Written Address Submitted by Tsatsu Tsikata - Part 3

This is the Final Part of the written address submitted by Mr Tsatsu Tsikata, Counsel for the NDC to the Supreme Court. I guess you had a good time reading and digesting the Part 1 and 2 of the address.

I strongly believe that by the time you finish reading the address, you will have no doubt in your mind as to who is speaking the truth. Indeed the bogus case initiated by Nana Akufo-Addo and Co. should not have been entertained in the first place. All the same, since this case has no precedent it will serve as a guide for the country in future.

Let the Lord guide you as you glide through the final pages. Keep the faith and keep smiling!

Yours Truly

MJ

On page 40

Q: But if you use the words which you use directly stated against that column, there will be no allegation of over voting on your part. Will that be correct.

A: It is the figures that go to each candidate not the words.

72. The cavalier approach of the 2nd Petitioner towards the votes of citizens, which makes him eager, for instance, to have votes cancelled because of his dogmatic view that it is figures on the pink sheet that should be taken and not words, is totally at odds with the significance that Your Lordships have given in many cases before this court to the importance of protecting the right to vote of the citizens of Ghana. (See for instance, Tehn-Addy V Attorney-General And Electoral Commission, [1997-98] 1 GLR 47, Apaloo V. Electoral Commission Of Ghana [2001-2002] 1 SCGLR at page 10 and Ahumah-Ocansey V. Electoral Commission and Centre For Human Rights & Civil Liberties (Churcil) V. Attorney-General &Anor. [2010] SCGLR 575.

It is our submission that the testimony of the witnesses of the Respondents expressed a position more in accord with the clear outlook of Your Lordships in these and other cases. Mr. Johnson Asiedu Nketia, who gave evidence for and on behalf of 1st and 3rd Respondents, testified as follows on over-voting: (proceedings of the 23rd day of May, 2013).

On page 28

Q: You have heard 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 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 certify 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 materials 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 stations where such complaints have been lodged besides what were tendered about five or so polling station by the 2nd Petitioner.

73. Regulation 36(2)(a) of C.I.75, (referred to earlier), which indicates that one aspect of the ballot accounting part of the pink sheet that has to do with “the total number of persons entitled to vote at that polling station” is included among the matters that the declaration signed by the Presiding Officer as well as the counting agent is related to, gives weight to the evidence above, corroborated by Dr. Afari-Gyan, that it is where the votes in the ballot box exceed the total number of people entitled to vote at the polling station that there is annulment of votes cast at that station.

On pages 75 to 79 of the transcripts of the proceedings of 23rd May 2013, Mr. Asiedu Nketia also said the following:

Q: You heard that Dr. Bawumia in his evidence said wherever there is

a blank in A1 or a blank in B1, and then they have figures at the bottom, that according to him is over voting. What do you have to say to that.

A: My lord, I disagree with that assertion, indeed I heard him make that assertion that whenever there is a blank, it is equal to 0. My lord, a blank is a blank so the figure there is unknown, it cannot be equal to 0 or any other number, it is an unknown number. So again it strengthens my argument that this is a clerical omission or an error and it tells you if these figures are supposed to have all been entered before counting and they are blank, it tells you that are indeed not entered before counting. But my Lord, again the results have been certified by the polling agents of all the polling stations and there is no indication that the complaint procedure had been invoked. And as far as I can remember, the figures certified for each of the presidential candidates are those that were collated and the declaration was based on them.

He reiterated a number of times that there was no over voting and that the very basis of Petitioners’ allegation to over voting is erroneous.

74. On page 23 of the proceedings of the 29th day of May, 2013he said as follows:-

“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 either with 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.”

75. Dr. Afari-Gyan, testifying on behalf of 2nd Respondent also stated in evidence in chief, that he did not know about an incident of cancellation of result on the basis of over-voting in some polling stations until it was stated in the Petition. He indicated that if his attention had been drawn to it, he would not have cancelled the result. He stated, contrary to the evidence of 2nd Petitioner, that when the votes in the box exceed the issued ballots some checks would have to be done before a decision is taken. On page 35 of the proceedings of the 3rd day of June, 2013 his evidence was as follows:

“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 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 ballots in contention fall within the serial range of the ballots that were allocated to the station. I would also cause are check 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.”

76. The evidence of Dr Afari-Gyan is very instructive and corroborates the evidence given by Johnson Asiedu Nketia for and on behalf of 1st and 3rd Respondent. It shatters the very foundation of the case of Petitioners in making it clear that this is not an issue to be resolved simply and entirely “on the face of the pink sheet”. There are primary sources in relation to ballot accounting matters to which recourse must be had before a decision is taken as to whether it is right to annul votes cast on grounds of over-voting.

Indeed, it is significant that, in the cross-examination of the 2nd Petitioner, he was compelled to concede, on further review of many pink sheets, that there were, for instance, arithmetical errors on some pink sheets and that no over-voting had actually occurred. In a number of instances, 2nd Petitioner admitted that there was actually no over-voting on the pink sheet based on a closer examination.

“ Q: My lords my question is that, is there a basis on this sheet based on which over voting could be ascertained?

A: There is no basis, and this is why I want to refresh my memory to let the court know whether this is been counted, I don’t think so.

Q: My lord, I have here Exhibit MBC 196, there is absolutely no other detail that is discernible from this sheet but was labelled in proof of over voting.

A: This again is the same as what you just showed me and there is no really no basis and that is why I am telling you that I don’t think it is part of our case, which definitely I am sure should be one of those that we have deleted.”(See page 9 of the transcripts of proceedings of 23rd April 2013).

“Q: Can you check on the face of the pink sheet(MBE 205-District Assembly Hall, Adidome)] which was an attachment to your affidavit whether there is overvoting here?

A: No, I don’t see overvoting and I am not sure we are still relying on it.”

(See page 56 of transcripts of the proceedings of the 6th May 2013).

77. In certain cases also 2nd Petitioner admitted, upon calculating figures on the pink sheet himself, that there was actually no over-voting though arithmetically wrong entries had been made. Polling stations which are not appropriately to be regarded as showing over-voting because of such miscalculations are listed in Appendix 7.

In certain other cases 2nd Petitioner admitted that there was no basis to ascertain that there was over-voting. Cases of this situation, including those admitted explicitly by 2nd Petitioner, are listed and attached herewith as Appendix 8 2nd Petitioner admitted certain exhibits not to be proper cases of over-voting because the proxy vote had not been taken into account. During the cross-examination of the 2nd Petitioner by Counsel for the 3rd Respondent, the following exchanges took place:

“Q. I suggest to you that on each of those pink sheets, there is no basis to ascertain whether there is over voting or not?

A: My lords I have examined 74 pink sheets. Of all these 74 pink sheets, two of them are no longer in our classification of over voting. These are numbers 12 and 70. The other 72 are firmly in our category and the basis has been that for almost all of them, if not all of them, the C1 is blank and in fact all of C is blank. So we have a firm basis for classifying them as over voting.” (See page 16 of transcripts of proceedings of 8th May 2013).

Instances of pink sheets where the over-voting allegation is disproved on this ground, including those explicitly admitted by 2nd Petitioner, are listed as Appendix 9 and further exhibits which do not show over-voting are listed as Appendix 10. It is, therefore, again impossible to reach the tally of votes to be annulled alleged by Petitioners when these polling stations, earlier wrongly alleged to have this violation, are taken out.

78. The fact that agents of 1st Petitioner certified the results without complaint is particularly relevant because Regulation 19(3) of C.1. 75 makes it clear that among the key responsibilities of polling agents is the detection of impersonation and multiple voting. There were no complaints by polling agents, as would be expected in any polling station where an attempt was made by anyone to infringe the one man, one vote principle. Rather, according to almost all the pink sheets filed by the Petitioners, their own agents certified the poll as having been “conducted in accordance with the laws and regulations governing the conduct of elections”. This makes it necessary to dismiss the allegations of over-voting in the Petition. Indeed, the evidence about the voting process, including the use of indelible ink as well as the use of the biometric register and the biometric verification device make it absolutely unjustified to make the allegations of over-voting simply based on interpretations of the ballot accounting parts of the pink sheet without regard to the certification of the polling agents of 1st Petitioner as well as agents of other candidates.

L(iv) Voting Without Biometric Verification

79. As part of the process of improving transparency in the election process in Ghana and to eliminate opportunities for multiple voting the 2nd Respondent introduced a biometric registration process through which a new register was created for the 2012 elections. Among steps that the 2nd Respondent had taken in this regard was the procurement of biometric verification devices that would assist in identification of registered voters. Provision was made in C.I. 75 for identification and verification of voters as follows:

“30. (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

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.

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

80. In paragraph 20 of the 2nd Amended Petition, the allegation about voting without biometric registration is stated as one of the particulars of Ground 1 as follows:

“(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.”

81. The affidavit of the 2nd Petitioner states in paragraph 52 that “there were 379 polling stations where exclusive instances of voting without biometric verification occurred and can be found on pink sheets.” In the 2nd Amended Petition the Table of Particulars states 137,112 as the number of votes to be annulled as a result of the exclusive instances of this category while in paragraph 52 the number of votes to be annulled is given as 134,289. As pointed out earlier, the 379 figure does not tally with the statement in paragraph 38 of the same affidavit that “while voting without biometric verification occurred in 2,279 polling stations, in 1891 of these stations… overvoting [sic] took place along with DS, NS and DP.” Based on that statement, the right number should be 388. However, the error may also be in respect of the figures in paragraph 38, especially as in the listing in the KPMG Report of the exhibits corresponding to this paragraph 52 –the L series, data is captured in respect of 382 sheets and the exhibit numbering gets to Exhibit MB-L 378 and there are two Exhibits numbered MB-L 374 which have different polling stations and two exhibits numbered MB-L 147 which also have two different polling stations. The Petitioners have not sought to clear up the matter since it was raised.

82. Apart from paragraph 52, voting without biometric verification features in paragraphs 53 to 55 with other alleged irregularities, violations etc. Appendix 6 hereto, in which polling stations deleted by Petitioners are put in the affidavit categories, lists thirteen exhibits in this series that are among the polling stations that were deleted by the Petitioners during the cross-examination of 2nd Petitioner. In the oral testimony of the 2nd Petitioner he made it abundantly clear that the case of the Petitioners was founded entirely on the pink sheets. At page 25 and 26 of the proceedings of 17th April, 2013, he testified as follows:

“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.”

83. Under cross-examination by Counsel for 1st Respondent, he maintained this position and would not answer direct questions about whether anybody voted whose name was not in the register or whether the polling agents of 1st Petitioner made any complaints that some people voted without biometric verification. See the proceedings of April 24,2013):

“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 complains, we had many complains across the country. But the evidence is on the face of the pink sheet.

Q. You mean you received oral complains 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.

Again,

“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

84. Cross-examined further on pink sheets where the same number in C1 appeared repeated in C3, 2nd Petitioner said;

“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.

Cross-examined by Counsel for 3rd Respondent on whether pink sheets on which one or two voters in the C3column could not represent persons entitled as FOs to vote without going through the device, 2nd Petitioner eventually conceded that this had to be determined by going outside the pink sheet.

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: But on the face of the pink sheet you do admit in these two that I just put to you, on the face of the pink sheet?

A: You don’t make a decision whether to come here and ask for an identification on the face of the pink sheet. In this case we look at the voters register to see if they are actually allowed to vote without verification, how many people in that polling station.

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’s 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 May 2013).

85. The refusal of 2nd Petitioner to acknowledge the responsibilities of polling agents is evidently because of his realization of the damage that the certification of the polling agents of the results and the conduct of the elections does to the case of Petitioners. However, his admission that in order to determine whether or not certain entries made in C3 were correct, one had to resort to the polling station register, is a crucial admission of the fact that “the face of the pink sheet” does not tell the whole story of an election.

86. The witnesses for the Respondents denied that the entries on the pink sheets in respect of C3 were evidence of voting without biometric registration. They insisted that many of those entries were clerical errors. The most decisive testimony in relation to this head of claim was that given by Dr. Afari-Gyan, the Chairman of 2nd Respondent in evidence-in-chief. He stated that the column C1 was not required to be filled in at all by Presiding Officers. According to him, that column was created to take care of those 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.

87. As an election administrator, he thought 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 C3 column was therefore not supposed to be filled.

“….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.”

This account of the origin of the column C3 on the pink sheet was not challenged by any Counsel in cross-examination.

Figures in the C3 column of the pink sheet, such as the same figure in C1 being found in C3, also showed the difficulties that occurred with this column as it was filled in according to how a Presiding Officer interpreted it. 2nd Petitioner who did not fill in the pink sheets was in no position to testify about the understanding of the Presiding Officers which went into filling that part of the pink sheet.

88. It is our submission that on the unchallenged evidence about how this column came to be on the pink sheet, it does not provide a reliable basis for annulling votes of citizens. We rely on the views that Your Lordships have expressed regarding the constitutional right to vote which were earlier referred to in our submissions on over-voting. To disenfranchise citizens on the basis of these problematic entries, especially when the agents of the 1st Petitioner and other candidates have certified the results without complaint, thereby acknowledging that the elections were conducted in accordance with laws governing them would be to do an injustice to the innocent citizens who exercised their constitutional right. In any case the evidence is that the numbers the Petitioners sought to annul on this ground do not hold, especially in the light of admissions in cross-examination that some of the pink sheets exhibited did not support the claims and the deletions of polling stations in the L. M.N and O series. No basis has been established for any new numbers in these categories, especially also in the light of the double counting that is shown in Appendix 4.

M. UNKNOWN POLLING STATIONS

89. In respect of this allegation also it is worth recalling that Petitioners originally claimed there were 28 unknown polling stations. In the end they elected to proceed with 22 such polling stations. In the face of testimony from the 2nd Respondent that shows that the party of the Petitioners appointed polling agents to these polling stations, it is surprising that Petitioners still maintain this claim at all. Exhibit EC3, a letter signed by 1st Petitioner, is among the items of evidence put forward by the 2nd Respondent that conclusively debunks this allegation.

N. SAME POLLING STATION CODE ON DIFFERENT PINK SHEETS

90. This claim also cannot stand in the face of the testimony from 2nd Respondent that: (1) polling stations have been divided into A and B where increases in voter population have warranted such adjustments; and (2) special voting when held at an existing polling station adopts the code of that polling station.

The Petitioners again have not called a single one of the polling agents that represented them and signed the pink sheets in order to enable the court to have the benefit of a person with personal knowledge of the elections at these locations. Petitioners appear transfixed on the idea that the whole election story is to be told from the face of the pink sheet in the face of the obvious reality that 2ndPetitioner was compelled on occasion to admit.

O. OTHER ALLEGATIONS BY PETITIONERS

91. In the course of cross-examination by Counsel for the 2nd Respondent, the 2nd Petitioner admitted that certain allegations that had been made in the Petition could not be sustained, specifically, the allegations in paragraph 24, of votes of the 1st Petitioner being “unlawfully reduced ” while those of the 1st Respondent were “illegally padded”. The allegation had been made at large in paragraph 24 of the 2nd Amended Petition. As a result of the orders of the Court for further and better particulars to be supplied, the Petitioners named three polling stations as those where these allegations could be substantiated but did not pursue the allegations further in respect of two of the three cases after the Answer of the 2nd Respondent. The third case was described by the 2nd Respondent as involving a “transpositional error” at the collation centre with the figure 97 at the polling station being mistakenly transposed as 17. It is ironic that Petitioners, while rightly concerned about these 80 votes, are asking this Honourable Court to annul almost five million votes that have equal claims to constitutional protection.

92. The 2nd Petitioner, under cross-examination also indicated Petitioners were no longer pursuing allegations in their Petition about a company, STL, which Petitioners had alleged was receiving and transmitting election results unjustifiably.

2nd Petitioner also indicated that allegations in a letter dated 9th December 2012 from 3rd Petitioner to the Chairman of the 2nd Respondent in which allegations of fraud, conspiracy between 1st and 2nd Respondents, as well as alteration of results at the collation centres were made were no longer part of their case as they had not found evidence to back them.

93. However, having indicated this position, Counsel for the Petitioners, in the closing stages of his cross-examination of Dr. Afari-Gyan, resurrected one of the claims made in the letter of their Party to the Chairman of 2ndRespondent. It was suggested to Dr. Afari-Gyan that a number of constituencies, including Ledzokuku, did not have accurate tallies of votes. Significantly, Petitioners, at that late stage in the case, still sought to prevail on their Lordships to have collation sheets produced by 2ndRespondent. The application was declined.

94. It is conduct such as the resort to allegations which they have no evidence to back, withdrawal of an allegation and then attempting to go back to that allegation, together with the shifting sands of their case, which provide evidence of bad faith on the part of the Petitioners. By recourse also to a gratuitous allegation of criminal conduct against Dr, Afari-Gyan – causing financial loss – and even an attack on the court-appointed referee, Counsel for the Petitioners has often exceeded reasonable bounds in the conduct of the case. These behaviours, however, cannot be allowed to distract attention from the weakness of the case of the Petitioners.

P. CONCLUDING SUBMISSIONS

95. We respectfully commend to Your Lordships the following words of Lord Hoffman in the House of Lords in the case of Re B [2008] UKHL 3:

“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.”

96. In this case the Petitioners have not even crossed the threshold of discharging the evidential burden. As a result of their inability to produce material that they claimed they were supplying as evidence and because of the confused state of the material they supplied, a value of 0 is the necessary outcome for the Petitioners.

Their claims have been founded on the false premise that by a desk analysis of pink sheets (not even covering all 26,002 polling stations of the country but limited initially to a maximum of 24,000 polling stations and selectively focusing on what could yield the pre-ordained intended outcome of the Petitioners), as distinct from the living reality of the election, the votes of almost 5 million Ghanaians should not be allowed to count. This is the flawed perspective to which Petitioners have doggedly clung.

This Honourable Court that administers justice emanating from the people under a Constitution that is rooted in the sovereignty of the people cannot accede to such perspectives.

97. We finally and respectfully commend to Your Lordships three judicial decisions -one of the erstwhile Court of Appeal under the 1969 Constitution of Ghana, another, fairly recently, of the Canadian Supreme Court and the last, very recently, of the Supreme Court of Kenya.

In Re: Election of First President –Appiah v. Attorney-General [1970], reported at pp. 1423 – 1436 of A Sourcebook of Constitutional Law of Ghana, a case in which the election of the late Edward Akufo-Addo as the President-elect of the second Republic of Ghana was challenged by a lawyer, Joe Appiah, the Court of Appeal dismissed the petition, Bannerman, Ag CJ in his judgment relying on the following passage in the English case of Medhurst v. Lough &Casquet (1901) 17 TLR 210, where Kennedy, J, at p. 230 said:

‘An election ought not to be held void by reason of transgressions of the law committed without any corrupt motive by the returning officer or his subordinate in the conduct of the election where the court is satisfied that the election was, notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election, that is, the success of the one candidate over the other was not and could not have been affected by those transgressions.’

98. In the Canadian case of Opitz v. Wrzesnewskyj 2012 SCC 55-2012-10-256, the Canadian Supreme Court made the following significant observations:

“The practical realities of election administration are such that imperfections in the conduct of elections are inevitable….A federal election is only possible with the work of thousands of Canadians who are hired across the country for a period of a few days or, in many cases, a single 14-hour day. These workers perform many detailed tasks under difficult conditions. They are required to apply multiple rules in a setting that is unfamiliar. Because elections are not everyday occurrences, it is difficult to see how workers could get practical on-the-job experience... The current system of electoral administration in Canada is not designed to achieve perfection, but to come as close to the ideal of enfranchising all entitled voters as possible. Since the system and the Act are not designed for certainty alone, courts cannot demand perfect certainty. Rather, courts must be concerned with the integrity of the electoral system. This overarching concern informs our interpretation of the phrase “irregularities …that affected the result.” (Rothstein and Moldaver JJ).

99. Finally, the Kenyan Supreme Court Case of Raila Odinga v. Uhuru Kenyatta [2013] at paragraphs 303, 304, 306 and 307 of its Judgment:

‘[303]… by no means can the conduct of this election be said to have been perfect…

[304] Did the Petitioner clearly and decisively show that the conduct of the election to have been so devoid of merits, and so distorted, as not to reflect the expression of the people’s electoral intent? It is this broad test that should guide us in this kind of case, in deciding whether we should disturb the outcome of the Presidential election.

[306] … In summary, the evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such.

[307] We will, therefore, disallow the Petition, and uphold the Presidential election results as declared by IEBC on 9th March, 2013.’ (Willy Mutunga C.J).

100. Our case is a fortiori the above cases as there is, here, no evidence of transgressions of the law by any voter, but simply some administrative errors in entries in the filling of forms. No credible evidence of violations of substantive rules regarding the conduct of voting has been provided to Your Lordships. We respectfully ask this Honourable Court to dismiss the Petition and uphold the declaration made by the Chairman of the Electoral Commission on 9th December 2012.

RESPECTFULLY SUBMITTED.

…………….……………………………………..

SAMUEL CODJOE

SOLICITOR FOR 3RD RESPONDENT

The Registrar

Supreme Court

Accra

And to the:

Petitioners or their Solicitors, Akufo-Addo, Prempeh & Co., 167 Kojo Thompson Road, Adabraka, Accra.

1st Respondent or his solicitors, Lithur Brew & Company, No. 110B Kade Avenue, Kanda Estates, Accra.

2nd Respondent or its solicitors, Lynes Quashie-Idun & Co., Kojo Thompson Road, Adabraka, Accra.