...in the already weak chain?

The hearing of the NPP Supreme Court case is over, and soon the Court will hand down its decision. However after perusing the submissions of both the petitioners and the respondents, there are still some issues that are either not explained, or do not have any cogent reasons for why they were done. For example it is hard to understand how or why the Electoral Commissioner (EC), for example, printed duplicate, triplicate and sometimes quadruplicate pink sheet with the same serial numbers. It is also hard to understand why several Presiding officers would not sign the pink sheet. These are at least some of the matters that the Supreme Court will ultimately help us to understand when it hands down it decision on 29 August 2013.

However as observers do we know the steps in which the Supreme Court will take in order to arrive at a decision? Do we know the sticking issues to be determined by the court and how to determine if the parties have done enough to discharge their evidentiary burden on them? The following will assist in understanding the process.

Unlike the situation in Ghana, the courts in other Common Law jurisdictions have had the opportunity in resolving election disputes. The English case of Woodward v Sarsons (citation omitted) is the beginning of the jurisprudence in election disputes. There are other several authorities in the field but they always refer back to the case of Woodward. However for present purposes we would not concern ourselves with cases but rather on the principles that the courts use to resolve election disputes before it.

The court in this NPP petition has set out the following issues to be determined: whether there were violations, omissions, malpractices, irregularities in the conduct of the elections and whether they affected the results of the election results? In essence the issue would be whether there were “irregularities” in the conduct of the election?

The starting point to the determination of the question is the definition of “irregularity”. The court will have to have regard to the statutory meaning of irregularity as well as its ordinary and natural meaning and the likely effect of the act or omission on the result of the election concerned. That is to put it simply, an irregularity in relation to an election or ballot includes a breach of the rules of the election, and any act or omission or other means whereby the full and free recording of votes by all persons entitled to record votes… or declaration of results of voting is, or is attempted to be prevented or hindered.

So in summary the court in making a decision whether or not John Mahama was validly elected, the court will have to determine whether the election was so conducted that it is satisfied that there was no real election at all; or whether the election was not really conduced under the subsisting election laws.

It is important to understand that instances where the court would be satisfied that there was no real election are where for example the people were prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other means of voting not being supplied or supplied with such errors as to render the voting by means of them void. Again it is important to understand that fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps that satisfies the court that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred.

The burden of proof of showing an “irregularity” lies with the petitioners. Once that is done, the burden then shifts to the respondent(s) to prove that the irregularity, if any, did not affect the outcome of the election result.

It is critically important to note that the courts see the position of the returning officer as not only to be seen as free of any interest, but that he has to show that he consider himself as an official at arms length from those political parties, or individuals having an interest in the vote going one way or the other, so that in all aspects of the machinery for the taking of the vote the taking of a free vote is achieved, uninfluenced by any propaganda in the machinery.

From the facts in the current NPP case before the Supreme Court, the NPP alleges that there were irregularities in the conduct of the election. The burden is therefore upon the NPP to prove an irregularity. The NPP have presented the prima facie evidence in the form of pink sheet showing serial numbers some of which are duplicates, triplicates and in some cases quadruplicates. The NPP has again presented pink sheet evidence where several Presiding officers did not sign the election declaration. They have also provided evidence where the data recorded on the pink sheets are questionable. In effect they have presented the prima facie evidence of an irregularity as required by law. Consequently the burden then shifts to the Electoral Commission and John Mahama as respondents to prove that the irregularity as proved did not affect the outcome of the election.

So in determination of this case, the sticking questions that would need to be answered are the following [sic]: Did John Mahama’s lawyers prove that the irregularity did not affect the results as declared? Did they prove that the duplicate, triplicate and in some cases quadruplicate serial numbers (although having different results on them) did not affect the outcome? Were they able to prove that a polling station with at least 2 or three different results on the pink sheet (given that Afari Gyan admitted that they went into the declaration of the results) not affect the election results? Were they able to prove that in cases where the Presiding officer did not sign the declaration of results (in breach of the law), they nevertheless did not affect the outcome of the election? The resolution of these questions would tell us how the judgment of the court would look like.

But most tellingly is the answer given by the lawyers for the EC. The EC did not give any cogent answer to the above questions. It did not give any answer that would show that it was dealing with the parties at arms length or that it had no interest in the outcome of the case. The EC in an answer to the use of duplicate serial numbers, the EC instead of giving a plausible answer rather gave some strange proposition that the duplicate serial numbers is “the weakest link in an already weak chain…” The question is, is it that the use of duplicate serial numbers, the weakest link in an already weak chain? Is the use of duplicate serial numbers not an irregularity? Is the EC saying that it is regular to have duplicate, triplicate and in some instances quadruplicate serial numbers in an election?

What about the recordings on the pink sheets that were questionable in the sense that it was showing clear evidence that there were irregularities such as people who voted without being biometrically verified as required by the rules (No Verification No Vote (NVNV))? The answers, and indeed the conduct of the Chairman of the EC, being a returning officer leaves a lot to be desired. The integrity, independence and impartiality of a Returning officer in such an election must be beyond question. However throughout the trial the evidence showed that the Electoral Commission, and indeed its Commissioner, being a returning officer was not so independent.

It is noted that a lot of commentary has been made about the case and the fact that the NPP has not been able to prove any “smoking gun”. But that view is misconceived. It is misconceived because all the NPP had to do was to prove an “irregularity”. That having been done by them, the burden then shifts to the EC and John Mahama to prove that the irregularity did not affect the petitioners. Whether they were able to do so is a matter for the Supreme Court to decide but from the basic principles as set out above, one could work out how the outcome of its decision would be.

Kwame Adofo Koramoah is a solicitor and barrister of the Supreme Court of New South Wales, Australia. He is also admitted as a solicitor and barrister of the Supreme Court of Ghana. billyoo@hotmail.com