Justice Dotse crash-lands

“This in effect means that every prospective voter must go through the process of biometric verification before casting his or her vote. Any votes that are therefore found to have been cast without this biometric verification stand the risk of being nullified.”

This was contained in the 234-page judgement of Justice Victor Jones Mawulom Dotse, one of the judges who dismissed almost all the claims brought by the petitioners in the just-concluded landmark Presidential Election Petition.

Justice Dotse’s judgement appeared to support the petitioners’ claim that some people voted without biometric verification in the 2012 Presidential election in which Electoral Commission Chairman Dr. Kwadwo Afari-Gyan declared John Dramani Mahama as winner.

However, in winding up, he dismissed the claim without any compelling argument such as the one he had advanced in favour of the petitioners when addressing the same issue.

Digging deep into the issues, Justice Dotse held that “voting without being biometrically verified is an infringement of the law which cannot be countenanced under the present dispensation in an election petition.”

He went to the extent of indicting Dr. Afari-Gyan for testifying in court that the Election Officers were given discretion to allow well-known people (Omanhene scenario) to vote without going through the biometric verification process, but still did not grant the claim of the petitioners.

“The Chairman of the 2nd Respondent told the court that in some cases, the presiding officers were given the discretion to permit certain persons who are well-known in the community to vote without biometric verification. This is in contrast distinction to the NO VERIFICATION NO VOTE Slogan and an infringement of Regulation 30 of C. I. 75,” he held.

“Like the Gazette notice published by the 2nd Respondent, the discretion given to presiding officer to allow people like Omanhene to vote without going through Biometric verification is ultra vires C. I. 75 and therefore same is void.”

He held that some of the arguments canvassed by the EC with respect to biometric verification were in direct contrast to the evidence of Dr. Afari-Gyan that it could be possible for all prominent persons like chiefs to vote without a biometric verification.

“I must concede that this statement coming from the Electoral Commission Chairman is very unfortunate and completely nullifies the effect of the provisions of Regulations 30 (1) and (2) of C. I. 75, which states that ‘The voter shall go through a biometric verification process’.”

He said, “There are certain things and practices as a nation we ought to have confidence and trust in its administration, and a typical one is this biometric verification device. Once we asked for it and it was provided, at huge cost, we must accept it and learn to rely on it for the verification that it was meant to provide.

“As was rightly stated by the petitioners, biometric verification is basically the fact of verifying that a person is whom he says he is and it is a unique way of indentifying some distinct biological traits of the person.”

“Thus, where the regulations enacted by the 2nd Respondent, in this instant, C.I. 72 and C. I. 75 have been properly and validly enacted by the legislature in accordance with the requirements of the Constitution reference article 11 (7) (a) (b) and (c) of the Constitution, 1992, it possesses all the trappings of validity.”

He said the subsidiary legislations must be read alongside the Constitution to give meaning and content to it, adding that “it must therefore be well understood that, once the enactment of C.I. 72 and C.I. 75 have not been proven to have infringed the rights of persons or any constitutional provisions protecting the rights of citizens to vote, those provisions must be given their full legal effect and force.”

Switching the argument in favour of the respondents, Justice Dotse said, “The 2nd Respondent in particular has stated that, having examined all the pink sheets in this category, their analysis confirmed that no voters were allowed to vote without verification at any polling station.”

He said there was ample proof that the petitioners themselves recognise and admit the use of the verification machine to establish the tallies of the election results, stating, “This is the main reason why I have stated that, it was wrong first for learned counsel for the petitioners (Philip Addison) to have objected to the tendering of the print-outs from the Biometric machines to verify anomalies whilst they themselves had requested for it as far back as 9th December 2012.

“Perhaps, at that time, because of the contemporaneous nature of the request and the conclusion of the election being almost at the same time, they did not think about the problems of tampering with the machines.”

He said that another contention by the 2nd petitioner (Dr. Mahamudu Bawumia), despite his “sterling performance in the witness box which I find puzzling is that, all entries made in (column) CI – wrongly should equal zero or dash.

“Having considered this analysis vis-à-vis the evidence of Dr. Afari-Gyan on why the C3 column was initially created but later abandoned at the insistence of the political parties, I am left in no doubt that the whole contention of voting without biometric verification has not been properly made out.

“Indeed Dr. Afari-Gyan told the court in one case where the same figure was entered in C3 as it was entered in C1, that it was either all the voters voted without being biometrically verified or they all went through the biometric verification process. To find exactly what happened, he said there should be a resort to the Biometric Verification Device. The devices were not resorted to, to tell the court that indeed the figures entered in column C3 were entered in error. These devices are in the custody of the 2nd Respondent.”

Justice Dotse said the respondents’ case is that even if voters voted without going through the verification process, a call for annulment of the votes might be considered in the light of their fundamental right.

“I will therefore for this and other reasons stated elsewhere in this judgment, reject this voting without biometric verification as not having been properly made out by the petitioners. It is accordingly dismissed.”

Over-voting

Touching on over-voting which he granted, Justice Dotse said Regulation 24 (1) of C. I. 75 frowns on people voting more than once, saying, “When the above provision is compared with the entries in columns A, B & C that are required to be filled-in on the pink sheets by the Presiding Officers before the commencement of polls and in the case of Column C after polls but before counting, then a somewhat clearer picture of what exactly over-voting means can be imagined.”

He said if columns A, B and C are entered correctly on the pink sheets, then the number of ballots issued to the polling station would be known, the range of the serial numbers of the ballot papers would also be known as well as the number of voters on the polling station register, including the number of ballots issued to voters on the polling station register.

After going through all the definitions proffered by both the petitioners and the respondents, Justice Dotse said, “So far as I am concerned, the real issue for determination is whether there was any instance of over-voting as denoted by the definition of over-voting and whether those particular exhibits i.e. polling station pink sheets had been captured by the KPMG report, and is also part of the range of exhibits mentioned in the affidavit.

“What has emerged from the very extensive and rigorous cross-examination of Dr. Bawumia by Counsel for 3rd respondents is that, there were indeed entries on some of the pink sheets of the polling stations which on the face of it gave the impression that there was over-voting. But the respondents contend that these are only clerical errors.”

He also said that “the evidence of the petitioners on over-voting is really not based on directly accusing anyone of voting more than once as is prohibited by law, but solely on the basis of entries made on the pink sheets.

“Whilst not downplaying the constitutional significance of the above cases, it must also be observed that the importance of entries made on the pink sheets should also not be glossed over as being of no significance.

“In the instant case, it would appear that once the directives of what constitutes over-voting are in Regulation 24 (1) of C. I. 75, the Courts also have a duty to purposively look at the effect of those provisions and the constitutional right to vote.”

He said that “any mechanical interpretation of the entries on the pink sheets will not only be absurd but lead to incongruent results and consequences.

“The Court should however use information on the face of the pink sheets to correct this latent error. However, if the information to correct the error on the pink sheet cannot be verified from the pink sheet, and that figure had been used to declare the result, and if the wrong result has had an effect on the declared result, then it should be possible to annul it, if there are no credible primary sources of evidence like the polling station register to be used to cross-check such an error entry.”

He said in the instant case, “I will define over-voting to mean an instance where total votes cast as found in the ballot box exceeds the total number of ballots issued out to voters at that particular polling station,” and it was a clear acceptance of the definition given by the petitioners.

Justice Dotse noted that “when the ballots issued out cannot be reconciled with the ballots found in the box using all available means of verification on the pink sheet then the conclusion is reached as an over- vote.”

He said if the EC had been able to furnish the court with the original pink sheets, some of the problems faced by the court would not have come up.

Absence of Signatures of Presiding Officers

Granting the claim of the absence of signatures of Presiding Officers, Justice Dotse said “it must be noted that, any constitutional provision, especially one that deals with the ground rules for the exercise of our democratic choice of leaders in pursuit of the principles of universal adult suffrage is not to be taken for granted.

“In this respect therefore, it is quite clear that the provisions in article 49 are so precise and mandatory that it requires no other meaning than what has been attributed therein. That is why this particular provision is one of the few entrenched provisions.”

He said if due consideration was given to the “pride of place that the Constitution occupies in the laws of Ghana as the Grundnorm or basic law, then such provisions should not be treated with careless and reckless disregard. In my opinion, and I dare say the opinion of all those who have due regard to the principle of Constitutionalism, the Constitution 1992 must be regarded and considered as sacrosanct.

“As such, it must be given its due pride of place in the scale of laws of Ghana as article 11 of the Constitution stipulates. This article puts the Constitution first among the laws of Ghana and in descending order to Acts of Parliament, Constitutional Instruments and others of similar nature, the existing law and the common law.”

He said there is evidence on record from the EC that, when some of the Returning Officers detected the phenomenon of the non-signing by the Presiding Officers at the collation centres, they, as it were, called the erring officers to order and requested them to sign.

It should, however, be noted that, at that stage, all the party agents must have left with their unsigned copies of the pink sheets by those Presiding Officers.

Justice Dotse said it must be noted that any results declaration form that is not signed by the Presiding Officer is in breach of article 49 (3) of the Constitution 1992.

“The issue that begs an answer is whether the failure of the Presiding Officers to sign the results declaration form (pink sheets) being a constitutional requirement was a violation, omission, malpractice or irregularity of the Presidential election held on 7th and 8th December 2012 and whether these affected the outcome of the results of the elections.

“What is the purpose of the provisions in article 49 of the Constitution being inserted therein instead of leaving it for the Electoral Commission to make rules and regulations as provided for in article 51, 63 (2) and 65 of the Constitution 1992?” he asked.

He said “it must also be assumed rightly that the Constitution did not want to leave these provisions contained in article 49 to the whims and caprices of any institution or body of persons to meddle and toy with, that is why such detailed provisions on procedure at voting during public elections have been made. If these provisions in article 49 are compared with the provisions in article 63 and 65 of the Constitution 1992, the difference in approach is clear and without doubt. Being an entrenched provision, article 49 cannot even be amended by a party with an overwhelming majority in Parliament, unless by a referendum.”

He said that it was forcefully argued by all the Respondents that because the Party agents signed the pink sheets, and the results declared after they had been sorted and counted in public, the complaint of the petitioners was not well founded and must be dismissed.

He however held that “since it is to this Supreme Court that the Petitioners have come to for the interpretation and enforcement of the breach of this article 49 (3) of the Constitution 1992, I hold that notwithstanding the conduct of the Petitioners agents in signing the pink sheets, that act cannot clothe the unconstitutional conduct of presiding officers in not signing the pink sheets with constitutionality.”

He said that any pink sheet which was not signed by the Presiding Officer lacked ‘crucial authentication’ and must be rejected as not satisfying the requirements of the Constitution and the law.

“As a consequence, I am of the very considered view that, not having signed and authenticated the entries made by them on the pink sheets, the non signature of same by the Presiding Officers has invalidated the offending pink sheets, and to that extent, by virtue of article 49 (3) of the Constitution 1992, same are declared null and void, and of no effect.

“The result therefore is that all votes at all the polling stations where this phenomenon of no presiding officer signature has occurred is hereby annulled and or cancelled. If they are annulled, then all votes attributed to any candidate at those polling stations will be deducted from the total tally.

“I will therefore urge the application of the sanctions provided for in this section 30 of PNDCL 284 to any breach of article 49 (3) of the Constitution. This is because the conduct of the presiding officers in not signing the pink sheets amounted to a failure to act in the performance of their official duties as provided for in section 30 (a) and (e) of PNDCL 284. I will further direct that aside the punishment of a fine and imprisonment, the 2nd respondents should as a matter of policy, blacklist all such offending presiding officers to prevent them from ever acting for the 2nd respondents in future. This I believe will serve as a deterrent.”

He recommended that, henceforth, the EC should apply merit-based criteria to the appointment of their key electoral staff, albeit temporarily to avoid the appointment of people who appear to be crass illiterates.

Commenting on duplicate serial numbers, voting without biometric verification, unknown polling station categories as well as duplicate polling station results amid citation of authorities, Justice Doste said “I reject those claims outright and no consequence arises. They are therefore dismissed.”

Documents for inspection

He said as a matter of fact, now that evidence had been concluded, he was of the view that, in future, in all Presidential election petition hearings, the Electoral Commission should be mandated to produce for inspection all the documents being contested by petitioners. This will help solve problems of ineligibility or otherwise of “pink sheets” exhibited by the petitioners, he added.

“This is very important because, as the custodian of the original copies of these primary documents, the 2nd Respondents owe a duty to the good people of Ghana to make a clean breast of the documents if they really do not have any skeletons in their wardrobes to hide.”

On Collation Sheets

Justice Dotse said in the course of the testimony by Dr. Afari-Gyan, an attempt was made by him to introduce some collation forms which was objected to and upheld by the court. Then further during the trial, it came to light that some polling stations like the “Finger of God”, “Juaso Court Hall” and others had more than one pink sheet, and in some cases triple pink sheets, reference exhibit X, which are pairs of serial numbers appearing more than once and exhibit Y, duplicate polling station codes.

“When the 2nd Respondents, rightly in my view sought to tender the collation sheets for those constituencies for the Court to be satisfied that not more than the required number of pink sheet results were taken into account in the collation for those constituencies, the objection was again upheld. This denied the 2nd respondents the opportunity to explain that not more than one pink sheet was used to collate the results.

“I am however of the opinion that, those objections were upheld because the court had previously denied the Petitioners the same opportunity when they first sought to introduce them into the case. For purposes of consistency, the court persisted in its previous ruling by denying the introduction of the collation sheets.”

Infractions All Over

He said when the 2nd Respondents also sought to introduce pink sheets from Ashanti Region during the cross-examination of the 2nd Petitioner, Dr. Bawumia, an objection was raised and upheld by the Court which denied the opportunity to the Respondents to tender pink sheets from the stronghold of the petitioners.

“If indeed there were similar malpractices and or irregularities and constitutional violations in other parts of the country, then equity would have demanded that uniform rules of application be made to apply to all such infractions of the law.”

Amendment of Petition

Justice Dotse said it was not for nothing that the Constitution 1992 and C.I. 74 provided that the petition challenging the validity of an election should be filed within 21 days after the declaration of the results by the Electoral Commission.

“If therefore, a Petitioner has not been able to comprehensively assemble all the allegations which he intends to use for the petition within the 21 days at his disposal, such a Petitioner should not be permitted to amend his case as and when he discovers new evidence after the 21 days has lapsed,” he held, adding that “this definitely contributed to delay in the petition hearing.”

Basis for challenging Presidential Election

Citing a number of constitutional provisions that gives the petitioners the right to challenge the validity of the election of a President, Justice Doste said, “I have had to deal with this subject at some length because it appears to me that all the respondents are of the view that, because the right to vote is a constitutional right, no court, not even this Supreme Court, has power to invalidate the exercise of that right when infractions are made not of the voters making but of administrative officials.”

The judge said, “I am of the considered opinion that such a way of thinking is not only absurd but will completely defeat the provisions in Article 64 (1) of the Constitution 1992 which provides for the challenge of the validity of the election of a President.”

What triggered court action

Justice Dotse said “evidence abounds in this Court that the first point of call by the Petitioners was to send a letter of complaint to the Chairman of the 2nd Respondents in which they catalogued a number of irregularities and sought his intervention.”

The judge went ahead to quote verbatim from the letter written by the 3rd petitioner (Jake Obetsebi-Lamptey) to Dr. Afari-Gyan, when the NPP wanted the EC to hold on to the declaration and investigate their concerns.

“In the light of the above scenario, it is my opinion that, the Petitioners were pushed to this court albeit prematurely by the indecent haste of the Chair of the 2nd Respondent who took less than a day to address the concerns raised in the above petition and asked the petitioners to go to court.

“Perhaps, if the 2nd Respondent had exercised a little bit of tolerance and discretion which are hallmarks of the type of office which the Chairman occupies, the quick resort to this court may have been avoided.

“It should also be clear to all and sundry that time begins to run immediately the Presidential Elections results have been declared by the chairman of the Electoral Commission. This is further buttressed by article 64 (1) which provides a 21 day period within which the petition to challenge the election of the President must be presented. As far as I am concerned, the petitioners having been pushed to the wall by the 2nd Respondent, they then had to act timeously to ensure that time does not run against them.

“In the circumstances I am unable to accede to Learned Counsel for 1st Respondent, Mr. Tony Lithur’s submissions in this respect, questioning the propriety or impropriety of the request considering the independent nature of the Electoral Commission vis-à-vis the Administrative bodies intended in article 23 of the Constitution 1992.

“I am of the firm conviction that, the petitioners have lawfully and validly invoked this court’s jurisdiction under article 64 (1) of the Constitution 1992 and this court rightly assumed jurisdiction in the matter.”

He described the petition as “a monumental and epoch making era for the Ghana Judiciary. This is because, for the first time in the history of the 4th Republic, the Ghana Supreme Court has been called upon to make a pronouncement on whether the declaration made by the Chairman of the Electoral Commission in the President-Elect Instrument, 2012 (C. I. 80) of 11-12-2012 which declared John Dramani Mahama, the 1st Respondent herein, as having been validly elected as President of Ghana is sustainable or not.”