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Opinions Fri, 16 Aug 2013

Written Address Submitted by Lawyers of President Mahama

Part I

We published below details of the written address submitted by Mr Tony Lithur, Counsel for President John Mahama and his team to the Supreme Court. This thorough address also seeks to belittle and dismiss the concocted story that was brewed in Akufo-Addo’s residence to deceive Ghanaians. The petition by Nana Akufo-Addo, who can never win elections through the ballot box, may end up being the biggest attempted robbery in Ghana’s political history.

The address has been divided into three parts. This is Part 1. We will roll out Part 2 and the Final Part in due course. Please read the details as much as you can and draw your own conclusions. You will not be the same after you have done reading this address. We ask the Good Lord to richly bless and guide you as you read along!

Yours Truly,

MJ

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA –A.D. 2013

WRIT NO. J1/6/2013

PRESIDENTIAL ELECTION PETITION

IN THE MATTER OF A PETITION CHALLENGING THE VALIDITY OF THE ELECTION OF JOHN DRAMANI MAHAMA AS PRESIDENT OF THE REPUBLIC OF GHANA PURSUANT TO THE PRESIDENTIAL ELECTION HELD ON THE 7TH AND 8TH OF DECEMBER 2012

Article 64 of the 1992 Constitution, 1992; Section 5 of the Presidential Election Act, 1992 (PNDCL 285); and Rule 68 & 68A of the Supreme Court (Amendment) Rule, C.I.74

BETWEEN

1. NANA ADDO DANKWA AKUFO-ADDO PETITIONERS

House No 2 Onyaa Crescent, Nima, Accra

2. DR. MAHAMADU BAWUMIA

House No 10, 6th Estate Road, Kanda Estate Road

Kanda Estates, Accra

3. JAKE OTANKA OBETSEBI –LAMPTEY

24, 4th Circular Road, Cantonments, Accra

AND

1. JOHN DRAMANI MAHAMA RESPONDENTS

2. THE ELECTORAL COMMISSION

3. NATIONAL DEMOCRAIC CONGRESS

CLOSING ARGUMENTS ON BEHALF OF 1ST RESPONDENT

1. By a 2nd Amended Petition filed on February 8, 2013, the Petitioners sued Respondents for the following relief:

(a) A declaration that John Dramani Mahama, the 1st Respondent was not validly elected president of he Republic of Ghana;

(b) A declaration that Nana Addo Dankwah Akufo-Addo, the 1st Petitioner rather was elected President of the Republic of Ghana;

(c) Consequential orders as the court may deem fit.

2. The facts are well stated the Petition and responded to in the Respondents’ respective Answers.

NO PRIOR BIOMETRIC VERIFICATION

3. The Petitioners’ pleadings in respect of this head of claim are found at Paragraph 20 Grounds 1(a) and 1(b) of the 2nd Amended Petition.

“(a) That 2nd Respondent permitted voting to take place in many polling stations across the country without prior biometric verification by the Presiding officers of 2nd Respondent or their assistants, contrary to Regulation 30(2) of C.I. 75.

(b) That the voting in polling stations where voting took place without prior biometric verification were unlawfully taken into account in the declaration of results by 2nd Respondent in the presidential election held on 7th and 8th December 2012.”

4. The nature of proof of this head of claim by Petitioners is found at page 26 of the proceedings of 17th April, 2013.

“Q. Dr. Bawumia how were you able to find out the people who voted without biometric verification?

A. My lords the evidence is on the face of the pink sheet[.] [S]ection C3 of the pink sheet ask[s] the question how many voters voted with the use of form 1C were verified to vote by the use of form 1C and not by the biometric verification device that is filled in section C 3 and so my lords what we did was to aggregate for each polling station where voting without biometric verification took place. We aggregated all the numbers in section C3 and my lords if I may refer to my tables we have a total of 535,723 people who were voted without biometric verification in the polling stations under contention.”

5. 2nd Petitioner also alleged during his testimony that there were several reports on the radio and other media of voters being permitted to vote without prior biometric verification. Having failed to produce in court the alleged report by the media, it is submitted that those allegations should not be taken into consideration in evaluating Petitioners’ claim.

5. The sole source of the proof of allegation of voting without prior biometric verification is therefore the “pink sheets” filed by Petitioners.

BURDEN OF PROOF

6. The law is settled that the party who bears the burden of proof must produce the required evidence of the facts in issue that has the quality of credibility for his claim to succeed. [See sections 10(1) and (2), and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)]. Thus, in Ackah v. Pergah Transport Limited & Others [2010] SCGLR 728, Her Ladyship, Mrs Justice Sophia Adinyira, JSC, succinctly summed up the law, at page 736, as follows:

‘It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail… It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).’

(See also GIHOC REFRIGERATION & HOUSEHOLD v. JEAN HANNA ASSI [2005-2006] SCGLR458, per Sophia Akuffo JSC

6. This Honourable court again in IN RE POKU [DECEASE]; DR. KWAME APPIAH POKU & ORS V KOJO NSAFOAH POKU & ORS v. [2001] SCGLR 162, per Georgina Wood CJ further restated the statutory provisions on the duty of party in a civil suit to discharge the burden of proof when it held as follows :-

“‘It raises the legal question of who bears the burden of persuasion in such civil matters, where the trial of the issues of fact is by affidavit evidence. Who has the onus of proof and what is the degree or standard of proof? Generally speaking, this depends largely on the application, that is, the facts averred and therefore the facts in issue. In the absence of express or statutory provisions to the contrary, the ordinary rules that obtain in civil causes or matters should apply. Generally, the burden of proof is therefore on the party asserting the facts, with the evidential burden shifting as the justice of the case demands. The standard or degree of proof must also necessarily be proof on the preponderance of the probabilities.”

8. Elections petitions have their own dynamic in relation of proof. In the Nigerian election case of Abubakar v. Yar’Adua [2009] All FWLR (Pt. 457)1 SC, the Supreme Court of Nigeria held that the burden is on the Petitioner to prove, not only non-compliance with the electoral law, but also that the non-compliance affected the results of the election.

9. In the same vein, in the Canadian case of Opitz v. Wrzesnewskyj 2012 SCC 55-2012-10-256, the Canadian Supreme Court tersely held, by majority opinion, that:

“An applicant who seeks to annul an election bears the legal burden of proof throughout…”

10. Also, in Col. Dr. Kizza Besigye v. Museveni Yoweri Kaguta & Electoral Commission, Election Petition No. 1 of 2001, the majority of the Ugandan Supreme Court Justices held as follows:

“… the burden of proof in election petitions as in other civil cases is settled. It lies on the Petitioner to prove his case to the satisfaction of the Court. The only controversy surrounds the standard of proof required to satisfy the Court.”

11. It should be noted that, if a legal rule requires a fact to be proved, the court must decide whether or not it happened. In the recent case of Re B [2008] UKHL 3, Lord Hoffman aptly stated the position, using mathematical analogy thus:

“‘If a legal rule requires a fact to be proved (a fact in issue), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carried the burden of proof. If the party who bears the burden of proof fails to discharge it, a value 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.’”

12. The burden therefore lies on Petitioners to prove by credible evidence that indeed people voted at the various polling stations without having undergone biometric verification. It is submitted that proof cannot be limited to pink sheets, but must relate to actual events at the affected polling stations, testified to either orally or by affidavit by persons who were allowed to vote without biometric verification, or persons who were witnesses to such occurrences. This is particularly so since the Respondents have strongly denied this allegation and there are patent clerical errors in the C column of the pink sheet. No such evidence outside of pink sheets was proffered by the Petitioners in support of their claim.

13. Presiding Officers could have provided such proof. It cannot be the case of Petitioners that it would be difficult to obtain such affidavit from a Presiding Officer because when it suited them, they managed to obtain an affidavit (filed on 7th April 2013) from Abdulai Abdul Hamid, a Presiding Officer, alleging that he did not sign a declaration form.

14. Even assuming that Petitioners stated that it would be difficult to obtain any such affidavit, no such excuse could be given in respect of Petitioners’ own polling agents from whom they had obtained the pink sheets based on which they filed the Petition. By his own admission, Dr. Bawumia testified under cross-examination that when he obtained the pink sheets from 1st Petitioner’s polling agents, he did not bother to verify from them the entries made on the pink sheets. Even more glaring is the fact that on none of the pink sheets supplied by petitioners did their polling agents complain in prescribed form that any person was permitted to vote without prior biometric verification. There is not before the court a single affidavit sworn to by any of Petitioner’s own polling agents, attesting to any allegation of any voter being permitted to vote without prior biometric verification.

15. That is not surprising judging from the manner in which, by the 2nd Petitioner’s admission during cross-examination by Mr. Tsikata, Counsel for 3rd Respondent, evidence was gathered for the present Petition. That process had nothing to do with any reported incident at any polling station. It was a desk-bound exercise of trying to find clerical errors on the face of pink sheets Petitioners had retrieved from their polling agents.

16. Dr. Bawumia’s testimony is reproduced below:

“Q. And the task of the committee was to examine the pink sheets and look for what is wrong on the face of the pink sheets?

A. The task was to look to see if there was anything that suggested the election was not properly run on the face of the pink sheet. [emphasis mine]

Q. Were there some lawyers in that committee?

A. No.

Q. So as far as understanding what irregularities and so on, to look for were concerned, you gave the directives as to what to look for, to the members of the committee?

A. One had to understand the pink sheets and of course, we consulted the legal team also to get a sense of what legally will be considered a violation on the face of the pink sheet.

Q. But as head of the committee, you gave the directives to them that this is what we are looking for?

A. Yes I did in consultation with our legal team.

Q. So for instance, in respect of biometric verification you gave the directive that they should go through and wherever there was C3, they should pick out that pink sheet as an irregularity?

A. A lot of these were entered on to the computer and computer was able to select those polling sheets for which we had pink sheets, what the violations were.

Q. But the directive to pick out, whether by computer or by hand, wherever there was something in C3, is that not right?

A. We entered this on to the computer and the computer generated report for where there violations for C3 or C1, as we speak.

Q. So that as soon as a figure popped up in C3, your position was there is an irregularity and then you pick up that pink sheet?

A. That is not correct. If it [is?] in violation of the law, it is in violation of the law then we pick it up as a violation of the law.

17. As a basis for seeking to annul votes cast in exercise of a constitutional right, this was, with respect, both cavalier and perfunctory, if not irresponsible. Clearly, the process of challenging the results of the December 7 and 8, 2012 elections was not based on any prescribed mode for recording incidents of malpractice or challenging results at the point of voting and declaration of results.

18. That leaves as the sole basis of Petitioners’ claim the entries made in column C3 of the ballot accounting portion of the pink sheets submitted by Petitioners. It is the Petitioners’ case that column C3 represented the same details that were captured by 2nd Respondent on voter identification cards that were issued to registrants during the biometric registration, and therefore the provision of that column was intended to capture the number of those who voted with the aid only of their voter ID cards, and who did not undergo prior fingerprint verification. According to Petitioners, any entry made into that column therefore represents the number of persons who voted without prior biometric verification. Petitioners have given no reason as to why 2nd Respondent would provide such a column, if it were indeed illegal to vote without prior biometric verification.

19. One would expect Petitioners to have trained their polling agents to detect and complain in prescribed manner any incident of voting without prior fingerprint verification. According to the unchallenged testimony of Johnson Asiedu Nketia, it was upon the insistence of the representatives of the NPP that the 2nd Respondent came out with the directive “no verification, no vote”. It cannot therefore be the case of Petitioners that their party, the NPP, was unaware of the understanding reached by political parties at IPAC that persons who did not undergo biometric verification should not be allowed to vote, and that they did not train their agents to protest in the prescribed manner in the event there were breaches of the directive.

20. Dr. Bawumia, however, admitted repeatedly under cross-examination that there was no protest or complaint in prescribed form or manner at any of the polling stations at which Petitioners alleged that voting took place without prior biometric verification. Under cross-examination by Counsel for 1st Respondent, he testified thus:

Q. In all the instances that you alleged people voted without biometric verification you are not suggesting for a moment that somebody voted whose name was not in the voting register. Are you?

A. We are suggesting that the face of the pink sheet indicates a number of people who voted without biometric verification.

Q. This is a direct question, you cannot evade it and I am asking you a direct question. Are you alleging that anybody voted who was not qualified to vote?

A. I wasn’t at the polling station so I can only go by what is on the face of the pink sheet.

Q. Did any of your agents tell you that anybody came to vote at any particular station whose name and biometric data was not in the register.

A. We have not received formal complaints, we had many complaints across the country. But the evidence is on the face of the pink sheet.

Q. You mean you received oral complaints from your agents?

A. As I said the evidence is on the face of the pink sheet. The pink sheet tells you how many people at the polling station voted without biometric verification. This is not a complicated matter.

Q. For a moment just move the obsession from the pink sheet. I am asking you that are you saying the report you received was oral[ly] that people whose names were not on the polling register came to vote?

A. We received all sorts of reports, but we only investigated for evidence you can’t just go and bring a case here without evidence and the evidence my lords is on the face of the pink sheet. It is very clear my lords section C3 tells you the number of people who voted without biometric verification.

Q. Can you produce to this court a single instance of complaint lodged, in prescribed form that any single voter in the 2012 election voted when the person’s name has not been verified against his ID Card from the polling register. Can you?

A. The formal complaint is what we are lodging in this court, in this Election Petition and we have sufficient evidence to back that claim.

Q. So you do not have any complaints either from the polling station or the collation center in prescribed form. Do you?

A. The complaint is what we have lodged in this court in this Election Petition.

Q. Yes or No?

A. I do not have a formal complaint.

[Page 36 of the proceedings of 24th April 2013]

21. At page 32 of the proceedings of April 24, 2013, Dr. Bawumia further testified under cross-examination by Counsel for 1st Respondent thus:

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 complaint against the declared results are sorted counted?

A. Am not aware.” [Emphasis added.]

22. Again under cross-examination by Counsel for 3rd Respondent, the following was recorded:

“Q. Now Dr. Bawumia, you would expect if you put somebody there to protect your interest, you will expect that such a person, if he or she saw an unauthorized voter being allowed to vote, you would expect that polling agent to protest on your behalf would you not?

A: One would expect but you and I were not there, one does not know what happened at the polling station, the issues that were there so I cannot read.

Q: Now you and I were not there but your polling agents were there?

A: That is right.

Q: And indeed, Dr. Bawumia, is it not the case that you supplied your polling agents with mobile telephones to report anything that was amiss to you at the Headquarters, is that the case or not?

A: Yes and I think there were a lot of mobile phones that polling agents had and as I said...

Q: And the reason you supplied them those mobile phones was so that they will notify you of anything that went amiss at the polling station, is that not right?

ADDISON: My lord, counsel should allow the witness to finish his answer; he always butts in the middle of his answer. Allow him to finish.

A: As I said before, my lords, we have reports across the country from agents and supporters alike about irregularities that were taking place, violations at various polling stations. At the end of the day my lords, we can only rely on the evidence and this is what we have brought to court, the one who conducted this election is the 2nd respondent and even if one candidate does not have a polling agent there, one still expects that the integrity of the electoral process should be maintained.

Q: So Dr. Bawumia, none of the polling agents in any of these polling stations that I have provided you with right now, none of the polling agents there gave you any report of somebody not authorized to vote, who was allowed to vote?

A: Well, me personally I am not aware of that but I am sure reports were going around all over the place. The bottom line is that they only attested to what happened at the polling station.”

[Page 71 of the proceedings of 29 April 2013]

23. Dr Bawumia also confirmed under cross-examination by Counsel for 3rd Respondent, that he was not aware of any complaint raised at any of the collation centres about any person having voted without prior biometric verification.

“Q. Can you read the votes on the pink sheet cast for the respective candidates?

A. WITNESS READS OUT

Q. Those were the votes that were actually declared at that polling station?

A. Yes my lord.

Q. And those votes as in the case of other polling stations, were actually sent to the constituency collation center, were they not?

A. Yes my lords.

Q. And actually happened in the case of all the pink sheets that I have shown you?

A. Yes my lord.

Q. I am suggesting to you that at no collation center in the country, was any issue raised about invalidating results because of biometric verification device issues?

A. That I cannot confirm. I was not at every collation center in the country. But the evidence we have show that voting without biometric verification did take place and this is why we are bringing it before this court for redress because it is in contravention of the law.

Q. Were you at any collation center at all, yourself?

A. No I was not at any collation center.

Q. But of course, you expect that your agent representing you at the collation center would also raise any issue that would affect the results to be declared?

A. Yes if they were aware.

Q. And you are aware that those at the polling station and the collation center level, there are appropriate forms [for] expressing a protest?

A. Yes my lords.

Q. And I believe that the process is that from the collation centers, results are then sent to the Headquarters of the 2nd respondent. Is that your understanding also?

A. Yes my lord.

Q. And at the headquarters of the 2nd respondent, your party had representatives as the results were being sent to the headquarters. Is that correct?

A. Yes my lord.

[Pages 14 and 15 of Proceedings of 30th April, 2013]

24. In the face of consistent absence of any proof of complaint in prescribed manner at any level of the electoral system of the irregularity alleged, it is submitted that the entries in C3 could not by themselves form a sound basis for annulling votes cast by eligible voters.

25. It is further submitted that the testimony of 2nd Petitioner under cross-examination by both Counsel for the 1st and 3rd Respondents shows that in a substantial number of cases, the so-called evidence on the face of the pink sheet was, at best, confusing. 2nd Petitioner himself admitted under cross-examination by Counsel for 1st Respondent that he had not received any report that an entire polling station recorded 100% failure to undergo biometric verification. And yet, pink sheets were shown to him which contain lists of pink sheets on which the same figures that appear in column C3 also appear in Column C1.

“Q. I am suggesting to you that nobody in the 2012 election [voted] whose name and identity has not been checked through the biometric verification?

A. My lords I was not at those polling stations all we can say is on the face of the pink sheet this number of people voted without biometric verification.

“Q. Before the election presumably every polling station had biometric fingerprint verification machine. At least in every polling station?

A. Yes those that worked.

Q. I believe the hullaballoo started when it was discovered that some of the verification devices were not functioning properly?

A. I think the hullaballoo started when the machine was not functioning properly and 1st Respondent asked that contrary to the law people should be allowed to vote without biometric verification.

Q. In fact I am suggesting to you that 1st Respondent answer is the correct statement of the law?

A. And then I have not seen that law.

Q. In fact your political party went up in arms shouting no verification no vote. Is that correct?

A. That was the statement of the 2nd Respondent my lord.

Q. Which you echoed happily?

A. That is the law.

Q. Now as a result of that, polling was adjourned to the next day?

A. In some polling stations, in others like Nadalukalu and other polling stations in those constituencies voting took place without biometric verification.

Q. You mean the whole of the voting took place without biometric verification?

A. What we can ascertain we have as evidence not hearsay is what is on the face of the pink sheet that we have brought to court.

Q. Are you saying that there are polling stations where everybody voted without biometric verification?

A. No I am not saying that. Where there is voting without biometric verification is on the pink sheet my lords that is the evidence we have brought before this court. (emphasis mine)

Q. So you cannot say confidently that there is a single polling station that everybody voted without biometric verification?

ADDISON: My lords again this is a repeated question.”

[Proceedings of 24th April, 2013 at pages 39, 40 and 41]

26. Immediately after this testimony, 2nd Petitioner was confronted with Exhibits 6 and 7, which contain lists of an aggregate of 174 polling stations at which the entries in C1 were repeated in C3. Counsel for 3rd Respondent also, in his cross-examination of 2nd Respondent, introduced two more exhibits such exhibits. If the interpretation given by Petitioners were true, it would mean that every single person at those polling stations voted without prior biometric verification, and yet none of Petitioners’ polling agents raised any complaint in prescribed manner. There was no evidence in support of that.

27. Petitioners’ claim is further undermined by 2nd Petitioner’s admission during cross-examination by Counsel for 3rd Respondent, that in instances where the difference between C1 and C3 was negligible, it could be explained by resort to the “Face Only” (“FO”) data made available to the political parties on the biometric voters register. Identification of voters designated as FOs would be done without biometric fingerprint verification.

Q. ………………………..Your case on that is that in these polling stations, where there is an indication on C3 that one person or two people voted, verified by form C1 but not by the fingerprint verification device, your case is that that is a basis for annulling those votes, that is your case?

A: It is the case my lords of the 2nd respondent. They have said that nobody…

Q: No, no, no, I don’t want to hear about the case of the 2nd respondent, because you are not in a position to give the case of the 2nd respondent. They are there in their own right, I am asking you about your case as one of the petitioners, your case is that those votes in that polling station where one person according to you voted without being verified, those votes should be annulled. Isn’t that your case, is that your case or is that not your case?

A: Yes my lord, you and I were not at the polling station, the vote was organized by the 2nd respondent, the 2nd respondent says nobody voted.

ATUGUBA: Have you understood the question?

WITNESS: Yes my lord.

ATUGUBA: Yes so, is it yes or no?

WITNESS: Yes it is our case that wherever voting without biometric verification took place as inconsistent with the voters register for FOs, those particular votes should be annulled in accordance with the law.

CROSS-EXAMINATION CONTINUES

Q: And you say so even in respect of polling stations where on the face of the pink sheet you are not able to tell this court whether there were people who were FOs or not, on the face of the pink sheet?

A: We don’t make that decision on the face of the pink sheet, we check with the voters register to see if they are actually allowed to vote without verification.

Q: Dr. Bawumia, you have been telling this court persistently that your case is based on the pink sheet?

A: Yes my lords.

Q: But what you are saying now is that in certain situations you also make reference to the biometric register is that correct?

A: Yes my lords.

Q: And your polling agents at each of these polling stations also had available the biometric register?

A: To the extent possible, my lords, I am not quite sure how many had available the biometric register.

Q: So your polling agents before signing any of these sheets that I am putting before you, were in a position to determine, you, as you said, you were not there I was not there certainly but your polling agents were there and they were in a position to determine whether indeed those people were qualified to vote on the register or not, were they not?

A: Well I cannot tell you in what position they were in at the time but the evidence is there.

Q: But if they had the biometric register available to them, they could tell at that polling station, could they not?

A: My lord I am not sure the 2nd respondent says this section was filled in error, that it should never have been filled so this attempt to rationalize why people filled this particular form I am not quite sure because the one who organized the election, the 2nd respondent tells us that this section should not have been filled, it was filled in error, another time it was transposition error, so you and I were not there, so we cannot really read into why people filled this or what they were using in that sense, all we can say is that they voted without biometric verification.

Q: Dr. Bawumia, you and I were not there, but your polling agents were there?

A: Yes my lord.

Q. And your polling agents had a responsibility to verify whether somebody who was not qualified to vote was been allowed to vote. Your polling agents had that responsibility, did they not?

A: My lords our polling agents signed the pink sheets to attest to what actually happened at the polling station.”

[Pages 60-64 of the proceedings of 29th April 2013]

28. This admission completely destroys the fundamental basis of Petitioners’ case. Petitioners’ mantra throughout the case has been that “the evidence is on the face of the pink sheet”. In testifying that, in order to determine whether or not entries made in C3 were FOs, one had to resort to polling station register, Petitioners admit that the face of the pink sheet does not tell all the story. Anyhow, how does one draw the line between one or ten FOs.

29. In evaluating Petitioners’ evidence with regard to prior biometric verification for the purpose of determining whether or not Petitioners had discharged their burden of proof, it is important to state that 1st and 3rd Respondents strongly deny the allegation that people were allowed to vote without undergoing prior biometric verification. Johnson Asiedu Nketia, testifying for and on the joint behalves of 1st and 3rd Respondents stated thus:

“Q You are also aware that there are allegations concerning voting without biometric verification?

A. Yes my lord.

Q. What do you have to say to those allegations?

A. My lord I have not seen any evidence of voters having voted without prior biometric verification anywhere because there is no single complaint anywhere in all the pink sheets that we have perused and analyzed that anybody voted without prior biometric verification and if I must add, before we went into the elections all the political parties agreed with the 2nd respondent that every voter should be verified before they cast their vote. And we did not stop there, we proceeded to anticipate what happens if there is a machine failure and there was a unanimous decision that when a machine malfunctions or fails, those polling stations ought to be supplied with backup machines. In the unlikely event that those back up machines also fail, the election must be postponed. And my lords by afternoon of the first day of voting, there were several complaints about machines malfunctioning in several places throughout the country.

So by the end of the first day, there was an announcement by the 2nd respondent that a review of the situation, they have come to the conclusion that in about 400 polling stations, there was this machine problem and so they declared that election in those polling stations will be continued on the 8th and that new machines will be supplied for us. And as far as I am concerned a count was taken of all those places where there was that problem and it was based on the count that the election was continued in those affected polling stations on the second day. And we did not hear about any machine malfunction again on the second day till the election was collated and declared. And I have not seen any single complaint at any polling station in any prescribed form about anywhere that anybody had voted without prior biometric verification and my lord nobody has come to contest the specific or has made any specific allegation about any individual voting at any of the polling stations without prior biometric verification.”

30. He stuck to this position under cross-examination by Counsel for Petitioners.

“Q. Mr. Asiedu Nketia, in your evidence-in-chief you told the court that the parties agreed that where there was no verification a person cannot vote, NVNV, No Verification No Vote, am I right?

A. Yes my lords.

Q. You also told this court that there was no instance of people voting without verification, am I right?

A. Yes my lords.

Q: You are aware that the Petitioners have led copious evidence where there was no verification before voting on the face of the pink sheet?

A. Yes the Petitioners have referred to entries on the pink sheet to try to convince the court that there were places where voting took place without verification, but I disagree with them.

[Proceedings of May 29, 2013 at page 41]

31. Having been taken through some pink sheets in an unsuccessful attempt by Counsel to demonstrate that C3 represented those who voted without prior biometric verification, the following testimony of Johnson Asiedu Nketia under cross-examination by Counsel for Petitioners was recorded:

“Q. So, therefore, it means that some people were issued with ballots but did not go through verification?

A: My lords, these are all wrong entries. It is clear on the surface of the pink sheets that these are wrong entries.

Q: Can you answer my question?

A: Yes, but these are wrong entries.

Q. On the face of the pink sheet there is a figure there stated that there are some people who did not pass through the verification machine, am I right?

A. Yes my lord but these are wrong entries and I can explain why.

Q: Now these suggest a sample of so many of these pink sheets that are in evidence in this court provided by the Petitioners, you are aware of that?

A: Yes my lords.

Q: Now the agreement of the parties with the 2nd Respondent was that in the event that one extra vote is found or one person does not pass through verification, the results of that polling station will be annulled, am I right?

A: You are wrong my lord, that wasn’t the agreement at IPAC.

Q. That wasn’t the agreement?

A: No my lords.

Q: You heard what the Chairman of the 2nd Respondent said in this regard.

A: I have seen some documents quoting the Chairman as having said that but I didn’t hear him personally.

Q: So until you saw those documents you were not aware of this?

A: No, because that was not part of the agreement and my lord all the agreements were entered into at IPAC and this was not one of them. The agreement was that if the person does not go through prior verification, don’t allow him to vote, that means he is not entitled to receive a ballot paper. We didn’t go any further than that, and that when the machine doesn’t work, we should postpone the elections until a machine that works is supplied.

32. That the polls were adjourned to 8th December in selected polling stations is not in doubt. The reason for the adjournment is also not in doubt. It was precisely to ensure that no voter would be allowed to vote without first undergoing biometric verification. 2nd Petitioner under cross-examination by Counsel for 1st Respondent testified to this.

“Q. Before the election presumably every polling station had biometric fingerprint verification machine. At least in every polling station?

A. Yes those that worked.

Q. I believe the hullaballoo started when it was discovered that some of the verification devices were not functioning properly?

A. I think the hullaballoo started when the machine was not functioning properly and 1st Respondent asked that contrary to the law people should be allowed to vote without biometric verification.

Q. In fact I am suggesting to you that 1st Respondent answer is the correct statement of the law?

A. And then I have not seen that law.

Q. In fact your political party went up in arms shouting no verification no vote. Is that correct?

A. That was the statement of the 2nd Respondent my lord.

Q. Which you echoed happily?

A. That is the law.

Q. Now as a result of that polling was adjourned to the next day?

A. In some polling stations, in others like Nadalukalu and other polling stations in those constituencies voting took place without biometric verification.

[[Pages 40-41 of the proceedings of 24th April 2013]

33. Johnson Asiedu Nketia repeated this piece of evidence during his examination-in-chief as follows:

“Q. You are also aware that there are allegations concerning voting without biometric verification?

A. Yes my lord.

Q. What do you have to say to those allegations?

A. My lord I have not seen any evidence of voters having oted without prior biometric verification anywhere because there is no single complaint anywhere in all the pink sheets that we have perused and analyzed that anybody voted without prior biometric verification and if I must add, before we went into the elections all the political parties agreed with the 2nd respondent that every voter should be verified before they cast their vote. And we did not stop there, we proceeded to anticipate what happens if there is a machine failure and there was a unanimous decision that when a machine malfunctions or fails, those polling stations ought to be supplied with backup machines. In the unlikely event that those back up machines also fail, the election must be postponed. And my lords by afternoon of the first day of voting, there were several complaints about machines malfunctioning in several places throughout the country.

So by the end of the first day, there was an announcement by the 2nd respondent that a review of the situation, they have come to the conclusion that in about 400 polling stations, there was this machine problem and so they declared that election in those polling stations will be continued on the 8th and that new machines will be supplied for us. And as far as I am concerned a count was taken of all those places where there was that problem and it was based on the count that the election was continued in those affected polling stations on the second day. And we did not hear about any machine malfunction again on the second day till the election was collated and declared. And I have not seen any single complaint at any polling station in any prescribed form about anywhere that anybody had voted without prior biometric verification and my lord nobody has come to contest the specific or has made any specific allegation about any individual voting at any of the polling stations without prior biometric verification.

34. It is submitted, that this quote above, taken against the background that no complaints in prescribed or any other manner have been produced in court in support of the allegation of voting without prior biometric verification, within the context of the December 7 and 8 Presidential Elections, the evidence of Respondents to the effect that the entries made in Column C3 were made in error, is the only plausible conclusion that can be arrived at.

35. The most decisive testimony in relation to this head of claim was that given by the Dr. Afari-Gyan, the Chairman of 2nd Respondent when his Counsel led him in evidence-in-chief. He stated that the Column C3 was not required to be filled in at all by Presiding Officers. According to him, that column was created to take care of voters who had been registered by 2nd Respondent during the biometric registration exercise that preceded voting, but whose biometric data had, unfortunately, been lost as a result of some difficulties that 2nd Respondent had encountered.

36. As an election administrator, he was of the view that his duty was to give every such person the chance to cast his ballot. 2nd Respondent therefore devised this facility to allow such persons to vote without going through biometric verification. They would be required to fill in Form 1C before voting. When the idea was mooted to the political parties, they all rejected it. He therefore gave instructions that the Form 1C should not be sent to the polling stations. The witness gave the genesis of the Column C3 thus:

“Q. And is there a relationship between your registration and the voting?

A. Yes there is a relationship because from the registration, we get the number of people who are entitled to vote. …………And we had a very serious problem when we were compiling the provisional voters register. We noticed that some centers showed zero registration, meaning that nobody registered there at all. We also noticed that some areas turn out much fewer voters than we anticipated in both instances, we knew that the situation was not correct. First, because of the daily print outs that had come out throughout. The daily print out will suggest to you that there should be 500 people and yet the machine says nobody registered there when we were doing the compilation. That was a very, very serious problem. And the reason why it is a serious problem is that, as we said earlier on, if you register, we give you a voter ID card on the spot. So here we had a situation where we know from the print out and from the form 1Cs that people had registered in these places, and yet the machine said nobody registered in those places. It is a serious problem because those people would have in their possession valid voter ID card, but because the machine said so, their names would not be in the voters register and therefore, they would not be able to vote. So it was a very serious problem.

Q. Were there any consequences arising from this problem?

A. Before we come to consequences as such, it was the fault of the Electoral Commission, not the fault of the people who tried to register. So we had to do something about it and we tried to do something about. First we searched our data base very closely and we were able to recover some of the lost data, particularly in situations where people have used wrong codes and as a result the people had been thrown to some other place. There was a case in Kumasi where somebody used the wrong code and the people were thrown to Agona Nsaba, we were able to recover them. But try as we did, we could not get all the people. So we decided as a Commission that in order not to disenfranchise the people, we would go back a second time and register those people and the polling stations affected numbered about 400. We went back to those 400 polling stations and did what we call special inclusion. We also allowed people to go to district offices if they were so affected to be put back on the register. We were able to get back nearly 11,000 people and that is considerable, through this exercise. But we knew that we had not been able to catch everybody who had taken part in the original registration. And my lords it is important to relate this because this is the origin of the question C3 on the pink sheet. This is the reason why question C3 was put on the pink sheet and C3 says, how many people have been verified other than by the use of biometric verification machine. C3 was put there in an attempt to take care of those people who through no fault of theirs would have valid voter ID cards in their possession but whose names will not appear on the register and therefore could not vote. But let me add that when we discussed this with the political parties, some of them vehemently said no, that we will not allow any persons to be verified other than by the use of verification machine. I am just explaining why the C3 came there. The parties said no and we could understand that argument that this facility is not given to one person, it is being given to every presiding officer. So you are given this facility to 26,002 and it is possible to abuse it. So we do not want it and we agreed that that facility would not be used. Unfortunately, the forms had already printed, these are offshore items, so we could not take off the C3. And what we said, and we have already said this in an earlier communication, was that we will tell all the presiding officers to leave that space blank because they had already been printed and there was no way that we could take it off. And that explains the origin of C3 on the pink sheet. It was a very serious problem.

[Pages 28-32 of the proceedings of 30th May, 2013]

37. Later at pages 91 to 92 of the proceedings of the same date the witness continued.

“Q. Dr. Afari Gyan could you look at Exhibit MBM 00058, so we got as far as the C3, is the C3 there?

A: Yes my lords, is here. WITNESS READS OUT COURT. That is what it says and I explained earlier on that this was intended to cater for those people whom we have registered earlier and to whom we have given voter ID Cards but whose data we had lost somewhere along the way, yes the data was missing and we have not been able to recover the data entirely that these people because they went through the process they would have at one time the valid voter ID Cards in their possession but because we had lost the data they will not be in the voters register and let me also say that when we discussed with the political parties and they said no, we did not take even the C1 forms to the polling stations.

Q: The 1C?

A: The 1C, the form 1Cs, we did not take the form 1Cs that would have answered that question, we did not even take them to the polling stations. If they had agreed, if the political parties had agreed then we would have, because we have these 1Cs but since they said no, there was no need any longer for us to take those forms to the stations and we didn’t take them to the stations.

Q: Can you take a look at Exhibit EC, I’m sorry…

DOTSE: For the purpose of clarity so how were the presiding officers to fill in that C3 column?

WITNESS: No, we told them that they should put zero because they wouldn’t have even the means, yes to fill.

DOTSE: Was it communicated to them verbally or you wrote to them with copies to all the parties?

WITNESS: Erm, well, I don’t know whether we wrote to them but we did make it part of the training.”

38. What is clear from the testimony is that the use of Form 1C was intended at all times to be the condition precedent to making any entries in column C3. In the absence of any evidence to the effect that those forms were taken to the polling stations against the express instructions of the witness, and that they were indeed utilized, the irresistible conclusion is that any entries made in the column were made in error. This is a clear corroboration of Johnson Asiedu Nketia’s testimony.

39. Dr. Afari-Gyan also explained the difficulties that would arise by relying on the entries made in column C3 in dealing with the situation in which the entries in C1 were the same as those in C3. Under examination-in-chief, he testified thus:

“Q. Dr. Afari Gyan you have in your hand Exhibit EC 5?

A: Yes my lord.

Q: It has a heading, if you could read the heading to us?

A: WITNESS READS EXHIBIT EC 5.

Q: So this is the form 1C you were referring to?

A: Yes my lords if we had agreed with the political parties we would have taken them along.

Q: Now this is form 1C, but first of all, if you could indicate the contents.

A: WITNESS INDICATES CONTENTS OF FORM 1C TO THE COURT

Q: Were copies made available at the polling stations?

A: No, because there was no agreement with the political parties we did not carry these forms to the polling stations.

Q: But this is what would have been used?

A: Yes this is what would have been used if there had been an agreement to ascertain the identity of the prospective voter and allowed the person to vote under the facility called C3, ‘what is the number of ballot issued to voters verified by the use of form 1C and not by the BVD’ but since the political parties did not agree we did not send these forms even to the polling stations.

Q: So if anyone fills that column what would you consider it to be, C3?

A: Well, my first inclination will be to say that it was filled in error.

Q: Now what else would you do in that connection when you were looking at the form?

A: You mean in the C3?

Q: Yes.

A: No, you see, you will have to do an analysis of the form, really, but I said my first inclination will be that it is in error but if you want to find out what it really is, you must do an analysis of the form. You see, this is a document and if you want to get the full meaning of the document, you must read it as a whole. If you just take one line and do this, it becomes difficult to get the meaning of the whole, but I am saying that my first inclination will be because we didn’t send the forms there, so how did the person verify the forms that we did not send there so my first inclination will be to say that it was filled in error. But to see whether it was filled in error or not, you must do a full analysis of the form.

40. At pages 9-14 of the proceedings of 3rd June, 2013, the witness testified further that:

“Q. I would like you to turn to the second exhibit MBL 257 that you looked at earlier; you have already mentioned the polling station name and code I believe?

A. Yes the polling station name is CPD Denkyendua and the code is B062605. The exhibit number is MBL 257.

Q. If you could look at the figures entered in question C1 and C3 by indicating the questions?

A. My lord the figure entered in C1 which reads what is the number of ballots issued to voters on the polling station register, I believe 156 and the same number is entered in C3 which reads what is the number of ballots issued to voters verified by the use of form 1C and not by the use of the Biometric Verification Device so C1 and C3 have the same figure 156.

Q. So can you comment on that?

A. Yes my lord when you see a situation like this, it gives rise to odd situation to explain the oddness of this entry you have to refer to other aspects of the other parts of the form in this particular case when you go to A1 which says what is the number of ballots issued to this polling station the figure there is 225, and if you go to B3 what is the total number of voters eligible to vote at this polling station the figure is 185.

I said the situation is odd because if you add the 156 to the 156 without the calculator I think the answer is 312 and yet the presiding officer says he was given a total of 225 ballots, in fact if you add up the entire column the C column and here I need help, when we added up the 156 and 312 he has in that column also spoilt ballot 3 that makes 315 I believe and yet again he has in the C5 what is the total number of unused ballots it says 69. If you add all those figures interestingly because there is a prompt in C6 that the figure you get there must be the same figure you have in A1, the person has put 225 as the total of C1 + C2 + C3 and all this figures. What the person has done is simply to lift the figure from A1 that is the number of ballots issued to the polling station and placed it to what should have been the total of all those things, so this situation is curious because when you add up that column even those two what you find in C1 and C3 alone you will get a higher figure than the ballots issued to the polling station and the number of persons that are eligible to vote at that station then you begin to wonder.

Interestingly when you go to the results section it says that the total votes in the ballot box was a 156 which is the same as either C1 or C3 I suggest that when this situation happens what it means is that either C1 is in error or C3 is in error. The two of them cannot live together.

BAFFOE-BONNIE: If you take one of the 156 out and you do the additions.

WITNESS: It will almost add up 156 + 3 will be 159 plus 69.

DOTSE: Do you need a calculator.

WITNESS: Yes I need a calculator, you will get 228 which is closer to the 225 but he may have made for example you have to examine this he has put 3 spoilt ballots there so further examination on this sheet will tell you that something is wrong with the entries but the two the point is that the two of them cannot live together. When you see the same figure in C1 ad C6 the two of them cannot live together so what it means in reality if I may continue you have a situation where you have the same figure in C1 the same figure in C3 and the same figure in the total votes column it means one or two thing either all the people were biometrically verified or none of them was biometrically verified. Is an either or situation that is what it means.

Q. If you could continue with the form C3 being there or not on the form?

A. Yes my lords I am suggesting that the two of them cannot live together as I said the other day my inclination would be to say that the C3 is the one that should give way and the reason is that 1. Every polling station was supplied with the biometric verification machine and secondly the officers were instructed not to take the Form 1C to the polling stations when they could not get the agreement with the political parties that people would be verified by the use of form 1C. I think also that the way to verify to settle this is an either or situation will be by recourse to the biometric verification device.

BAFFOE-BONNIE: Dr. I still have a problem with this if this paper has been put in to indicate that some people in the polling station voted without biometric verification, you are trying to explain that situation by this either or situation but you have not been able to really explained why if it is put in as a situation of over voting, we still don’t get your answer to that.

WITNESS: No that is a different issue altogether but I am explaining here, you have the same figure occurring three times.

BAFFOE-BONNIE: I understand so that one you are saying that it is possible that the C3 only shows that they lifted it from C1, it is possible so there was either the situation where they all voted without biometric verification or they all voted with the biometric verification. I want to find out because if you take the 156 out as you rightly said the 228 that is over the number of votes that was supposed to have been found in there.

WITNESS: My lord we will come to the over voting. I am saying that if you are certified that no other errors have been committed there will be an excess of votes. The point that I am making for the time being is that when you have this figure occurring three times in C1 and C3 as the total votes it means either all the persons were verified or none of them were verified as to the over votes there will be an excess I think I am not too clear in my own mind what the connotation of over voting is so at this time I think it is subject to further clarification.”

[Pages 9-14 of the proceedings of 3rd June 2013]

41. There are other pieces of evidence, which make the entries in C3 unreliable for purposes of determining whether or not they represent those who voted without prior biometric verification. For instance, under cross-examination of 2nd Petitioner by Counsel for 3rd Respondent, he admitted that an entry in C3 did not quite make sense.

Q. `Now I would like you to look at this single pink sheet in respect of the Akweinor polling station Exhibit MBN 41 and the polling station’s code is E021603. Now if you look at that exhibit, what do you find in C1?

A: 333.

Q: And what do you find in C3?

A: I think 338.

Q: It is 338, is it not?

A: Yes my lords.

Q: And you would agree that that does not make sense?

A: Yes, we were both not there, but it does not make sense.

[Page 74 of the proceedings of 29th April, 2013]

42. In the light of the above, and bearing in mind that the only evidential base of the Petitioners’ claim of absence of prior biometric verification, is what is “on the face of the pink sheets”, as well as the lack of any evidence about any complaint lodged by 1st Petitioner’s polling agents in prescribed form, it cannot be said that Petitioners have discharged the burden of proving that indeed there were irregularities in the nature alleged.

43. In the circumstances we invite the Court to hold, in support of the Respondents’ defence, that, in terms of the Petition filed by Petitioners, no person voted without having undergone prior biometric verification; and that the details on the pink sheet of entries in C3 column cannot constitute proof in the face of the strong denial by Respondents that persons voted without prior biometric verification.

44. If Your Lordships, however, take the view that indeed people voted without biometric verification, it is the case of the 1st Respondent as contained in Paragraph 16(c)(i) and 16(c)(ii) that under C.I. 75, fingerprint verification was not the only permissible means of verification under the law. Therefore failure to undergo fingerprint verification before voting did not constitute an infringement of the law. Anyhow, the fundamental right to vote under the Constitution could not be whittled away by subsidiary legislation. To the extent that any legislation seeks to do that, same would be unenforceable.

45. It is 1st Respondent’s case that Regulation 30(1) clearly does not make fingerprint verification the sole mode of confirming that a person is duly registered to vote and that his name appears on the voters register. The section provides as follows:

“(1) A presiding officer may, before delivering a ballot paper to a person who is to vote at the election, require the person to produce:

(a) a voter identification card or

(b) any other evidence determined by the Commission to establish by fingerprint or facial recognition that the person is the registered voter whose name and voter identification number particulars appear in the register.

(2) The voter shall go through a biometric verification process.”

46. It is submitted that the use of the word “or” in sub-regulation (b) clearly shows that fingerprint verification is not the only mode of identifying voters. Indeed the existence of FOs on the biometric register is a clear proof of the position of the law. Indeed, Dr. Afari Gyan himself seem to suggest during cross-examination that the presiding officer has a residual discretionary power once a person has been identified to waive fingerprint verification. It is submitted that this is in accord with the letter and spirit of the law and the Constitution.

47. The process contained in the legislation envisages a two-step procedure. The first is the presentation of a voter identification card. The second is the presentation by the voter of “any other evidence determined by the Commission in order to establish by fingerprint or facial recognition that the person is the registered voter whose name and voter identification number and particulars appear in the register”. Thus, the alternative to the production of a voter identification card is the production by the voter of evidence that would enable the Commission or its officers to properly identify the voter for purposes of voting. Such evidence may consist either of the fingerprints of the voter or evidence of facial recognition (e.g. a traveller’s passport or driver’s license). In the former case, the only procedure for producing the fingerprint of the voter is the use of the biometric verification equipment provided by the Commission. Indeed, Regulation 47 of the Public Election Regulations defines biometric verification equipment as “a device provided at a polling station by the Commission for the purpose of establishing by fingerprint the identity of the voter.”

48. Your Lordships, the claim by the Petitioners that there has been a violation of the rules relating to biometric verification is based on an opportunistic reliance on sub-regulation (2) of Regulation 30 which provides that: “(2) The voter shall go through a biometric verification process.” Notwithstanding that this sub-regulation does not define what view from the definition of biometric verification equipment in Regulation 47 that it means the process of verifying the identity of a voter by establishing by fingerprint the identity of the voter.

46. Even if this extrapolation were correct, we submit that within the broader context of our electoral laws, a more expansive notion of biometric verification is necessary in order to give meaning to the right to vote as guaranteed by the Constitution. The restrictive approach being put forth by the Petitioners harbors the potential of nullifying or impairing the right of ordinary citizens who cannot be verified biometrically by fingerprint to vote. For example, persons who are lepers, or have coarse fingers due to farming or other manual labor or double amputees cannot vote by reason of this restrictive meaning of biometric verification.

47. Your Lordships, be that as it may, it is our contention that the requirement to go through biometric verification must be given a purposive meaning within the context of the constitutional right to vote and the electoral laws of the country. A cardinal principle of the interpretation of electoral statutes is that they must be liberally construed in favor of the exercise of the right to vote. Thus, in the specific context of Regulation 30, the interpretative approach being put forth by the Petitioners to the effect that a vote cast without the use of the biometric equipment must be voided not only undermines the right to vote but also renders nugatory the other alternative methods of verification recognized by the law. As we have stated earlier, the regulatory intent is very clear, even from a literal reading of sub-regulation 1 of Regulation 30 that it contemplates these two alternative methods of verification.

48. Assuming, without admitting, that some voters were permitted by electoral officers to vote without fingerprint verification, the critical question is whether their votes should be invalidated as claimed by the Petitioners. Your Lordships, any order invalidating these votes must have its basis in law. In the specific case of voting without biometric verification, the governing statute is the Presidential Elections Law, 1992 (PNDCL 285). Section 6(2) of that Law makes the Public Elections Regulations, 1996 (C.I. 15) as replaced by the Public Elections Regulations, 2012 (C.I. 75) applicable to presidential elections. In essence, the legal basis for invalidating a vote cast for the president at an election can, with the exception of statutes of general application such as those relating to criminal offences, can only be located in these two laws.

Columnist: Jackson, Margaret