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Opinions of Sunday, 18 August 2013

Columnist: Jackson, Margaret

Written Address Submitted by Lawyers of Mahama - Part 3

This is the Final Part of the written address submitted by Mr Tony Lithur, Counsel for President John Mahama to the Supreme Court. I guess you had a good time reading and digesting the Part 1 and 2 of the address.



I strongly believe that by the time you finish reading the address, you will have no doubt in your mind as to who is speaking the truth. Indeed the bogus case initiated by Nana Akufo-Addo and Co. should not have been entertained in the first place. But it is good for the country, especially Nana Akufo-Addo and the NPP.



Remember, Nana Akufo-Addo has to date not made any pledge as to whether he will accept the verdict of the Supreme Court if it does not go his way. But President Mahama has made so many pledges on different platforms. Why is Nana Addo silent? Your guess may be good as mine.



Let the Lord guide you as you glide through the final pages. Keep the faith and keep smiling!



Yours Truly

MJ





[Pages 7-8 of proceedings of 24th April, 2013]



90. The next quotes relate to a curious situation in which the witness equated a blank space as zero and proceeds to label it an over voting situation (by his new definition) simply because according to him, the blank space represents an opportunity to conceal over-voting.



“Q. Dr. I have in my hand Exhibit MBC 34 and the polling station name is Awurata and the polling station code is G191103. And this has been exhibited as proof of over voting. Can you look on the exhibit and tell me whether you can find any basis at all for that conclusion?

A. My lords given that we have deleted over 700,000 polling stations since we filed the affidavit it would have been helpful if I could have checked to see if this is still part of our case. But if I have to just answer to it, as it is, then...

Q. Dr. the evidence is clear on the face of the pink sheet. On the face of the pink sheet is there any basis upon which you arrived at the conclusion that there was over voting?

A Absolutely my lords, on the face of this pink sheet we have a lot of basis for classifying this particular polling station as one where over voting took place. My lords over voting as we have defined it, is the situation where the total votes in the ballots box exceeds the number of given ballots to vote or the number of registered voters at the polling station. In this particular case you will have C1…

ATUGUBA: It is a very narrow question, he says on the face of it, is there anything, if there is something you point it out. If there is nothing you say and then we move fast.

A: Yes the entry for the number of voters, the answer to C1, what is the number of ballots issued to voters on the polling station register. This section is required to be filed at the end of the poll but before counting and there is a reason, this is ballot accounting.

BAMFO: Okay so what is the number on it?

A: It is zero.

Q: Are you saying zero or there is nothing?

A: it is blank there is nothing in there, my lords.

Q: Because zero is not the same as blank. I am suggesting to you that there is no basis upon which you concluded and exhibited to this court that this particular pink sheet is proof of over voting?

A: My lords…

ATUGUBA: He has answered it. He says the reason is that it is a blank.”



[pages 3-5 of the proceedings of 23rd April, 2013]

91. A question was put to Johnson Asiedu Nketia during his examination

-in-chief on Dr Bawumia’s theory of blank equals zero, and he had this to say at page 70 of the proceeding of the said 23rd day of May, 2013:



“Q. You heard that Dr. Bawumia in his evidence said wherever there is a blank in A1 or a blank in B1, and then they have figures at the bottom, that according to him is over voting. What do you have to say to that.

A. My lord, I disagree with that assertion, indeed I heard him make that assertion that whenever there is a blank, it is equal to 0. My lord, a blank is a blank so the figure there is unknown, it cannot be equal to 0 or any other number, it is an unknown number. So again it strengthens my argument that this is a clerical omission or an error and it tells you if these figures are supposed to have all been entered before counting and they are blank, it tells you that are indeed not entered before counting. But my Lord, again the results have been certified by the polling agents of all the polling stations and there is no indication that the complaint procedure had been invoked. And as far as I can remember, the figures certified for each of the presidential candidates are those that were collated and the declaration was based on them.



92. In inviting Your lordships to hold that Petitioners have failed to discharge the burden of proving over voting, it is significant to note that 2nd Petitioner repeatedly admitted that the polling agents of 1st Petitioner signed the declaration forms at the affected poling stations without lodging any complaints in prescribed form or manner. It is submitted that the signatures of the polling agents without complaining in prescribed manner raise presumption about the regularity of the polls, which is not rebutted by any errors of entry that may appear at the accounting portion of the pink sheets.



93. It is clear that, Petitioners have taken a very unsustainable and unrealistic position in respect of what would constitute over voting. Their position is that you look only to the form and not the substance. In doing so, they discount any other source of information, including the primary sources from which one can verify the information on the voting accounting section of the pink sheet. In fact, they make no allowance for any clerical or arithmetic errors on the part of officials of 2nd Respondent in filing the said ballot accounting section, and, according to them, whatever information is on the voter accounting section is sacred. In the words of 2nd Petitioner.



“You and I were not there, the evidence is on the face of the pink sheet”



94. Again, the manner in which according to the testimony of Dr. Bawumia the evidence of alleged over voting was gathered in itself undermines any suggestion that there was wrong doing at any polling station. According to Dr. Bawumia under cross-examination by Counsel for 3rd Respondent, there was no attempt to confirm or verify from their own polling agents whether or not the entries made in Column C1 were made in error.



“Q. Exhibits MBH 620, MBE 323 and MBE 348. I am suggesting to you that in each of these cases, there is clearly error in entering C1, ballots issued?

A. You and I were not there, we take the information on the face of the pink sheet.

Q Did you ever actually verify with any of your polling agents whether any of these numbers were in error?

A. No we did make contacts with some polling agents regarding signatures and so on. I cannot recollect us trying to make contacts about what the presiding officer recorded for these numbers.

Q. But in fact, each of the sheets that you got, you did get them from your polling agents?

A. Yes we did. Most came from the polling agents, some came from the regional secretaries but they collected them from the polling agents.

Q. And in this Exhibit MBH 832 also, I am suggesting to you that the entry there is clearly in error?

A. There is no basis for me to say it is an error, it is what it is.



95. In inviting Your Lordships to make a finding in favour Respondents we wish to state that in election jurisprudence, administrative errors do which do not result in the annulment of votes. In the Canadian case of Opitz vs Wrzesnewskyj 2012 SCC 55, [2012] 3 S.C.R, (Opitz case) the Supreme Court of Canada in an election petition case held on page 35 (paragraph 46) as follows:-



‘The practical realities of election administration are such that imperfections in the conduct of elections are inevitable. As recognized in Camsell v. Rabesca, [1987] N.W.T.R. 186 (S.C.), it is clear that “in every election, a fortiori those in urban ridings, with large numbers of polls, irregularities will virtually always occur in one form or another” (p. 198). A federal election is only possible with the work of tens of thousands of Canadians who are hired across the country for a period of a few days or, in many cases, a single 14-hour day. These workers perform many detailed tasks under difficult conditions. They are required to apply multiple rules in a setting that is unfamiliar. Because elections are not everyday occurrences, it is difficult to see how workers could get practical, on-the-job experience.



96 This situation is not different from the one described by Dr. Afari-Gyan in relation to the temporary officers that 2nd Respondent employs to run general elections. The imperfections of the presiding officers in filling the forms should therefore not result in the annulment of the votes at the affected polling stations. Indeed on pages 38 &39 (paragraph 57) of the Opitz case the Canadian Supreme Court held that

“In our view, adopting a strict procedural approach `creates a risk that an application under Part 20 could be granted even where the result of the election reflects the will of the electors who in fact had the right to vote. This approach places a premium on form over substance, and relegates to the back burner the Charter right to vote and the enfranchising objective of the Act. It also runs the risk of enlarging the margin of litigation, and is contrary to the principle that elections should not be lightly overturned, especially where neither candidates nor voters have engaged in any wrongdoing. Part 20 of the Act should not be taken by losing candidates as an invitation to examine the election records in search of technical administrative errors, in the hopes of getting a second chance.”



97. My Lords, this case, though not binding on the court, is of persuasive effect. It is not Petitioner’s case that either 1st Respondent or the voters in all the polling stations where they are seeking to annul votes engaged in any wrongful acts. To punish voters and or annul the votes cast in all these polling stations would be to punish a large number of voters and deprive them of their inalienable right to choose their President, when they had not engaged in any wrongful act, and especially, had no control over the acts of the election officials.



98. As was held on page 42 (paragraph 66) of the Opitz case:



“By contrast, if a vote cast by an entitled voter were to be rejected in a contested election application because of an irregularity, the voter would be irreparably disenfranchised. This is especially undesirable when the irregularity is outside of the voter’s control, and is caused solely by the error of an election official.”



100. It is also instructive to note that Dr. Afari-Djan, in his evidence-in-chief quoted above, stated that he was unaware of the cancellation of some of the results on the basis of over voting, and that if his attention had been drawn to this, he would not have readily cancelled the results. He stated that when the votes in the box exceed the issued ballots contrary to the evidence of 2nd Petitioner, he would have conducted extensive checks before taking a decision. According to him this was because of the sensitive nature of the situation and the fact they one would be dealing with the right of people to choose their leaders.



101. We also, respectfully, invite Your Lordships to take into consideration the public nature of the voting, sorting, counting and declaration of results at the polling station. Dr. Bawumia under cross-examination by Counsel for 3rd Respondent admitted the public nature of the voting process and the declaration of results at the various polling stations:



“Q. These results as declared were based on counting that took place in full public view?

A. They were.

Q. And they were based on all those present observing how votes were taken out of the ballot box and put in bunches against each candidate. Were they not?

A. Yes they were.

Q. And your supporters, your polling agents were present?

A. Largely so.

Q. And after the votes had been put in the different categories, they were physically counted in full view of the public, were they not?

A. Supposedly so.

Q. You are not been honest. They were counted in full view of the public, if you say supposedly so?

A. That is what supposed to happen. I was not there at every polling station. All I can see is the evidence on the face of the pink sheets and that is what I am going by.

Q. Your supporters, your polling agents were there at each of these polling agents?

A. My lords they were there.

Q. And not only was counting done in full view of everybody, but when the record of the final results was entered, your polling agents signed that record?

A. Our polling agents signed to attest every piece of information on this pink sheet.

Q. I am suggesting to you that in the face of this obvious situation, your current allegations of over voting are clearly unwarranted?

A. My lords what is obvious on the face of the pink sheet is a clear case of over voting.

Q. In fact, at each polling station, your polling agents had a list of voters, did they not?

A. I am not sure that they all had list of voters. I was not there at every polling station; I am going by the records on the face of the pink sheet.”



ABSENCE OF THE SIGNATURE OF PRESIDING OFFICERS



102. The Petitioners’ pleadings in respect of this head of claim is found at Paragraph 20 Ground 2 (e) of the 2nd Amended Petition thus:



“That there were widespread instances of absence of the signatures of presiding officers or their assistants on the Declaration Forms known as “pink sheet”….”



103. In relation to this head of claim, Petitioners do not dispute the tally of results attributed to each candidate. They do not allege over voting or any other head of claim, except in cases where they allege there were combined irregularities and malpractice. The do not complain against any other aspect of the elections and the declaration at those polling stations. They concede that their poling agents signed the declaration forms. Their contention, however, is that failure by Presiding Officers to sign the declaration forms constituted breaches of the Constitution, and, therefore, the results declared by them, being the product of such constitutional breaches, should be annulled,.



104. Below is what Dr. Bawumia testified to under cross-examination by Counsel for 1st Respondent:



“Q. One of your claims is that in numerous polling stations, presiding officers did not sign the pink sheets?

A. That is true.

Q. You are not challenging the results as declared at those polling stations?

A. Oh yes, we are challenging the results because the law requires that those results be signed before declaration to make them valid. That is a constitutional requirement. And they were not signed and that is why we are challenging the results.

Q. The results that were declared were not challenged at the polling station, were they?

A. The results that were declared were not valid because they were not supported by a signature as required by the constitution.

Q. Did you sign any document challenging the results declared at the polling station?

A. We are here today to challenge those result.

Q. Did you or did you not challenge, at the polling station level, the results that were declared in those instances?

A. I am not aware of any challenges but our agents all testified or attested to those results. The presiding officer needs to sign before declaration. That is a constitutional requirement. That is my understanding and without that, those results cannot be valid.

Q. And you did not challenge those results at the collation centers. Did you?

A. Those results are being challenged.

Q. You did not challenge those results at the collation centers?

A. We did not challenge those results at the collation center or the way to the collation center but we are challenging them because they are unconstitutional.

Q. And you can confirm that your polling agents signed those results at the polling stations?

A. Our polling agents in some of the situations signed, again to attest to went on at those polling stations.

Q. Are you saying some, I am suggesting to you that without exception, all your polling agents signed the pink sheets at the polling station level?

A. That will be fine but the presiding officer did not sign and that is constitutionally required.

Q. Is that a yes or a no?

A. I have not seen all the sheets, I cannot remember but it is not something I want to argue over. The issue is that the presiding officer as required by the law did not sign those pink sheets and that makes it invalid.



ATUGUBA: Be a bit more direct. When he poses the question, you do not elect the version you want. You answer according to the version he has put to you.

What he was asking you is that at the polling stations and collation centers all your agents signed the results declared there.

WITNESS: The agents signed at the polling stations not at the collation centers. The law requires that they are signed at the polling station, no other place, before the results are declared.

Q. I am not talking about presiding officers. I am asking your polling agents signed at the polling station level. That is correct?

A. Yes. But the law requires that polling agents and presiding officers sign at the polling stations.

Q. And at the collation centers your polling agents and other agents confirmed those results by signing, is that not correct?

A. At the collation centers, they may have signed but we are saying that those results are invalid because the presiding officer did not sign as required by law.

Q. Those stations exclusive to your claim of presiding officers not signing, you are not complaining that there is over voting, are you?

A. No.

Q. You are not complaining that nobody went through the process without biometric verification?

A. We are not complaining.

Q. You are not complaining about serial number?

A. We are only complaining about the constitutional violation.

Q. Are you suggesting that a presiding officer can determine the outcome of the election just by not signing a pink sheet?

A. It is not me; it is the constitution that determines that.



105. 1st and 3rd Respondents’ denied that effect being placed on the failure by the Presiding Officers to sign the declaration forms. Their joint testimony, delivered by Johnson Asiedu Nketia on the point is found at page 37-39 of the proceedings of 27th May, 2013.



“Q. You are also aware that reference has been made to pink sheets on which there is no signature of the presiding officer at the polling station?

A. Yes my lord I am aware of that allegation.

Q. What is your response to that?

A. My lord it is true that we are all trained by the 2nd Respondent that at the close of poll after sorting and tallying votes to the candidates you have all the party agents including the presiding officers who must sign then there is a declaration then after the declaration each party agent is given a copy of the pink sheet and the presiding officer has a duty of conveying the results at the polling stations to the collation center. So my lord I am aware that there is a requirement that the presiding officer must sign.

My lord after we received the petition we studied the petition but re realized that a lot of polling stations where these lack of signature was been alleged we found out that the agent actually wrote their names in other polling stations they actually signed but yet there were other polling stations the polling agents did not sign and where the presiding officers did not sign, but my lord in all these places the polling agents actually certified that work of the presiding officer and I cannot contemplate a situation where you are engaged in doing a duty and after that duty you present it to witnesses who certify that you have done well and then you refuse to stand by your own words and my lords these signatures must be obtained before the declaration and in all the polling stations that are in contention declaration actually took place and the presiding officers also took place with their duties of transmitting the results so declared to the collation center and my check has revealed that collation has taken place unchallenged in all these cases so I do not think that in fact on the form you will also see that whenever an agent is dissatisfied with any aspect of the work the law allows the agent to protest. I don’t see any column on the pink sheet where if the presiding officer is dissatisfy with his own work he has to lodge a complaint again himself and if our system were to allow the giving or withholding signatures to determine the validity of votes in particular towns and villages in this country then the presiding officer will be the person to decide whether all the votes in the village should count or should not count and I do not think that that is the intension of our electoral system.”



106. Under cross-examination, the witness had this to say:



Q. Are you aware that there are several instances where the presiding officer did not sign the pink sheets?

A. Yes I have seen some instances where the presiding officer did not sign.

Q. And your agents brought you several pink sheets where the presiding officer has not signed?

A. Yes I have seen some of them.

Q. These are your well trained agents?

A. Yes.

Q. And they did not see that the presiding officer failed to sign was a malpractice?

A. My lord the agents are not to direct the presiding officer about how they do their work. It is the presiding officer who invites the agents to come and testify. So anytime the agents disagree with the way and manner the work has been done, they cannot they can compel the presiding officer to do it but they will raise an objection if they think that that would affect the outcome of the results. But in this case, the signature or lack of if of a presiding officer does not affect the results, it cannot change the figures for anybody, it cannot add votes to any of the contestants. So it can only be a matter of omission because I cannot see anybody who will finish his work, invite others to come and attest to his work and he himself will have any reason not to accept his own work and the proceed to declare results, proceed to transmit the declared results to the collation center. It can only happen because of some over sight. And I am sure if the presiding officers were time to revise his analyses he would have detected this and corrected it.



[proceedings of 5th June, 2013]



107. 2nd Respondent by and large agreed that some Presiding Officers did not sign their pink sheets but disputed the numbers alleged by Petitioners. Under cross-examination by counsel for Petitioners, Dr. Afari-Djan testified as follows:



“Q. One of the reasons you gave for the non signature of the presiding officer is that the presiding officer could be influenced not to sign?

A. My lord I have not given any reasons for the presiding officers not signing.

Q. You did not say that the presiding officer could be influenced, you never said that?

A. What I said was that we should be worrying because if we are not, the presiding officer could be induced not to sign simply because he wants to achieve a desired effect.

Q. So rather you said that they could be induced not to sign for a desired result. First of all what will that desired result be?

A. My lords I would not know.

Q. And who could induce the presiding officer?

A. Anybody who is an interested party.

Q. Could the presiding officer also be induced to enter wrong figures?

A. I guess anybody could be induced to do anything.



[proceedings of 12th June, 2013]



108. When cross-examined by Counsel for 3rd Respondent, Dr. Afari-Gyan testified thus:



Q: Now you also heard, it being claimed by the Petitioners that a number of presiding officers did not sign the pink sheets and you gave us a very interesting analysis of how many didn’t sign and so on and so forth, but you heard that claim, the claim that some of the presiding officers of polling stations did not sign.

A: Yes my lords.

Q: And for that reason again, it was being alleged that the votes of those who had stood in line in polling stations and voted and whose votes had been recorded by those presiding officers, those votes should not be made to count by you, you heard that allegation?

A: Yes my lords.

Q: Now if the Supreme Court were to hold that indeed wherever a presiding officer did not, you would not selectively apply it in certain strongholds and not in other strongholds, would you?

A: No, we would not do selective application of the law; we would apply it across the board.

Q: And you would for that have to go through all your 26,002 polling stations to see where if there was such an infraction had occurred, would you not?

A: Well, you know, we have already declared the results, you know, according to our understanding of the rules. I have explained here that the presiding officer has a number of functions to perform, signing is only one. If you look at the base of the form where the election results are declared that is the part of the form where there is some collective responsibility. The first part is filled by the presiding officer so our bone is that if the presiding officer does not sign, it is an irregularity but like in the case of all irregularities, the question that you have to ask yourself is, does the fact that the presiding officer has not signed, all the other people have signed, does it injure any particular candidate or not. Our conclusion is that, as a commission, is that the very fact of the presiding officer not signing will not injure any particular candidate and therefore we accept the validity. You see, I don’t know what you lawyers mean by malpractice. In election language that will not be a malpractice unless you can show that the reason why that the presiding officer did not sign was because he wanted to favour or to injure somebody. In other words, it is a simple irregularity.

Q: In fact, Dr. Afari Gyan, you would agree that if presiding officers had the ability by not signing to make the votes of people not count that will actually be a danger to the rights of people who have queued to vote, would you not?

A: My lords, I would agree because somebody could be prevailed upon not to sign.



109. That some Presiding Officers of 2nd Respondent did not sign pink sheets is not in doubt. Article 49 of the Constitution provides as follows:



“49. (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 the 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 polling agents, if any, shall then sign a declaration stating-

(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.”



110. The main issue for consideration under this head of claim is, therefore, the effect of the failure by the Presiding Officer to sign the declaration form. Should that invalidate the results properly tallied, entered onto the declaration form and declared by the Presiding Officer?



111. The Constitution doesn’t not provide a remedy for the breach of the provisions. In resolving the issue, we invite Your Lordships to adopt the purposive approach. Under Article 49 of the Constitution the duty of the Presiding Officer to sign the declaration form is preceded, first, by a count of the votes validly cast, followed by the recording of the tallied results [article 49(2)]. In the present instance, the Presiding Officers had performed those duties, and the complaint by the Petitioners is not about the counting, the tallying or the recording of those votes.



112. It is significant to note that under Article 49(2), the duties of the Presiding Officer as stipulated above, are required to be performed by him in the presence of polling agents. One of the objects of Article 49 is, therefore, transparency. There is no allegation by Petitioners in respect of this head of claim that, in undertaking his duties in respect of the count and recording of the tallied votes, the processes undertaken by the Presiding Officer were not transparent.



113. In our respectful view, the second purpose of Article 49 is authentication of two main things: (a) the polling station where voting took place: and (b) the tallied votes. In determining the issue of authenticity, we invite Your Lordships to note that the authentication is required to be done not only by the Presiding Officer but also by polling agents that are present. In the present case, Petitioners do not dispute the fact that polling agents, including theirs, signed the declaration forms in prescribed manner. The effect of the signatures of the polling agents, according to Article 49(3) is to confirm as true, the polling station and the tallied results that the polling agents observed the Presiding Officer count and record in accordance with Article 49(2).



114. Equally important is the fact that in none of the cases which Petitioners bring to court, did the polling agents complain in prescribed manner about the count made by the Presiding Officer or the record entered on the declaration form of the tallied votes. Nor is there proof that there were complaints in any prescribed manner by Petitioners’ polling agents against the results declared by the Presiding Officer, pursuant to the Article 49(3). In effect, by signing the declaration form without protest in prescribed form, they represent to the whole world that the results as countered, tallied, recorded and declared by the Presiding Officers are true reflection of the outcome of the elections in those polling stations



115. It is submitted, that a Presiding Officer who omits to sign a declaration form is compellable in law to perform those duties. Had the suggestion been made that the failure to sign was willful, then, such a Presiding Officer would have committed an electoral offence for which he be would be subject criminal sanction. The effect of his failure to sign the declaration form, however, should not be that the results he had declared should be annulled, unless the suggestion is that his failure to sign affected the results.



116. The resolution of the issue as to the effect of the failure by Presiding Officers to sign declaration forms cannot be done without juxtaposing that failure against the guaranteed constitutional right to vote under Article 42 of the Constitution. The Tehn Addy and Ahomah-Ocansey cases cited above on the right vote are pertinent. The issue then becomes whether or not a voter who has validly cast his vote in exercise of a constitutionally guaranteed right should be disenfranchised by an omission by an electoral officer over which he has no control?



117. The competing constitutional provisions guaranteeing the right to vote under Articles 42, and Article 49(3), which impose a duty on the Presiding Officer to sign a declaration form, should be resolved in favour of preserving the Ghanaian citizen’s inalienable right to vote, particularly when there is no proof that failure by the Presiding Officer to sign the declaration was willful or affected the results in any manner.



118. There are other reasons why Petitioners’ claim should not succeed. A practical effect of annulling results of affected polling stations would be to put the determination of guaranteed constitutional right to vote in the hands of a few officials of 2nd Respondent, who may, in appropriate circumstances, and with the right inducement, subvert the general will of voters. In that sense, Dr Afari Gyan’s testimony is relevant.



119. In resolving the issue, therefore, we invite your Lordships to take into consideration the following factors:



(a) Petitioners do not allege that the voter has committed any unlawful act;

(b) Voters had no control over the acts and omissions of the Presiding Officers

(c) Petitioners do not allege collusion between the voter and the Presiding Officers, or indeed between the Presiding Officers and any candidate or political party;

(d) They do not allege misconduct on the part of the Presiding Officers. Indeed it would have been counter-productive on the part of Petitioners to allege willfulness on the part of the Presiding Officer because then that would make Petitioners the beneficiaries of such misconduct, if their claim in this regard were upheld;

(e) There are no allegations of willfulness on the part of the Presiding Officers;

(f) The polling agents of the candidates signed their respective portions of the pink sheets in accordance with Article 49(3) of the Constitution;

(g) Petitioners are not alleging any other head of claim in respect of the polling stations that have the exclusive irregularity;

(h) Petitioners do not challenge the results that were tallied and declared at those polling stations;

(i) Petitioners have not complained in prescribed manner, either at the polling stations or at the constituency collation centres, about the conduct of the elections or the declaration of the results.



120. In Halsbury’s Laws of England 4th Edition, Volume 15(4) at paragraph 670, it was stated as follows:



“No election is to be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the appropriate elections rules if it appears to the tribunal having cognisance of the question that the election was conducted substantially in accordance with the law as to the elections, and that the act or omission did not affect the result. The function of the court in exercising this jurisdiction is not assisted by consideration of the standard of proof but, having regard to the consequences of declaring an election void, there must be a preponderance of evidence supporting any conclusion that the rule was affected.”



121. This position is in accordance persuasive authority. In the Orpitz case, (supra), it was held on page 42 (paragraph 66) as follows:



“By contrast, if a vote cast by an entitled voter were to be rejected in a contested election application because of an irregularity, the voter would be irreparably disenfranchised. This is especially undesirable when the irregularity is outside of the voter’s control, and is caused solely by the error of an election official.”



122. It would be misdirecting punishment indeed for entitled voters who stayed in long queues to cast their votes, and whose vote had been counted, entered onto a declaration form and publicly declared to be deprived of the right to have those votes counted as a result of an act of omission by an electoral officer (not willfully done), over whose conduct the voters have no control.



133. We therefore invite Your Lordships to hold that on the facts of this case, failure by Presiding Officers to sign declaration forms did not affect the results of the elections at the respective polling stations.



DUPLICATE SERIAL NUMBERS



134. The most curious claim of Petitioners is the one relating to serial numbers. The claim is stated in Paragraph 20 Ground 1(b) of the 2nd Amended Petition as follows:



“That there were widespread instances where there were the same serial numbers on pink sheets with different poll results, when the proper and due procedure established by 2nd Respondent required that each polling station have a unique serial number in order to secure the integrity of the polls and the will of the registered voters.”



135. In terms of sheer numbers, this category was the largest. Petitioners therefore went to great lengths in trying to prove this head of claim, imputing to 2nd Respondent all manner of dark motives for printing pink sheets that had matching serial numbers. They “invented” serial numbers in just about any material that was used by 2nd Respondent in the elections, including ballot boxes, stamps and tamper proof envelops.



136. Dr. Bawumia’s evidence-in-chief, however, was, to put it mildly, unconvincing in demonstrating the exact nature of the malpractice that was alleged to have occurred at those polling stations. He recited off the top of his head statistics linking over 70% of the alleged irregularities to polling stations with duplicate serial numbers, without stating the exact nature of the malpractice or irregularity that had been occasioned by the use of the duplicate serial numbers on the pink sheets.



137. He claimed that serial numbers were security features intended to be used in identifying polling station, without leading any evidence as to how that affected results declared at the various polling stations at which they were allegedly duplicated. When questioned under cross-examination by Counsel for 1st Respondent about whether or not any polling agent had been trained to look out for serial numbers as an identifying mark or security feature, his answer was “no”.



138. Perhaps a look at the background (as narrated by Dr. Bawumia), of how Petitioners came by this alleged irregularity would demonstrate the highly speculative nature of the claim. As has been the case of the petitioners throughout trial, the claim had nothing to do with what happened at polling stations. They stumbled upon it in their attempt to something, anything wrong with the elections.

139. Under cross examination by counsel for 3rd Respondent on the 30th day of April, 2013, 2nd Petitioner was asked the following on page 20:-



“Q. Again, you gave the directives to the members of the committee that whenever they find a serial number pink sheet in one polling station and another, whenever they see those that is a violation.

A. It was automated, to find duplicate serial numbers in so many pink sheets is difficult to do manually. So once you enter all the serial numbers for all the pink sheets in the computer, you can sort out by same serial number. We did that and found duplicate serial numbers.”



140. Asked by Counsel for 1st Respondent under cross-examination whether or not there was any constitutional, statutory or other legal basis for the claim, he stated thus:



“Q. Now by the way this serial numbers thing you are talking about is it covered by any law or constitutional provision to your knowledge?

A: That is why we say it is an irregularity. Am not aware that is covered by a law or constitution, but you expect that if I take two cheques to a bank and there are duplicates the same serial number you can be sure they will be dishonored.

Q: I am suggesting to you that this idea of serial numbers was conjured by you by the petitioners in order to beef up the non-existent case?

A: Definitely not, the case of highly irregular use of duplicate serial numbers is a serious one in my opinion.

Q: And I am suggesting to you that that is the case because you do not challenge the account of details on those pink sheets?

A: What we are saying that the details on those pink sheet are questionable because we cannot trust the integrity of the form they are written on.”



[Pages 27-28 of the proceedings of 24th April, 2014]



141. The evidence of both Johnson Asiedu Nketiah and Dr Afari Gyan effectively buried this head of claim. In his evidence-in-chief on pages 34 through to 37 of the proceedings of 23rd day of May, 2013, Mr. Johnson Asiedu Nketia was asked the following question:

“Q. You are aware that the Petitioners have made a case out of the serial numbers on the pink sheets in one polling station being the same as the same serial numbers on pink sheet in other polling stations

A. Yes

Q. Now what is your response to that claim.

A. My lord, my response is that the 2nd Respondent plus all political parties have agreed on ways to identify polling stations and that identification those does not include anything like serial numbers whether they are duplicated or multiplicities or triplicates anywhere. It doesn’t impact on the results of the election in any way at all.

My Lords, the two means of identifying a polling stations has been the name of the polling stations which is almost always related to the location and then you have code number and these code number are crafted in a way that anybody who is familiar with the electoral process of Ghana when you give a code number you are able to tell that this code number describes a polling station in this particular region it describes a polling station in this particular district in this particular constituency and if you refer further you will be able to identify the location. And my lords let me add something about serial numbers, the electoral system in Ghana is so transparent that we agree on the rules before we go on the game there is nowhere the Electoral Commission trains our agents about how to identify serial numbers and indeed if serial numbers were going to be used as part of the identification process then the polling agents should know in advance the Presby Primary B Kato has this serial number so that the agent will be able to check electing official about the document and the number being used there to satisfy themselves that the election official is not using another document with the sole purpose of disenfranchising the people in that area………..

No polling agent in this country as far as I am aware has been trained about the use of serial numbers anywhere and Electoral Commission has never in any meeting indicated that serial numbers will form part of the security features of the elections at all.



142. Under cross examination by counsel for Petitioners on the 29th day of May, 2013, Asiedu Nketia further explained that serial numbers printed on the pink sheets have no relevance in the election. On pages 3 and 4 of the proceedings, he was asked the following:-



Q. Yesterday we were on the serial numbers I will like you to take a look at this pink sheet. You see that on the top right hand corner is embossed certain numbers in red

A. Yes my Lords

Q. That is the serial number on the pink sheet and you will notice that the only number that is embossed on the form

A. Yes, my Lord, it is the only number that is embossed on the form I cannot call it serial number or otherwise

Q. I am suggesting to you that the purpose for that number being embossed on this pink sheet is for security reasons

A. My Lords, I can’t tell because in the training before the elections we all were told about the security features and what our agents should look for and the agents as checks should look for and the agents as checks on the election officials and the officials also will have checks on the agent we did not discuss anything like this and indeed if you look into the exhibit A, Guide to Elections Officials there is a specimen pink sheet which was used in training the standard manual which we used in the training, there is nothing like a serial number on the specimen form so I disagree with you when you suggest that this number there is for security reason.”



143. Asiedu Nketia’s testimony was corroborated by Dr Afari Gyan when in his evidence in chief on the 3rd day of June, 2013 he was asked the following:-

Q. Dr. Afari Gyan, we will go to the duplicate serial number, the alleged duplication of serial numbers. You heard the evidence of Dr Bawumia the duplication of serial numbers should result in an annulment of the votes on all polling stations were the same serial number exists for two polling stations on the pink sheet.

A. My Lords, I strongly disagree with that.

Q. Can you tell us why

A. Well, in the first place the serial numbers that you find on the pink sheets are not even generated by the Electoral Commission. They are generated by the firm or company that printed the pink sheets. Also unlike in the case of ballot papers, where the law requires that we print numbers, there should be a number on every ballot paper, I have seen no reference in the Constitution or a Statute or an Instrument to a serial number of the pink sheet. The serial number is important only to the extent that it allows us to keep count of the number of pink sheets produced. The pink sheets are distributed randomly and the serial number printed on the pink sheet. It has absolutely no relevance to the compilation and declaration results. We identify our polling stations by their unique code and by their names and in fact throughout this trial so far I have never heard anybody identify a polling station. If two polling stations have the same serial number that will in no way affect

Q. Do you mean two pink sheets

Two pink sheets with the same number for different polling stations, it will not have any effect whatsoever on the validity of votes cast. Why?

A. Each of the two polling stations will have a different code and a different name. There will be two different presiding officers and two different sets of officials, there will be two different sets of candidate’s agents and there will be two different results entirely. So I see no problem, and when the results are taken from the polling station to the collations center, they are dealt with on the basis of polling stations codes and not serials numbers. So I do not see the basis for the allegations surrounding the serial numbers. I see no basis at all.”



144. It is submitted that the issue of burden of proof does not arise at all in respect of the head of claim in relation to serial numbers. The phenomenon is a creation by Petitioners to bolster up numbers in support of to their claim. The testimonies of Dr. Afari-Gyan and Johnson Asiedu Nketia regarding the processes surrounding security items in the electoral process should have informed Petitioners about the futile nature of their claim. Petitioners cannot claim ignorance about the requirement of serial numbers on ballot papers. At least the 1st and 3rd Petitioners have part of this electoral system for years. Inventing such a claim is therefore an ac of bad faith. It was an invention by Petitioners to bolster their case and should be wholly dismissed as adventurous.





SAME POLLING STATION CODE WITH DIFFERENT RESULTS



145. Again, it is the case of the Petitioners that in 35 polling stations the same polling station codes showed different polling station results. As such, the results of all those polling stations with the same polling station codes but different results should be annulled. In respect of this head of claim, Dr. Bawumia testified as follows:

Q. Dr. Bawumia apart from the same serial numbers in different polling stations, you also talked about same polling station codes for different polling stations. Can you explain that?

A. Yes my lords one expects in fact that the 2nd Respondent that we should have one polling station for every polling stations in our analysis of the pink sheets however, we found the case of the same polling station sharing different polling stations code.

LITHUR: My lord it is confusing here this is the first time I am hearing that there is a problem with one polling station sharing different codes, unless you want to clarify it I did not hear one polling station sharing different codes. I have never heard that allegation before, but my lords maybe he should clarify.

A. It is the same polling station with different sets of results with different sets of pink sheets for the same polling stations. We found the situation where you had the same polling that the same polling station having more than one pink sheet.

Q. Can you tell the court what you found out in your analysis of pink sheets with same polling station codes for different polling station?

A. In the 35 polling stations we found out that the votes in terms of their impact of this elections my lords is statistically insignificant but the occurrence really is struggling even though it is statistically insignificant because you have really less than 10,000 votes involved and it is statistically insignificant as a category that is what we found my lord.



Q. Can you please identify the sheet you have in your hands?

A. These are copies of the pink sheet of Juaso polling station this is from the MBY000001 series and MBY and MBT these are three sets of results for one polling station, the same polling station with different presiding officers two difference presiding officers and the presiding officer’s signatures are different the same presiding officer had different signatures.

Q. What would you like the court to do with respect to votes relating to the same polling station?

A. My lords we will ask that these votes be annulled or at least to the extent that these all featured on collation sheets they should be annulled.



[Pages ….to… of proceedings of 17 April 2013]



146. Although Dr. Bawumia indicated above that this claim, even if it were upheld, would not affect the outcome of the 2012 Presidential elections as announced, it was clear from the testimony of Dr Afari Gyan that this was a bizzare claim that showed that the Petitioners had insufficient understanding of the voting process. As regards this claim, Dr Afari Gyan testified that of the polling stations that bore the same codes one would represent a special voting centre. He also corroborated Johnson Asiedu Nketia testimony to the effect that each special voting centre had pink sheets because that was the document on which the results were recorded before moved to the collation sheet. He denied Dr. Bawumia’s assertion that pink sheets were not used at those centres.



147. The position of Dr, Afari-Gyan as the Chairman of the Electoral Commission, who has had a wealth of experience in electoral matters and who has been at the pivot of election administration in the country for years was that, where the situation of the same polling station code manifesting different polling station results arises only where the same polling station code is used for both special voting and the regular voting or where the a polling station is a split station. In the event of the latter, the polling station code will end with the letter A or B. His testimony should be conclusive of the issue



148. His testimony was also consistent with the testimony of the witness of the 1st Respondent and 3rd Respondent, Asiedu Nketia, who testified thus:

Q. Now there is one other category under which the Petitioners are seeking to allege that there were irregularities in this election. Now that is the category they say the same polling station code with different results. Now what do you have to say in respect of that?

A. Thank you very much. My lord in reading the petition I came across this allegation and again my lord I consider it to have come from a situation where Petitioners are not appreciating how voting is done, because on a careful study of the polling stations where it is alleged that there are double pink sheets, you will realize that these are polling stations that were used for special voting and in any polling station where special voting takes place, at the end of elections you have two statement of poll and declaration of results. The first one indicates the results of the special voting and then the second one indicates the results of the regular voting. So my lords, I have looked at the allegation and I have confirmed that all the cases where it is being alleged that there is double pink sheets they relate to polling stations that were used for special voting.

Q. And what does special voting mean?

A. My lord, special voting is voting that is conducted to allow persons whose duties on the voting day will take them away from their normal polling stations such that it would be difficult for them to cast their votes, so a list is made of such persons and then the 2nd Respondent conducts elections for them. This special voting is special only in the sense that it happens before the voting day and then counting, sorting and declaration of results are not done on the day of voting, otherwise everything about special voting is like the regular voting so what happens is that the polling station is opened, polling agents are stationed with presiding officers, the record of number of people entitled to vote is entered on the pink sheet, the range of ballot papers that will be used for that special voting is also entered on the pink sheet. Then at the close of poll, without, you know, counting, these pink sheets are folded and then secured together with the ballot boxes and sent to the police station for safe keeping so at the end of the regular voting the boxes are escorted from the police station to the collation centre where they are opened and counted in the presence of agents and then results are declared and signed by the agents and the presiding officer. So in all the polling stations that are used for special voting, you will see two pink sheets with the same polling station name, same polling station code but results signed by different presiding officers and different polling station agents, so that tells you that that polling station has been used for special voting, and the 2nd Respondent also has a list of polling stations that have been used for special voting. So if there is any doubt it can be confirmed by the 2nd Respondent.

Q. Now you are saying that the list of special voting is in the possession of the 2nd Respondent? That was your answer just now, I just want to be clear.

A. Yes my lord.

Q: Okay, very well.

A. And every political party knows in advance which polling stations are going to be used for special voting and that is how we are enabled to field our agents at those polling stations for the exercise to take place.



[Proceedings of 23rd May 2013]



149. Another piece of critical evidence, which was never shaken on cross- examination by counsel of the Petitioners, was that there was a list of special voting centres which was made available to all parties in advance of special voting. What is more puzzling about this head of claim of the Petitioners is that the pink sheets with the same polling station codes but different results – for regular voting and special voting- were signed by agents of the 1st Petitioner. Additionally, the Petitioner’s do not contend that special voting did not take place during the 2012 Presidential Elections. Nor were they able to produce any special voting results that were not recorded on pink sheets.



150. In the result, based on the totality of the evidence before this court on the question of same polling station codes with different results, we urge this court to dismiss the Petitioners’ charge of irregularity arising from the same polling station codes with different polling station results. The Petitioners woefully failed to prove this claim, which again demonstrated their doubtful knowledge of essential processes and mechanics of elections in Ghana.





UNKNOWN POLLING STATIONS



151. The original claim by Petitioners as contained in Paragraph 20 Ground 2a was as follows:



“That there were 28 locations where elections took place which were not part of the twenty-six thousand and two (26,002) polling stations created by the 2nd respondent for purposes of the December 2012 elections.”



152. By the time trial started the polling stations had reduced to 22. Petitioners allege that these polling stations were not part of the polling stations that had been included in the list that had been submitted by 2nd Respondent for the December 2012 elections. Dr. Bawumia’s testimony on this head of claim was as follows:



Q. You mentioned earlier on that voting took place in certain locations which were not part of the 26,002 polling stations supplied to the New Patriotic Party. Can you tell the court which locations you are referring to?

A. My lords in our examination the pink sheet we found that we could not locate from the list of 26,002 polling stations 23 pink sheets that we had the codes did not match.



………………………………………………



For the 22 locations, we could not find them on the list of 26,002, we could not match the names and the polling stations. Again as with the duplicate numbers category, my lord, we have to be upfront statistically, this category is insignificant. 99% of all the irregularities and violations that we talking about are in four categories. Over voting, voting without biometric verification, the duplicate serial numbers and the non signatures by the presiding officer. These are where the bulk of the irregularities are. But the occurrence of voting in places where the 2nd respondent has not provided us should not really happen, even if it is one polling station.



[Pages 40 and 45 of the proceedings of 18th April]



153. While it appeared during trial that some of the polling station codes were wrongly quoted on the pink sheets, the polling stations were shown to have existed. Indeed, 2nd Respondent during cross-examination of Dr. Bawumia tendered through him letters written by 1st Respondent appointing polling agents to some of those polling stations.



154. Anyhow, the burden always remains on Petitioners to prove that those polling stations did not exist. Unfortunately all the pink sheets provided by Petitioners indicated that supervised voting had taken place at those polling stations, with the active participation of 1st Petitioner’s polling agents, who signed off under the declared results. What was curious about Petitioners’ approach to proof however was the failure to tender the list of the 26,002 polling stations supplied to them by 2nd respondent for the purpose of ascertaining whether the 22 polling stations were among them. Perhaps the measure of industry applied to this claim could be explained by the fact that the Petitioners considered it in terms of their claim quite insignificant.



155. It is respectfully submitted that this head of claim should be dismissed peremptorily.





MISCELLANEOUS



156. 1st and 3rd Respondents have caused to be filed in support of their cases affidavits by their polling agents in support of their defence. The affidavits have been paired up against the relevant polling stations and added to this written arguments as “APPENDIX”.



157. It is submitted, respectfully, that these affidavits are in the nature of evidence of what the polling agents witnessed first hand at the polling stations during the elections, and could testify to. They further serve to undermine Petitioners claim of wrong-doing and attest to the results that had been declared at the affected polling stations, and signed off by polling agents without complaint or incident. We invite Your Lordships to take cognizance of those affidavit in arriving at your decision.



158. It would be recalled also that at the tail end of Counsel for 1st Respondent’s cross-examination of Dr. Bawumia, the following dialogue was recorded:



Q. I have read your petition, I have read your affidavit and I have listened to your testimony and in not a single case are you accusing any voter of doing anything illegal or irregular. Is that correct?

A. We have probably about 4.3 million cases where we are demonstrating violations, malpractices, irregularities in the conduct of this election.

Q. I am asking you a direct question. You are not accusing any voter of…..?

A. This case is not against any voter. We have brought this petition because the 2nd respondent did not conduct the elections in a way that gave them integrity. There were violations, malpractices and irregularities and that is what we have brought to court.

Q. You are not accusing the 1st respondent of having done anything wrong, are you?

A. No the 1st respondents just happened to be the beneficiary of these violations, malpractices and irregularities.



159. It is submitted that the admission by 2nd Petitioner that no voter had committed any wrongdoing and that he was not accusing 1st Respondent about any misconduct or malpractice wholly undermines Petitioner’s case. That admission destroys any basis upon which Petitioners are challenging the results. It cannot be a credible legal position to suggest that the Electoral Commission as an institution, on its own volition and without any inducement, decided to engage in malpractice in order to benefit any particular candidate. Petitioner. Dr. Bawumia’s admission that the 1st and Respondents were not part of any misconduct in relation to the election is germain to the issue whether or not the results as declared should not remain.



GENERAL COMMENTS



160. Respectfully, Your Lordships, we take the view that the nature of this Honourable Court’s Article 64 jurisdiction to adjudicate disputes relating to presidential elections is such as, with the greatest respect, ought to be exercised with circumspection. Indeed, it is our considered opinion that it requires significant judicial deference to the Electoral Commission on a wide range of issues.



161. We take the respectful view that the true intent and purport of the broad grant of jurisdictional power under Article 64 is that its exercise must be subject to the overarching constitutional scheme, including the balance of institutional roles and the need to guard against excesses. On this basis, we invite Your Lordships to exercise judicial restraint and to defer to the Electoral Commission on matters that touch and concern the exercise of its core functions.



162. Your Lordships, our argument for judicial deference to the Electoral Commission is premised on a number of grounds. The first is that the Electoral Commission is better placed to deal with the critical operational issues relating to the execution of its core mandate than any other person or institution. Due to its familiarity with the mechanics and dynamics of elections, its institutional memory of the deficiencies that the electoral system has suffered or will suffer as well as the expertise and resources it has gathered over the years, and the experience of dealing with political parties, the Electoral Commission is in a much better position to make judgment calls relating to an election than any other person institution. This calls for attentiveness to and respect for the views expressed by the Electoral Commission on the issues brought before this Court.



163. Your Lordships, a second but related reason for judicial deference is that judicial second-guessing of the decisions of the Electoral Commission (e.g., on whether to allow voter