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Opinions of Friday, 13 September 2013

Columnist: Akpalu, John K.

Supreme court’s wrong analysis on presiding officers

I have perused the recent Ghana Supreme Court decision on the election
petition and found the reliance by Justices Dotse, Anin-Yeboah, Ansah and
Owusu, on Article 49 of the 1992 Constitution to annul votes at polling
stations where Presiding Officers did not sign the pink sheets, misplaced and
lacking in context. The honorable Justices underappreciated the competing legal
and constitutional issues at stake and missed an opportunity to flesh out
the 1992 Constitution.
Article 49 of the Ghana 1992 Constitution provides as follows: “ (1)At any
public election or referendum, voting shall be by secret ballot. (2)
Immediately after the close of the poll, the presiding officer shall, in the
presence of such of the candidates or their representatives and their polling
agents as are present, proceed to count, at that polling station, the
ballot papers of that station and record the votes cast in favour of each
candidate or question. (3) The presiding officer, the candidates or their
representatives and, in the case of a referendum, the parties contesting or their
agents and the polling agents if any, shall then sign a declaration
(a) the polling station, and (b) the number of votes cast in favour of
each candidate or question,
and the presiding officer shall, there and then, announce the results of
the voting at that polling station before communicating them to the
returning officer.”
The question that readily comes to mind is this: Assume that the Presiding
Officer and all the polling agents signed the pink sheet at a particular
polling station and that the voting was impeccable, but the Presiding
Officer failed to publicly announce the results as required by Article 49, will
Justices Dotse, Anin-Yeboah, Ansah and Owusu annul the results on that basis
and have the elections conducted all over again? Going by their logic,
this should be the case since Article 49 makes it unconstitutional for the
Presiding Officer not to announce the results.
Again, if it can be proven that a Presiding Officer has been bribed not to
sign the pink sheet of a losing candidate, will the honorable Justices
nevertheless rely on a strict reading of Article 49 to annul the votes?
Nowhere in Article 49 or in the entire Constitution is it provided that
votes must be annulled due to non-signature by a Presiding Officer. Yet
these Justices cloaked their decisions in a constitutional imperative as if
they had no choice, but that Article 49 compelled them to annul the votes – a
case of fiat justitia ruat caelum.
Contrary to the reasoning of the learned Justices, not all constitutional
violations lead to a pre-determined result. Since they cited copiously to
other jurisdictions, they could perhaps have addressed themselves to the “
harmless constitutional error” doctrine developed in the US beginning with
the 1967 case of Chapman v. California. The gravamen of the harmless error
doctrine is that the courts will not nullify a decision – even in the face of
a constitutional violation – if the error caused by the violation is
If the learned Justices had addressed their minds to this doctrine or
principle, which is also applicable in several constitutional regimes, their
proper attention should have been focused on the effect of the non-signature
of the Presiding Officers, especially as to whether or not, it, in fact,
affected the results of the election. Instead, the constitutionality or
unconstitutionality of the absence of the Presiding Officer’s signature on the
pink sheet became the sole focus without any serious examination of the
larger election context and the constitutional rights of the electorate.
The crux of my argument is that their Lordships spent too much valuable
time analyzing the constitutional duty of Presiding Officers – which was
unnecessary and beside the point. It is readily ascertainable that Article 49,
by using “shall” in context, imposed a constitutional duty on Presiding
Officers to sign the pink sheets. That was trite knowledge that did not
require any deep legal analysis.
The real question which should have detained them – but which
unfortunately, they gave short shrift to – was what should happen if a Presiding
Officer does not sign the pink sheet– a question to which Article 49 and the
Constitution does not provide any answer. Justice Anin-Yeboah’s assertive
gallantry that he was doing his constitutional duty by annulling the votes, is,
with due respect, unsupportable. The decision to annul votes where the
Presiding Officers had not signed the pink sheets, was his and his alone – and
not one mandated by the Constitution or any extrapolative interpretation of
Article 49.
Justice Anin-Yeboah made the following findings: (a) that the Presiding
Officer is a representative of the Electoral Commission; (b) that the
signatures of polling agents and representatives may be dispensed with; (c) that
under C.I. 75 Polling Agents have limited role at polling stations; but more
importantly, that the signature of Presiding Officers are mandatory under
Article 49.
In a very telling language which buttresses my point he goes on to say: “
My constitutional duties would be fulfilled as a judge if I enforce the
constitution. Our judicial oath taken on our appointment as judges enjoins us to
at all times uphold the constitution which is the supreme law as clearly
stated in the second schedule to the 1992 constitution. If Article 49(3)
would work injustice against the citizenry who registered, queued and voted,
it is regrettable that I cannot in upholding the very constitution engage
in any manipulation of language and deny its effect when it has been thrown
to us for the first time ever in the history of this court. I will uphold
the constitution and proceed to give effect to it by annulling the votes
cast which were not, on the face of the pink sheets, signed by the presiding
officer to reflect what actually took place at the various polling stations
The same analysis goes for Justice Ansah. Relying on Article 49 he states
emphatically that: “I
hold in my concluding comments on this ground, that the failure to sign
the pink sheet was a monumental irregularity unmitigated by any
circumstances. I am further fortified in this view by the observation that in
establishing the duty for presiding officers to sign pink sheets before results of
the polls at the polling station, Article 49 (3) of the Constitution does not
merely constitute a mandatory constitutional duty on presiding officers to
do so prior to announcing the election results, but it is also one of the
entrenched provisions of the Constitution. In the face of the full force of
this entrenched constitutional requirement, I am unable to make any
exception to save the pink sheets impugned by the omission of the presiding
officers on the basis of the explanations offered by the respondents.” Again,
an instance of using Article 49 to annul votes as if that is the only
logical result.
Justice Owusu also commits the same fallacy by treating Article 49 as if
it mandates a specific outcome. She states: “If the presiding officers
failed to sign the pink sheets, that constituted infringement of Article 49 (3)
of the constitution and to me that is fatal. It renders the result declared
null and void.” No, Justice Owusu, an infringement of Article 49 does not
automatically render the results null and void – nowhere is that result
provided for in Article 49 or in the Constitution.
Justice Dotse, follows suit by declaring that: “And since it is to this
Supreme Court that the Petitioners have come to for the interpretation and
enforcement of the breach of this article 49 (3) of the Constitution 1992, I
hold that notwithstanding the conduct of the Petitioner's agents in signing
the pink sheets that act, cannot clothe the unconstitutional conduct of
presiding officers in not signing the pink sheets with constitutionality.
Justice Dotse, respectfully, also misses the point. The issue is not
whether it is constitutional for the polling agents to sign the pink sheet and
the Presiding Officer not to sign. The proper question is what should flow
from the unconstitutional act of the Presiding Officer in not signing the
pink sheet.

One hopes that in the future, our Justices will better appreciate the
nuances of constitutional interpretation and engage in a more sophisticated
analysis and development of the Constitution than what happened here.

John K. Akpalu, Esq. LL.M.(Harvard)