Nana Konadu’ goof

on the supreme court judgement

I don’t know of any African first lady who can match the political stature and civil influence that Nana Konadu Agyeman Rawlings built for herself over the period of her husband’s political adventure. Make no mistake, I admire her very much for the Nana Konadu Agyeman Rawlings that she is.

I have however had occasions to question some of her actions. For instance, I see her recent call on Nana Akuffo Addo to lead a crusade in his capacity as a lawyer to explain the Supreme Court verdict to “confused” Ghanaians as at best a bold attempt at claiming the patent rights over political hypocrisy in Ghana. Of course she is a bold woman, isn’t she? Never mind that her boldness has an uncanny habit of landing her on the political canvas. Didn’t Nana Konadu publicly vilify Nana Akuffo Addo that he is not a lawyer? Whatever she does, she cannot be the frontrunner in the race to patent political hypocrisy in this country. How can she beat the likes of the self-acclaimed knight of Ghana politics on such a turf! Is it not time for her to stop her elusive flirtations with patent rights? The last time I checked, she did not succeed in her 2012 bid to claim the patent rights over the NDC Logo too.

My beef is however not with Nana Konadu’s failed claims over patent rights. It is about whether lawyers, especially those associated with the Electoral Petition command enough legitimacy to be the ones to lead any explanation of the Supreme Court verdict. If there is any confusion arising out of the verdict at all, it is in my view, the creation of these same lawyers.

I must say that I am not in the least confused in any way about the Supreme Court ruling. History is replete with split decisions in Supreme Court rulings all over the world, a phenomenon which only underscores the fact that jurisprudence is more an art than a science. Each of the judges has given cogent reasons backed by loads of local and international judicial precedent for their decisions.

Dr. Bawumia was tutored by the petitioner’s lawyers to define the pink sheet as the primary record of activities at the polling station, a definition which went unchallenged by the defense lawyers too. Accountants normally refer to documents which carry primary records as source documents. The records on a source document cannot be traced to any other record preceding the said source document.

The pink sheets however carry tallied summaries from other electoral documents. Any quantitative summary on these pink sheets can therefore be traced to and validated by such primary sources as the voters register, the biometric verification records and the ballots in the sealed ballot boxes. Even in ordinary cases, I am told the rules of evidence require anybody who alleges to show proof beyond reasonable doubts to sustain the allegation in court. In such a nationally sensitive case as an election petition, the petitioners, in my view, had a bigger duty to show proof not only beyond reasonable doubts but also beyond unreasonable doubts, that what they were alleging actually did take place. The decision of the petitioners’ lawyers to rely solely on the pink sheet as the Alfa and Omega of proof in such a circumstance still irritates my medulla oblongata.

For example, the number of actual people who voted, and were for that matter issued with ballot papers, can be traced to both the biometric verification records and the ticks on the voters register. The number of people who voted without biometric verification can also be verified by a reconciliation of the biometric verification records with the number of votes cast as per the ballots in the sealed ballot boxes. The two key claims of over-voting and voting without biometric verification can thus be proven without any shred of doubt by reconciling the figures stated on the pink sheets with such primary records as the voters register, the biometric verification records as well as the contents of the sealed ballot boxes.

Nana Konadu should rather be asking Lawyer Addison and his team why they chose not to use this simple but powerful tool of reconciling the pink sheet records with the electoral source documents of the affected polling stations to prove beyond Atuguba’s doubts that there were indeed voting without biometric verification and over-voting at the alleged polling stations.

Nana Konadu also wondered if the judgment meant we should not care whether the biometric verification equipment are used or not after we had spent a lot of money acquiring them. I want to clarify this for her on behalf of Nana Addo. The answer is no. That is not what the judgment means. The judgment means that if it is NOT PROVEN beyond reasonable doubts that voting took place without biometric verification, the related petition will NOT be upheld. The ruling means that there was available means at the disposal of the petitioners’ lawyers to prove the two most contentious elements of the petition beyond even unreasonable doubts but they woefully failed to do so or rather chose not to do so.

If Nana Konadu should ask another question at all, it should be about why one set of judges would find the evidence on the face of the pink sheet as constituting sufficient proof of the alleged offence of voting without biometric verification whilst another set of judges find it to be inadequate proof. Here again, I will try to help her out with an answer even before she asks.

Accountants have found it necessary to provide a clear rule to guide decisions involving substance and form. I will give my own definition of substance as the reality of a situation whilst form refers what the situation is portrayed to be. The substance and form dichotomy in accountancy can be likened to the concept of the spirit and letter of the law in legal parlance. The rule clearly gives the place of seniority to substance over form in accountancy matters. I don’t know whether in legal matters, there is any such clear hierarchy of seniority in the relationship between the spirit of the law and the letter of the law. Since I am not a lawyer, I can only infer from the different positions taken by different sets of judges that the rules may not be as clear in legal adjudication as they are in accountancy. Judges appear therefore to be at liberty to decide which of the two variables to hinge their decisions on.

Let us take the issue of biometric verification for example. The judges who upheld the petition on voting without biometric verification appear to be “form-oriented” judges who have gone with the letter of the law whilst those who dismissed it can be likened to “substance-oriented” judges who are more attracted to the spirit of the law. If the seniority rules are not as clear in legal decisions as they are in accountancy, then NO ONE can fault any of the judges in the positions they took.

The “form-orientation” says that since you and I were not at the polling station and the presiding officer who was there indicated on the face of the pink sheet that people voted without biometric verification, it is fair to conclude that voting actually took place without biometric verification. Never mind that the lawyers did not see it fit to call even one of the petitioners’ polling agents at the affected polling station to come and testify that there was indeed voting without verification. But that is what “form” gives!

Those who are driven by substance took the view that, if voting did take place without biometric verification, there are available ways in which any record of the incident made on the pink sheet can be proven beyond reasonable doubts. This, as said earlier, can be done by reconciling the number of votes cast at any station with the biometric verification records of the number of people actually verified at the said station. The lawyers on both sides either through sheer incompetence, inadvertence or by dint of manipulative hypocrisy, failed to use the available supporting sources of primary information to prove the validity or otherwise of this claim. Its dismissal by the majority of the judges is premised on their view that the petitioners did not adequately discharge their burden of proof regarding this matter. We therefore have a situation where we have a judgment but we still don’t know whether voting actually took place without biometric verification or not. That is simply the case.

The difference in the decisions of the judges on the two claims of over-voting and biometric verification is simply based on the difference in their opinion as to whether the information on the face of the pink sheets constitutes sufficient proof of the existence of the circumstances portrayed by the pink sheets or not. It is not about whether the incidents actually occurred or not.

If Nana Konadu is still confused after reading this piece, she can contact me at mdorfe@hotmail.com and I will leave Nana Akuffo Addo to enjoy his break by stepping into his shoes to provide her with further and better particulars.

Mathias Dorfe

mdorfe@hotmail.com