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Opinions of Tuesday, 6 August 2013

Columnist: Asare, Kwaku S.

The Electoral Commission’s Address Speaks for Itself

S. Kwaku Asare

The electoral commission’s (EC) written address to the Supreme Court panel hearing the presidential election petition (WRIT No. J1/6/2013) reveals an unassailable fact: the EC prematurely declared a winner in the 2012 election and is using the judicial arena to defend the premature declaration rather than assist the Court to determine whether the declaration was valid. Because the EC is a taxpayer-funded entity, which is expected to be non-partisan and disinterested in the outcome of an election, this partisan posture is unfortunate indeed.

In paragraph 14 of the address, the EC acknowledges what all Ghanaians have come to know – “that in completing the ballot accounting part of the pink sheet, many of the Presiding Officers made clerical errors and left blank spaces wrongly and made errors which were not logical.”

In paragraph 27, the EC justifies the incidence and frequency of these errors by reminding the Court that, “the EC hires over one hundred thousand temporary officials, who are trained for only a short time, to conduct the presidential and parliamentary elections in a day or two.” As a result, the EC invites the Court, ergo the nation, to accept that such administrative, clerical and logical errors are unavoidable.

To be sure, it cannot be gainsaid that election officials are fallible (to err is human, as they say). But the notion that election officials can err is not a license to ignore detected errors, an injunction against correcting known errors or a covenant to accept outcomes that are pregnant with errors.

As such, the discovery of election errors, regardless of what they are called, raises four issues: (i) when did the EC become aware of these so-called administrative, clerical and logical errors? (ii) what was the nature and effect of these errors? (iii) were these errors known before the declaration of the results and if so were the errors corrected prior to the declaration? (iv) if these errors were found after the declaration, what steps have the EC taken to remediate them?

Alas, the EC does not address these pertinent issues but simply invites the Court to accept its bald assertion that the administrative, clerical and logical questions did not affect the outcome of the elections. Bald, because, nowhere in the address does the EC attempt to explain the nature and effect of these so-called errors.

It is apparent that the EC seems unwilling or unable to appreciate the implications and seriousness of these so-called administrative, clerical and logical errors. It is almost as if the EC believes that errors become self-correcting merely by qualifying them with certain adjectives. The EC’s invitation for the nation to accept election results contaminated with known and uncorrected administrative, clerical and logical errors must be declined, precisely because such errors undermine the integrity and credibility of our elections.

In paragraph 15 of the address, the EC invites the Court to reconstruct the pink sheets so as to render them logical. The invitation is cloaked in high-sounding legal parlance – “the pink sheets must be read as a whole with the eye of a person desirous of conducting careful analysis of its contents.” The EC’s reconstruction logic proceeds as follows: If the number in A1 is illogical, ignore it and use the number in A2. If both are illogical, ignore them and use the sum of C1+C2+C3+C4. If you cannot make sense out of all the numbers, just grab the statistics of ballots issued to each region, constituency and polling station and it will help careful eyes to comprehend the errors on the face of the pink sheet.

According to the EC, this innovative, even mysterious, way of reading a pink sheet is permissible because “the pink sheets are intrinsically or extrinsically verifiable.” There is just one little problem with this argument: the EC does not give an iota of evidence that it engaged in this so called intrinsic and extrinsic verification of the pink sheets before declaring the EC acknowledged error-ridden results of December 9, 2012. The theory is what it is: an ex post intrinsic and extrinsic verification theory to rationalize a rush to announce tainted election results.

Next, the EC addresses each of the categories of irregularities, malpractices, omission and statutory violations (IMOV) for which petitioner led evidence and are the basis of the reliefs so sought.

Overvoting

The petitioners’ case is that overvoting occurs where (a) the ballots cast exceed the number of registered voters or (b) the ballots cast exceed the number of ballot papers issued to the polling station. Further, overvoting should lead to an annulment of the votes because it violates Article 42 of the Constitution and Regulation 24(1) of C.I. 75. Article 42 relates to the right of a citizen to vote and her entitlement to be registered as a voter and Regulation 24(1) states that a voter cannot cast more than one vote when a poll is taken.

The EC’s argument against this case is that the petitioner failed to show that any person voted or attempted to vote more than once. Therefore, the petitioner’s claim that overvoting violates Article 42 of the Constitution and Regulation 24(1) of C.I. 75 must fail.

In my opinion, the EC has utterly misconstrued Article 42 and Regulation 24(1) of C.I. 75. Together, the laws suggest that every registered voter is entitled to cast a single ballot and that ballot is entitled to be counted once. It follows that those who are not registered to vote are not entitled to vote and, logically, their votes are not entitled to be counted.

Thus, showing that a person voted or attempted to vote more than once is not the only way of showing that the laws were violated. The law is also violated when a valid ballot is counted more than once, even if nobody votes more than once. It is likewise violated when someone who is not entitled to vote casts a ballot, even though this person does not attempt to vote more than once.

Of course, because casting a ballot is done secretly, it is unreasonable to expect petitioners to show that a voter cast more than one ballot. Where a secret ballot is used, the presence of overvoting, as defined in (a) and (b) above, is conclusive evidence that a ballot has been counted more than once or that a voter has cast more than one ballot.

Overvoting violates Article 42 and Regulation 24(1) of C.I. 75 on a “res ipsa loquitur” theory! That is, without additional proof, ballots cast that exceed the number of registered voters or the number of ballot papers issued to a polling station conclusively establishes a violation of the “one man one vote” principle in Article 42 and Regulation 24(1).

Further, overvoting raises questions about the credibility and integrity of the elections in the affected polling station. It is for this reason that the EC annulled the presidential election in Upper West Akim-Arabic Primary School A in the Asuokaw polling station. Thus, the EC’s defense fails!

No Signature by the Presiding Officer

According to Article 49 (3) of the Constitution and Regulation 36 (2) of C. I.75, the EC-appointed presiding officer shall sign the statement of declaration of the polling results (i.e., the pink sheets). It is the petitioners’ case that 995 pink sheets were not signed and should not therefore had gone into the collation of the results.

The EC does not deny this in its address. Rather, the EC argues that the petitioners’ polling agents signed 99% of these pink sheets. According to Afari Gyan, he considers the polling agents’ signature acceptable for the purposes of the declaration of the Presidential results.

Put more vividly but accurately, Afari Gyan has suo moto amended Article 49 (3) of the Constitution. The mischief that this Article was intended to cure is so grave that it happens to be one of the few entrenched provisions of the Constitution. It is not up to the EC, Afari-Gyan or anyone to decide which of the provisions of the Constitution they are going to enforce or not enforce.

It is abundantly clear that the presiding officers’ signature is necessary to validate a pink sheet. It is for good and obvious reasons that the Constitution requires a signature of a non-partisan EC-appointed official. Accepting pink sheets signed by only partisan agents is an invitation to fraud and chaos in our elections.
Absent the signature of the presiding officer, the pink sheets MUST NOT enter the collation of the Presidential results. It is a willful violation of an entrenched provision of the Constitution for the EC to have included these inchoate and invalid pink sheets in its collation. Regrettably, several months after the violation, the EC does not seem to realize the harm that this reckless conduct has caused.

Incidentally, the EC does not offer any explanation for why 995 presiding officers failed to sign the pink sheets. In fact, the EC offers no evidence of any internal investigation to understand and remedy the problem. Ironically, one of the reasons cited for the EC to disqualify the NDP Presidential candidate from contesting the 2012 elections was the absence of signatures for those who endorsed her.

Either our constitutional provisions matter or they do not matter. But we cannot have it both ways.

No Biometric Verification

According to its written address, the EC insists that everyone who voted was biometrically verified. I found this to be rather amusing because I happened to be in the Courtroom when the EC testified that an “omanhene” does not have to go through biometric verification in order to vote. That is, what I heard him say was that the election officials had discretion in deciding whether or not to use biometric verification. In this vein, Afari Gyan’s oral testimony is in conflict with the EC’s written address.

The biometric verification tools were procured at high cost to enhance the integrity of the elections and to cure the mischief of impersonation, multiple voting, etc. The enactment of C. I. 75, Regulation 30(2), which provides that, “the voter shall go through a biometric verification process before being allowed to vote,” and the “NO VERIFICATION NO VOTE” mantra put the country on notice that polling stations, which recorded ballots cast in excess of biometrically verified voters, will have their results annulled.

The EC now invites the Court to set aside the algorithm for detecting the biometric infraction above. Rather, the EC claims no biometric verification occurred because the petitioners did not produce a person who saw anyone voting without having been biometrically verified. This is palpably misleading because, as discussed previously, the secret nature of voting is such that most infractions can only be circumstantially proven. And such circumstantial evidence formed the basis of the EC cancelling the results of 4 polling stations for biometric infractions.

The EC must apply its rules consistently!

Duplicate Serial Number on Pink Sheets

As before the EC blames others. Here, the blame is not on the ill-trained workers but the printers who inserted the numbers. The EC does not address the real possibility that it was this duplication that enabled the overvoting, non-biometric voting and the missing signatures. The EC makes similarly unpersuasive arguments about the same polling codes with different results and the unknown polling stations.

Finally, in its conclusion, the EC refers the Court to the Canadian case of Opitz v. Wrzesnewskyj SCC 55, ([2012] 3 S.C.R). While the EC correctly points out that the case has a persuasive effect on the Court, it was less than diligent in properly situating the case for the Court and provided out of context quotes from paragraphs 46, 56 and 66 that could mislead the Court. In reality, the Opitz case was about disputed elections in an electoral district, not a presidential election, and the issue was whether votes should be annulled because of votes cast by individuals who were not entitled to vote under the Canada elections Act.

The case has nothing to say about constitutional violations in the form of overvoting, absence of presiding officers’ signatures. Nor does it shed any light on voting without biometric violation or duplicate pink sheets.

The quote in paragraph 46 is misleading in that it gives the impression that imperfections in the conduct of elections are inevitable as a result of inexperienced workers performing under unfamiliar condition. This gives the impression that anything goes. However, a fuller version of the quote is in paragraph 2, which ends as follows: “Only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning
an election.” Clearly, the irregularities, malpractices, omissions and statutory violations at issue in WRIT No. J1/6/2013 undermine the integrity of the electoral process.
In quoting paragraph 56 of the Opitz case, which talks about the risk in adopting the strict procedural approach, the EC should have been more forthcoming in revealing to the Court that the position taken by the Opitz Court obliterates the distinction between qualification and entitlement to vote. As the Chief Justice of the Opitz Court stated in his dissent (this case was a 4-3 decision), “my colleagues take the position that everyone who is qualified to vote and ordinarily resident in the electoral district is entitled to vote. Thus, a voter who is not on the electoral list and has not filed a registration certificate can be later held to have been “entitled” to vote if he was qualified to vote and ordinarily resident in the electoral district. I cannot accept this view.”

Although the issue is not before our Court, I believe most Ghanaians will be wary of any system that entitles a qualified voter to vote on voting day without having gone through prior registration.

Similarly, the reference to paragraph 66 is misleading without context. Paragraph 67 provides an example, which could have put paragraph 66 in context and highlight the real issue before the Opitz Court:

“For example, compare the situation of two voters who arrive at the polling station with inadequate identification. The deputy returning officer (DRO) personally knows one of the voters, and vouches for him, enabling him to cast a ballot. The DRO does not live in the polling division, so he has vouched in a manner not permitted by the Act. However, the voter leaves the polling station believing that he has cast a valid vote. If a court later rejects the voter’s vote, he is irreparably disenfranchised, through no fault of his own. In the case of the second voter, the DRO properly refuses to let her vote without proper identification. This voter can return to the polling station later in the day, accompanied by a voucher who lives in the polling division, and cast her ballot. She has not been disenfranchised.”
Again inadequate identification is not the IMOV that our Court is dealing with. Thus, Opitz is of little relevance and use to the Court.
To sum up, we invest a lot of resources in the EC to manage our electoral process, to declare the results and, where necessary to provide unbiased and relevant information for our Court to determine whether declared results are valid. It is my assessment and opinion that the EC has woefully failed to carry out this burden. If the EC cannot defend its processes and outcomes, it is hard for me to see how anyone can!