The final verdict of the Supreme Court in the ongoing election petition challenging the declaration of Mr John Mahama as winner of Ghana's 2012 presidential election is likely to be delivered by the end of this month.
Mr Justice William Atuguba, President of the nine-member panel of judges hearing the case, gave the indication after lawyers for the petitioners and the respondents wound up their oral addresses yesterday.
According to Mr Justice Atuguba, the court would return on August 14, 2013 to enable the panel to ask questions and to seek further clarifications from the parties before fixing a date for the delivery of its judgement.
The Supreme Court (Amendment Rules), 2012, C. I. 74 indicates that judgement should be delivered in a presidential election petition 15 days after the close of the case.
Earlier at yesterday’s sitting, it was a battle of wits, when each of the four lawyers for the petitioners and the respondents attempted to use 30 minutes to justify why the claims of electoral irregularities in 10,119 polling stations during the presidential election should be upheld or be declined by the highest court of the land.
Case of the President
The first to address the court was lead counsel for the President, Mr Tony Lithur, who argued that the petitioners had failed to discharge the burden of proof to warrant the annulment of 3,931,339 votes.
Counsel told the court that in the heat of the voting and after it had become apparent that the biometric machines were not working, several prominent personalities, including President Mahama and other noticeable chiefs, made an appeal for qualified voters to be allowed to vote without being verified.
Following from that, he said, the EC, on December 8, 2012, allowed voting to take place at polling stations where biometric verification machines had broken down the day before.
Mr Lithur said the NPP issued press statements in which it made all manner of allegations when it emerged that it was losing the elections when the results were trickling in.
However, counsel stated that the issues the petitioners brought to court differed from the allegations they had made before the filing of the petition.
Counsel told the court that the star witness of the petitioners, Dr Mahamadu Bawumia, headed the task force which collected computers and sat in an office to begin what he termed a “desk exercise on the face of pink sheets”.
Mr Lithur said it was clear from Dr Bawumia’s evidence that there was no polling agent present during the investigations.
He submitted that no polling agent was questioned on what was found on the face of the pink sheets, adding that the petitioners “poured over paper” to make a request that votes be annulled according to evidence on the face of pink sheets.
He also made reference to what he termed Dr Bawumia’s mantra of “You and I were not there” and said such a serious exercise had been limited to the face of pink sheets.
Mr Lithur was of the view that if there were irregularities, the polling agents knew what they had to do and asked if the polling agents saw anybody voting more than once.
He said there was no claim that persons whose names were not on the voters register were allowed to vote and also asked if polling agents had seen anybody voting without undergoing biometric verification.
According to Mr Lithur, per the petitioners’ claims, they were inviting the court to ignore the role of the polling agent, as enshrined in the Constitution, as well as ignore the fact that not a single complaint was lodged at the polling station or at the constituency level.
He argued that seeing a case of over-voting on any pink sheet was clearly an error and emphasised the importance of the right to vote.
Describing allegations of some pink sheets having duplicate serial numbers as “amazing”, counsel held that polling stations were known by their names and codes.
Biometric Verification and Absence of Signatures
Responding to allegations of persons voting without undergoing biometric verification, counsel said that was not true because voting was adjourned to the next day due to the breakdown of some biometric verification machines.
He also wondered where petitioners’ polling agents were when persons were allegedly allowed to vote without undergoing biometric verification.
On the issue of absence of signatures of presiding officers, counsel said the omission of a presiding officer to sign a pink sheet should not be visited on the voter who joined long queues to vote on voting day.
Mr Lithur agreed with the assertion of the Chairman of the EC, Dr Kwadwo Afari-Gyan, that the December election was the most transparent Ghana had ever had, adding that President Mahama won “fairly and squarely”.
Counsel, accordingly, prayed the court to maintain the status quo.
The Case of the EC
Arguing for the EC, Mr Quashie-Idun made reference to Dr Bawumia’s testimony that the NPP thought it was winning on December 7, 2012 when everything changed on December 8, 2012.
After reading excerpts from the court proceedings on Dr Bawumia’s testimony, Mr Quashie-Idun said Dr Bawumia could not tell the court what actually changed after December 7, 2012.
However, counsel was of the view that nothing had changed, pointing out that the votes were counted in the full glare of the public and in the presence of polling agents.
He also argued that representatives of the various candidates were present in the strong room of the EC when results from the constituencies were presented.
Those tenets, Mr Quashie-Idun argued, were the pillars of transparency in elections in Ghana and, accordingly, prayed the court to “sceptically” look at attempts to undermine the results on the face of the pink sheets.
Touching on duplicated serial numbers on some pink sheets and the failure of presiding officers to sign some pink sheets, Mr Quashie-Idun asked, “Did presiding officers stop signing? Did serial numbers pop up?”
He made reference to Dr Afari-Gyan’s testimony that representatives of political parties were allowed 24-hour access to monitor the printing of ballot papers, among other processes leading up to the polls.
He also stated that the voters register was given to all the political parties who, in turn, gave it to their polling agents to use on election day and prayed the court to “imagine the issue of counting not taking place in public”.
Mr Quashie-Idun was of the view that Ghana’s electoral system was very transparent and said “verifiably” Ghana’s electoral system was not questionable.
He said the petitioners had not established “the casual link between their allegations, even if established, and the results as declared by the EC”.
He further held that the level of participation made it impossible to falsify results and cited the Dome Kwabenya example where an allegation of vote padding in favour of President Mahama was made.
At that constituency, Mr Quashie-Idun said, counting was done nine times and the results entered after parties were satisfied.
Counsel denied allegations of over-voting and said no ballot stuffing took place due to vigilance on the part of observers at the polling stations and added that out of the 26,002 polling stations, only one discrepancy was recorded.
That discrepancy, which involved 80 votes, according to Mr Quashie-Idun, was not enough to change the results declared by the EC.
He said the petitioners had failed to prove their case and, accordingly, prayed the court not to annul “one single vote” because there was no justification for annulment in each category.
Voters did nothing wrong
Making his submissions for the NDC, Mr Tsikata Tsatsu said the request of the petitioners for the annulment of votes must be dismissed.
Counsel said the petitioners admitted that voters did nothing wrong and further admitted that no one voted more than once and yet they were asking that valid votes be annulled.
He said the petitioners were in court to depose a “retroactive penalty” on persons who stood for hours in queues to vote.
According to counsel, the Constitution was very clear that the courts should not “countenance retroactive penalisation” and made reference to Article 42 of the 1992 Constitution which touched on the right of persons to vote.
Dr Bawumia disqualified himself
According to Mr Tsikata, Dr Bawumia disqualified himself with his “You and I were not there” assertions during his testimony on what might have happened at polling stations, adding, “He had no capacity to give testimony to seek the declarations he was seeking.”
Counsel told the court that Dr Bawumia had stated in his affidavit evidence that irregularities occurred at 11,842 polling stations and further insisted in court that he did his analysis based on 11,842 polling stations.
That claim, according to Mr Tsikata, turned out to be false after the international audit firm submitted its final report which indicated that the polling stations were not more than 8,675.
He said what was now in the closing address was 10,119 polling stations and said on the last but one day of the hearing, a figure of 10,081 was given by the petitioners.
That, according to counsel, could not be a legitimate basis to annul votes.
Counsel argued further that the court could not rely on the exhibits provided by the petitioners because they fell outside the range of the affidavit of Dr Bawumia.
Rules of Court
Counsel argued further that the rules of the court were clear and said the petitioners were required by law to provide not less than seven sets of exhibits to the justices, adding that “in many instances they have only provided one”.
He said 93 of the exhibits were not within the ‘further and better particulars’ and argued further that more than 5,000 out of the 8,000 pink sheets were not properly before the court as evidence.
Those issues, according to counsel, went to the heart of the petition, adding, “They have not even discharged the burden of evidence and the judges cannot be asked to assess those evidence.”
Counsel also argued that no evidence was led to prove that a person voted more than once, while Dr Bawumia acknowledged that a person could not make allegations of over-voting on the basis of what was on the pink sheets alone.
On the failure of presiding officers to sign pink sheets, Mr Tsikata said it was not fair for publicly declared votes to be annulled because a presiding officer did not sign and held further that polling agents were also required to sign the pink sheets.
According to counsel, the “most outrageous claim” was that of duplication of serial numbers, adding that it was “the weakest link in an already weak claim”.
He also accused the petitioners of selecting polling stations favourable to their case.
Urging the court to dismiss the petitioners’ claims, Mr Tsikata said, “The petitioners’ claim is factually empty, with no supportable evidence being produced. It is legally pathetic; the petition is poor in arithmetic and extremely poor in logic.”
Declare Nana Akufo-Addo President
Making a case for the petitioners, Mr Phillip Addison said the petitioners had led substantial evidence to warrant the annulment of votes in the 10,119 polling stations and the subsequent declaration of Nana Akufo-Addo as President.
He said the respondents had persistently maintained that the 2012 elections were credible and had argued for the court to uphold the results, yet when they were confronted with the pink sheets, which were the primary records of the poll, they shied away.
Counsel held that what was bizarre was that the defective pink sheets were used in the declaration of the results and submitted that Mr Tsikata had resurrected a dead issue on the number of pink sheets submitted by the petitioners.
He said according to the KPMG, 8,675 unique pink sheets in the court registrar's lot were discovered, out of which 1,545 were excluded, and upon the order of the court, 1,234 were also discovered as unique by the EC.
Mr Addison said another set of 804 pink sheets were found to be unique in Mr Justice Atuguba’s set. He said 648 pink sheets used by the respondents to cross- examine Dr Bawumia were found to be unique.
According to him, the addition of those pink sheets proved that the petitioners filed 11,000 plus pink sheets.
According to counsel, President Mahama did not win more than one per cent of the total votes and not the total valid votes cast at the election.
Difference in votes is 325,863
Counsel told the court that President Mahama beat Nana Akufo-Addo by 325,863 and said the total votes annexed by the Minority in Parliament were more than the votes annexed by the Majority in Parliament.
“For the first respondent, he garnered 5,574,761, as against 5,127, 641 by all his parliamentary candidates, which showed a difference of 447,120. What accounted for this difference? It cannot be the skirt-and-blouse phenomenon because the NDC is in the majority. The Majority in Parliament secured 121,221 votes less than the Minority. This is curious and undermines the one man, one vote spelt out in the Constitution,” Mr Addison pointed out.
He said when all the categories of violations and irregularities were combined for the 10,119 polling stations, 3,931,339 votes were deemed to be invalid, and not five million votes, as the respondents had sought to make the court believe.
He said when the results were annulled, President Mahama’s votes would be reduced by at least two million, while those of Nana Akufo-Addo would be reduced by one million votes.
He said by the computations, President Mahama would get 41.79 per cent of the valid votes cast, while Nana Akufo-Addo would have 56.85 per cent of the valid votes cast.
He said the respondents’ claim that there was no evidence of over-voting was a bit “curious.”
“Voting is a secret affair and the only time one can find cases of over-voting is only after voting had taken place and the results counted,” counsel added.
Petitioners proved infractions
Mr Addison argued that the petitioners were able to prove each infraction of over-voting, persons voting without undergoing biometric verification, presiding officers not signing signatures and duplicated serial numbers on pink sheets.
For instance, he said, the signing of pink sheets was mandatory, adding that the petitioners were able to prove that more than 900 pink sheets were not signed, aside from the 905 admitted by the EC.
He said although no explanation had been given as to why some pink sheets had duplicated serial numbers, “not a word was said about triplicate and quadruplicate serial numbers”.
That, according to counsel, was because those issues were “unanswerable”, pointing out that the petitioners were also able to prove that some polling stations with the same code but different results went into the declaration of results.
Counsel said Dr Afari-Gyan made some critical admissions, including the admission which enhanced and reinforced the concept of one man, one vote.
He said Dr Afari-Gyan also told the court that he had not seen a single pink sheet before declaring the results, as well as some results in some polling stations being annulled due to infractions, among others.
He admitted that presidential election petitions in Kenya, Zambia, Sierra Leone and Nigeria had not been successful because of technicalities and the lack of numbers.
In the instance of Ghana, counsel argued that each infraction was enough to unseat President Mahama and, accordingly, prayed the court to uphold the case of the petitioners.
The petitioners want the presidential candidate of the NPP in the December 2012 presidential election, Nana Addo Dankwa Akufo-Addo, declared President on the grounds that President Mahama would not chalk 50 per cent plus one vote when invalid votes he benefited from were annulled by the Supreme Court.
By Mabel Aku Baneseh