Presidential election petition: reasons for judgment (part 3b)
Constitutional law – Supreme Court – Original jurisdiction – Challenging election of the President – Grounds for – Absence of signature of presiding officer on pink sheets – Legal effect – Purpose of signature of presiding officer on pink sheets – Whether or not signature of polling agents on pink sheets satisfies policy objective of article 49(3) of Constitution – Effect of petitioners not questioning authenticity of results not bearing signature of presiding officer – Whether or not compliance failures automatically renders void an election – Whether or not right to vote can be lost through administrative lapses – Constitution, 1992, arts 42 and 49(1)-(3) – Interpretation Act, 2009 (Act 792), s42.
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SUPREME COURT, ACCRA
(Writ No J1/6/2013)
Published Friday February 28, 2014
IN RE PRESIDENTIAL ELECTION PETITION;
AKUFO-ADDO, BAWUMIA & OBETSEBI-LAMPTEY (No 4)
v
MAHAMA, ELECTORAL COMMISSION &
NATIONAL DEMOCRATIC CONGRESS (No 4)
BEFORE THEIR LORDSHIPS: ATUGUBA, ANSAH, SOPHIA ADINYIRA, R C OWUSU,
DOTSE, ANIN YEBOAH, BAFFOE-BONNIE, GBADEGBE, AND VIDA AKOTO-BAMFO JJSC
Judgment on 29 August 2013
The relevant facts were the same as the facts published in PART 1A on Thursday February 13, 2014. On these facts, the Supreme Court dismissed (per holding (3) by a five to four majority decision, the petitioners’ claims based on absence of signature of presiding officer on the pink sheets (per Atuguba, Sophia Adinyira, Baffoe-Bonnie, Gbadegbe and Vida Akoto-Bamfo JJSC — Ansah, R C Owusu, Dotse and Anin Yeboah JJSC dissenting) for the following reasons:
Per Gbadegbe JSC. A careful reading of the provisions in article 49(1)-(3) of the Constitution, reveals quite clearly that the duty that it creates, is not exclusive to the presiding officer and involves not only the execution of the declaration of results but beyond that, openly announcing the results and communicating them to the returning officer who is the Chairman of the Electoral Commission. In my view, the duty is collective and when an allegation turning on the absence of the signature of the presiding officer is raised in any proceedings subsequent to the declaration of the results as we are witnessing in this petition, the court must consider the nature of the irregularity in question in relation to the entire constitutional provision as well as other provisions of the Constitution on electoral laws in order to give a meaning that advances the purpose for which those provisions were made. It is not proper for the court to look at the act in isolation, as the petitioners have invited us to do in these proceedings...
Similarly, in the area of legislation regarding requirements of the Constitution that utilise the word “shall”, Courts in the United States of America have tended to hold that the mandatory requirement means substantial and not complete and literal compliance.
See: Louiseville Trust Co v Morgan 180 Ky 609, 203 S W 555; Commonwealth v Griest 196 Pa 396, 416; and Armstrong v King 281 Pa 207, 126 Atl 263. In my view, if such an interpretation could be given regarding the exercise by the legislature, of a power conferred on it under the Constitution to make laws on behalf of the sovereign people of the United States of America, then by parity of reasoning as regards merely administrative acts such as the failure to sign pink sheets that do not raise any issue that calls in question the totality of votes declared at a polling station, such a failure cannot operate to deprive the declared results of validity.
I think to accede to this urging would be subversive of the right to vote and treating its exercise as not being as important as the breach to which the absence of signatures relate.
The right to vote according to one’s choice, is, in my opinion, the fundamental pillar of our constitutional democracy and should not be trivialised...
It is observed that election statutes are to be construed liberally in order to give effect to the expressed wish of the electorate. It being so, rules that are provided to effectuate constitutional rights should not be applied purely technically as though they were mathematical formulae.
I am of the opinion that the evidence placed before us clearly points in the direction of a substantive approach unblinded by strict adherence to technicalities.
After all, the presiding officers are known and available within the jurisdiction so if one may ask the question: why were they not called to testify?
Within the context of the entire role to be played by the presiding officers, the constitutional requirement to sign the results under article 49(3) is directory and not mandatory; to hold otherwise would enable a purely administrative act that does not detract from the basic principles of an election to supersede the substantive exercise of the right to vote in the manner circumscribed by law.
Per Vida Akoto-Bamfo JSC. Undoubtedly, the competing provisions guaranteeing the right to vote under article 42 and article 49(3), which imposes a duty on the presiding officer to sign the declaration form, should be resolved by purposively interpreting them so as to ensure that those who have exercised their right to vote shall have their votes counted.
In my view, visiting the sins of some public official on innocent citizens who have expressed their choice freely, would run counter to the Principle of Universal Adult Suffrage, one of the pillars of our democracy, and perpetuate an injustice.
The omissions of a presiding officer should not disenfranchise the voter. I would therefore decline the invitation to invalidate the votes cast on account of the absence of the signature of the presiding officers.
Per Ansah JSC dissenting. The duty cast on the presiding officers to sign the declaration, was couched in mandatory terms and deserves obedience and not meant to be disobeyed.
An election, much more so, Presidential Elections, are serious matters governed by well laid down rules to preserve the sanctity and integrity of the elections, especially where a specific duty is imposed on election officials.
A breach of any of those duties meant the integrity of the election was compromised and ultimately affected the exercise of the right to vote as well as jeopardized the sovereign will of the people.
I hold...that the failure by a presiding officer to sign the pink sheet was a monumental irregularity unmitigated by any circumstances. I am further fortified in this view by the observation that in establishing the duty for presiding officers to sign pink sheets before proceeding to declare the results of the polls at the polling station, article 49 (3) of the Constitution does not merely constitute a mandatory constitutional duty on presiding officers to do so prior to announcing the election results, but it is also one of the entrenched provisions of the 1992 Constitution.
In the face of the full force of this entrenched constitutional requirement, I am unable to make any exception to save the pink sheets impugned by the omission of the presiding officers on the basis of the explanations offered by the respondents...
All things considered, I am of the candid opinion that the failure by the presiding officer to sign the pink sheet before announcing the results constituted an omission to perform and a breach of his constitutional duty.
It vitiated the votes cast at the polling station, a more monstrous irregularity no one can imagine. I may also remark that it was as unpardonable as it was inexcusable that presiding officers should fail to sign the declaration portion of pink sheets they worked with on the polling day from the beginning to the end of polls on the election day.
