Supreme court’s wrong analysis on presiding officers

I have perused the recent Ghana Supreme Court decision on the election

petition and found the reliance by Justices Dotse, Anin-Yeboah, Ansah and

Owusu, on Article 49 of the 1992 Constitution to annul votes at polling

stations where Presiding Officers did not sign the pink sheets, misplaced and

lacking in context. The honorable Justices underappreciated the competing legal

and constitutional issues at stake and missed an opportunity to flesh out

the 1992 Constitution.

Article 49 of the Ghana 1992 Constitution provides as follows: “ (1)At any

public election or referendum, voting shall be by secret ballot. (2)

Immediately after the close of the poll, the presiding officer shall, in the

presence of such of the candidates or their representatives and their polling

agents as are present, proceed to count, at that polling station, the

ballot papers of that station and record the votes cast in favour of each

candidate or question. (3) The presiding officer, the candidates or their

representatives and, in the case of a referendum, the parties contesting or their

agents and the polling agents if any, shall then sign a declaration

stating

(a) the polling station, and (b) the number of votes cast in favour of

each candidate or question,

and the presiding officer shall, there and then, announce the results of

the voting at that polling station before communicating them to the

returning officer.”

The question that readily comes to mind is this: Assume that the Presiding

Officer and all the polling agents signed the pink sheet at a particular

polling station and that the voting was impeccable, but the Presiding

Officer failed to publicly announce the results as required by Article 49, will

Justices Dotse, Anin-Yeboah, Ansah and Owusu annul the results on that basis

and have the elections conducted all over again? Going by their logic,

this should be the case since Article 49 makes it unconstitutional for the

Presiding Officer not to announce the results.

Again, if it can be proven that a Presiding Officer has been bribed not to

sign the pink sheet of a losing candidate, will the honorable Justices

nevertheless rely on a strict reading of Article 49 to annul the votes?

Nowhere in Article 49 or in the entire Constitution is it provided that

votes must be annulled due to non-signature by a Presiding Officer. Yet

these Justices cloaked their decisions in a constitutional imperative as if

they had no choice, but that Article 49 compelled them to annul the votes – a

case of fiat justitia ruat caelum.

Contrary to the reasoning of the learned Justices, not all constitutional

violations lead to a pre-determined result. Since they cited copiously to

other jurisdictions, they could perhaps have addressed themselves to the “

harmless constitutional error” doctrine developed in the US beginning with

the 1967 case of Chapman v. California. The gravamen of the harmless error

doctrine is that the courts will not nullify a decision – even in the face of

a constitutional violation – if the error caused by the violation is

harmless.

If the learned Justices had addressed their minds to this doctrine or

principle, which is also applicable in several constitutional regimes, their

proper attention should have been focused on the effect of the non-signature

of the Presiding Officers, especially as to whether or not, it, in fact,

affected the results of the election. Instead, the constitutionality or

unconstitutionality of the absence of the Presiding Officer’s signature on the

pink sheet became the sole focus without any serious examination of the

larger election context and the constitutional rights of the electorate.

The crux of my argument is that their Lordships spent too much valuable

time analyzing the constitutional duty of Presiding Officers – which was

unnecessary and beside the point. It is readily ascertainable that Article 49,

by using “shall” in context, imposed a constitutional duty on Presiding

Officers to sign the pink sheets. That was trite knowledge that did not

require any deep legal analysis.

The real question which should have detained them – but which

unfortunately, they gave short shrift to – was what should happen if a Presiding

Officer does not sign the pink sheet– a question to which Article 49 and the

Constitution does not provide any answer. Justice Anin-Yeboah’s assertive

gallantry that he was doing his constitutional duty by annulling the votes, is,

with due respect, unsupportable. The decision to annul votes where the

Presiding Officers had not signed the pink sheets, was his and his alone – and

not one mandated by the Constitution or any extrapolative interpretation of

Article 49.

Justice Anin-Yeboah made the following findings: (a) that the Presiding

Officer is a representative of the Electoral Commission; (b) that the

signatures of polling agents and representatives may be dispensed with; (c) that

under C.I. 75 Polling Agents have limited role at polling stations; but more

importantly, that the signature of Presiding Officers are mandatory under

Article 49.

In a very telling language which buttresses my point he goes on to say: “

My constitutional duties would be fulfilled as a judge if I enforce the

constitution. Our judicial oath taken on our appointment as judges enjoins us to

at all times uphold the constitution which is the supreme law as clearly

stated in the second schedule to the 1992 constitution. If Article 49(3)

would work injustice against the citizenry who registered, queued and voted,

it is regrettable that I cannot in upholding the very constitution engage

in any manipulation of language and deny its effect when it has been thrown

to us for the first time ever in the history of this court. I will uphold

the constitution and proceed to give effect to it by annulling the votes

cast which were not, on the face of the pink sheets, signed by the presiding

officer to reflect what actually took place at the various polling stations

involved.

The same analysis goes for Justice Ansah. Relying on Article 49 he states

emphatically that: “I

hold in my concluding comments on this ground, that the failure to sign

the pink sheet was a monumental irregularity unmitigated by any

circumstances. I am further fortified in this view by the observation that in

establishing the duty for presiding officers to sign pink sheets before results of

the polls at the polling station, Article 49 (3) of the Constitution does not

merely constitute a mandatory constitutional duty on presiding officers to

do so prior to announcing the election results, but it is also one of the

entrenched provisions of the Constitution. In the face of the full force of

this entrenched constitutional requirement, I am unable to make any

exception to save the pink sheets impugned by the omission of the presiding

officers on the basis of the explanations offered by the respondents.” Again,

an instance of using Article 49 to annul votes as if that is the only

logical result.

Justice Owusu also commits the same fallacy by treating Article 49 as if

it mandates a specific outcome. She states: “If the presiding officers

failed to sign the pink sheets, that constituted infringement of Article 49 (3)

of the constitution and to me that is fatal. It renders the result declared

null and void.” No, Justice Owusu, an infringement of Article 49 does not

automatically render the results null and void – nowhere is that result

provided for in Article 49 or in the Constitution.

Justice Dotse, follows suit by declaring that: “And 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 Petitioner's agents in signing

the pink sheets that act, cannot clothe the unconstitutional conduct of

presiding officers in not signing the pink sheets with constitutionality.

Justice Dotse, respectfully, also misses the point. The issue is not

whether it is constitutional for the polling agents to sign the pink sheet and

the Presiding Officer not to sign. The proper question is what should flow

from the unconstitutional act of the Presiding Officer in not signing the

pink sheet.

One hopes that in the future, our Justices will better appreciate the

nuances of constitutional interpretation and engage in a more sophisticated

analysis and development of the Constitution than what happened here.

John K. Akpalu, Esq. LL.M.(Harvard)