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Opinions Sat, 17 Aug 2013

Written Address Submitted by Lawyers of Mahama - Part 2

We have Part 2 of the written address submitted by Mr Tony Lithur, Counsel for President Mahama to the Supreme Court. I know you really learnt something after reading the Part 1 of the address.

The President’s legal team has a done a wonderful job in tearing the bogus claims by Nana Akufo-Addo and Co. into taters. The team has also exposed the duplicity and the bad faith that drove Akufo-Addo from his house to the courthouse.

Again, digest the Part 2 and let us know your thoughts. Keep the faith and keep smiling till you get the Final Part!

Yours Truly

MJ

49. Sadly for the Petitioners, neither the Presidential Elections Law nor the Public Election Regulations expressly stipulates that a vote cast without going through a biometric verification process as required under sub-regulation 2 of Regulation 30 of the Public Election Regulations must be voided. In the case of the Public Elections Regulations, the only regulation that comes close to providing for the validity of an act done at the polls is Regulation 44 sub0-regulation 2 which provides that: "The non-attendance of the candidate or the polling agent or counting agent of the candidate at the time and place [of elections] shall not invalidate the act or thing done.”

50. In sum, Your Lordships, any such invalidation of votes regularly cast by citizens in accordance with the methods of voting stipulated by law will constitute nullification or impairment of the inalienable right of every citizen to vote guaranteed under article 42 of the Constitution. In other words, a citizen’s vote duly cast can be cancelled only on the basis of the grounds recognized by the statute and regulations governing the conduct of public elections (see for instance section 21 of the Representation of the People Law, 1992).

51. Further, if the object of the law is to conclusively identify prospective voters who are entitled to vote during elections, then it is submitted that undue restriction of the right to vote by legislation would be unconstitutional. That is the ratio of the case Ahumah-Ocansey v Electoral Commission; Centre for Human Rights and Civil Liberties (Church) v Attorney General & Electoral Commission (Consolidated) [2010] SCGLR 575 and Tehn Addy v Electoral Commission [1996-97] SCGLR 589.

OVER-VOTING

52. There is some divergence of opinion between the parties about what constitutes over-voting. Petitioners claim there are three definitions. The first one is the situation in which the ballots in the sealed box exceed the number of registered voters in a particular polling station. That definition is accepted by all the parties. Dr. Afari-Gyan describes that situation as the classic definition of over-voting. That is where the agreement ends.

53. Petitioners define over-voting further to include a situation in which

the ballots in the ballot box exceed ballots issued at the polling station. The third definition is the situation where the issued ballots exceed the number of registered voters. In his testimony during examination-in-chief, Dr. Bawumia stated as follows:

“Can you tell the court what you mean by over voting?

A. Over voting comes in two forms. Essentially we have a principle of one man one vote as we have in the constitution in the laws of Ghana. The two forms of over voting. First, over voting would arise if the total votes in the ballot box as recorded on the face of the pink sheet exceeds the voters register at the polling station as recorded on the face of the pink sheet. Secondly, over voting would arise if the total votes in the ballot box as recorded on the face of the pink sheets exceed the total ballots issued to voters as recorded in Section C1 and C2 including proxy voters. So the total votes in the ballot box if they exceed the number of voters you have given ballot to, to vote, then there is over voting. So if hundred people line up and you issue them 100 ballots, and you count at the end of the day and you find 150 ballots in the ballot box, then you have over voting. I must add that this phenomenon of over voting was one that the 2nd respondent was very emphatic on before the election. The chairman of the 2nd respondent made it very clear and for good reason, that if the ballots are counted at the end of the day and it is found that even one ballot exceeds what was issued by voters verified to vote, the results of that polling station will be cancelled. My lords this was because if that happens, even if you have one ballot above what was issued, then the integrity of the entire voting process at that polling station is compromised. And yet my lords the 2nd respondent not only made this clear but actually put this into practice during the 2012 elections.

54. 1st and 3rd Respondents flatly deny that there is a new specie of over voting within the terms defined by Petitioners. In his testimony when he was being led in evidence, Johnson Asiedu Nketia stated as follows:

Q. You are aware of the various allegations that the petitioners had brought before this court in their petition. And I will take you through them one by one so that you can respond. You are aware that allegations have been made of over voting in this petition?

A. Yes my lords.

Q. What is your response to those allegations as made by the petitioners?

A. My lord I can state that there was nowhere in all the 26,000 polling stations where over voting took place. I am saying this because we have come to know over voting to mean an occurrence where the number of votes found in the ballot box exceed the number of people who are entitled to vote at that polling station. So that clearly is my understanding of over voting and I do not have any indication of this happening in any of the 26,002 polling stations which were involved in the 2012 elections.

Q. You heard the 2nd petitioner also indicate that over voting is where the ballots that are tallied at the end of voting for each candidate where those exceed the number of ballots issued in a polling station?

A. I have heard about it but that was my first time of hearing over voting being defined that way in all my 34 years experience in election in this country.

Q. In respect of the over voting allegation, you also heard the 2nd petitioner testified in relation to pink sheets where no number has been entered in the column about ballots issued at a particular polling station, where no number was present, it was blank. What do you have to say to that?

A. Yes my lords. This must be as a result of some clerical error because ballot papers are issued and then voting takes place, then the box is opened at the close of voting, counting takes place, sorting takes place, the tallies are made and the agents of the parties attest to the results that are obtained, they certified the results that are obtained and my lords I think that if no papers were issued then the election could not have taken place at all. So I think that must be a clerical error and at all material times, there are processes where people who are dissatisfied or parties who are dissatisfied with the outcome can lodge a specific complaint about what they are dissatisfied with on the spot and action is taken subsequently on those complaints. And I am not aware of any polling station where such complaints have been lodged besides what were tendered about five or so polling stations by the 2nd petitioners.”

55. In further evidence-in-chief, the witness testified thus:

Q. Now, when you say that this is what over voting relates to, what is the basis of your claim about what over voting is and so on, what is your basis of that?

A. My lord the electoral laws are known before we go into elections and the procedures, beyond the laws, the procedures are known and the classification of the various incidences and so on, are also known so we have never trained, we have never been trained ourselves and we have never trained any of our party agents to identify a situation where total number of ballots issued at a polling station being less than the number of ballots in the votes to be classified as over voting because if there is any such incidents, there are standard procedures that are used to address it. It is only where the number of votes in the box exceeds the number of people who are entitled to vote, that is where you have over voting and that is what leads to automatic cancellation. My lord, it is entirely possible that when a voter approaches a polling station and he takes the presidential ballot paper, he ends up putting it in the parliamentary ballot paper and vice versa that will lead to a situation where when you open the box you will see that one of the boxes, I mean, the presidential ballot box, you will see that the number of ballots in the box are more than the number of ballots issued. My lord, in any such incident, what you will do is that the first check is, turn all the ballot papers faced down and you identify the stamp and signature behind, you will identify if somebody has managed to put a paper in the ballot box, either a fake ballot paper or anything inside, you will see that that fake ballot paper will not have the stamp and signature of the presiding officer at that station. If it is a presidential ballot that has been put in a parliamentary box, you will see it from the face and you will be able to know from which polling station that paper was issued. So all these things constitute the sorting stage. So when you open the box you don’t just go ahead and do counting and allocation of votes, you actually sort to ensure that the ballots you are dealing with in the box are genuine ballots. If you apply these measures and you still are not able to identify the wrong ballot paper you then go and check from the serial numbers and that is the reason why the serial numbers of the ballot papers issued to the polling stations are entered so that when there is any controversy, you are able to check each ballot paper against the serial number range to find out that this ballot actually emanated from this, was issued from this polling station. So my lord in any situation where there is an apparent excess of ballots in the box over ballots issued, all these things are dealt with during sorting. And the reason why I am insisting that this incident can only be explained by clerical errors is that if indeed any of these things happened, the agents who have been well-trained in this would have detected this and isolated them during the sorting stage and there is no indication anywhere that anybody was [dis]satisfied with the results at the polling station, there is no complaint raised at the polling station and that is why I keep insisting that the tool, two most important tools in the hands of the polling agent is the complaints procedure and then the irregularity form. If there is anything happening at the polling station which you are dissatisfied with. An agent has no control or no power to direct the presiding officer but you have the complaint form and you can indicate your dissatisfaction with his work and that is the only reason why in the training, the agent is trained to monitor the electoral officers to ensure that they are operating and complying with the rules of the game at the polling station.

Q. Now you referred to sorting, now where is the sorting done and how exactly is it done?

A: My lord the sorting is done publicly and openly at the polling station. At the close of poll, the various tables are put together and then you will have a platform for sorting so you will empty all the ballot papers in the box unto the top of the table and that is where the sorting is done so you will sort out, if there is anything…

Q: Now who are involved in this sorting?

A: The sorting is done by the presiding officer and the electoral officials in the full glare of the public and I did indicate that around 5 o’clock, many people who have voted at that polling station will want to come back to know the outcomes, so when it is getting 5 o’clock, already there will be a crowd gathered around the polling station and then the contents of the ballot box are opened and poured on top of a table and the sorting is done and then when rejected ballots are removed the remaining valid ballots are allocated to the various candidates, according to the tallies. And then when everybody is satisfied, polling agents, are satisfied then they are invited by the presiding officer to sign and certify the results.

Q: But where will the polling agents be, when the sorting is being done?

A: My lord, the polling agents must be present and will be observing the sorting. Their duty is not to participate in the sorting because they are not allowed to handle election materials without the permission of the presiding officer but they are allowed to position themselves anywhere they will be able to undertake their duties without interfering in the processes that are going on.

Q. Now you also referred to, after the sorting in public and so on, you referred to the counting and the declaration by the presiding officer. Now in respect of those, again, where are those carried out?

A: My lord, after the sorting, the ballot papers are sorted into the various heaps of the candidates and then the presiding officer does the counting by lifting the ballot papers one at a time and then everybody in the crowd will be counting alongside, so they will count 1, 2, 3, you will get to the end of the tally of a particular candidate, it is known by the pressmen who may happen to be around, it is known by members of the public there and it is known by all the observers that are around, so this is done in the full glare of everybody and so at the end of the counting the various tallies are entered against the names of the candidates and then the presiding officer would invite the polling agents to come and sign so they will sign and then the presiding officer will also sign and then a copy of the results will be given to the agent to be taken to his party.”

56. Johnson Asiedu Nketia’s testimony on the point remained unshaken during cross-examination by Counsel for Petitioners:

“Q. In your evidence you gave a definition of over voting which excludes a situation where if there are 100 ballots issued and it turns out that there are 110 ballots in the ballot box, you exclude that as over voting. Am I right?

A. Yes, you are right.

Q. So in such a situation what will you term it?

A. When such a situation arises, my lord it is an indication that some unidentified material is in the box and there is a procedure of locating that unidentified material during sorting and it is removed and the other valid votes are counted.

Q. Take a look at these pink sheets. Can you tell the court how many pink sheets you have?

A. 10 pink sheets.

Q. Can you identify them by the exhibit numbers?

A. MBW 000002, MBW 000003, MBC 000029, MBC 000023, MBC 000001, MBD 000086, MBC 000005, MBC 000013, MBC 000017 and MBAB 000020.

Q In each of those pink sheets, there were more votes than the ballot issued. Can you check that?

A. The indication on the face of the pink sheet is that MBAB 000020, I see total votes in the box 448 and then the number of ballot issued to voters on the polling station register is 448, and then with all the rest, the number entered as number of ballots issued appears lower than the number of votes in the box and this is a classical example of a situation I will describe on the face as some unidentified material in the box. So these cannot happen and pass on to declaration undetected. So I will say without any fear of contradiction that this can only happen out of clerical errors, entering errors on the pink sheet because if such a situation has arisen, first the presiding officer will turn the ballot paper face down and will try to identify whether there was any ballot without signature and stamp at the polling station and that can be sorted out. The officer can also look at the range of serial numbers and will be able identify which ballot paper was not issued from the station, that can also be sorted out. If there is any situation where a parliamentary ballot has entered the presidential box, that one can also detected and taken out. So such a situation cannot arise without it been detected. So if you see such figures, it is an indication of clerical errors.

Q. The pink sheets you have show clearly that the ballots have been taken out of the ballot box, sorted out and the relevant information entered on the pink sheet. Am I right?

A. Come gain.

Q. I am saying that votes have been sorted out and the relevant information entered on the pink sheet?

A. Yes, sorting happens before declaration but I am insisting that the entries in the ballot account section are wrong, they are clearly wrong because if you look at the declaration, nobody is challenging the validity of the declaration because these votes are sorted and counted out publicly and there is no indication that any polling agent has any problem with the results as declared. And I have demonstrated in my testimony in chief that what happens practically on the ground is that sorting and counting takes place and this is what is of prime importance to all polling agents. The entries in the ballot accounting which do not affect the results are done after counting.

Q. When you say there are unidentified materials in the box, you mean there are extra ballots?

A. They may be extra ballots but they may be other material too.

Q. What is other materials, like what?

A. My lord if I may explain. All the processes of the voting are very transparent and are opened for the polling agents and everybody to observe apart from the thump printing in the booth. So what happens in the booth is opened to only the voter. So it is perfectly possible that somebody can enter the booth with an extra ballot. And mind you, nobody is searched before they go to vote or unless a polling agent raises a suspicion in which case certain forms are filled that will empower the security officers there to do searching. Apart from that people enter the polling booth unsearched. So it entirely possible that in the polling booth, somebody can add another ballot paper or any other material and fold it together with the ballot box and when he comes out and he is dropping it in the box, nobody has any means of knowing that you have folded one papers of you have folded two papers. So it is a regular occurrence at polling stations and that is why electoral measures are designed to deal with such a situation so that after voting, you open box, do the physical counting to ensure that the ballot papers tally with the number issued. If it does not, then you go through the motion like checking the serial numbers on the ballot papers in the box, checking the stamp and signature of the presiding member behind the ballot papers and you will be able to identify the wrong material, take it out and then the other votes are not affected, they are sorted out, counted and declared. That is why every polling station has a stamp with its own number and then the presiding officer has to sign behind every ballot paper. These are the measures that are put in place by our electoral system to take care of any such situation. So after all these things have been done, it is not possible to still have ballot papers which are more than the papers issued because you will then be able to certify that every remaining paper is from the box. So if there are entries that do not convey this and there is no challenge by any polling agent about what has taken place at the polling station, you can only point in the direction of entry errors.

Q. On the face of the pink sheet, a name has been given to what you referred to as unidentified material, is that correct?

A. I have not seen that name.

Q. You just told the court that there were extra votes?

A. I said unidentified material in the box.

Q. The total votes cast at that station?

A. That is the figure written in that column.

Q. So what you referred to as unidentified material is called total votes. Am I right?

A. No my lord

Q. What is it called?

A. Well, there is a count of the material in the box; it may include ballot papers validly issued at the station, it may include other material that did not come from that station, so you need to do the sorting before you are able to identify

Q. It may include anything, what is it called there on the pink sheet?

A. I am saying that there is a column there which indicates total votes in the box and there is an entry there.

Q. So it is called what, why are you afraid to mention it, call it?

A. No, because the basis of this whole argument is that there could be problems with the entries up there. Down here, the total votes in the box is 440.

Q. I am suggesting to you that what you call unidentified material is actually referred to as votes on the pink sheet?

A. My lord I have no problem with the declaration of results. I am talking about a situation they could be unidentified but I am also saying that in this case it is not because if it were that situation, it could have been identified in sorting and removed. So it is the figures that are in the ballot accounting section that has been entered in error.

Q. You have told this court that in your view the only situation of over voting is when the number of votes exceed the number of registered voters?”

57. 2nd Respondent, per Dr. Afari-Gyan on the other hand, stated during his examination-in-chief that, while with the development of new technology it would be useful to look at new definitions of over voting, to the extent that Petitioners’ definitions seek to limit their application solely to the entries made on the pink sheet, he disagreed with them, and for good reason: once wrong entries are made on the pink sheet (a phenomenon that has been demonstrated throughout the trial to have happened), voters would be disenfranchised by reliance on those entries to determine over voting. Below is how he expressed the position during an intervention by the Bench:

“Q. Oh yes my lords the classical definition of over votes is where the ballot cast exceed the number of persons eligible to vote at the polling station or if you like the number of persons on the polling station register that is the classical definition of over voting. Two new definitions have been introduced there is nothing wrong with that but I have problems with this new definitions proposed and the problem I have with both definition is that they limit themselves visibly what is on the face of the pink sheet as I understand the definition.

Q. Definition by?

A. The petitioners of the two definitions of over voting, where the number of ballot exceed issued the number of voters as indicated on the pink sheet that is the definition.

BAFFOE-BONNIE: Dr. all this while we are dealing with the pink sheets in one breath the pink sheet is your reference point so in this case just let’s limit ourselves, I heard you say is an excess votes or something.

WITNESS: I said when you see there will be an excess of votes.

BAFFOE-BONNIE: So it will not be an over voting.

WITNESS: Well you see clear how you call it, this is why I have problem with this definition is that it limits itself exclusively to what is on the face of the pink sheet, what if what is on the face of the pink sheet as we have seen.

DOTSE: Before you proceed you were giving us the problems with the two new definition of over voting. Can you finish the problem associated with the two new definitions?

WITNESS I have a general problem with any definition of over voting that limits itself exclusively to what is on the face of the pink sheet because what is on the face of the pink sheet.

DOTSE: May we have some quietness in the courtroom we want to listen to the witness and no other person that is very crucial.

WITNESS: My lords we have just seen and instance where on the face of the pink sheet the presiding officer said he was given 4 votes whereas in fact upon closes scrutiny he was given 325 votes so any definition of over voting that limits itself suggests to me personally that you are saying so to speak that the face of the pink sheet never is and might be an error on the face of the pink sheet. If there is an error on the face of the pink sheet it can be corrected by reference to the register itself so my problem is that this definition does not make any reference whatsoever to the register which is the based document for the conduct of the elections that is my problem.

DOTSE: Who does the correction you are talking of?

WITNESS: Well if I were to read this document that one that said 4 and has given the serial range suggest that he has been given 325 and has actually conducted an election involving 198 people then I would be incline to take the 325 as the correct representation and not the 4.

BAFFOE-BONNIE: In that case the correction is done by recourse to other figures on the pink sheet which you say can also be wrong, but in the other case what you are saying is that you have to make means that for example the accounting information: what is the number of ballot issued to voters on the polling station register, you see we have a situation where we have the polling station register and we have the question which says the number of people who have been issued with but if you have to make records to the register to find out whether the number voting is actually over and above the number registered then we don’t even make room for people dying or people not voting, on the voters register you may have 100 and we may actually have and as you have rightly aware with your 34 years or so you will realize there is hardly a 100% voting in any situation so if you say that over vote is only when it is above the number of people in the register that is duly something your ……..

WITNESS: Your lordship I have not said over voting is only when I said that was the classical definition now we have adopted a new technology I was going to go on to that and we spent a lot of money in buying that technology and that technology should help us modify our definition of over voting that I am saying, I am making technical point that when you limit it only to what is on the face of the pink sheet then I have a problem with it.”

[Pages 14 to 18 of the proceedings of 3rd June, 2013]

58. Regarding the difficulties of relying on a definition that is limited to the

face of the pink sheet, the witness, during examination-in-chief testified thus:

“Q. You mentioned in your evidence some of the errors that were committed by presiding officers in completion of the pink sheets. Do you have a general comment on that?

A. My general comment will be that the errors must be looked at very closely in order to be able to reveal their true meaning. I must say that at the end of the day, it is the Electoral Commission that appointed these people, these officials and we are prepared to take responsibility for their actions. But errors are to be distinguished from intentional wrong doing. A mistake is something that can be detected and corrected and we all make mistakes. So why we take responsibility for their actions, so that we will keep in mind, may be all of us make one mistake or the other in the course of our work, but I will also hope that the candidates will take responsibility for the agents they appoint…………………………………………

WITNESS: Let me put it in a very short sentence. If I notice on the face of the pink sheet that there appears to be excess votes, I will subject the situation to very close scrutiny before I take firm determination as to what to do.

Q. Where there is an excess of votes in the ballot box in comparison with what is written on the pink sheet as the votes issued to the polling station, what would be your reaction when you see such a pink sheet?

A. As I said just a moment ago, I will subject the situation to very close scrutiny. There are a number of things that will have to be done. I will not assume that the presiding officer had done anything directly or wrongly, I will seek to redo what was supposed to have been done, I will look at the ballot papers to find out whether all of them fall within the serial range of the ballots issued. I have narrated some of these things before that I will go through the things that I mentioned. But I must tell you that, I must do everything possible to make sure that indeed, there are excess votes because we are dealing with not abstract numbers but votes of people who have a constitutional right to take part in the choice of their leaders.”

[Pages 29-33 of the proceedings of 4th June, 2013]

59. In the proceedings quoted above, Mr. Asiedu Nketia tried to demonstrate why the second definition of over voting being introduced by Petitioners was not necessary simply because of the established sorting process, which is designed to, and does eliminate, any foreign or other ballots that may have been introduced to the ballot box before counting. In that respect, sorting becomes an indispensable tool in the hands of any election official and polling agent to prevent over-voting of the kind being suggested by Petitioners.

60. Indeed, Dr. Bawumia under cross-examination by Counsel for 1st Respondent, acknowledged the efficacy of that sorting process when he testified at page 32 of the proceedings of 23rd April, 2013 as follows:

“Q. Do you know how sorting is done at the polling station level. You know they pick the sheet one by one and examine them. Is that correct?

A. Yes my lords

Q. And they sort out the rejected ballots?

A. Yes my lord

Q. And they sort out the spoilt ballots?

A. Yes my lord.

Q. And they take out foreign materials if there is any. Is that correct?

A. What is a foreign material?

Q. The strange ballot that has not been marked?

A. unmarked ballot are in the rejected ballot.

Q. Absolutely?

A. So it is not foreign.

Q. When I say foreign they things that…… let us leave it like that.

Q. All I am saying is that at the end of sorting, every vote that is not a valid vote is taken out before counting is that not correct?

A. It is correct

Q. So that when counting is done, what is entered against the names of the candidate are actually valid votes.

A. That is correct.”

61. It is, therefore, respectfully submitted that this process of sorting described by Johnson Asiedu Nketia and supported by Dr. Afari-Gyan, makes it wholly unnecessary to introduce into our electoral jurisprudence new definitions of over-voting without serious thought to their practical application and consequences in future elections.

62. The introduction of such new definition should not be done, with the greatest respect, by judicial decree or pronouncement, but by a deliberate process initiated by the Electoral Commission after due consideration of its full ramifications, the consequences in terms of cost, and in consultation with all political parties and other stakeholders, in order to build a consensus around the new concept. After all, as the present Petition has demonstrated, elections remain volatile in these parts of the world and consensus, and not imposition by judicial action, remains the safest way to introduce and develop new concepts for enhancement of the electoral process.

62A. Electoral irregularities and malpractices cannot be left to be defined either by the parties to electoral disputes or even by this Court. In a truly democratic society, such irregularities and malpractices are stipulated ex ante in laws duly enacted by the authorities invested with the power to make laws and regulations so that all actors in the democratic process have foreknowledge of what may or may not constitute an infraction. Given that there is no common law basis for contesting an election, the parties to such a contest derive their right to participate in the contest and to contest the outcome such a contest from the legislative scheme put in place by Parliament.

62B. We therefore urge your Lordships to bear these policy considerations in mind in affirming the classic definition of over-voting as the applicable definition in the just ended election.

63.If, on the other hand, Your Lordships take the view that the

definitions are justified, it is respectfully submitted that the basic rules of evidential burden and proof should be strictly applied in determining whether or not, indeed, was there over voting within the meaning of the new definitions. It is further submitted that those rules cannot be applied without reference to what the Chairman of the constitutional body mandated to conduct elections says is the correct method for determining whether or not there is over voting. In that respect, Dr. Afari-Djan’s testimony (as quoted above), about the steps that are traditionally taken by his office to determine whether or not there is over voting, should carry substantial weight.

64.In determining whether or not there was over voting in the

December 2012 election, in terms of Petitioners’ definition, it is important to note that Petitioners have neither challenged the tallied results at the polling stations nor do they challenge the collation of the results at constituency collation centres. Their case, as stated on numerous instances including in the 2nd Amended Petition and also in their oral testimony in court, is limited to the entries made on the voting accounting sections of the pink sheets. The only evidence being relied on by Petitioners in proof of over-voting, therefore, are those entries.

65.The main issue for determination in relation to this head of claim

then is whether or not these entries constitute sufficient proof of over voting based on which one can take the radical and far-reaching step of annulling votes validly cast by ordinary voters in the exercise of a fundamental right granted them under the 1992 Constitution?

66.It is submitted that any determination of the issue should be done against the background of the constitutionally guaranteed right to vote under Article 42 of the Constitution. The Ahoma-Ocansey and Apaloo cases (supra), both have one thing in common: they hold that the right of a qualified citizen to be part of the determination of the choice of government and leader is inalienable. This right cannot be taken away lightly.

67. In order to determine the question of proof, it would be important to take a look at the incidents that give rise to over-voting, and determine whether or not any of them existed at the polling stations that Petitioners allege over voting occurred. This is because over voting does not occur, as it were, in a vacuum. It must have been caused by an incident or event during the election process This question was put to Dr. Afari-Gyan, during his cross-examination by Counsel for 1st Respondent.

Q. What are the usual causes of over voting?

A. In the past ballot stuffing would be a major source but ballot stuffing will be difficult to do under electoral system now. And [by] ballot stuffing I mean a situation where election officials or let me say people who are in charge of elections illegitimately put ballot papers into the ballot box that will be difficult under our circumstances now. So ballot stuffing I would [rule] that out completely. Maybe somebody add some forged ballot paper with he takes to the polling station and manages to slip that into the ballot box, these are instances outside collusion among party people this are the instances that I can think of.

Q. You said we could rule out ballot stuffing in relation to forged ballot papers is there a way to deal with that?

A. Yes two ways to find out it may not most likely have the stamp of the station and secondly it may not fall within the serial range of the ballot papers that are given to the polling station.

Q. At what point are these matters resolved, at what point during the process?

A. The stamping is done as soon as the ballot paper is given to you but if the person was hiding the ballot in his pocket then of course it will not be stamped, so during sorting and counting it is possible to detect and that will be the place where and you see and then of course when you examine if there is an excess, you examine the range you may discover that there is some ballot that does not fall within the serial range of ballot allotted to the polling station.

Q. Did you provide training to the agents of the political parties to go through this process?

A. No we told them that the presiding officer was required to do that if there was excess. Remember that polling agents do not really touch the ballots papers they are not allowed to handle the ballot papers. They stand close proximity to the presiding officer as he does these things, so they cannot touch the papers so we cannot train them to do the sorting but we tell them that these are the kinds of things that ought to be done.

Q. But could the polling station agent request for this exercise to be carried out?

A. Yes.

Q. Did you receive any report from any polling station of at it were foreign material being the subject of any complaint at any polling station?

A. My lords we did not.

Q. You do have a complain procedure in the event if any candidate or his agent had some problem with some aspect of the voting procedure at the polling station. Do you?

A. My lords we do and the law requires that the complain is proven in writing at the polling station either on the surface of the pink sheet or in some written form but it must be done at the polling station.”

[Pages 42 to 46 of the proceedings of 4th June, 2013]

68. It would appear from the above and from other evidence led in court, that there are four ways in which over voting may occur: (a) ballot stuffing; (b) double voting; (c) permitting persons not registered to vote; and (d) introduction of foreign ballots during voting. It is submitted that, in order to discharge their burden of proving that over voting occurred at a particular polling station, Petitioners must lead evidence to show that one or more of these incidents occurred at the affected polling stations, and in respect of which they had complained in prescribed manner. This could be done by affidavit evidence as ordered by the court, or by oral testimony, or indeed by exhibiting for instance an irregularity form duly filled. The polling agent may also have noted a complaint on the pink sheet in which case exhibiting the pink sheet would constitute some evidence of an over voting event. In the case of the classic definition of over voting, there would of course be need to produce the register for the polling station as well. It is against such evidence that any entry on the pink sheet should be viewed for purpose of determining whether or not there was over voting.

69. The burden of proving over voting remains always on the Petitioners, irrespective of the definition of over voting that they seek to prove. It is submitted that the deprivation of a constitutionally guaranteed right to vote cannot be taken lightly, and, therefore, where a party signs declared results of election at a polling station without complaining in prescribed manner, he cannot, merely by pointing at entries on the accounting section of the pink sheets, be taken to have discharged his burden of proving over voting and seek to have annulled votes validly cast.

70. Dr. Afari-Gyan, in expressing his skepticism about the new definitions of over voting proffered by Petitioners gave the reason why he would be wary of a definition, which relies solely on entries made on the pink sheets. In his testimony, he stated the kind of investigation that is required to be undertaken before determining that there is over voting at a particular polling station. The steps he enumerated, though not exhaustive, underscore the need for complaints in prescribed manner to be raised on the spot at the polling station, in order to enable 2nd Respondent to immediately take steps to conduct the thorough investigation required to determine over voting.

71. Recalling the issue about the votes that were allegedly annulled in

some other polling stations, he testified thus:

“Q. Can you recall the reason for the annulments?

A. Yes. The complaint was that the votes in the ballot box exceeded the number of persons verified by a certain number, it differs. In Brekum, I believe it was about 8. In all the other instances I think it was by one.

Q. In situations like that, can you tell the court whether there is a procedure that should be followed?

A. The annulment or you are talking about when there was an excess.

Q. Yes?

A. If they had been reported to us, that would have been a different issue. We would have taken certain steps to ascertain whether in fact those things constitute excess. There are all kinds of things that you [would] do, because we are dealing with a very sensitive situation so you must be sure of what you are doing. It is gone over by the claim one and may be in some places the votes involved are huge. So what do we do to make sure whether it is really gone over by 1. I will first carry out a very careful examination of the pink sheet, that will be the starting point, a very careful analyses of the pink sheet. You have seen that somebody says that I was given 4 ballot papers when in fact he was given 325 and in some cases when you check the difference, there could be a mistake in the addition of the figures. So that is a starting point check whether the pink sheets have been properly executed. In addition to that, as the returning officer, I will recheck whether all the ballots in contention fall within the serial range of the ballots that were allocated to the station. I would also cause a recheck of whether every ballot paper in contention has the validating stamp of the polling station. And because our law says that when you vote, your name must be ticked, I would cause a count

Q. Ticked where?

A. In the register. Your name must be ticked in the register I would cause a count of the ticks in the register and all these things would have to be done before I take a decision on what to do.”

[Pages 35 and 36 of the proceedings of 3rd June, 2013]

72. Johnson Asiedu Nketia in his testimony under cross-examination also expressed the point strongly that there are primary records based upon which one should determine the issue of over voting in the classic sense, and that entries on the pink sheets cannot be relied upon for such determination. He made these points in defending the classic definition of over voting thus:

Q. You have told this court that there is no incidence of what you describe as over votes in the petitioners case?

A. None that has come to my notice.

Q. Can you tell the court how many pink sheets you have in your hand?

A. Five.

Q. Can you identify them by their exhibit numbers?

A. I have MBE 000228, MBE 000007, MBE 000026, MBH 000322 and MBH 000204.

Q. On each of those pink sheets the number of votes cast at the station exceeded the number of registered voters?

A. On the face of the pink sheets, the numbers entered suggest that but this could not have been the case because the primary source of numbers registered at the polling station is the voters register, a copy of which is being held by the polling agents at the polling station. Then there is the number of ballots issued to the station which on this particular sheet is somewhere in the range of 700. My lords, a polling station with 342 will not receive 700 ballot papers. So when you come to the declaration of the results, each and every one of the polling agent have signed and certified, they have raised no complaint about the results as declared. There is no complaint about somebody voting more than once and there is no complaint about anybody voting who was not entitled to vote. And the results that have been declared here are the results that were went to the collation center and these are the results that went into the declaration of the winner of the election. So I would not say that there is over voting in this case when the figures do not make sense.

Q. You will agree with me that those you have in your hands are instances where total votes cast exceeded the number of registered voters at the polling station?

A. My lord the entry in the column for registered voters appears lower than the total votes

Q. So you will agree with me…

A. But I am saying that..

Q. Do you agree with me or you do not agree on the face of the pink sheets?

A. On the face of the pink sheets, yes. But there is a primary record of number of registered voters and that is the voters register, a copy of which every polling agent is holding. So if this had been the case, they would not certify the results as given and there is nobody complaining about the results that have been declared, sorted publicly and then counted and declared. Nobody is complaining about the tally of votes of any of the presidential candidates. And these are the results that went into the final declaration of the winner of the election.

73. Regarding proof in the manner described above, the representatives of all the parties, without exception, admitted that there was no complaint in prescribed manner relating to the occurrence of any of the incidents have would have given rise to over voting. The first was to make such admission was 2nd Respondent, Dr. Bawumia, under cross- examination by Counsel for 1st Respondent.

Q. Are you suggesting that the votes attributed to each candidate were not verified votes?

A. Precisely what we are saying is number of verified voters is not consistent with the number of ballot in the box. Once the total number of votes in the ballot exceeds the total number of verified voters, you have over voting.

Q. At this polling station you had polling agents. You said yes?

A. Yes.

Q. Did you orally make complains to the presiding officer that somebody voted who was not qualified to vote?

A. They signed the sheets which witness the record of the election as it is represented on the sheet so the issue of whether they complain to us is not the issue. The issue is that they said what took place.

Q. I want a yes or no answer. Did you receive any written or oral complaints from your polling agents either to you directly or overall in prescribed form to Electoral Commission that anybody voted at any polling station illegally. Did you?

A. We did not receive any written complaint but the complaint is [unburned] on the pink sheet they witness the pink sheet of over voting.

Q. Now there is a process for complaining against the results that a Polling Agent disagrees with. Is that not correct?

A. There is a process. Yes my lord.

Q. I am suggesting to you that in none of the polling stations in which you alleged any of the following over voting, biometric whatever irregularity you are talking about. None of the polling stations lodged any formal complaint or oral complain against the declared results are sorted counted?

A. Am not aware.

74. Under cross-examination by Counsel for 3rd Respondent, Dr. Bawumia testified repeatedly that there were no complaints in prescribed form from any of the polling agents from the affected polling stations. Indeed he admitted that here were no formal reports of any of the incidents that could have given rise to over voting

“Q. At that polling station was there any report that someone pretended to be someone else in order to vote in that person’s name. Are you aware of any?

A. I am not aware we are only looking at the evidence on the face of the pink sheet.

Q. And on the face of the pink sheet there is no evidence of impersonation. Is there?

A. There is ample evidence of over voting, we are not talking about impersonation we are only talking about over voting.

Q. Did you have any evidence of any attempt of any person to vote more than once at that polling station? Did you have any evidence on that?

A. The evidence is on the face of the pink sheet more than 400 ballot more than what was issued so whether it was carried out by one person or multiple persons you and I were not there.

Q. Is there any evidence on the face of the pink sheet of any person who attempted to vote more than once?

A. No we have not seen specific report about any person who voted more than once, we only have over voting.

Q. Is there any evidence of any person who tried to tamper with the contents of the ballot box?

A. We had seen a report on that on the pink sheet we only have evidence of over voting.

Q. Is there any evidence on the face of the pink sheet of polling staff who did not follow the laid down procedures?

A. For sure you have over voting because laid down procedure could not have been followed.

Q. And your polling agent signed?

A. Attested to the occurrence of all the events recorded on the pink sheet.

Q. Was there any evidence of misconduct provided you by any of your polling agents at that polling station?

A. The only evidence we have we brought to court is the over voting on the face of the pink sheet.

Q. In that polling station was there any evidence that somebody whose name was not on the register had come and been issued a ballot paper. Is there any?

A. We don’t see any information provided on the pink sheet we are only going by the information that is on the pink sheet and it is information which leads to the conclusion of over voting.

Q. Was there any evidence that somebody whose name was not on the register was issued with a ballot paper to vote?

A. There is no evidence specifically on any pink sheet you will not see the question that is to be answered all we know is that there were 10 ballots issued to this polling station and you have 470 votes in the ballot box.

Q. To your knowledge there was no irregularity form or complaint made at that polling station?

A. Not to my knowledge.”

[proceedings of 7th May, 2013]

75. In his examination-in-chief, Johnson Asiedu Nketia, testifying on

behalf of 1st and 3rd Respondents stated as follows:

Q: Now they are saying that there was a flagrant breach of fundamental, constitutional, principle of universal adult suffrage to which one man one vote that is what you need to know?

A: My lord, there was no opportunity for anybody whose name was not on the register to vote; there was no opportunity for any voter to cast more than one vote.

Q: Why do say that there was no opportunity for any voter to cast more than on vote?

A: My lord the basis of a clean free and fair election is a credible voters register and throughout our electoral history under this Fourth Republican Constitution the 2012 elections register which is a biometric register has been the most accurate register that we have ever had in any elections in this country under the 4th Republican Constitution. So because of the biometric nature it is not possible to have the name of the same individual repeated in the register and because of the verification procedure, it is also not possible for one person to vote more than once and indeed the records show that there is nowhere, where the total number of votes exceeded the number of registered voters.

[Pages 11-12 of the proceedings of 28th May, 2013]

76. Dr. Afari-Gyan testified under cross-examination by Counsel for 1st Respondent as follows:

“Q. Did you receive any report from any polling station of at it were foreign material being the subject of any complaint at any polling station?

A. My lords we did not.

Q. You do have a complain procedure in the event if any candidate or his agent had some problem with some aspect of the voting procedure at the polling station. Do you?

A. My lords we do and the law requires that the complain is proven in writing at the polling station either on the surface of the pink sheet or in some written form but it must be done at the polling station.”

[Pages 42 to 46 of the proceedings of 4th June, 2013]

77. In the absence of the occurrence of any incident at the affected polling stations which would have resulted in over voting, the more probable explanation of the entries made in respect of Column C1 based on which Petitioners allege over voting could only be that they were entered in error. This point was repeatedly made by Johnson Asiedu Nketia in his evidence. At pages 74-81 of the proceedings of 23rd May, 2013, the witness further testified thus:

“Q. Now Mr. Asiedu Nketia…

A: Yes my lord.

Q: You are aware that the Petitioners are claiming that whenever there is…, the 2nd Petitioner, let me restrict myself to the 2nd Petitioner, Dr. Bawumia, who testified on oath before this court, now you are aware that he is saying that in every case where those votes at the bottom of the sheets, or votes tallied, those numbers are in excess of the votes in ‘C1’or even when ‘C1’ is blank, you are aware that what he is asking this court is do is to annul the votes of those people at the polling station?

A. Yes, I am aware of that.

Q: Now what do you have to say to that?

A: My lord, there is absolutely no basis for that claim because it is clear that if there is nothing written there, it means that the figure there is unknown and they are classifying that incident as over voting and I have already explained that over voting does not relate to number of ballot papers issued at the polling station at all. Over voting relates to number of ballots in the box as compared to number of persons entitled to vote at the polling station, that is over voting. All these other things like ballot accounting and so on, they don’t enter or they cannot be classified as over voting at all.

78. Petitioners’ “mantra of you and I were not there” sounds hollow in the face of the fact that 1st Petitioner’s polling agents fully represented him at every single polling station, and in each case signed or attested to the results declared in favour of all the candidates without making any complaints about over voting or any of the incidents that could have occasioned it.

79. The role of the polling and counting agent is well recognized in electoral administration. Under our laws, the term is defined in Section 50(1) of PNDC Law 284 as an agent appointed under an electoral regulation. It gives the same meaning to a “counting agent”. It is not for nothing that Article 49 gives polling agents a central role in ensuring the transparency and authentication of results of elections. The Constitution recognizes the impossibility of having a candidate at every polling station at which elections are being conducted. To solve that problem, it elevates the polling agent into a constitutionally recognized representative of any candidate who partakes in any election.

80.The Electoral Commission under Article 51 has been given the power to enact laws to govern the conduct of election and in the case of polling agents, to provide flesh to the broad outlines contained in Article 49. Regulation 19 of C. I. 75 creates an elaborate process for appointing polling agents for contesting candidates, swears them into office and trains them. The duties of the polling agents are have also received legislative backing at those duties. Upon swearing a polling agent, he is transformed to become the eyes and ears of a candidate at he polling station. Such a person has a duty, not only to his candidate, but also to ensure that electoral officers conduct elections in accordance with the law, and where they do not, there are formal procedures to lodge a complaint. Once complaints are lodged in prescribed form, the Electoral Commission is bound to examine them and make its findings.

81. Over voting assumes the occurrence of a deliberate act, the purpose of which is to undermine the outcome of an election. We invite Your Lordships to note that the Petitioners do not allege that the voters whose votes they seek to annul engaged in any unlawful acts. Petitioners were emphatic when they stated that to their knowledge the voters whose votes they seek to annul did not engage in any unlawful acts. Petitioners further state that their polling agents, who are their representatives did not also give any report of any illegal acts and or omission by the voters.

82. For a polling agent to notice any incident the effect of which would lead to over voting and not complain about it in prescribed manner would be an indictment on that polling agent. If in spite of that the polling agent proceeds to sign the declaration form without any complaint in a prescribed manner the presumption is that nothing untoward happened at that polling station. It attests to the regularity of the elections and the tallied results. To rebut the presumption of regularity emanating from their own agents, Petitioners must lead firm and credible evidence of wrong-doing with the intent to undermine he results of the election.

83. Conversely, it may be argued that any presumption of irregularity

(if at all), raised by the entries in the accounting portion of the pink sheets, is sufficiently rebutted by the signatures of 1st Petitioner’s polling agents without complain, attesting to the validity of the results, thereby shifting the onus back onto Petitioners to lead other evidence in proof of over voting. The inference from the signatures of the polling agents are therefore that the polls were regularly conducted without incident, and that the results declared, were valid.

84.It is submitted that the pink sheets filed by Petitioners as proof of over voting do not constitute such credible evidence or sufficient discharge of their burden to prove over-voting.

85. Ironically, the testimony of Dr. Bawumia under cross-examination

by Counsel for 1st and 3rd Respondent reveal reasons why it would be dangerous to rely only on the entries made on the pink sheet as the sole basis for determining a matter as grave as annulling votes, unless there were complaints in prescribed form about over voting. The cross-examination of Dr. Bawumia on over voting by Counsel for 1st and 3rd Respondents demonstrated the unreliability of the entries made thereon.

86. The first quotation shows how figures were lifted from Column A

at the bottom of the pink sheet and inserted in Column C1, effectively ignoring entries from Column D, representing rejected votes. The rejected votes should have been added to valid votes to obtain total votes in the ballot box. The correct figure that should have been lifted into C1 should have come from Column C at the bottom of the pink sheet.

“Q. Dr., I am going to give you a bundle of pink sheets. I have run them already by your lawyers and I have given them a list. Would you please flip through them and when you do, compare the entries at total valid votes at the bottom with C1. I have a list here which I will tender and I have run the list by my colleague counsel. Your lordships, we are still in the alleged over voting category. Doc, you will notice that on each of those pink sheets the total votes was exactly replicated at C1. Is that correct as an observation?

A: That is not correct my lord.

Q: Do you have one where total valid votes is not being repeated, are they?

A: My lord total valid votes in the box is not repeated at C1.

Q: I said total valid votes that is different from valid votes…

A: No, the total votes in there is 136, 136, yes pretty much.

Q: Pretty much?

A: Yes.

Q: I am suggesting to you that again clearly that was an administrative error.

A: My lords that cannot be the case.

Q: Doc, is that the only reason why there is a difference between votes in the ballot and the C1 is because rejected votes were not added at all in all those cases.

A: No my lords, the C1 is to be filled before you have a filling of the rejected ballots and the total votes so sequentially, it will be wrong. The total votes in the ballot box exceed the ballots issued to voters. You and I were not there. The evidence is on the face of the pink sheet. You cannot read what the mindsets of the presiding officers were.

Q: My lords, I have in my hand a list of the pink sheets that have been submitted and I have given the list to my learned colleagues and they have checked them. Of that list, numbers 16 and 23 have been cancelled. Subject to that I will respectfully like to tender the list.

ADDISON: My lords, we have no objection.

QUASHIE-IDUN: My lords, we have no objection.

TSIKATA: My lords, we also do not have objection to that list being tendered.

BY COURT: List tendered without objection, accepted and marked as Exhibit 4.”

[Pages 3-5 of the proceedings of 24th April, 2013]

87. In the quotation immediately below, a wrong entry of the figure 18 was made in the B Column at the bottom of the pink sheet instead of the figure 17 by D6 representing the aggregate of rejected votes, thereby creating over voting (by Petitioners;’ definition) of 1 vote.

“Q. My lords, Exhibit MBC 75, the name is Apostolic Church, Dzidzokope and the polling station code number is E010401. I am suggesting to you that there is absolutely no over voting by your definition on that polling station. Do you admit that?

A: The total votes recorded in the ballot box should be 747. There is a discrepancy between what is in D6 which is 17 and what is in B here which is 18 so there is no clarity on the rejected ballots. As I said yesterday, however, it should be coming from what is in D6. The number of rejected ballot from the form is recorded as 18 but when you look at section D of the form the total is 17 so if you add that all up, it is 747 on the sheet that is what you should get but actually if you substituted what is in D6 for what is on the rejected ballot section you should get 746.

Q: You have succeeded in confusing me.

BAFFOE-BONNIE: What is the answer?

WITNESS: The answer here on this sheet is that there will not be over voting.

BAFFOE-BONNIE: What is the total in C1?

WITNESS: C1 is 746.

Q: In fact that is under voting, isn’t it?

A: No, C1 is 746, A plus B is also 746.

CROSS-EXAMINATION CONTINUES

Q: So there is no over voting.

A: Yes we are just making as I just said yesterday that the presiding officer filled in for rejected ballots as 18.

Q: That was an error.

A: No, I am just saying that if he had picked from D6 it would have been 17. We are making a judgment here whether is 17 or 18 and this is what I am saying that if I was doing this I would pick from D6 because that is actually was for asked to do.”

[Pages 5-6 of the proceedings of 24th April, 2013]

88. In the next quotation, there were no figures at the rejected section (Section D) of the pink sheet. However, the figure 2 was entered in the B Column at the bottom of the pink sheet.

“Q. The next exhibit is Exhibit MBC202 and the polling station is Pagazaa Islamic Primary School and the polling code is H190101. Now I am suggesting to you Doc, that under D which represents rejected votes, there is no data whatsoever. Is that correct?

A: Yes my lords, D has been left empty but has been filled in as 2 so the total votes in the ballot box is 251. The total ballot issued to voters is 249 and so there is over voting my lords.

Q: You have seen an instance in which total under D6 is not support by any data in D. You have seen one.

A: Well if there is a conflict…

Q: Have you seen one then you can explain. You have seen one at least D6 does not reflect anything from D1 to D5, you have seen one?

A: Yes, this is what I am saying that there is no entry from D1 to D5 and therefore no entry for D6 but the presiding officer has entered 2 as the total number of rejected ballots. This makes the number of votes in the ballot box more than what has been issued. And so it is clearly over voting.

Q: I am suggesting to you that what you say is over voting is clearly an error.

A: I am saying that you are wrong.”

89. The next one presents the rather ridiculous suggestion by the witness that two dashes equal the figure 1 that was written in Column B at the bottom of the pink sheet, thereby creating a situation of over-voting.

“Q: Exhibit MBC44, the name is CMB Shed Nkwantabisa and the polling station code is C062302. Now Doc, I am suggesting to you that there is no over voting on that exhibit.

A: There is over voting.

Q: Now if you look at the D column, there is nothing recorded there as rejected votes. Have you noticed that?

A: There are dashes but the total in D6 is 1 and I am just saying that consistently as I had considered before you pick from D6 and put it into what is in B downstairs so this is exactly what has happened. D6 is 1 and the presiding officer has filled 1 for the total rejected ballot so there is a consistency between the two and this is why we are saying that there is over voting.

Q: Doc, dash, dash is zero, is that not correct?

A: Dash, dash in what I am taking is what as he counted as the total. He is putting dash there, you and I were not there so what he puts in as the total and repeats the same as the total votes there is what I am taking for what is rejected ballot and it is 1 in this case. This is what is in D6. The form says total rejected ballots from D6 above and

Columnist: Jackson, Margaret