In her 38-page judgement, Ms Justice Owusu said incidents of over-voting, voting without biometric verification and some presiding officers not signing pink sheets infringed on the 1992 Constitution and for that reason votes must be annulled and a re-run held.
She, however, joined Justices William Atuguba, Julius Ansah, Sophia Adinyira, Jones V. M. Dotse, Anin Yeboah, Paul Baffoe-Bonnie, N. S. Gbadegbe and Vida Akoto-Bamfo to unanimously dismiss three out of the six claims of the petitioners.
The three claims of the petitioners which were unanimously dismissed on August 29, 2013 were allegations of some pink sheets (statement of poll and declaration of results form for the office of president) having duplicated serial numbers, duplicated polling station codes and voting taking place at 22 unknown locations.
What is the effect of over-voting on results?
She said much as the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, would not readily admit an over-vote, “he told the court that an over-vote if established will result in annulment of the results as it cannot be determined which candidate had benefited from the illegal vote and the integrity of the election would have been compromised.”
According to her, Dr Afari-Gyan told the court that before annulling results because of over-voting, he would do a check on the face of the pink sheet, adding, however, that “his evidence is that he did not see any pink sheet before declaring the presidential election results. So, therefore, he did not have the opportunity to do any check to determine from the face of the pink sheets that there was no over voting.”
“Where, therefore, the evidence of over-voting was introduced on the face of the pink sheets, and the error/mistake as the respondents contend cannot be explained on the face of the pink sheet, then that is an irregularity that affects the result. I will consequently hold that where there is over-voting the results must be annulled,” she added.
Absence of presiding officer’s signature
According to the petitioners, a total of 1,638 pink sheets were not signed by presiding officers, but Dr Afari-Gyan had admitted 905 pink sheets were unsigned.
Ms Owusu indicated that “the Constitution mirrors the will and aspirations of the Ghanaian people and it is the supreme law of the land,” and stated that, “Article 49 (3) therefore imposes an obligation on the presiding officer to sign before the declaration of the results.
“The reason for this cannot be farfetched. He must sign to authenticate the results. If he does not sign, but goes ahead to declare the results, what will be their probative value?”
She stressed that the polling agent was not an electoral officer and “the fact that he has signed the pink sheet cannot legalise that which is otherwise an illegality.”
Article 49 of the 1992 Constitution, she emphasised, was “an entrenched provision and Parliament by itself cannot even amend it. How can a court under the guise of interpretation give any other meaning to 49(3) other than what is stated in the clause. The golden rule of interpretation is that words must be given their ordinary meaning unless same shall lead to absurdity. The clause is clear and unambiguous and does not call for the interpretation jurisdiction of this court. None of the conditions as laid down in TUFFOUR VRS THE ATTORNEY-GENERAL  SCLR is present here and I would therefore, not even attempt to embark on that exercise of interpreting the “shall” or find reasons why the presiding officer might have failed to sign.”
She went on to state that the respondents did not deny the failure of the presiding officers to sign but contended that that should not be a basis for annulling lawfully cast votes.
Responding to argument by lead counsel for the National Democratic Congress (NDC), Mr Tsatsu Tsikata, that if votes were annulled due to non-signing of pink sheets voters would be punished retroactively, she said, “I wholly agree with counsel in that regard. In the circumstances, what is the way out?”
She affirmed Article 42 of the 1992 Constitution which provides that “Every citizen of Ghana of 18 years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda.”
Justice Owusu stated that “in this petition, however, where the evidence on the “pink sheets” on their faces indicates that the election was not conducted substantially in accordance with the law as to the election and that the act or omission did affect the result, then the result will be invalidated.”
She further held that the citizen’s right to vote had been upheld by the Supreme Court in numerous cases and “in particular AHUMA OCANSEY and TEHN-ADDY already referred to. I happened to be part of the decision in AHUMA OCANSEY’s case and I still stand by my opinion therein expressed.”
“For this reason, I will not by annulling votes under the three categories indirectly deny the voters their fundamental and inalienable right to vote as enshrined in the Constitution. Consequently, where votes have been annulled as a result of violations, irregularities, etc. I will call for a re-run of the elections,” she concluded.
Voting without biometric verification
Citing authorities to buttress her decision to annul votes cast due to persons casting their ballots without undergoing biometric verification, Ms Justice Owusu said “voting without being biometrically verified is an infringement of the Law which cannot be countenanced under the present dispensation in an election petition.
“For this and other reasons, I am inclined to annul votes in all polling stations where the violation occurred,” she concluded.
Duplicate polling station code
She indicated that Dr Afari-Gyan was able to explain that in some instances, special voting had taken place at the same polling station or where the registered voters there were too many the polling station would be split into two – A and B.
That she explained was “plausible enough,” adding that the “malpractice if anything at all, will not affect the result, so that malpractice is disallowed,” she stated.
Unknown polling stations
Touching on the allegation of voting taking place at 22 unknown locations, Ms Justice Owusu submitted that the General Secretary of the NDC, Mr Johnson Asiedu Nketia, was able to supply the court with a list which proved that the said 22 polling stations indeed formed part of the 26,002 polling stations for the 2012 Presidential election.
“What is more, the petitioners sent their polling agents to these polling stations where voting took place in the presence of their polling agents. I find no substance in this claim and so disallow same,” she said.
Duplicate serial numbers
She dismissed the petitioners’ claim of some pink sheets having duplicate serial numbers by accepting explanations from the respondents that polling stations were known by their unique names and codes.
She also accepted the explanation that the numbers on the pink sheets were generated by the printer.
“In fact the petitioners did not say that no voting took place in those polling stations. If the pink sheets’ are questionable, what questions were asked and were answered by the petitioners? No case was made under this head and I am inclined to dismiss same,” she added.
She accordingly upheld the petitioners allegations of over-voting, voting without biometric verification and presiding officers not signing pink sheets, cancelled the votes involved and ordered for a re-run of the elections.
Her views, however, formed part of the minority and for that reason the court held in an overall decision that President John Dramani Mahama was validly elected in the December 2012 presidential poll.
By Mabel Aku Baneseh/Daily Graphic/Ghana