Feature Article of Saturday, 12 January 2013

Columnist: Yaw III, Nana

NPP’s Petition At The Supreme Court: How solid is the case?

This is going to be a long article, but I hope readers will bear with me. I preferred a single article to a two part one, so that everything will be found at the same time.

I have read over and over, a document published by the Daily Guide, purported to be the petition of the NPP to the Supreme Court (SC) proclaiming Nana Addo the President-Elect in the December 7/8 elections. I say purported because the document is not officially numbered, and has no signature on it. I assume it was given to the paper before submission. After reading the document my mind is flooded with questions that I summarise and partially answer as follows:

JOHN DRAMANI MAHAMA AS A RESPONDENT: Why make John Dramani Mahama a respondent? Having gone through the whole petition I find it difficult to find any reason to "drag" Mahama to court other than the fact that he was declared the winner. Mahama was legally declared by the Chairman of the EC as the winner. He (Mahama) did not declare himself winner nor did he authorise (or request) the EC to declare him winner, so why make him a respondent?

The second respondent (the EC and its Chairman) has questions to answer, but what is Mahama going to answer in court? Will the SC uphold the prayer of the petition and make Mahama a respondent? There have been opinions here and there indicating that under certain conditions, a President can be sued. Most of these have been around Article 57 clause 4 of the Constitution, which I reproduce below:

"Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law."

This law supports the argument that the President can be sued, but the reference point is the performance of his functions or any act done or omitted to be done, etc., etc., in the performance of his functions. The key phrase here is "in the performance of his functions." Going through the petition, the ONLY wrong that Mahama seem to have committed is to have been legally declared by the Chairman of the EC as the winner of the elections based on the results received. There is no single accusation against Mahama in the whole petition. This being so, it is very normal to say that article 57 clause 4 cannot be used to argue that Mahama can be sued as a result of being declared the President-Elect after a legally contested election.

This leaves us with article 57 Clause 5 of the Constitution, which states: "The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court." So I ask again, why is Mahama in Court?

ALLEGATIONS OF RESULT PADDING IN FAVOUR OF MAHAMA: What happened to the numerous allegations of results padding (massaging) in favour of Mahama that were levelled against the EC Chairman and officials?

In the writ, these allegations were repeated, with the recall of the STL premises invasion by NPP supporters, but that was all. Mention must be made that in the live TV coverage of events at the STL operations room, the officer who was interviewed by Hon. Osafo Marfo, did not tell anyone that they received electronic data transmission in that building and then forwarded this information to the EC. Osafo Marfo prodded and headed the young officer towards a point of confirmation that it was possible to receive, manipulate the data and then transmit them to the EC. The guy responded in the negative.

In the table where results were challenged, and in the final table where the petitioners finally tallied their valid electoral figures, ALL presidential candidates presumably benefited from padding (massaging) of the results, although the NPP conveniently crafted the figures to give themselves less than half of what the NDC is alleged to have obtained. For the avoidance of doubts, I reproduce Regulation 22 of the writ below:

“22. Petitioners say that upon the annulment of the votes in the four thousand seven hundred and nine (4,709) polling stations, the following votes ought to be deducted from the respective votes declared in favour of the presidential candidates: (1) John Dramani Mahama: 916,409; (2) Henry Herbert Lartey: 6,413; (3) Nana Addo Dankwa Akufo-Addo: 395,784; (4) Papa Kwesi Nduom: 8,778; (5) Akwasi Addai Odike: 2,544; (6) Hassan Ayariga: 5,956; (7) Michael Abu Sakara Forster: 3,166; (8) Jacob Osei Yeboah: 3,795.”

Notwithstanding the mathematical implication of the data above, one thing that is clear is that all the noise to the effect that large chunks of votes had been added to Mahama whilst similar quantities had been deducted from Nana Addo, has been defeated by the petitioners’ own calculations. Afari Gyan must be a very benevolent and clever fraudster to have schemed such a ploy.

The NPP is demanding an immaculate performance from all EC officials who operated during the elections. These were guys who worked under the pressure of crowds that had gathered to vote, machines that were giving them problems, polling agents screaming on them to ensure that the wrong thing is not done, etc., etc. Of course some erred and might have forgotten to sign the “pink” sheets or even written numbers or summed erroneously. But to accuse them of having erred with a clear intention of cheating, you need a more plausible argument than the table above.

I won’t go far to prove my point. It took the NPP twenty days to organise their evidence, prepare, review and write their petition to the court. Members of this party waste no time in telling the world they have the best brains, starting from the legal profession, through the political realm, to economists and whatever white-collar job sector you can dream of. But when presented with the opportunity to prove their worth, these “best brains” perform, most of the times, abysmally. They constructed a two-column table of irregularities in the elections – column 1 indicating the irregular instance, and column 2 indicating the irregularities in figures. There were only 23 figures to be summed. Only 23 figures to be summed in a very serious document to be presented at the highest court of the land, and you know what? They FAILED to sum the figures correctly! Instead of 1,343,047 irregular votes, they summed those 23 figures and arrived at 1,342, 851.

They arrived at this figure, wrote it in words and managed to distribute it accordingly to all the presidential candidates. But 196 votes are missing in summing the figures. As if these were not enough, in the table of results declared by the EC, they summed all votes as 14,158,880. In such a simple table they have committed mathematical blunders, and no one is accusing them of having been bribed to commit those errors. Yet when a poor EC official commits an error that can be corrected, they have been labelled as corrupt.

ALLEGATIONS OF A BLOATED VOTERS REGISTER: How does this affect the final results? The total number of registered voters, in principle, has no direct effect in the results of an election, unless the total number of votes cast supersedes the total number of registered voters. In the case of this election, this did not happen. The allegation against the EC is that the provided data was superseded by 127,210 voters. This allegation is correctly substantiated by the official declaration on Sunday December 9, when the EC chairman came out with the results. It is now left to the EC to provide an explanation to this difference.

This notwithstanding the only effect such a "bloat" has over the results of the election is on the percentage voter turnout. When you use 14,158,890, you get a voter turnout of 79.43, whereas by using 14,031,793 you get 80.15%. As mentioned, these figures, in principle do not affect the fortunes of any of the candidates.

However for an organisation like the EC to be taken serious in its activities, it is very important that they learn to be consistent with their figures. The same applies to any public institution in the country. Punctuality, diligence and seriousness are difficult qualities to be found among Ghanaian public servants. Some of these lackadaisical attitudes may have led to some of these inconsistencies rather than a calculated desire to make someone loose an election.

ALLEGATIONS OF VOTING WITHOUT BIOMETRIC REGISTRATION: How and why did this happen? According to the petitioners, the EC, "contrary to Regulation 30 (2) of C. I. 75", allowed voting to take place without prior verification by the biometric machines. For the avoidance of doubts, I reproduce Regulation 30 below: (1) A presiding officer may, before delivering a ballot paper to a person who is to vote at the election, require the person to produce (a) a voter identification card or (b) any other evidence determined by the Commission in order to establish by fingerprint or facial recognition that the person is the registered voter whose name and voter identification number and particulars appear in the register. (2) The voter shall go through a biometric verification process.

The above regulation clearly defines a two-step identification. The first being a voter's ID card or any other method that the EC might establish, and the second being the biometric verification. For various reasons in the alleged stations where voting took place without biometric verification, voters were present and ready to vote, went through the first identification process without any hitch and were being thwarted to exercise their franchise by a machine that won’t work. So at a time that people had queued to vote but could not do so due to a technical problem, an administrative decision (whether it was with or without the EC chairman's approval) was taken.

Institutions, laws, and machines are created by humans, so if a machine fails to work, does that mean that having alternatives to execute an action we should decide not to do so, thereby denying others of their right to participate in a process?

Nana Addo, in the press conference held on Friday afternoon (after filing the petition) said among others that, the most important factor in the electoral process was the vote cast by the voters. So if this was the most important to him, how come he is fighting to totally disenfranchise over 400,000 voters for no error on their part? The right thing to do in his petition was to pray to the SC to annul the votes in the affected polling stations and order the EC to conduct new voting in the said area, ensuring that the biometric machines live up to expectations. This is justice to the voter. Or are the petitioners afraid that if the “right” thing is done in the affected areas they will have no chance of winning the elections even in the court room?

SOME INTERPRETATIONAL THOUGHTS ON VOTER IDENTIFICATION The most important regulation in CI 75 that spells out voter identification is Regulation 30, sections 1 (a) and (b). Regulation 1(a) is more of a RECOMMENDATION for the presiding officer (or his assistant) to use a voter ID (or any other form that the EC may deem fit) to identify the voter. Regulation 1(b) on the other hand is an OBLIGATION on the voter (and the EC's representative?) to be biometrically identified before being issued with a ballot paper.

Thus for proper identification, 2 elements are very necessary: 1. The Presiding Officer, and 2. The Biometric Verification equipment. Legal provisions are made for the presence of these elements in Regulation 17, for the Presiding officers and Polling Assistants, and Regulation 18, for the biometric equipment (sub-section 1.b). Whereas in Regulation 17 provision is made for replacement of the presiding officer by a polling assistant "during the absence or incapacity of the presiding officer" (all human beings), the only item that was to positively identify a voter before being given a ballot (the biometric equipment) has no legal provision backing its immediate replacement in the event of a break-down. The only legal backing to cater for the breakdown of the biometric equipment is a recommendation in Regulation 34.

This directive states in 34 (1) that: "Where the proceedings at a polling station are interrupted or obstructed by (a) riot, open violence, storm, flood, or other natural catastrophe or (b) the breakdown of an equipment the presiding officer shall in consultation with the returning officer and subject to the approval of the Commission, adjourn the proceedings to the following day."

Special notice should be made of the phrase "subject to the approval of the Commission" because if the commission declines the request for adjournment then voting could proceed without the biometric identification. Sure, such an act could be interpreted as a violation of Regulation 30 (2) of CI 75, but Regulation 30 (1) a, and b, is also a valid form of identification. The spirit of the biometric identification is to ensure that the person already identified in Regulation 30 (1) is the voter, so in the event of a breakdown of the machine, and in the presence of all party agents, is it not possible for humans to disentangle themselves from the legal webs of a machine failure?

Moving a step further, Regulation 31(1) states: "A voter who desires to vote shall be present at the allotted station and the presiding officer or a polling assistant, shall after being satisfied that (a) the voter is registered and has not already voted; or (b) is voting as a proxy; deliver the ballot paper to the voter." So irrespective of the provision of regulation 30 (2), can a presiding officer who has satisfied himself that a voter is the person presenting an ID card (or any other identification sanctioned by the EC) but is faced with a non-functioning biometric machine give the green light to a voter by issuing the ballot paper?

Whatever the case, in pursuance of good faith, what the NPP should seek, if the SC decided to uphold the argument of No Verification No Vote (NVNV), is not TO DISENFRANCHISE the innocent voters who performed their civic duties over long hours in the sun, but rather an EQUAL OPPORTUNITY for the said voters to LET THEIR VOTES COUNT. And this can simply be done by seeking re-voting in the affected polling stations instead of STRIKING OUT the votes of those areas as if the voters never appeared at the polling stations to vote.

ALLEGATIONS OF OVER-VOTING vs. SPECIAL VOTING: Was Over-voting a significant issue? From the NPP's calculations, over-voting was a serious issue, as they allotted over 600,000 votes to the allegation. But is this figure real? Since this issue came up, I started asking in various chats and online discussion threads if anyone could tell me what happened to the results of the special voting that took place on December 4, 2012. I have since not been given any credible answer. So I started making research into the special voting data with the following questions in mind: What happened to the special voting data? Were they incorporated into the mainstream voting data? If so, when was that done? If not when is the incorporation taking place?

With the help of CI 75, I gleaned some answers which meant that the NPP might have failed to factor into their calculations the voters of December 4 special polls.

Regulation 21, sub-sections 10 and 11 state: “10. Subject to sub regulation (11) voting at a polling station for special voters shall be conducted in the same manner as voting on polling day. 11. The returning officer shall at the end of the special voting (a) ensure that the ballot boxes are kept in safe custody after the poll has closed; (b) ensure that the ballot boxes are sealed with the seals of the Commission and any candidates who wish to add their seal; and (c) arrange for the ballot boxes to be opened at the time of the counting of the votes cast on the polling day and the ballot papers shall be counted in the same manner as those contained in the ballot boxes used on the polling day.”

The meaning of the above is a clear indication that the ballot boxes of the special voters were taken to the polling stations (where special voting took place) and incorporated in the mainstream counting. As this is the assumed occurrence then the incorporation meant that extra (but legal) votes would appear to have been included to the mainstream data by any cursory observer who fails to take the special voting into account and relies only on the ballot booklet accounting to audit polling station total votes.

The arguments used by the NPP at their press conference after filing the petition failed to include special voters in their calculations. When this is done the total number of real over-votes is bound to diminish to a highly insignificant quantity, and destroy the cornerstone of their results-padding theory.

TABLE OF IRREGULARITIES IN THE PETITION The NPP is quick to request that the SC annuls results from polling stations because of the above allegations and other alleged errors in summing, or figures and words not coinciding. These requests are made with the hindsight of demanding flawless acts of 26,002 presiding officers, giving these officers not a single margin of error. I do not know how many people sat around a table to draw up and cross-check the sum of all the irregularities in the "table of irregularities as presented in the NPP petition. But I know one thing: That given a single column to sum, these legal brains, economists, statisticians and what have you, could not properly sum a single column made up of 23 figures. They FAILED in that simple test. The SUM of the irregular votes IS NOT 1,342,845 as stated in the petition, but rather 1,343,047. There is no issue of a typographical error here, because the quoted figure is written in WORDS in Regulation 21 of the petition. Should the SC declare invalid the petition because the petitioners have not been able to sum correctly their own tabulation?

YESTERDAY’S (09/01/2013) PRESS CONFERENCE BY JAKE. At the press conference held yesterday Jake asked Ghanaian to remember the following numbers: 2, 4, 6, 8, 12, 127. I will leave some short comments besides each as defined by Jake:

2 – “for the over 200,000 invalid votes as a result of no EC signature on the pink sheet:” The EC has already reacted by indicating that this is (or might) be due to a pen not being pressed hard enough for it to go through the carbon copying sheets. The meaning of this explanation is that if the EC has the originals, the signatures would be seen on them, and of course, any party that took the immediate carbon copy can produce its copy to confirm the signature. If this happens, then the over 200,000 votes will be declared valid.

4–“ for the over 400,000 invalid votes cast without verification:” Since Jake himself stated that “Elections, we insist, are about those who cast the votes and not those who count, record or declare” the NPP’s quest should not be the INVALIDATION of the votes cast without verification, but rather an opportunity for the voters in the affected areas to express their sovereign will. This is done by requesting re-voting in the alleged affected areas. This will then be justice! And when this is done, it is doubtful that the wind will be in their favour.

6 – “for the over 600,000 invalid votes cast due to over voting – more votes were recorded than ballots were distributed in a polling station:” The NPP should go back to the drawing table and count the data from the special-voting day. If they do that the number quoted here will definitely be, at worse, of no significance.

8 – “1 in every 8 votes that the EC declared will have to be invalidated 12 – 12% of the votes were invalid:” This is the product of assumptions that can, and will, be nullified as explained above.

127 – “127,000 voters that the EC says are a ‘mistake:’” The only effect that this number has on the process is on the total voter turnout. No candidate benefits.

Thanks for bearing with me. Long Live Ghana!

Nana Yaw III