A lawyer and former Director of Research, Parliament of Ghana, Kwesi Nyame-Tease Eshun, has filed a writ at the Supreme Court, exposing a serious loophole in the new Public Elections Regulations, 2016 (CI 94), which the Electoral Commission is using to regulate the conduct of this year’s presidential and parliamentary elections.
With the current status of the CI 94, no political party or presidential candidate is entitled to a copy of the 275 collation sheets, which hold the critical evidence whether the votes counted and declared at the 29,000 polling stations are the same as the collated results to be transmitted to the National Collation Centre where the results will be tallied and the winner of the presidential race declared.
Apart from the fact that the candidates and/or their agents are not entitled to a copy of this vital document, there is also no provision for either the Returning Officer or agents to sign and endorse the form.
The writ which was filed on September 27 describes this failure as puzzling, arguing that the collation sheet is “strategic and critical” and it is “the endorsement of the signatures” that will validate the collation sheet “as an authentic record of the election.”
The writ which was heard Wednesday, October 19, 2016, by a seven-member bench, presided over by Justice William Atuguba, appears to expose a disturbing fact that the EC does not intend to keep the process of results collation transparent to candidates and their agents.
The Supreme Court, on October 27, 2016, is expected to rule on a case seeking to compel the EC to allow candidates or their agents to append their signatures on the constituency collation sheet and also be given a copy of it.
“It is contention that it is grossly unreasonable, arbitrary and non-transparent for Regulation 38(3) of CI 94 to require [the EC’s] Presiding Officer at the polling station to furnish the contesting candidates, their representatives or agents, with signed copies of the declaration of results (nor popularly called pink sheets) at the polling station, while not requiring the equally important, if not more strategic, full record of election results in the constituency to the candidates, their agents or representatives at the constituency collation centre,” the petitioner contends.
The petitioner, represented by Akoto Ampaw, reminds the Supreme Court that in the 2013 presidential election petition, even though the collation sheet was shown to be critical, only the EC had exclusive custody of it and denied the plaintiff’s request for all 275, with the court supporting the EC at the time, and as it turned out, under the false impression that all candidates or their agents were entitled to copies of the collation sheet.
“It defies reason and constitutes an absurdity for [the EC] not to make provision for furnishing the candidates or their agents with copies thereof at the constituency collation centre,” the writ states.
In fact, the new law is even silent on agents signing the Summary Sheet, which is usually faxed to Accra with the sum total of votes obtained by presidential candidates at the constituency level.
CI 94 was meant to deal with flaws in the previous law (CI 74), as exposed in the 2013 election petition.
It was recommended by the Electoral Reforms Committee that the Constituency Collation Sheet should be endorsed by agents of the candidates and copies given to them.
However, Regulation 3(1)(m) of CI 94 only directs the Returning Officer at the Constituency Collation Centre “to collate and forward to the Commission the endorsed writ and collated provisional results” and “post a copy at the constituency collation centre.”
The candidates or their agents are completely left out of the process where the collation of the presidential results is concerned. But, Regulation 42 gives detailed directives on what should happen regarding the parliamentary election results at the collation centre and the involvement of “the candidates or the representatives of the candidate or not more than two counting agents appointed by each candidate.”
The writ points out the fact that at the Polling Station all agents, for parliamentary and presidential candidates, are allowed to sign the Statement of Poll, given copies before a copy is posted at the Polling Station, and stresses: “The processes and procedures therefore permit of little legal loophole that may be easily exploited.”
It adds: “From a period of relative transparency, fairness and involvement of the candidates, and/or their agents at the polling station, the election process, to the extent that it relates to the presidential elections, is thrust into a phase of opaqueness with a significantly reduced participation of candidates and/or their agents.”
The writ further points out a lot of confused directives at the constituency collation centre even with the parliamentary results. Unlike the presidential election results where no role of agents are stated, for the parliamentary results, Regulations 42(1)(d) says that the Returning Officer shall “invite the counting agents of the candidates to sign the declaration of result [sic] form and when signed post a copy at the constituency collation centre.”
But, the Schedule section of CI 94 provides samples of all the relevant forms, yet, the ‘declaration of result form’ mentioned here cannot be found anywhere in the Schedule. The confusion is compounded because it is not clear whether it is the collation sheet or the mystery declaration from that must be posted.
According to the writ, for the provisions in CI 94 to promote credible elections, “it is eminently necessary for both the Parliamentary Elections Result Collation Form (Form One EL 23A) and even more so, for the Presidential Elections Result Collation Form (Form One EL 23B) to be furnished to the contesting candidates or their agents. For, armed with Form One EL 23A and Form One EL 23B, contesting candidates will easily and readily have the means of determining by themselves the outcome of the elections and thereby reduce to the minimum the deep suspicion, palpable tension and fear that seize the contestants and the electorate between the close of the poll and the declaration of the results.”
The petitionter is, among other things, asking the apex court of the land to declare as inconsistent with the Constitution and the duties of the EC the Commission’s the “failure to make provision in CI 94 requiring the Returning Officer and the contesting candidates or their representatives or counting agents to sign the Parliamentary Elections Results Collation Form and the Presidential Elections Collation Form.”
Other reliefs being sought are the following:
--A declaration that on a true and proper interpretation of Articles 42, 43,45C and 51 of the constitution, 1992, the function of the 1ST Defendant under Article 45(c) of the constitution, “to conduct and supervise all public elections and referenda” implies a duty to conduct such election in a free, fair, transparent and credible manner”.
--A declaration that, on a true and proper interpretation of Article 51 of the constitution, 1992, the power of the 1st Defendant under Article 51 by constitutional instrument to make regulation for the effective performance of its functions under the constitution or any other law implies a duty to make regulations that promote free, fair, credible and transparent elections.
--A declaration that by the combined effect of Articles 23, 45(c), 51 and 296(a) & (b) of the constitution and the core constitutional values of transparency, accountability and the rule of law (legality), the failure of the 1st Defendant to make mandatory provision in the Public Elections Regulations, 2016 (C.I.94) requiring the returning officer of the 1st Defendant to furnish the contesting parliamentary and presidential candidate, their representatives or counting agents with copies of the Parliamentary Elections-Result Collation Form, Form One E.L.23A, and Presidential Elections-Result Collation Form, Form One E.L.23B, specified in the schedule thereto, is unreasonable unfair, non-transparent and does not promote or secure free and fair elections and is accordingly inconsistent with and in contravention of Articles 23, 45 (c), 51 and 296 (a) & (b) of the constitution and the core constitutional values of transparency, accountability and the rule of law.