. For me, I consider these opposing views as part and parcel of the usual NDC/NPP struggle for the body and soul of body politic in Ghana and to gain the holy grail in the political propaganda war (see, “Asiedu Nketia is real General of electoral laws – Ato Dadzie”, “Petitioners case is dead on arrival – Kofi Adams” and “I lost appetite after listening to Gen Mosquito - Sir John”, Ghanaweb, May 24, 2013).

I do not know the basis of both Messrs Ato Dadzie and Kofi Adam’s conclusions because the real generals of electoral laws in Ghana are the Justices of the Supreme Court. Again, this case or game is not over until the Justices have heard all the parties and made their final decision. Even that there is a possibility of a review by the losing party.

I also cannot fathom why Mr Kwadwo Owusu Afriyie (Sir John), the NPP General Secretary lost his appetite because of General Mosquito’s poor performance. If truly he performed that bad and therefore strengthened the petitioners’ case, then, Sir John should be happy and celebrate with improved appetite for his favourite meal, unless of course, in his view, Asiedu Nketia’s lies were so ridiculous that he felt nauseous. The other (mis)interpretation of how he felt about Asiedu Nketia’s evidence or performance or both which made him lose his appetite could be that, the petitioners’ case was weakened by his evidence. That is only one possibility but it appears he did not feel positive as that should not normally make one to lose his appetite.

Gen Mosquito is being led in evidence by his own counsel (evidence-in-chief). Normally, the witness is made aware in advance the sort of questions s/he would be asked. S/he is also coached how to respond to questions posed to him or her. This is what is commonly referred to as friendly fire. The real test comes when Gen Mosquito faces enemy fire. That is, during cross examination by the counsel for the petitioners. He will have no idea what questions to expect from counsel from the opposite side, though he could anticipate some and prepare in advance how to answer them. Again, the style of the cross examination is important in determining how will perform under cross examination. If it is aggressive and hostile, a even a good witness could make a mess of herself or himself under pressure. For these reasons, we should wait till Mr Asiedu Nketia has faced lead Counsel for the petitioners, Mr Addison before we judge him or compare him with Dr Bawumia.

All I can say about the comparison between the General and Dr Bawumia on the question of command of the English Language is that, Dr Bawumia is an intellectual, a technocrat, and Oxford educated so it would be unfair to compare him with Mr Asiedu Nketia, who I understand was a Teacher Training College graduate. I am not trying to downgrade training college teachers because without them there would be no professors, PhDs, postgraduates and graduates. We all passed through training college teachers before university.

So what is over-voting in Ghana? According to the gospel of Gen Mosquito as per his electoral laws and as I understood him, over-voting occurs when the total number of votes in the ballot box/es is over and above the total number of registered voters on the electoral register for a specified polling station. Accordingly, he rejected Dr Bawumia’s definition of over-voting, which from my understanding, Bawumia defined as, when the total number of votes in the ballot box/es is over and above the ballots issued at a specified polling station. So who is correct?

My simple answer to what appears to be a complex issue and a bone of contention between NDC and NPP is that, they are both correct. Mr Asiedu Nketia’s version of over-voting is the general definition whilst Dr Bawumia’s constitutes a subset of the general definition with a caveat. In the case of former definition, there is no need to find out the cause/s of the over-voting. The total votes must be rejected outright. In the later case, it is necessary to find out if there may be any good reason/s that could explain how the over-voting occurred before a decision on whether to reject all the votes is taken, particularly, if the over-votes were few (relative to the total votes), then, it is paramount to examine all the votes to find out if some could be eliminated. Was it possible that some of the votes were spoilt ballots that voters accidentally put in the ballot box/es? Was it feasible that some of such ballot papers were meant for a different ballot box/es but put in the wrong ballot box/es by voters? For example, instead of the ballot box/es for parliamentary candidates they ended up in the presidential ballot box/es by the mistake of voters, etc.

Looking at the level of literacy in Ghana and with electoral information, materials and instructions in print format (in English) with some voters unable to read and write not only English but also local language/s or mother tongue/s, such errors are bound to happen. Even in the developed democracies, such mistakes by voters do happen. It is therefore my view that before the over-voting as defined by Dr Bawumia is confirmed and the total votes rejected, an examination of the ballot papers must be conducted to eliminate all foreign ballots papers as described above before a final decision. If after the examination and elimination of any ballots papers that should not have been in the ballot box/es are done and there are still more votes than the ballots papers issued then over-voting has taken place and the total votes must be rejected.

Having offered my own understanding of the two forms of over-voting postulated before the SC Justices, we must all bear in mind that, whether we are lawyers or not, the interpretation and application of Ghana’s electoral laws and regulations are in the bosom of the SC. None of us, including Counsels for both petitioners and respondents can accurately define what constitute over-voting. We are all at the mercy of the SC Justices. Which of the two definitions they will accept, is anyone’s guess. My guess could be as wide of the mark as anything. Only time will tell.

Kofi Ata, Cambridge, UK