Election Petition: EC admits irregularities

The Electoral Commission (EC) has admitted that irregularities did occur in the conduct of the 2012 Presidential Election in which its Chairman, Dr. Kwadwo Afari-Gyan declared John Dramani Mahama, candidate of the ruling National Democratic Congress (NDC) the winner.

The EC, which is the 2nd respondent in the landmark presidential election petition currently before the Supreme Court, however stated categorically that the irregularities did not affect the results it declared on December 9, 2012.

“The 2nd respondent acknowledges that in completing the ballot accounting, part of the statement of poll and declaration of results forms (Pink Sheets), many of the presiding officers made clerical errors and left blank spaces wrongly and made errors which were not logical,” EC Counsel James Quashie-Idun stated in his written address submitted to the court at the close of evidence.

Three petitioners, Nana Addo Dankwa Akufo-Addo presidential candidate of the opposition New Patriotic Party (NPP) in the December 2012 election, his running mate Dr. Mahamudu Bawumia and the party’s Chairman Jake Otanka Obetsebi-Lamptey are in court seeking a declaration that Mr. Mahama was not validly elected as President of Ghana.

They also added that “Nana Addo Dankwa Akufo-Addo, the 1st petitioner herein, rather was validly elected President of the Republic of Ghana.”

They are alleging that during the December 7 & 8 presidential election, there were widespread instances of over-voting, voting without biometric verification, unsigned pink sheets by EC’s presiding officers as well as duplicate serial numbers and the petitioners called them violations, malpractices, omissions and irregularities.

The nine-member panel, presided over by Justice William Atuguba, thus set down two issues to determine who was validly elected as President and over the past seven months, has been taking evidence from the parties.

The issues set are whether or not there were statutory violations, omissions, malpractices and irregularities in the conduct of the election and whether the said violations, omissions, malpractices and irregularities, if any, affected the results declared.

The Electoral Commission (EC), whose address was without any annexure, insisted that even though there might have been errors “the petitioners did not submit any other evidence of the alleged irregularities other than as appearing on the face of the pink sheet.”

In the 15-page address, the EC said “it is submitted that a pink sheet must be read as a whole and when so read, the errors it contains are discernible if one reads the form with the eye of a person desirous of conducting a careful analysis of its content as opposed to the eye of a person looking for errors and blank spaces for possible harvest of votes for annulment.”

They also submitted that the questions on the pink sheets are “intrinsically or extrinsically verifiable”, adding that there is evidence from Dr. Afari-Gyan and the NDC’s Johnson Asiedu-Nketiah before the court that statistics of ballots the EC issued to the whole country were provided to all the contesting political parties and were therefore known to all the polling agents.

“Clearly, a very high level of transparency and verifiability regarding the results at polling stations was ensured by the vigilant who witnessed the public counting of the votes and the public announcement of the results which were carried on the airwaves and print media and were physically delivered to the returning officer at the collation centre where collation/counting agents were present with their laptops and calculators for the collation of the votes cast in all polling stations in a constituency.”

The EC reminded the court that each ‘genuine pink sheet’ of which photocopy was filed as an exhibit attached to the affidavit of Dr. Bawumia contained the attested result of votes cast at the polling station in public view into transparent boxes, sorted and counted in the presence of polling agents and in the full view of the public.

According to the EC, once the whole exercise was done in a transparent manner, even if some of the pink sheets were fraught with errors and blank spaces in the ballot accounting part, the petitioners’ request for annulment of votes should not be entertained by the court.

Over-Voting

The EC is contesting that no case of over-voting occurred since the petitioners were not able to prove that any person voted or attempted to vote more than once during the 2012 presidential election and also added that none of the polling station agents of the petitioners protested during the counting of the votes in any of the 26,002 polling stations.

They said the petitioners could not lead even single evidence to show that Article 42 of the 1992 Constitution as well as Regulation 24 (1) of C.I. 75 had been violated saying, “The petitioners have not shown how these two provisions apply to the petition since Article 42 relates to the right of a citizen to vote and his entitlement to be registered as a voter and Regulation 24 (1) states that a voter cannot cast more than one vote when a poll is taken.”

“It is submitted that there is ample evidence for your lordships to conclude that the petitioners have not established that there was over-voting as they were not able to cite a single example among the 26,002 polling stations in which the votes in the ballot box exceeded the number of persons entitled to vote at a particular polling station.

The commission held that even in the definition of over-voting where ballots in the box exceeded the number of people verified/issued with ballots, “the evidence offered by the petitioners on the face of the pink sheets were based only on errors made in completing the ballot accounting part of the pink sheet.

“If any over-voting had occurred, it would have been detected during the counting of votes and the polling/counting agent would have protested. The evidence is that there was no such protest.”

The EC relied heavily on the evidence by Mr. Asiedu-Nketiah in trying to deflate the allegation of over-voting levelled against it by the petitioners.

No signature by Presiding Officers

Touching on the ‘No signature by the Presiding Officer’, the EC said that the petitioners were not able to show the court how that affected the outcome of the presidential results declared.

In spite of the presence of Article 49 in the Constitution and as captured in Regulation 36(2) of C.I. 75, requiring every presiding officer to sign the results declaration form before he/she could validly announce the results of the election, the EC said the non-signature of their officers did not affect the results.

“We respectfully urge your lordships to conclude that on the evidence presented, there is no basis to annul the votes of any polling station on the basis of the absence of the signature of the Presiding Officer.”

No Biometric Verification

On the allegation of No biometric verification, the EC held that “the evidence by the petitioners for this category was on the face of the pink sheet. They did not produce a single piece of evidence of a person who saw anyone voting without having been biometrically verified.”

Even though Regulation 30 (2) of C.I. 75 states that ‘the voter shall go through a biometric verification process,’ the EC insisted that, ‘it cannot be stated that biometric verification is limited to finger prints’.

“In any event, the Constitution, as clearly stated in the decisions of this Honourable Court in the case of Tehn-Addy vrs Apaloo, provides that a person cannot be denied the right to vote and entitlement to be registered. Most importantly, it is not in dispute that there was no protest by any polling agent or any person that anyone was allowed to vote without biometric verification and the evidence of the Chairman of the 2nd respondent was that everyone who voted was biometrically verified.” Duplicate Serial Numbers

The EC described the allegation of duplicate serial numbers on pink sheets as “the weakest link in an already weak chain.”

“Throughout the trial, not one person identified a polling station by anything other than its name and unique code,” adding that “the allegation that serial number was a security feature was not substantiated.”

The EC said that the numbers on the pink sheets were inserted by the printer contracted to print the forms and said Dr. Kwadwo Afari-Gyan was able to explain it to the court adding, “The polling stations concerned had separate identities, results and officials.”

The EC explained that “the number was inserted not by the 2nd Respondent but by the printer,” even though the EC boss stated in the witness box that he needed the serial numbers for his own counting purposes.

Same Polling Station Codes With Different Results

The EC stated that it printed a second set of pink sheets because it was expecting more candidates to contest the elections. Strangely enough, the second set of pink sheets also bore the same name of the 8 candidates, in the exact order as contained in the first set of pink sheets.

However, Dr. Afari-Gyan explained that the occurrence of “same polling station codes with different results” happened because the same polling station was used for special (early) voting and later used for voting on Election Day or in places where there were split polling stations.

When put to strict proof by Philip Addison, lead counsel for the petitioners, however, Dr. Afari-Gyan could not stand by his position and noted that he had not said that all the polling stations had been used for special voting.

The EC, however, insisted that Dr. Bawumia’s contention that special voting did not have pink sheets “is a myth and was debunked by the evidence of Dr. Afari-Gyan and Mr. Asiedu-Nketia”.

In concluding, the EC gave the assurance that it was going to do everything possible to minimize the occurrence of administrative errors, explaining that “the EC hires over one hundred thousand temporary officials, who are trained for only a short time, to conduct the presidential and parliamentary elections.”